EXHIBIT 4.6
ALBERTSON'S, INC.
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
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FORM OF SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF [ ], 2004
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THIS SUPPLEMENTAL INDENTURE No. 1 (this "SUPPLEMENTAL INDENTURE"),
dated as of [_____], 2004, is between ALBERTSON'S, INC., a Delaware corporation
(the "COMPANY"), and U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee (the
"TRUSTEE").
R E C I T A L S
WHEREAS, the Company has heretofore executed and delivered to the
Trustee, as successor trustee an Indenture dated as of May 1, 1992 (the "BASE
INDENTURE" and together with this Supplemental Indenture, the "INDENTURE"),
providing for the issuance from time to time of series of the Company's
Securities (as defined in the Base Indenture);
WHEREAS, Section 901(7) of the Base Indenture provides for the Company
and the Trustee to enter into an indenture supplemental to the Base Indenture to
establish the form or terms of Securities of any series as permitted by Section
301 of the Base Indenture;
WHEREAS, pursuant to Sections 201 or 301 of the Base Indenture, the
Company wishes to provide for the issuance of a new series of Securities to be
known as its [ ] % Senior Notes due February 16, 2009 (the "SENIOR NOTES"), the
form and terms of such Senior Notes and the terms, provisions and conditions
thereof to be set forth as provided in this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and all requirements necessary to make this
Supplemental Indenture a valid, binding and enforceable instrument in accordance
with its terms, and to make the Senior Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid, binding and enforceable
obligations of the Company, have been done and performed, and the execution and
delivery of this Supplemental Indenture has been duly authorized in all
respects.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Relation to Base Indenture. This Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02. Definition Of Terms. For all purposes of this
Supplemental Indenture:
(a) Capitalized terms used herein without definition shall
have the meanings specified in the Base Indenture, or, if not defined
in the Base Indenture, in the Purchase Contract Agreement, the Pledge
Agreement or the Remarketing Agreement, as applicable;
(b) a term defined anywhere in this Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation;
(e) the following terms have the meanings given to them in
this Article 1:
"ACCOUNTING EVENT" means the receipt by the audit committee of the
board of directors of the Company of a written report in accordance with
Statement on Auditing Standards ("SAS") No. 97, "Amendment to SAS No. 50 -
Reports on the Application of Accounting Principles", from the Company's
independent auditors, provided at the request of the management of the Company,
to the effect that, as a result of a change in accounting rules after the date
hereof, the Company must either (i) account for all or any portion of the
Purchase Contracts as derivatives under SFAS 133 (or otherwise xxxx-to-market or
measure at fair value all or any portion of the Purchase Contracts, with changes
appearing in the Company's income statement) or (ii) account for the Units using
the if-converted method under SFAS 128, and that such accounting treatment will
cease to apply upon redemption of the Senior Notes.
"APPLICABLE PRINCIPAL AMOUNT" means the aggregate principal amount of
the Senior Notes that are part of Corporate Units on the Special Event
Redemption Date.
"BUSINESS DAY" shall have the meaning specified in the Purchase
Contract Agreement.
"CORPORATE UNITS" shall have the meaning specified in the Purchase
Contract Agreement.
"COUPON RATE" shall have the meaning set forth in Section 2.05(a).
"DEPOSITARY" means a clearing agency registered under Section 17A of
the Securities Exchange Act of 1934, as amended, that is designated to act as
Depositary for the Corporate Units pursuant to the Purchase Contract Agreement.
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.
"FINAL REMARKETING PRICE" shall have the meaning set forth in Section
8.02(b).
"GLOBAL SENIOR NOTES" shall have the meaning set forth in Section 2.04.
"INTEREST PAYMENT DATE" shall have the meaning set forth in Section
2.05(b).
"MATURITY DATE" shall have the meaning specified in Section 2.02.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the date
hereof among the Company, U.S. Bank Trust National Association, as Collateral
Agent, Custodial Agent and Securities Intermediary, and U.S. Bank Trust National
Association, as Purchase Contract Agent and attorney-in-fact for the Holders of
the Purchase Contracts, as amended from time to time.
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"PURCHASE CONTRACT AGREEMENT" means the Purchase Contract Agreement,
dated as of the date hereof, between the Company and U.S. Bank Trust National
Association, as purchase contract agent, as amended from time to time.
"PURCHASE CONTRACTS" and "PURCHASE CONTRACT" shall have their
respective meanings specified in the Purchase Contract Agreement.
"PURCHASE CONTRACT SETTLEMENT DATE" means May 16, 2007.
"PUT PRICE" shall have the meaning set forth in Section 8.05(a).
