Exhibit 4.1
SUPERVALU INC.
Officers’ Certificate and Authentication Order
For 6.750% Senior Notes due 2021
Pursuant to the Indenture dated as of July 1, 1987 between SUPERVALU INC. (the “Company”) and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the “Trustee”), as amended and supplemented by the First Supplemental Indenture dated as of August 1, 1990 (the “First Supplemental Indenture”), the Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental Indenture dated as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth Supplemental Indenture dated as of September 17, 1999 (as so amended and supplemented, the “Indenture”) and the resolutions adopted by the Board of Directors of the Company on April 25, 2013, this Officers’ Certificate and Authentication Order is being delivered to the Trustee to establish the terms of a series of Securities in accordance with Section 301 of the Indenture, to establish the form of the Securities of such series in accordance with Section 201 of the Indenture and to request the authentication and delivery of the Securities of such series pursuant to Section 303 of the Indenture.
Capitalized terms used but not defined herein and defined in the form of Security attached hereto as
Exhibit A
shall have the respective meanings ascribed to them in the form of Security attached hereto as
Exhibit A
. Capitalized terms used but not defined herein or in the form of Security attached hereto as
Exhibit A
and defined in the Indenture shall have the respective meanings ascribed to them in the Indenture.
A.
Establishment of Series Pursuant to Section 301 of Indenture
. There is hereby established pursuant to Section 301 of the Indenture a series of Securities which shall have the following terms:
1.
Title; Securities
. The series of Securities hereby being authorized shall bear the title “6.750% Senior Notes due 2021” (referred to herein as the “Securities”). The Securities shall include (a) the Securities initially issued on the Issue Date, (b) any Exchange Securities issued in exchange for Securities pursuant to the Exchange Offer, (c) any Private Exchange Securities issued in exchange for Securities pursuant to the Registration Rights Agreement, and any other Securities issued after the Issue Date under the Indenture. All Securities shall vote together and otherwise constitute a single series of Securities under the Indenture.
2.
Aggregate Principal Amount of Securities; Additional Securities
. The aggregate principal amount of Securities shall be initially $400,000,000 (except as noted in Sections 303, 304, 305, 306, 906 or 1107 of the Indenture); provided that the Company may, without the consent of the Holders of the Outstanding Securities, “reopen” this series of Securities so as to increase the aggregate principal amount of Securities Outstanding in compliance with the procedures set forth in the Indenture, including Sections 301 and 303 thereof, so long as (i) any such additional Securities are issued prior to the first date on which any Registration Statement is filed with the Commission, (ii) any such additional Securities have the same tenor and terms (including, without limitation, rights to receive accrued and unpaid interest) as the Securities then Outstanding, and (iii) appropriate provision is made by the Company so that any such additional Securities may be tendered for Exchange Securities pursuant to the Exchange Offer and, if applicable, registered pursuant to a Shelf Registration Statement.
3.
Initial Issuance
.
Except as provided in the following paragraph, the Securities shall be issued only as Registered Global Securities. The Securities shall not be issued in
temporary global form. Rule 144A Securities, Regulation S Securities and the Exchange Securities shall each be issued initially in the form of one or more permanent Global Securities registered in the name of the Depositary or its nominee (each Security represented by a Global Security being herein referred to as a “Book-Entry Security”) and deposited with the Trustee, as custodian for the Depositary. The Depositary with respect to such Global Securities shall be The Depository Trust Company. The circumstances under which a Global Security may be exchanged for Securities registered in the name of, and any transfer of such Global Security may be registered to, a Person other than such Depositary or its nominee shall be as provided in Section 305 of the Indenture and Sections 14 and 15 hereof.
Certificated Securities shall be issued to all beneficial owners in exchange for their beneficial interests in a Global Security only if (1) The Depository Trust Company (a) notifies the Company that it is unwilling or unable to continue as depositary for the Global Securities or (b) has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and in either case the Company fails to appoint a successor depositary; (2) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Securities; or (3) there has occurred and is continuing a Default or Event of Default with respect to the Securities.
In addition, beneficial interests in a Global Note may be exchanged for Certificated Securities upon prior written notice given to the Trustee by or on behalf of The Depository Trust Company in accordance with the Indenture. In all cases, Certificated Securities delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures) and will bear the Securities Act Legend, unless that legend is not required by applicable law.
4.
Interest
. The principal of the Securities shall bear interest at the rate of 6.750% per annum (subject, in the case of Securities which are Registrable Securities, to increase upon the occurrence of any Registration Default as provided in the form of Security attached hereto as
Exhibit A
) from the Issue Date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on June 1 and December 1 (each, an “Interest Payment Date”) in each year, commencing December 1, 2013, to the Persons in whose names the Securities (or one or more Predecessor Securities) are registered at the close of business on the May 15 or November 15 immediately preceding such Interest Payment Dates (each a “Regular Record Date”), regardless of whether such Regular Record Date is a Business Day. Any overdue principal of and premium, if any, on the Securities and any overdue installment of interest on the Securities shall, to the extent permitted by law, bear interest at the rate of 6.750% per annum (subject, in the case of Securities which are Registrable Securities, to increase upon the occurrence of any Registration Default as provided in the form of Security attached hereto as
Exhibit A
).
Promptly following any increase in the interest rate on the Registrable Securities as the result of a Registration Default, the Company shall deliver an Officers’ Certificate to the Trustee, notifying the Trustee of such Registration Default and setting forth the effective date of such increase in the interest rate on the Registrable Securities and the interest rate in effect on the Registrable Securities as a result of such Registration Default, and, in the event of any further increase in the interest rate on the Registrable Securities as the result of the continuance of a Registration Default, shall promptly deliver a similar Officers’ Certificate to the Trustee. Any such increase in the interest rate on the Registrable Securities shall remain in effect until such time as all Registration Defaults have been cured or ceased to exist and the Company shall have
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delivered an Officers’ Certificate to the Trustee to the effect that (i) all Registration Defaults have been cured or have ceased to exist and (ii) the date of such cessation or cure, whereupon the interest rate on the Registrable Securities shall be reduced to the original interest rate thereon effective as of the date of such cessation or cure.
Interest on the Securities shall be calculated on the basis of a 360-day year of twelve 30-day months.