"PUT RIGHT" shall have the meaning set forth in Section 8.05(a).
"QUOTATION AGENT" means any primary U.S. government securities dealer
selected by the Company.
"RECORD DATE" means, with respect to any Interest Payment Date for the
Senior Notes, the first Business Day of the calendar month in which such
Interest Payment Date falls; provided that the Company may, at its option,
select any other day as the Record Date for any Interest Payment Date so long as
such Record Date selected is more than one Business Day but less than 60
Business Days prior to such Interest Payment Date.
"REDEMPTION AMOUNT" means, for each Senior Note, the product of the
principal amount of such Senior Note and a fraction, the numerator of which is
the Treasury Portfolio Purchase Price and the denominator of which is the
Applicable Principal Amount.
"REDEMPTION PRICE" means, for each Senior Note, the Redemption Amount
plus any accrued and unpaid interest on such Senior Note to but excluding the
Special Event Redemption Date.
"REMARKETED SENIOR NOTES" shall have the meaning set forth in Section
8.01(c).
"REMARKETING AGENT" shall have the meaning set forth in the Remarketing
Agreement.
"REMARKETING AGREEMENT" means the Remarketing Agreement, dated as of
the date hereof, among the Company, Banc of America Securities LLC and U.S. Bank
Trust National Association, as Purchase Contract Agent, as amended from time to
time.
"REMARKETING PRICE" shall have the meaning set forth in Section
8.02(a).
"RESET EFFECTIVE DATE" means the date three Business Days following the
date of a Successful Remarketing pursuant to which the Coupon Rate is reset to a
Reset Rate.
"RESET RATE" means the interest rate per annum on the Senior Notes (i)
in the case of a Successful Remarketing prior to the Final Remarketing Date, as
determined by the Remarketing Agent as necessary to remarket the Remarketed
Senior Notes at a price per Remarketed Senior Note such that the aggregate price
for the Remarketed Senior Notes is equal to approximately 100.25% (but not less
than 100%) of the sum of the Treasury Portfolio Purchase Price and the
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Separate Senior Notes Purchase Price, and (ii) in the case of a Successful
Remarketing on the Final Remarketing Date, as the rate necessary to remarket the
Remarketed Senior Notes at a price per Remarketed Senior Note such that the
aggregate price for the Remarketed Senior Notes is equal to approximately
100.25% (but not less than 100%) of the aggregate principal amount of the
Remarketed Senior Notes; provided that if there are no Corporate Units
outstanding and none of the Holders elect to have Separate Senior Notes held by
them remarketed, or in the case of a Failed Remarketing, the interest rate
payable on the Senior Notes will not be reset and the interest rate payable on
the Senior Notes shall continue to be the Coupon Rate.
"SEPARATE SENIOR NOTES" means Senior Notes that are no longer a
component of Corporate Units.
"SPECIAL EVENT" shall mean either a Tax Event or an Accounting Event.
"SPECIAL EVENT REDEMPTION" means the redemption of the Senior Notes
pursuant to the terms hereof following the occurrence of a Special Event.
"SPECIAL EVENT REDEMPTION DATE" shall have the meaning set forth in
Section 3.01.
"TAX EVENT" means the receipt by the Company of an opinion of counsel,
rendered by a law firm having a recognized national tax practice, to the effect
that, as a result of any amendment to, change in or announced proposed change in
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative decision, pronouncement, judicial decision or action
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the date hereof, there is more than an insubstantial
increase in the risk that interest payable by the Company on the Senior Notes is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Company, in whole or in part, for United States federal income tax purposes.
"TREASURY PORTFOLIO" means a portfolio of (1) U.S. treasury securities
(or principal or interest strips thereof) that mature on or prior to May 15,
2007 in an aggregate amount at maturity equal to the Applicable Principal
Amount, and (2) (x) in the case of a Successful Remarketing prior to the Final
Remarketing Date, for the scheduled Interest Payment Date on the Purchase
Contract Settlement Date, U.S. treasury securities (or principal or interest
strips thereof) that mature on or prior to May 15, 2007 in an aggregate amount
at maturity equal to the aggregate interest payment (assuming no reset of the
interest rate) that would have been due on the Purchase Contract Settlement Date
on the Applicable Principal Amount, and (y) in the case of a Special Event
Redemption, for each scheduled Interest Payment Date that occurs after the
Special Event Redemption Date to and including the Purchase Contract Settlement
Date, U.S. treasury securities (or principal or interest strips thereof) that
mature on or prior to the business day immediately preceding such scheduled
Interest Payment Date in an aggregate amount equal to the aggregate interest
payment (assuming no reset of the interest rate) that would have been due on
such scheduled Interest Payment Date on the Applicable Principal Amount.
"TREASURY PORTFOLIO PURCHASE PRICE" means the lowest aggregate ask-side
price quoted by a Primary Treasury Dealer to the Quotation Agent between 9:00
a.m. and 11:00 a.m., New
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York City time, (i) in the case of a Special Event Redemption, on the third
Business Day immediately preceding the Special Event Redemption Date for the
purchase of the applicable Treasury Portfolio for settlement on the Special
Event Redemption Date, and (ii) in the case of a Successful Remarketing prior to
the Final Remarketing Date, on the date of such Successful Remarketing for the
purchase of the applicable Treasury Portfolio for settlement on the third
Business Day immediately following the date of such Successful Remarketing.
"TREASURY UNITS" shall have the meaning specified in the Purchase
Contract Agreement.
"UNITS" means either the Corporate Units or the Treasury Units or both
the Corporate Units and Treasury Units.
The terms "COMPANY," "TRUSTEE," "INDENTURE," "BASE INDENTURE" and
"SENIOR NOTES" shall have the respective meanings set forth in the recitals to
this Supplemental Indenture and the paragraph preceding such recitals.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES
Section 2.01. Designation and Principal Amount. There is hereby
authorized a series of Securities designated as [ ]% Senior Notes due 2009
limited in aggregate principal amount $1,000,000,000 (or up to $1,150,000,000 to
the extent that the over-allotment option granted to the Underwriters pursuant
to the Underwriting Agreement is exercised). The Senior Notes may be issued from
time to time upon written order of the Company for the authentication and
delivery of Senior Notes pursuant to Section 303 of the Base Indenture.
Section 2.02. Maturity. Unless a Special Event Redemption occurs prior
to the Maturity Date (defined below), or as provided in Section 8.02, the date
upon which the Senior Notes shall become due and payable at final maturity,
together with any accrued and unpaid interest, is February 16, 2009 (the
"MATURITY DATE").
Section 2.03. Form, Payment and Appointment. Except as provided in
Section 2.04, the Senior Notes shall be issued in fully registered, certificated
form, bearing identical terms. Principal of and interest on the Senior Notes
will be payable, the transfer of such Senior Notes will be registrable, and such
Senior Notes will be exchangeable for Senior Notes of a like aggregate principal
amount bearing identical terms and provisions, at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan, the City of New
York, which shall initially be the Corporate Trust Office of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account appropriately designated by
the Holder entitled to payment.
No service charge shall be made for any registration of transfer or
exchange of the Senior Notes, but the Company may require payment from the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
The Security Registrar and Paying Agent for the Senior Notes shall
initially be the Trustee.
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The Senior Notes shall be issuable in denominations of $1,000 and
integral multiples thereof, except that an interest in a Senior Note held as a
part of a Corporate Unit represents an ownership interest of 1/40th, or 2.5%, of
a Senior Note and will therefore correspond to the stated amount of $25 per
Corporate Unit.
Section 2.04. Global Senior Notes. Senior Notes that are no longer a
component of the Corporate Units and are released from the Collateral Account
(as defined in the Pledge Agreement) will be issued in permanent global form (a
"GLOBAL SENIOR NOTE"), and if issued as one or more Global Senior Notes, the
Depositary shall be The Depository Trust Company or such other depositary as any
officer of the Company may from time to time designate. Upon the creation of
Treasury Units or the recreation of Corporate Units, an appropriate annotation
shall be made on the Schedule of Increases and Decreases on the Global Senior
Notes held by the Depositary. Unless and until such Global Senior Note is
exchanged for Senior Notes in certificated form, Global Senior Notes may be
transferred, in whole but not in part, and any payments on the Senior Notes
shall be made, only to the Depositary or a nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
Section 2.05. Interest. (a) The Senior Notes will bear interest
initially at the rate of [ ]% per year (the "COUPON RATE") from the original
date of issuance through and including the earlier of (i) the Maturity Date and
(ii) the day immediately preceding any Reset Effective Date. In the event of a
Successful Remarketing of the Senior Notes, the Coupon Rate will be reset by the
Remarketing Agent at the appropriate Reset Rate with effect from the related
Reset Effective Date, as set forth under Section 8.03. If the Coupon Rate is so
reset, the Senior Notes will bear interest at the Reset Rate from the related
Reset Effective Date until the principal thereof and interest thereon is paid or
duly made available for payment and shall bear interest, to the extent permitted
by law, compounded quarterly, on any overdue principal and payment of interest
at the Coupon Rate through and including the day immediately preceding the Reset
Effective Date and at the Reset Rate thereafter.