Anything herein to the contrary notwithstanding, if any Private Exchange Securities are issued, then such Private Exchange Securities shall provide for the payment of Additional Interest (as defined in the form of Security attached hereto as
Exhibit A
) upon a Registration Default, and shall bear the Securities Act Legend (as defined in the form of Security attached hereto as
Exhibit A
) until such time as any such Private Exchange Security shall cease to be a Restricted Security (as defined in the form of Security attached hereto as
Exhibit A
), in which case the Company will, at the request of the Holder, issue in exchange therefor or upon transfer thereof, an Exchange Security. Anything herein to the contrary notwithstanding, the Private Exchange Securities shall be issued as Global Securities or, if requested by any Holder thereof, as certificated Securities (“Certificated Securities”).
5.
Stated Maturity
. The principal of each Security shall be due and payable on June 1, 2021.
6.
Place of Payment
. The Borough of Manhattan, The City of New York is hereby designated as a Place of Payment for the Securities, and the place where the principal of and premium, if any, and interest on the Securities shall be payable, where Securities may be surrendered for registration of transfer and exchange, and where notices and, if other than in the manner provided in Section 105 of the Indenture, demands to or upon the Company in respect of the Securities may be served, shall be the office or agency maintained by the Company for that purpose in the Borough of Manhattan, The City of New York, which initially shall be the office of the Trustee located at Four Albany Street, New York, New York, 10006, Attention: Corporate Trust Services. Payment of principal of and interest on each Book-Entry Security represented by a Global Security shall be made to the Depositary or its nominee, as the case may be, as the sole registered owner and the sole Holder of the Book-Entry Securities represented thereby for all purposes under the Indenture.
7.
Redemption
.
The Securities are subject to redemption at the option of the Company as provided in the form of Security attached hereto as
Exhibit A
and in the Indenture.
8.
No Sinking Funds
. The Company shall not have any obligation to redeem or purchase any Securities pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof.
9.
Authorized Denominations
. The Securities shall be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
10.
Change of Control
. The Securities are subject to repurchase at the option of the Holders upon a Change of Control as provided in the form of Security attached hereto as
Exhibit A
and in the Indenture.
11.
Subsidiary Guarantees
. The Securities shall not be guaranteed by any of the Company’s Subsidiaries on the Issue Date. However, the Securities may be guaranteed by any of
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the Company’s Subsidiaries at any time following the Issue Date under the conditions described in the form of Security attached hereto as
Exhibit A
and in the Indenture.
12.
No Additional Amounts
.
The Company shall not pay any additional amounts on Securities held by a Person who is a United States Alien in respect of any tax, assessment or governmental charge withheld or deducted.
13.
Legends
.
Upon the transfer, exchange or replacement of Securities not bearing a Securities Act Legend, the Security Registrar shall deliver Securities that do not bear a Securities Act Legend. Upon the transfer, exchange or replacement of Securities bearing a Securities Act Legend, the Registrar shall deliver only Securities that bear a Securities Act Legend unless (i) such Security is being exchanged for an Exchange Security in an Exchange Offer, in which case the Exchange Securities shall not bear a Securities Act Legend, or (ii) such Security is being transferred pursuant to a Shelf Registration statement or other effective registration statement; provided that upon the request made by the Holder of any Security bearing a Securities Act Legend from and after the Resale Restriction Termination Date with respect to such Security, the Company will execute and the Trustee will authenticate and deliver, in exchange for such Security, a new Security in like aggregate principal amount but not bearing the Securities Act Legend. The provisions of this Section 13 shall also apply to the transfer or exchange of beneficial interests in Global Securities. Except in the case of Exchange Securities issued pursuant to the Exchange Offer, the Trustee shall not issue any Securities which do not bear the Securities Act Legend until it has received an Officers’ Certificate from the Company directing it to do so.
14.
Book-Entry Provisions for Global Securities
.
(1)
General.
Transfers of a Global Security shall be limited as specified in Section 204 of the Indenture (such Section 204 having been added by Section 103 of the First Supplemental Indenture). Transfers and exchanges of beneficial interests in a Global Security may be made in accordance with the rules and procedures of the Depositary, subject to the provisions of Sections 14 and 15 to the extent applicable.
(2)
Transfers of Global Securities for Certificated Securities
. In connection with any transfer of a beneficial interest in a Global Security to a Person who will take delivery thereof in the form of a Certificated Security, the Trustee shall reflect on its books and records and by endorsement on the grid attached to such Global Security the date and a decrease in the principal amount of such Global Security equal to the principal amount of the beneficial interest to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Certificated Securities of like tenor and terms and in the same aggregate principal amount, registered in the name of the transferee.
(3)
Transfers of Certificated Securities for Global Securities
. In connection with any transfer of a Certificated Security to a Person who will take delivery thereof in the form of a beneficial interest in a Global Security, the Trustee shall reflect on its books and records and on the grid attached to such Global Security the date and an increase in the principal amount of such Global Security equal to the principal amount of the Certificated Security to be transferred, the Trustee shall cancel such Certificated Security and, if the entire principal amount of such Certificated Security is not being transferred, the Company shall execute, and the Trustee shall authenticate and deliver, one or more Certificated Securities equal in principal amount to the principal amount not being transferred, registered in the name of the transferor; provided that any transfer of a Certificated Security that is a Restricted Security to a Person who will take delivery
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thereof in the form of a beneficial interest in a Global Security which is a Restricted Security shall be effected only as permitted by Section 15.
(4)
Transfers Among Global Securities.
In connection with any transfer of a beneficial interest in a Global Security to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, the Trustee shall reflect on its books and records and by endorsement on the grid attached to such original Global Security the date and a decrease in the principal amount of such first Global Security equal to the principal amount of the beneficial interest to be so transferred, and shall also reflect on its books and records and on the grid attached to such second Global Security the date and an increase in the principal amount of such Global Security equal to the principal amount of the beneficial interest to be transferred; provided that any transfer of a beneficial interest in a Global Security which is a Restricted Security to a Person who will take delivery thereof in the form of a beneficial interest in a Global Security which is not a Restricted Security shall be effected only pursuant to the Exchange Offer or as otherwise permitted by Section 15.
(5)
Exchange of all Global Securities for Certificated Securities
. In the event that Global Securities are exchangeable for Certificated Securities as provided in the last paragraph of Section 305 of the Indenture (such paragraph having been added by Section 106(b) of the First Supplemental Indenture), and, in the case of an event described in clause (i) of such paragraph, the Company fails to appoint a successor depositary, the Global Securities shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Securities an equal aggregate principal amount of Certificated Securities, registered in the names provided by the Depositary.
15.
Transfer and Exchange
.
(1)
Transfer of 144A Securities
. The following provisions shall apply with respect to any proposed transfer of a Rule 144A Security or a beneficial interest therein prior to the date which is one year after the later of the date of first original issue, the original issue date of any additional Securities and the last date on which the Company or any Affiliate of the Company was the owner of such Securities (or any predecessor thereto) (the “
Resale Restriction Termination Date
”):
i. a transfer of a Rule 144A Security or a beneficial interest therein to a QIB shall be made upon delivery by the transferor to the Trustee of a transfer certificate in the form attached to the Security (“Transfer Certificate”) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such Rule 144A Security;
ii. a transfer of a Rule 144A Security or a beneficial interest therein to a non-U.S. person shall be made upon delivery to the Trustee or its agent by the transferor of a Regulation S transfer certificate (“Regulation S Transfer Certificate”) substantially in the form attached to the Security; and
iii. unless all of the Global Securities have been exchanged for Certificated Securities as provided in the last paragraph of Section 305 of the Indenture (such paragraph having been added by Section 106(b) of the First Supplemental Indenture), the transferee shall be required to take delivery of any Certificated Security being so
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transferred in the form of a beneficial interest in a Global Security which bears a Securities Act Legend.
After the Resale Restriction Termination Date, interests in a Rule 144A Security may be transferred in accordance with applicable law without requiring the certifications referred to above. A transfer of a beneficial interest in a Rule 144A Security may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Security only if the transferor first delivers to the Trustee a Regulation S Transfer Certificate.
(2)
Transfer of Regulation S Securities
. The following provisions shall apply with respect to any proposed transfer of a Regulation S Security prior to the date which is forty days after the later of the date of its original issue and the date on which such Security (or any Predecessor Security) was first offered to a Person other than a distributor (as defined in Regulation S) in reliance on Regulation S (the “Restricted Period”):
i. a transfer of a Regulation S Security or a beneficial interest therein to a QIB shall be made upon delivery by the transferor to the Trustee of a Transfer Certificate certifying that the Regulation S Security or beneficial interest therein is being transferred to a Person (a) who the transferor reasonably believes to be a QIB, (b) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A; and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions; and
ii. a transfer of a Regulation S Security or a beneficial interest therein to a non-U.S. person shall be made upon delivery to the Trustee or its agent by the transferor of a Regulation S Transfer Certificate.
After the expiration of the Restricted Period, interests in a Regulation S Security may be transferred in accordance with applicable law without requiring the certifications referred to above.
16. The Securities shall have such other terms and provisions as are set forth in the form of Security attached hereto as
Exhibit A
(all of which incorporated by reference in and make a part of this Certificate as if set forth in full at this place).
B.
Establishment of Form of Security Pursuant to Section 201 of Indenture
. It is hereby established pursuant to Section 201 of the Indenture that the Securities shall be substantially in the form attached as
Exhibit A
hereto.
C.
Order for the Authentication and Delivery of Securities Pursuant to Section 303 of Indenture
. It is hereby ordered pursuant to Section 303 of the Indenture that the Trustee authenticate, in the manner provided by the Indenture:
1.
one Rule 144A Security in the aggregate principal amount of $400,000,000, CUSIP No. 868536 AU7, ISIN No. US868536AU72, Certificate No. A-1 in the name of Cede & Co., as nominee of the Depository Trust Company; and
2.
one Regulation S Security in the aggregate principal amount of $0, CUSIP No. U8681L AA7, ISIN No. USU8681LAA71, Certificate No. S-1 in the name of Cede & Co., as nominee of the Depository Trust Company;
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each of which such Securities has been heretofore duly executed by the proper officers of the Company and delivered to you as provided in the Indenture, and hold each said authenticated Security to or upon the order of the Initial Purchasers on May 21, 2013.
Exchange Securities and Private Exchange Securities may from time to time be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Exchange Securities or Private Exchange Securities, as the case may be, upon cancellation of an equal amount of Securities tendered for exchange pursuant to the Exchange Offer (in a case of the Exchange Securities) or pursuant to the Registration Rights Agreement (in the case of the Private Exchange Securities), upon a Company Order without any further action by the Company.
Pursuant to Section 102 of the Indenture, the undersigned certify as follows: (i) each of the undersigned has read Sections 201, 301 and 303 of the Indenture, including the definitions related thereto, as well as such other instruments, agreements and other documents and records, as the undersigned has deemed necessary or appropriate to certify as to the matters set forth herein; (ii) in the opinion of each of the undersigned, each of the undersigned has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not all conditions precedent provided in the Indenture relating to the authentication and delivery of the Securities have been complied with; and (iii) in the opinion of each of the undersigned, all conditions precedent referred to in clause (ii) above have been complied with.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, on behalf of the Company we have hereunto signed our names.
Dated: May 21, 2013
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SUPERVALU INC.
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By
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/s/
Sherry M. Smith
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Sherry M. Smith
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Executive Vice President and Chief Financial Officer
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By
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/s/
Karla C. Robertson
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Karla C. Robertson
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Executive Vice President, Legal, General Counsel and Corporate Secretary
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EXHIBIT A
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Company 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.
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of DTC, as Depositary for this series of Securities (the “Depositary”), or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a Person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in such limited circumstances.
[Unless and until a Security is exchanged for an Exchange Security or sold pursuant to an effective Registration Statement pursuant to the Registration Rights Agreement, the Global Securities shall bear a legend substantially to the effect set forth below in this paragraph (the “Securities Act Legend”), subject to removal of such legend as provided in the Officers’ Certificate and Authentication Order For 6.750% Senior Notes due 2021, dated May 21, 2013: THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.]
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REGISTERED NO.
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REGISTERED
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PRINCIPAL
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CUSIP NO.
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AMOUNT: U.S. $ ,
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ISIN NO.
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as revised by the Schedule of Increases
and decreases in Global Security attached hereto
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SUPERVALU INC.