(b) Interest on the Senior Notes shall be payable quarterly in arrears
on February 16, May 16, August 16 and November 16 of each year (each, an
"INTEREST PAYMENT DATE"), commencing August 16, 2004, to the Person in whose
name such Senior Note, or any predecessor Senior Note, is registered at the
close of business on the Record Date for such Interest Payment Date. Interest on
the Senior Notes shall accrue from [ ], 2004.
In the event of a Successful Remarketing of the Senior Notes, the
Interest Payment Dates may be redetermined and Senior Notes will bear interest
at the appropriate Reset Rate from the related Reset Effective Date payable
semi-annually instead of quarterly.
(c) The amount of interest payable for any full quarterly or
semi-annual period, as the case may be, will be computed on the basis of a
360-day year consisting of twelve 30-day months. The amount of interest payable
for any period shorter than a full quarterly or semi-annual period, as the case
may be, for which interest is computed will be computed on the basis of a 30-day
month and, for any period less than a month, on the basis of the actual number
of days elapsed per 30-day month. In the event that any scheduled Interest
Payment Date falls on a day that is not a Business Day, then payment of interest
payable on such Interest Payment Date
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will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next calendar year, then such payment will be made on the
preceding Business Day.
Section 2.06. No Defeasance. The provisions of Article 13 of the Base
Indenture shall not apply to the Senior Notes.
Section 2.07. No Sinking Fund. The provisions of Article 12 of the Base
Indenture shall not apply to the Senior Notes and the Senior Notes are not
entitled to the benefit of any sinking fund.
ARTICLE 3
REDEMPTION OF THE SENIOR NOTES
Section 3.01. Special Event Redemption. If a Special Event shall occur
and be continuing, the Company may, at its option, redeem the Senior Notes in
whole, but not in part, on any Interest Payment Date prior to the earlier of the
date of a Successful Remarketing or the Purchase Contract Settlement Date, at a
price per Senior Note equal to the Redemption Price, payable on the date of
redemption (the "SPECIAL EVENT REDEMPTION DATE") to the Holders of the Senior
Notes registered at the close of business on the Record Date for such Interest
Payment Date. If the Company so elects to redeem the Senior Notes, the Company
shall appoint the Quotation Agent to assist the Company in determining the
Treasury Portfolio Purchase Price. Notice of any Special Event Redemption will
be mailed by the Company (with a copy to the Trustee) at least 30 days but not
more than 60 days before the Special Event Redemption Date to each registered
Holder of the Senior Notes at its registered address. In addition, the Company
shall notify the Collateral Agent in writing that a Special Event has occurred
and that the Company intends to redeem the Senior Notes on the Special Event
Redemption Date. Unless the Company defaults in the payment of the Redemption
Price, on and after the Special Event Redemption Date, (a) interest shall cease
to accrue on the Senior Notes, (b) the Senior Notes shall become due and payable
at the Redemption Price, and (c) the Senior Notes shall be void and all rights
of the Holders in respect of the Senior Notes shall terminate and lapse (other
than the right to receive the Redemption Price upon surrender of such Senior
Notes but without interest on such Redemption Price). Following the notice of a
Special Event Redemption, neither the Company nor the Trustee shall be required
to register the transfer of or exchange the Senior Notes to be redeemed.
Except as set forth in this Section 3.01, the Senior Notes shall not be
redeemable by the Company prior to the Maturity Date. The provisions of this
Article 3 shall supersede any conflicting provisions contained in Article 11 of
the Base Indenture.
Section 3.02. Redemption Procedures. On or prior to 10:00 a.m. New York
City time on the Special Event Redemption Date, the Company shall deposit with
the Trustee immediately available funds in an amount sufficient to pay, on the
Special Event Redemption Date, the aggregate Redemption Price for all
outstanding Senior Notes. In exchange for any Senior Notes surrendered for
redemption on or after the Special Event Redemption Date, the
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Trustee shall pay an amount equal to the Redemption Price (a) to the Collateral
Agent, in the case of Senior Notes that are included in Corporate Units, which
amount shall be applied by the Collateral Agent in accordance with the terms of
the Pledge Agreement, and (b) to the holders of the Separate Senior Notes, in
the case of Separate Senior Notes.
ARTICLE 4
FORM OF SENIOR NOTE
Section 4.01. Form of Senior Note. The Senior Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the forms attached as Exhibit A hereto, with such changes therein as the
officers of the Company executing the Senior Notes (by manual or facsimile
signature) may approve, such approval to be conclusively evidenced by their
execution thereof.