6.750% Senior Notes due 2021
SUPERVALU INC., a corporation duly organized and existing under the laws of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture referred to below), for value received, hereby promises to pay to [ ], or registered assigns, the principal sum of [ ] United States Dollars ($[ ]), as revised by a Schedule of Increases and Decreases in Global Security attached hereto, on June 1, 2021, and to pay interest thereon from the Issue Date, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on June 1 and December 1 in each year, commencing on December 1, 2013 at the rate of 6.750% per annum, until the principal hereof is paid or made available for payment, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of 6.750% per annum on any overdue principal and on any overdue installment of interest
[To be deleted from Exchange Securities—
; provided that the interest rate on this Security shall be subject to increase under the circumstances provided below]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the May 15 and November 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on any Security of this series (that is not a Global Security) will be made at the office or agency of the Company maintained for that purpose in The City of New York. Payment of principal of and interest on any Global Security will be made to the Depositary or its nominee, as the case may be, as the sole registered owner and the sole Holder of the Global Security for all purposes under the Indenture.
Payment of the principal of and interest on this Security will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public or private debts.
Reference is hereby made to the further provisions of this Security set forth below, which further provisions shall for all purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by the Trustee referred to below, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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SUPERVALU INC.
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By
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Name:
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Sherry M. Smith
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Title:
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Executive Vice President and Chief Financial Officer
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Attest:
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Name:
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Karla C. Robertson
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Title:
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Executive Vice President, Legal, General Counsel and Corporate Secretary
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Dated:
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May 21, 2013
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee
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By DEUTSCHE BANK NATIONAL TRUST COMPANY
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By:
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Authorized Signature
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SUPERVALU INC.
6.750% Senior Notes due 2021
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of July 1, 1987, as amended and supplemented by the First Supplemental Indenture dated as of August 1, 1990, the Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental Indenture dated as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth Supplemental Indenture dated as of September 17, 1999 (the Indenture, as so amended and supplemented, being herein called the “Indenture”), between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as Trustee (herein called the “Trustee,” which term includes any successor trustee under 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 Securities that are not set forth herein and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated above, initially in aggregate principal amount to U.S. $400,000,000; provided that the aggregate principal amount of the Securities of this series which may be Outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture.
The Securities of this series are issuable only in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The Securities of this series may be issued, in whole or in part, in the form of one or more Global Securities bearing the legend specified in the Indenture regarding certain restrictions on registration of transfer and exchange and issued to the Depositary or its nominee and registered in the name of the Depositary or such nominee. As provided in the Indenture and subject to certain limitations (including, if this Security is a Global Security, certain additional limitations) therein set forth, Securities of this series issued in definitive registered form are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
1.
Interest and Method of Payment
. Payments of interest hereon with respect to any Interest Payment Date will include interest accrued to but excluding such Interest Payment Date. Interest hereon shall be computed on the basis of a 360-day year of twelve 30-day months.
Any payment on this Security due on any day which is not a Business Day in The City of New York need not be made on such day, but may be made on the next succeeding Business Day with the same force and effect as if made on such due date.
2.
[Delete for Exchange Securities--
Registration Default
. The Holder of this Security is entitled to the benefits of a Registration Rights Agreement. In the event that:
i.
the Exchange Offer Registration Statement is not filed with the Commission on or prior to the 135th day following the Issue Date, or
ii.
the Exchange Offer Registration Statement is not declared effective by the Commission on or prior to the 180th day following the Issue Date, or
iii.
the Exchange Offer is not consummated on or prior to the 45th day following the effective date of the Exchange Offer Registration Statement, or
iv.
if required pursuant to the Registration Rights Agreement, a Shelf Registration Statement is not filed with the Commission on or prior to (A) the 180th day following the Issue Date or (B) the 60th day after the filing obligation arises, whichever is later, or
v.
if required, a Shelf Registration Statement is not declared effective on or prior to the 225th day following the Issue Date (or, if a Shelf Registration Statement is required to be filed upon the request of any Initial Purchaser, within 30 days after such request), or
vi.
a Shelf Registration Statement is declared effective by the Commission but such Shelf Registration Statement ceases to be effective or such Shelf Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Registrable Securities for any reason and either (A) the aggregate number of days in any consecutive 365-day period for which the Shelf Registration Statement or such Prospectus shall not be effective or usable exceeds 90 days, (B) the Shelf Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Shelf Registration Statement or such Prospectus shall not be effective or usable for a period of more than 45 consecutive days, or
vii.
the Exchange Offer Registration Statement is declared effective by the Commission but, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Securities as contemplated by Section 3(f) of the Registration Rights Agreement, the Exchange Offer Registration Statement ceases to be effective or the Exchange Offer Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Exchange Securities for any reason during the 180-day period referred to in Section 3(f)(B) of the Registration Rights Agreement (as such period may be extended pursuant to the last paragraph of Section 3 of the Registration Rights Agreement) and either (A) the aggregate number of days in any consecutive 365-day period for which the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable exceeds 90 days, (B) the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Exchange Offer Registration Statement or the Prospectus shall not be effective or usable for a period of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being hereinafter called a “Registration Default”), the per annum interest rate borne by this Security, so long as this Security is a Registrable Security, shall be increased (“Additional Interest”) by one-quarter of one percent (0.25%) per annum immediately following such 135-day period in the case of clause (i) above, immediately following such 180-day period in the case of clause (ii) above, immediately following such 45-day period in the case of clause (iii) above, immediately following any such 180-day period or 60-day period, whichever ends later, in the case of clause (iv) above, immediately following any such 225-day period or 30-day period, whichever ends first, in the case of clause (v) above, immediately following the 90th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 45th consecutive day, whichever occurs first, that a Shelf Registration Statement shall not be effective or a Shelf Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vi) above, or immediately following the 90th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 45th consecutive day, whichever occurs first, that the Exchange Offer
2
Registration Statement shall not be effective or the Exchange Offer Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vii) above, which rate will be increased by an additional one-quarter of one percent (0.25%) per annum immediately following each 90-day period that any Additional Interest continues to accrue under any circumstances; provided that the aggregate increase in such annual interest rate may in no event exceed one-half of one percent (0.50%) per annum. Upon the filing of the Exchange Offer Registration Statement after the 135-day period described in clause (i) above, the effectiveness of the Exchange Offer Registration Statement after the 180-day period described in clause (ii) above, the consummation of the Exchange Offer after the 45-day period described in clause (iii) above, the filing of the Shelf Registration Statement after the 180-day period or 60-day period day, as the case may be, described in clause (iv) above, the effectiveness of a Shelf Registration Statement after the 225-day period or 30-day period, as the case may be, described in clause (v) above, or the Shelf Registration Statement once again being effective or the Shelf Registration Statement and the Prospectus included therein becoming usable in connection with resales of Registrable Securities, as the case may be, in the case of clause (vi) above, or the Exchange Offer Registration Statement once again becoming effective or the Exchange Offer Registration Statement and the Prospectus included therein becoming usable in connection with resales of Exchange Securities, as the case may be, in the case of clause (vii) thereof, the interest rate borne by this Security from the date of such filing, effectiveness, consummation or resumption of effectiveness or usability, as the case may be, shall be reduced to the original interest rate so long as no other Registration Default shall have occurred and shall be continuing at such time and the Company is otherwise in compliance with this paragraph; provided, however, that, if after any such reduction in interest rate, one or more Registration Defaults shall again occur, the interest rate shall again be increased pursuant to the foregoing provisions.