ARTICLE 5
ORIGINAL ISSUE OF SENIOR NOTES
Section 5.01. Original Issue of Senior Notes. Senior Notes in the
aggregate principal amount of $1,000,000,000 (or up to $1,150,000,000 to the
extent that the over-allotment option granted to the Underwriters pursuant to
the Underwriting Agreement is exercised) may from time to time, upon execution
of this Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Senior Notes to or upon the written order of the Company pursuant
to Section 303 of the Base Indenture without any further action by the Company
(other than as required by the Base Indenture).
ARTICLE 6
ORIGINAL ISSUE DISCOUNT
Section 6.01. Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Senior Notes that are Outstanding as of the end of
the year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Ratification of Indenture. The Indenture, as supplemented
by this Supplemental Indenture, is in all respects ratified and confirmed, and
this Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
Section 7.02. Trustee not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
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Section 7.03. New York Law to Govern. THIS SUPPLEMENTAL INDENTURE AND
EACH SENIOR NOTE SHALL BE DEEMED TO BE CONTRACTS MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Section 7.04. Separability. In case any one or more of the provisions
contained in this Supplemental Indenture or in the Senior Notes shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then, to
the extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture or of the
Senior Notes, but this Supplemental Indenture and the Senior Notes shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 7.05. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 8
REMARKETING
Section 8.01. Remarketing Procedures. (a) Unless a Special Event
Redemption or a Successful Remarketing has occurred prior to the applicable
Remarketing Date, the Company shall engage the Remarketing Agent pursuant to the
Remarketing Agreement for the Remarketing of the Senior Notes. The Company will
request, not later than seven nor more than 15 calendar days prior to the
applicable Remarketing Date, that the Depositary or its nominee notify the
Beneficial Owners or Depositary Participants holding Separate Senior Notes,
Corporate Units and Treasury Units of the procedures to be followed in the
applicable Remarketing.
(b) Each Holder of Separate Senior Notes may elect to have Separate
Senior Notes held by such Holder remarketed in any Remarketing. A Holder making
such an election must, pursuant to the Pledge Agreement, notify the Custodial
Agent and deliver such Separate Senior Notes to the Custodial Agent on or prior
to 5:00 p.m. (New York City time) on or prior to the fifth Business Day
immediately preceding the applicable Remarketing Date (but no earlier than the
Interest Payment Date immediately preceding the applicable Remarketing Date).
Any such notice and delivery may not be conditioned upon the level at which the
Reset Rate is established in the Remarketing. Any such notice and delivery may
be withdrawn on or prior to 5:00 p.m. (New York City time) on the fifth Business
Day immediately preceding the applicable Remarketing Date in accordance with the
provisions set forth in the Pledge Agreement. Any such notice and delivery not
withdrawn by such time will be irrevocable with respect to such Remarketing.
Pursuant to Section 5.07(c) of the Pledge Agreement, promptly after 11:00 a.m.,
New York City time, on the Business Day immediately preceding the applicable
Remarketing Date, the Custodial Agent, based on the notices and deliveries
received by it prior to such time, shall notify the Remarketing Agent of the
principal amount of Separate Senior Notes to be tendered for remarketing and
shall cause such Separate Senior Notes to be presented to the Remarketing Agent.
Under Section 5.02 of the Purchase Contract Agreement, Senior Notes that
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are components of Corporate Units will be deemed tendered for Remarketing and
will be remarketed in accordance with the terms of the Remarketing Agreement.
(c) The right of each Holder of Senior Notes that are included in
Corporate Units to have such Senior Notes, and each Holder of Separate Senior
Notes to have any Separate Senior Notes (together, the "REMARKETED SENIOR
NOTES"), remarketed and sold on any Remarketing Date shall be limited to the
extent that (i) the Remarketing Agent conducts a Remarketing pursuant to the
terms of the Remarketing Agreement, (ii) a Special Event Redemption has not
occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to
find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing
Price or the Final Remarketing Price, as the case may be, and (iv) the purchaser
or purchasers deliver the purchase price therefor to the Remarketing Agent as
and when required.
(d) Neither the Trustee, the Company nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of Senior
Notes for remarketing.
Section 8.02. Remarketing. (a) Unless a Special Event Redemption has
occurred prior to the Initial Remarketing Date, on the Initial Remarketing Date,
the Remarketing Agent shall, pursuant and subject to the terms of the
Remarketing Agreement, use commercially reasonable efforts to remarket the
Remarketed Senior Notes at a price (the "REMARKETING PRICE") equal to
approximately 100.25% (but in no event less than 100%) of the sum of the
Treasury Portfolio Purchase Price and the Separate Senior Note Purchase Price.