The Company shall notify the Trustee within three business days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “Event Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the Holders of Registrable Securities, on or before the applicable semiannual interest payment date, immediately available funds in sums sufficient to pay the Additional Interest then due. The Additional Interest due shall be payable on each interest payment date to the record Holder of Securities entitled to receive the interest payment to be paid on such date as set forth in the Indentures. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the applicable Event Date. Anything herein to the contrary notwithstanding, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, its Securities for Exchange Securities in the Exchange Offer will not be entitled to receive any Additional Interest. For purposes of clarity, the Company hereby acknowledges and agrees that, under current interpretations of law by the Commission, Initial Purchasers holding unsold allotments of Securities acquired from the Company are not eligible to participate in the Exchange Offer.]
3.
Optional Redemption
.
i.
The Company shall have the right to redeem, at any time prior to June 1, 2016, up to 35% of the aggregate principal amount of the Securities of this series (including any additional Securities) at a Redemption Price of 106.750% of the principal amount thereof, plus accrued and unpaid interest thereon to the redemption date, subject to the rights of Holders of Securities on the relevant record date to receive accrued and unpaid interest on the relevant Interest Payment Date with the net cash proceeds of one or more Equity Offerings; provided that:
(a)
at least 65% of the aggregate principal amount of the Securities of this series (including any additional Securities) remains Outstanding immediately after the occurrence of such redemption (excluding Securities held by the Company or its Affiliates); and
3
(b)
the redemption must occur within 60 days of the date of the closing of such Equity Offering.
ii.
The Company shall have the right to redeem, at any time prior to June 1, 2017, all or a part of the Securities of this series at any time or from time to time in part, at the option of the Company, at a Redemption Price equal to 100% of the principal amount of the Securities to be redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to the redemption date, subject to the rights of Holders of Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
iii.
The Company shall have the right to redeem, on or after June 1, 2017, all or a part of the Securities of this series at any time or from time to time in part, at the option of the Company, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, to the applicable redemption date, if redeemed during the twelve-month period beginning on June 1 of the years indicated below, subject to the rights of Holders of Securities on the relevant record date to receive accrued and unpaid interest on the relevant Interest Payment Date:
|
Year
|
|
Percentage
|
|
|
2017
|
|
103.375
|
%
|
|
2018
|
|
101.688
|
%
|
|
2019 and thereafter
|
|
100.000
|
%
|
No Securities of $2,000 or less will be redeemed in part. Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
If less than all of the Securities are to be redeemed at any time, the Trustee will select Securities for redemption by a method the Trustee deems to be fair and appropriate and in accordance with the procedures of the relevant Depositary, which may including the following:
(1)
if the Securities are listed on any national securities exchange, in compliance with the requirements of such principal national securities exchange; or
(2)
if the Securities are not so listed, on a pro rata basis, by lot or by such method as the Trustee will deem fair and appropriate.
If any Security is to be redeemed in part only, the notice of redemption that relates to that Security will state the portion of the principal amount thereof to be redeemed. A new Security in principal amount equal to the unredeemed portion of the original Security will be issued in the name of the Holder thereof upon cancellation of the original Security. Securities called for redemption become due on the date fixed for redemption. Unless the Company defaults in payment of the Redemption Price, on and after the redemption date, interest ceases to accrue on Securities or portions of them called for redemption even if Holders do not collect their money.
4.
Repurchase at Holders’ Option upon a Change of Control
. If a Change of Control shall occur at any time, then the Company shall be required to make an offer to each Holder of the Securities of this series to purchase such Holder’s Securities in whole or in part (equal to $2,000, or an integral multiple of $1,000 in excess thereof), at a purchase price (the “Change of Control Purchase
4
Price”) in cash in an amount equal to 101% of the principal amount of such Securities, plus accrued and unpaid interest on the principal amount being purchased to, but not including, the date of purchase (the “Change of Control Purchase Date”) and in accordance with the other procedures set forth in the Securities of this series;
provided
,
however
, that if the Change of Control Purchase Date is after a Regular Record Date and prior to the related Interest Payment Date, accrued and unpaid interest shall be payable to the Holders of those Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates pursuant to the offer mechanics described below (the “Change of Control Offer”);
provided
further
,
however
, that the Company shall not be obliged to repurchase Securities of this series as described under this Section 4 in the event and to the extent that the Company have unconditionally exercised its right to redeem all of the Securities of this series pursuant to the provisions described under Section 3 above.
Within 30 days of any Change of Control, the Company shall notify the Trustee thereof and give written notice of such Change of Control to each Holder of Securities of this series by first-class mail, postage prepaid, at such Holder’s address appearing in the security register, stating:
·
that a Change of Control has occurred and the date of such event;
·
the circumstances and relevant facts regarding such Change of Control;
·
the Change of Control Purchase Price and the Change of Control Purchase Date which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed, or such later date as is necessary to comply with requirements under the Exchange Act and any other applicable securities laws and regulations;
·
that any Security of this series not tendered shall continue to accrue interest and, unless the Company defaults in payment of the Change of Control Purchase Price, any Securities of this series accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date;
·
that Holders shall be entitled to withdraw their election if the Company or the Trustee, as the case may be, receives, not later than the Change of Control Purchase Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security (or portions thereof) the Holder delivered for purchase and a statement that such Holder is withdrawing such Holder’s election to have such Security purchased;
·
that Holders whose Securities were purchased in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
·
any other procedures the Holders must follow in order to tender their Securities (or portions thereof) for payment and the procedures that Holders must follow in order to withdraw an election to tender Securities (or portions thereof) for payment.