(b) In the case of a Failed Initial Remarketing and unless a Special
Event Redemption has occurred prior to the Final Remarketing Date, on the Final
Remarketing Date, the Remarketing Agent shall use commercially reasonable
efforts to remarket the Remarketed Senior Notes at a price (the "FINAL
REMARKETING PRICE") equal to approximately 100.25% of the aggregate principal
amount of the Remarketed Senior Notes. It is understood and agreed that
Remarketing on any Remarketing Date will be considered successful and no further
attempts will be made if the resulting proceeds are at least 100% of the sum of
the Treasury Portfolio Purchase Price and the Separate Senior Note Purchase
Price, and 100% of the aggregate principal amount of the Remarketed Senior Notes
in the case of the Final Remarketing.
Section 8.03. Reset Rate and Extended Maturity Date. (a) In connection
with each Remarketing, the Remarketing Agent shall determine, in consultation
with the Company, the Reset Rate (rounded to the nearest one-thousandth (0.001)
of one percent per annum) that the Remarketed Senior Notes should bear in order
to have an aggregate market value equal to the Remarketing Price or the Final
Remarketing Price, as the case may be, and that in the sole discretion of the
Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes
at the Remarketing Price or Final Remarketing Price, as the case may be, in such
Remarketing.
(b) Anything herein to the contrary notwithstanding, the Remarketing
Agent shall have no obligation to determine whether there is any limitation
under applicable law on the Reset Rate or, if there is any such limitation, the
maximum permissible Reset Rate on the Senior Notes and shall rely solely upon
written notice from the Company (which the Company agrees to
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provide prior to the eighth Business Day before the Initial Remarketing Date) as
to whether or not there is any such limitation in any applicable jurisdiction.
(c) In connection with a Remarketing, the Remarketing Agent, in
consultation with the Company, may extend the Maturity Date to a date selected
by the Company that is two or three years from the date on which the Reset Rate
is set. Such extended maturity date (the "EXTENDED MATURITY DATE"), if any, will
be specified in the remarketing announcement and will become effective on the
date on which the Reset Rate is set.
(d) In connection with a Remarketing, the Company may also elect to add
any additional financial covenants as the Company may determine. Such an
election would take effect upon a Successful Remarketing, on the Purchase
Contract Settlement Date. In addition, as provided in Section 2.05(b) herein,
upon a Successful Remarketing, the Interest Payment Dates may be redetermined to
provide for payment of interest semi-annually instead of quarterly.
(e) In the event of a Failed Remarketing or if no Senior Notes are
included in Corporate Units and none of the holders of the Separate Senior Notes
elect to have their Senior Notes remarketed in any Remarketing, the applicable
interest rate on the Senior Notes will not be reset and will continue to be the
Coupon Rate and the Maturity Date will not be extended.
(f) In the event of a Successful Remarketing, the Coupon Rate shall be
reset at the Reset Rate as determined by the Remarketing Agent under the
Remarketing Agreement and the Maturity Date will be extended to the Extended
Maturity Date .
Section 8.04. Failed Remarketing. (a) If, by 4:00 p.m. (New York City
time) on any Remarketing Date, the Remarketing Agent is unable to remarket all
of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing
Price, as the case may be, pursuant to the terms and conditions hereof, a Failed
Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so
advise by telephone the Depositary, the Purchase Contract Agent and the Company.
Whether or not there has been a Failed Remarketing will be determined in the
sole reasonable discretion of the Remarketing Agent. Promptly following any
Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes
submitted for remarketing, if any, to the Custodial Agent for distribution to
the appropriate Holders.
(b) The Company shall cause a notice of such Failed Remarketing to be
published in a daily newspaper in the English language of general circulation in
the City of New York, which is expected to be The Wall Street Journal.
Section 8.05. Put Right. (a) Subject to paragraph (b) hereof, if there
has not been a Successful Remarketing prior to the Purchase Contract Settlement
Date, Holders of Separate Senior Notes and Holders of Senior Notes that are a
component of Corporate Units will, subject to this Section 8.05, have the right
(the "PUT RIGHT") to require the Company to purchase their Senior Notes, on the
Purchase Contract Settlement Date, at a price per Senior Note equal to $25.00
plus accrued and unpaid interest to but excluding the Purchase Contract
Settlement Date (the "PUT PRICE").