A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. To the extent that the
5
provisions of any securities laws or regulations conflict with the Change of Control provisions of the Securities of this series, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the provisions of this Section 4 by virtue of such compliance.
The Change of Control provisions described in this Section 4 shall be applicable whether or not any other provisions of the Indenture or the Securities of this series are applicable.
The Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities of this series applicable to a Change of Control Offer made by the Company and purchases all such Securities validly tendered and not withdrawn under such Change of Control Offer.
The Trustee shall promptly authenticate and deliver a new Security or Securities equal in principal amount to any unpurchased portion of Securities surrendered, if any, to the Holder of Securities of this series in global form or to each Holder of certificated Securities; provided that each such new Security shall be in a principal amount of $2,000, or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.
The Company shall comply, to the extent applicable, with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable securities laws or regulations in connection with a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this covenant (other than the obligation to make an offer pursuant to this covenant), the Company shall comply with the securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in this Section 4 by virtue thereof.
5.
Guarantees
. The Company may not permit any of its Subsidiaries to guarantee, or become a co-obligor on, any of the Company’s Debt Securities or the Debt Securities of any other of the Company’s Subsidiaries or issue any Debt Securities, unless such Subsidiaries also fully and unconditionally guarantee the Securities of this series on a senior basis;
provided
, that a Subsidiary shall not be required to guarantee the Securities of this series with respect to Debt existing on the Issue Date, so long as (1) the existing Debt is not subsequently guaranteed by such Subsidiary, (2) the existing Debt is not refinanced with Debt that is guaranteed by such Subsidiary, except for Debt that is refinanced on substantially similar terms as exist on the Issue Date, including Guarantees of such Debt, or (3) such Subsidiary does not subsequently become a co-obligor on the existing Debt. Each Subsidiary delivering a Guarantee of the Securities of this series shall be referred to as a “Subsidiary Guarantor.”
A Subsidiary Guarantor’s Securities Guarantee shall be automatically and unconditionally released:
(1)
in connection with any sale or other disposition of all or substantially all of the Capital Stock (or the shares of any holding company of such Subsidiary Guarantor (other than the Company)) of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary, if the liability with respect to any Debt Securities in connection with which the Securities Guarantee was executed, or would have been executed pursuant to this Section 5 had a Securities Guarantee not been executed previously, is also released;
6
(2)
upon defeasance and discharge of the Securities as provided under Section 403 of the Indenture; or
(3)
so long as no Event of Default has occurred and is continuing, such Subsidiary Guarantor is unconditionally released and discharged from its liability with respect to all such Debt Securities in connection with which such Securities Guarantee was executed, or would have been executed pursuant to the preceding paragraph if such Subsidiary Guarantor had not already executed a Securities Guarantee; or
(4)
upon the full and final payment and performance of all of the Company’s obligations under the Securities of this series.
The Company covenants and agrees that it shall cause any Subsidiary that becomes obligated to guarantee the Securities pursuant to the terms of this Section 5 to execute a supplemental indenture and to deliver any other documents requested by the Trustee, in such form and substance as is satisfactory to the Trustee, pursuant to which such Subsidiary shall guarantee the obligations of the Company under the Securities and the Indenture in accordance with this Section 5.
6.
Certain Covenants
.
i.
Restrictions on Liens
. The Company shall not, and shall not permit any Domestic Subsidiary to, issue, assume or guarantee any Debt if the Debt is secured by any mortgage, security interest, pledge, lien or other encumbrance (“Lien”) upon any Operating Property of the Company or of any Domestic Subsidiary or upon any shares of stock or indebtedness of any Domestic Subsidiary, whether owned at the date of the Indenture or thereafter acquired, without effectively securing the Securities equally and ratably with the Debt. This restriction does not apply to:
(1)
Liens on any property acquired, constructed or improved by the Company or any Domestic Subsidiary after July 1, 1987, which are created or assumed contemporaneously with, or within 180 days after, that acquisition or completion of that construction or improvement (or within six months thereafter pursuant to a firm commitment for financing arrangements entered into within the 180-day period) to secure or provide for the payment of all or any part of the purchase price or cost thereof incurred after July 1, 1987, or Liens existing on property at the time of its acquisition (including acquisition through merger or consolidation);
provided
that such Liens were in existence prior to the contemplation of such acquisition, merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or the Domestic Subsidiary;
(2)
Liens on property of any corporation existing at the time it becomes a Domestic Subsidiary;
(3)
Liens to secure Debt of a Domestic Subsidiary to the Company or to another Domestic Subsidiary;
(4)
Liens in favor of governmental bodies to secure partial progress, advance or other payments pursuant to any contract or statute or to secure Debt incurred to finance the purchase price or cost of constructing or improving the property subject to the Liens; or
(5)
Liens for extending, renewing or replacing Debt secured by any Lien referred to in clauses (1) to (4), inclusive, above or in this clause (5) or any Lien existing on the date
7
that Securities of this series were first issued under the Indenture, provided that the principal amount of the new Debt secured by the relevant Lien does not exceed the principal amount of the Debt so secured at the time of the extension, renewal or replacement and that the extension, renewal or replacement is limited to all or a part of the property which secured the Lien so extended, renewed or replaced and improvements on that property.
This restriction does not apply to the issuance, assumption or guarantee by the Company or any Domestic Subsidiary of Debt subject to a Lien which would otherwise be subject to the foregoing restrictions up to an aggregate amount which, together with all other secured Debt of the Company and the Company’s Domestic Subsidiaries (not including secured Debt permitted under the foregoing exceptions) and the Value of Sale and Lease-back Transactions existing at that time (other than Sale and Lease-back Transactions the proceeds of which have been applied to the retirement of debt securities, including the Securities, or of Funded Debt or to the purchase of other Operating Property, and other than Sale and Lease-back Transactions in which the property involved would have been permitted to be secured with a Lien under clause (1) above), does not exceed the greater of $200,000,000 or 10% of Consolidated Net Tangible Assets.
ii.