12
(b) The Put Right of Holders of Senior Notes that are part of Corporate
Units will be automatically exercised unless such Holders (1) prior to 11:00
a.m., New York City time, on the second Business Day immediately preceding the
Purchase Contract Settlement Date, provide written notice to the Purchase
Contract Agent of their intention to settle the related Purchase Contract with
separate cash, and (2) on or prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Purchase Contract Settlement Date,
deliver to the Collateral Agent $25 in cash per Purchase Contract, in each case
pursuant to the Purchase Contract Agreement and such Holders shall be deemed to
have elected to pay the Purchase Price for the shares of Common Stock to be
issued under the related Purchase Contract from a portion of the Proceeds of the
Put Right of such Senior Notes equal to the Purchase Price in full satisfaction
of such Holders' obligations under the Purchase Contracts, and any remaining
amount of the Put Price following satisfaction of the related Purchase Contract
will be paid to such Holder.
(c) The Put Right of a Holder of a Separate Senior Note shall only be
exercisable upon delivery of a notice to the Trustee by such Holder on or prior
to the second Business Day prior to the Purchase Contract Settlement Date. On or
prior to the Purchase Contract Settlement Date, the Company shall deposit with
the Trustee immediately available funds in an amount sufficient to pay, on the
Purchase Contract Settlement Date, the aggregate Put Price of all Separate
Senior Notes with respect to which a Holder has exercised a Put Right. In
exchange for any Separate Senior Notes surrendered pursuant to the Put Right,
the Trustee shall then distribute such amount to the Holders of such Separate
Senior Notes.
Section 8.06. Additional Event of Default. In addition to the events
listed as Events of Default in Section 501 of the Base Indenture, it shall be an
additional Event of Default with respect to the Senior Notes, if the Company
shall not have satisfied its obligation to pay the Put Price when due with
respect to any Separate Senior Note following exercise of the Put Right in
accordance with Section 8.05.
ARTICLE 9
TAX TREATMENT
Section 9.01. Tax Treatment. The Company agrees, and by acceptance of a
Corporate Unit, each holder of a Corporate Unit will be deemed to have agreed
(1) for United States federal, state and local income and franchise tax purposes
to treat the acquisition of a Corporate Unit as the acquisition of the Senior
Note and the Purchase Contract constituting the Corporate Unit and (2) to treat
the Senior Note as indebtedness for United States federal, state and local
income and franchise tax purposes. A Holder of Senior Notes may obtain the
comparable yield and projected payment schedule for the Senior Notes, determined
by the Company pursuant to Treas. Reg. Sec. 1.1275-4, by submitting a written
request for such information to the Company at the following address:
Xxxxxxxxx'x, Inc., 000 Xxxxxxxxxx Xxxxxxxxx, X.X. Xxx 00, Xxxxx, Xxxxx 00000,
Attention: Treasurer.
13
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
XXXXXXXXX'X, INC.
By:_______________________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:_______________________________________
Name:
Title:
EXHIBIT A
[IF THIS SENIOR NOTE IS TO BE A GLOBAL SECURITY, INSERT:]
THIS SENIOR NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY. THIS SENIOR NOTE IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY A
NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY TRUST COMPANY OR
ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY.
UNLESS THIS CERTIFICATE 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 CERTIFICATE
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.
XXXXXXXXX'X, INC.
[ ]% Senior Notes due 2009
CUSIP No.: [ ]
No.: $
XXXXXXXXX'X, INC., a corporation organized and existing under the laws of
Delaware (hereinafter called the "COMPANY", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ___________, or registered assigns, the principal sum
of up to ONE BILLION Dollars ($1,000,000,000), as set forth in the Schedule of
Increases or Decreases In Senior Note attached hereto, on February 16, 2009
(such date is hereinafter referred to as the "MATURITY DATE"), and to pay
interest thereon from August 16, 2004 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly in arrears
on February 16, May 16, August 16 and November 16 of each year, commencing
August 16, 2004, at the rate of [ ]% per annum through and including the day
immediately preceding the Reset Effective Date, if any, and thereafter at the
Reset Rate, if any, on the basis of a 360-day year consisting of twelve 30-day
months, until the principal hereof is paid or duly provided for or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) to pay interest, compounded quarterly, at the rate
of [ ]% per annum on any overdue principal and payment of interest
A-1
through and including the day immediately preceding the Reset Effective Date, if
any, and thereafter at the Reset Rate and on semi-annual Interest Payment Dates,
if any. The amount of interest payable for any period shorter than a full
quarterly period or, following a Successful Remarketing, semi- annual period as
applicable, for which interest is computed will be computed on the basis of a
30-day month and, for any period less than a month, on the basis of the actual
number of days elapsed per 30-day month. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business on the Record
Date for such Interest Payment Date.
Payment of the principal of and interest on this Senior Note will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, which shall initially be the Corporate Trust
Office of the Trustee, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option of
the Company by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account appropriately designated by
the Holder entitled to payment.
Reference is hereby made to the further provisions of this Senior Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Senior Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
XXXXXXXXX'X, INC.
By:_______________________________________
Name:
Title:
[SEAL]
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within mentioned Indenture.
Dated: ______________________
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: _________________________
Authorized Signatory
A-3
FORM OF REVERSE OF SENIOR NOTE
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called the "SENIOR NOTES"), issued and to be issued in one or
more series under an Indenture, dated as of May 1, 1992, between the Company and
U.S. Bank Trust National Association, as successor trustee (herein called the
"TRUSTEE", which term includes any successor trustee)(the "BASE INDENTURE"), as
supplemented by the Supplemental Indenture No. 1 between the Company and the
Trustee (the "SUPPLEMENTAL INDENTURE" and together with the Base Indenture, the
"INDENTURE"), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Senior Notes and of the terms
upon which the Senior Notes are, and are to be, authenticated and delivered.
This Senior Note is one of the series designated on the face hereof, limited in
aggregate principal amount to $1,000,000,000 (or up to $1,150,000,000 to the
extent that the over-allotment option granted to the Underwriters pursuant to
the Underwriting Agreement is exercised).
If a Special Event shall occur and be continuing, the Company may, at
its option, redeem the Senior Notes of this series in whole, but not in part, on
any Interest Payment Date prior to the earlier of the date of a Successful
Remarketing and the Purchase Contract Settlement Date, at a price per Senior
Note equal to the Redemption Price as set forth in the Indenture.
If there has not been a Successful Remarketing prior to the Purchase
Contract Settlement Date, the holders of Senior Notes will have the right to
require the Company to purchase their Senior Notes on the Purchase Contract
Settlement Date, all as more fully described in the Supplemental Indenture.
The Senior Notes are not entitled to the benefit of any sinking fund
and will not be subject to defeasance.
If an Event of Default with respect to Senior Notes of this series
shall occur and be continuing, the principal of the Senior Notes of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Senior Notes at any time by the
Company and the Trustee with the consent of the Holders of at least a majority
in principal amount of the Senior Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Senior Notes at the time Outstanding, on behalf of the
Holders of all Senior Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Senior Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Senior Note.
R-1
No reference herein to the Indenture and no provision of this Senior
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Senior Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Senior Note is registrable in the Securities
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Senior Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Senior Notes of this series, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Senior Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Senior Notes of this series are exchangeable for a like aggregate principal
amount of Senior Notes of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Senior Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Senior Note is registered as the owner
hereof for all purposes, whether or not this Senior Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Senior Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Senior Note shall be governed by the laws of New York.
The Company agrees, and by acceptance of a Corporate Unit, each holder
of a Corporate Unit will be deemed to have agreed (1) for United States federal,
state and local income and franchise tax purposes to treat the acquisition of a
Corporate Unit as the acquisition of the Senior Note and the Purchase Contract
constituting the Corporate Unit and (2) to treat the Senior Note as indebtedness
for United States federal, state and local income and franchise tax purposes. A
Holder of Senior Notes may obtain the comparable yield and projected payment
schedule for the Senior Notes, determined by the Company pursuant to Treas. Reg.
Sec. 1.1275-4, by submitting a written request for it to the Company at the
following address: Xxxxxxxxx'x, Inc., 000 Xxxxxxxxxx Xxxxxxxxx, X.X. Xxx 00,
Xxxxx, Xxxxx 00000; Attention: Treasurer.
R-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Senior Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or taxpayer identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ________________
Signature:
------------------------
Signature Guarantee:
--------------------------
(Sign exactly as your name appears on the other side of this Senior Note)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
By:__________________________________
Name:
Title:
SCHEDULE OF INCREASES OR DECREASES IN SENIOR NOTE
The following increases or decreases in a part of this Senior Note have been
made:
PRINCIPAL
AMOUNT OF AMOUNT OF THIS
AMOUNT OF DECREASE INCREASE IN SENIOR NOTE SIGNATURE OF
IN PRINCIPAL PRINCIPAL FOLLOWING SUCH AUTHORIZED
AMOUNT OF THIS AMOUNT OF THIS DECREASE (OR OFFICER OF
DATE SENIOR NOTE SENIOR NOTE INCREASE) TRUSTEE
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