Restrictions on Sale and Lease-back Transactions
. The Company shall not, and shall not permit any Domestic Subsidiary to, enter into any Sale and Lease-back Transaction unless the net proceeds of the Sale and Lease-back Transactions are at least equal to the fair value (as determined by the Board of Directors or the Company’s President or any of the Company’s Vice Presidents) of the Operating Property to be leased and either:
(1)
the Company or the Domestic Subsidiary would be entitled to incur Debt secured by a Lien on the property to be leased without securing the Securities of this series or any other debt securities issued under the Indenture, pursuant to clause (1) of the first paragraph or pursuant to the second paragraph under Section 6(i) hereof; or
(2)
the Value thereof would be an amount permitted under the second paragraph under Section 6(i) hereof; or
(3)
the Company, within 120 days of the effective date of any such arrangement (or in the case of (c) below, within six months thereafter pursuant to a firm purchase commitment entered into within such 120 day period), applies an amount equal to the fair value (as so determined) of the Operating Property:
a)
to the redemption or repurchase of debt securities issued under the Indenture;
b)
to the payment or other retirement of the Company’s Funded Debt that ranks
pari passu
with the Securities of this series or of Funded Debt of a Domestic Subsidiary (other than, in either case, Funded Debt owned by the Company or a Domestic Subsidiary); or
c)
to the purchase of Operating Property (other than that involved in the Sale and Lease-back Transaction).
7.
Events of Default
. “Event of Default” shall mean with respect to the Securities of this series, any of the following:
(1)
default in the payment of principal or premium, if any, on the Securities when due;
8
(2)
default in the payment of any interest on any Securities when due, continued for 30 days;
(3)
there shall be a default in the performance or breach of the provisions described in Article Eight of the Indenture or Section 4 hereof;
(4)
default in the performance, or breach, of any of the Company’s other covenants in the Indenture (other than a covenant included in the Indenture solely for the benefit of a series of debt securities other than the Securities of this series), continued for 60 days after written notice to the Company by the Trustee or the Holders of at least 10% in principal amount of the Securities;
(5)
there shall be a default under any mortgage, indenture or instrument under which there may be incurred or by which there may be secured or evidenced any Debt by the Company or any Domestic Subsidiary whether such Debt now exists, or is created after the Issue Date, if that default:
·
is caused by a failure to make any payment when due at the final maturity of such Debt (a “Payment Default”); or
·
results in the acceleration of such Debt prior to its express maturity,
and, in each case, the amount of any such Debt, together with the amount of any other such Debt under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $100.0 million or more;
(6)
failure by the Company or any of the Company’s Domestic Subsidiaries to pay final judgments (to the extent such judgments are not paid or covered by insurance provided by a reputable carrier that has the ability to perform and has acknowledged coverage in writing) aggregating in excess of $100.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;
(7)
any Securities Guarantee shall for any reason cease to be, or shall for any reason be asserted in writing by any Subsidiary Guarantor not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated by the Indenture and any such Securities Guarantee;
(8)
a court having jurisdiction in the premises enters a decree or order for:
·
relief in respect of the Company, any Subsidiary Guarantor or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect;
·
appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Subsidiary Guarantor or any Significant Subsidiary; or
·
the winding up or liquidation of the affairs of the Company, or any of its Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days;
9
(9)
The Company, any Subsidiary Guarantor or any of its Significant Subsidiary:
·
commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law;
·
consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any of its Significant Subsidiary or for all or substantially all of the property and assets of the Company or any of its Significant Subsidiary; or
·
effects any general assignment for the benefit of creditors.
If an Event of Default described in clauses (1) through (7) of the prior paragraph with respect to the Securities of this series occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the Securities of this series, by notice to the Company, may declare the principal of all of such Securities to be due and payable immediately and upon such declaration the principal amount shall become immediately due and payable. If an Event of Default described in clauses (8) or (9) of the prior paragraph occurs and is continuing, then all the Securities of this series shall ipso facto become and be due and payable immediately in an amount equal to the principal amount of the Securities, together with accrued and unpaid interest to the date the Securities of this series become due and payable, without any declaration or other act on the part of the Trustee or any Holder.
If an Event of Default with respect to the Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
8.
Defeasance
. The Indenture contains provisions for defeasance at any time of the Company’s obligations in respect of (i) the entire indebtedness of this Security or (ii) certain restrictive covenants with respect to this Security, in each case upon compliance with certain conditions set forth therein.
9.
Modification and Waiver
. The Company and the Trustee may modify and amend the Indenture with respect to the Securities of this series with the consent of the holders of a majority in principal amount of the Securities. However, without the consent of each affected Holder, no modification or amendment may:
·
change the Stated Maturity of the principal, or any installment of principal or interest, on the Securities or alter the provisions with respect to the redemption of the Securities;
·
reduce the principal, premium, if any, or any interest rate on the Securities of this series;
·
change the Company’s obligation to maintain an office or agency in the places and for the purposes specified in the Indenture or the currency of payment of principal or interest on the Securities of this series;
·
impair the right to institute suit to enforce any payment after the Stated Maturity or redemption date;
·
reduce the percentage of the principal amount of Securities of this series required to approve any modification or amendment of the Indenture;
10
·
reduce the percentage of the principal amount of Securities required to approve any waiver of compliance with provisions of the Indenture or the Securities of this series or waiver of defaults;
·
impair the right to institute suit for the enforcement of any payment on or with respect to the Securities of this series;
·
amend, change or modify the Company’s obligation to make and consummate a Change of Control Offer in the event of a Change of Control in accordance with Section 4 hereof including, in each case, amending, changing or modifying any definition relating thereto;
·
except as otherwise permitted under Article Eight of the Indenture, consent to the assignment or transfer by the Company of any of the Company’s rights or obligations under the Indenture;
·
modify any of the provisions of this Section 9, Section 513 or Section 1013 of the Indenture, except to increase any such percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holders of each Securities affected hereby; provided however that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 9 and Section 1013 of the Indenture, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(8) of the Indenture.
The Company and the Trustee may, without the consent of any Holders of the Securities of this series, modify the Indenture with respect to such Securities to:
·
evidence the succession of another Person as obligor under the Indenture and the Securities of this series;
·
add to the Company’s covenants under the Indenture or add additional Events of Default;
·
change or eliminate any provision of the Indenture, provided that the change or elimination becomes effective only when there is no outstanding note which is entitled to the benefit of that provision;
·
secure the Securities pursuant to the requirement described above under Section 6(i) hereof;
·
establish the form or terms of a series of debt securities; or
·
cure any ambiguity, correct or supplement any provision which may be inconsistent, or make any other provision as to matters or questions under the Indenture, provided that action does not adversely affect the interests of Holders of the Securities of this series in any material respect.
The Holders of a majority in principal amount of the Securities of this series may, on behalf of the holders of all such Securities, waive, insofar as that series is concerned, the Company’s compliance with covenants set forth in Section 6 hereof and in Sections 1004 to 1008 of the Indenture.
11
The holders of a majority in principal amount of the outstanding Securities of this series may, on behalf of the Holders of all such Securities, waive any past default under the Indenture with respect to the Securities of this series. However, they may not waive a default in the payment of principal, premium, if any, or interest on any note or in respect of a provision which under the Indenture cannot be modified or amended without the consent of the Holder of each outstanding Security of this series.
10.
Definitions
.
“
Applicable Premium
” means, with respect to any Security on any redemption date, the greater of:
(1)
1.0% of the principal amount of such Security; or
(2)
the excess of:
a.
the present value at such redemption date of (i) the redemption price of the Security at June 1, 2017 (such redemption price being set forth in the table appearing in Section 3(iii) above) plus (ii) all required interest payments due on the Security through at June 1, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
b.
the principal amount of such Security.
“
Beneficial Owner
” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” will have a corresponding meaning.
“
Board of Directors
” means, either the Company’s board of directors or the Company’s duly authorized executive committee of that board.
“
Business Day
” means, with respect to the Securities of this series, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close.
“
Capital Stock
” means:
(1)
in the case of a corporation, corporate stock;
(2)
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3)
in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
12
(4)
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“
Change of Control
” means the occurrence of any of the following:
(1)
the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation) substantially as an entirety, in one or a series of related transactions, of the properties or assets of the Company and the Company’s Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act);
(2)
the adoption of a plan relating to the Company’s liquidation or dissolution;
(3)
any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of 40% or more of the voting power of the Company’s Voting Stock;
(4)
the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; or
(5)
the Company consolidates with, or merge with or into, any Person, or any Person consolidates with, or merges with or into the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the outstanding Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the Company’s Voting Stock outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance) and (B) immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the Beneficial Owner of 40% or more of the voting power of the Voting Stock of the surviving or transferee Person.
“
Commission
” as used in the certificates evidencing the Securities (other than the certificates evidencing the Exchange Securities), means the Securities and Exchange Commission or any successor thereto.
“
Consolidated Net Tangible Assets
” means the total of all the assets appearing on the consolidated balance sheet of the Company and the Company’s Subsidiaries less the following:
(1)
current liabilities, including liabilities for indebtedness maturing more than 12 months from the date of original creation thereof but maturing within 12 months from the date of determination;
(2)
reserves for depreciation and other asset valuation reserves;
(3)
intangible assets including, without limitation, such items as goodwill, trademarks, trade names, patents and unamortized debt discount and expense carried as an asset on the balance sheet; and
13
(4)
appropriate adjustments on account of minority interests of other Persons holding stock in any Subsidiary.
Consolidated Net Tangible Assets shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which the Company and its Subsidiaries are engaged and which are approved by the independent accountants regularly retained by the Company, and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made.
“
Continuing Directors
” means, as of any date of determination, any member of the Company’s Board of Directors who:
(1)
was a member of the Board of Directors on the Issue Date; or
(2)
was nominated for election or elected to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination or election.
“
Debt
” means all indebtedness for money borrowed.
“
Debt Securities
” means any Debt (including any Guarantee) issued in the form of a security in connection with a public offering, in a private placement pursuant to Rule 144A, Regulation S or otherwise under the Securities Act of 1933, as amended (the “Securities Act”) or sold on an agency basis by a broker-dealer or one of its affiliates and traded or able to be traded on a public or private basis; provided that Securities shall not mean any industrial revenue bonds.
“
Disqualified Stock
” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the date on which the Securities mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock. The term “Disqualified Stock” will also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one year after the date on which the Securities mature.
“
Domestic Subsidiary
” means any Subsidiary which owns an Operating Property.
“
Equity Offering
” means any public or private placement of the Company’s Capital Stock (other than Disqualified Stock) (other than pursuant to a registration statement on Form S-8 or otherwise relating to equity securities issuable under any employee benefit plan of the Company) to any Person other than any Subsidiary.
“Exchange Offer”
has the meaning set forth in the Registration Rights Agreement.
“
Exchange Offer Registration Statement”
has the meaning set forth in the Registration Rights Agreement.
14
“Exchange Securities”
means any of the Exchange Securities (as defined in the Registration Rights Agreement).
“
Funded Debt
” means any Debt which by its terms matures at or is extendible or renewable at the sole option of the obligor without requiring the consent of the obligee to a date more than 12 months after the date of the creation of such Debt.
“
Guarantee
” means, as to any Person, a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Debt of another Person.
“Initial Purchaser”
means any one of the Initial Purchasers (as defined in the Registration Rights Agreement).
“
Issue Date
” means the date of original issuance of the Securities of this series under the Indenture.
“
Operating Property
” means any manufacturing or processing plant, office facility, retail store, warehouse, distribution center or equipment located within the United States of America or its territories or possessions and owned and operated now or hereafter by the Company or any Domestic Subsidiary and having a book value on the date as of which the determination is being made of more than 0.65% of Consolidated Net Tangible Assets.
“
Person
” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Private Exchange Securities”
means any of the Private Exchange Securities (as defined in the Registration Rights Agreement).
“Prospectus”
has the meaning set forth in the Registration Rights Agreement.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.
“Registrable Securities”
has the meaning set forth in the Registration Rights Agreement.
“Registration Rights Agreement”
means that certain Registration Rights Agreement, dated as of May 21, 2013, between the Company and Goldman, Sachs & Co. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers party thereto.
“Registration Statement”
has the meaning set forth in the Registration Rights Agreement.
“Restricted Security”
means any Security except for (i) an Exchange Security issued pursuant to the Exchange Offer, (ii) a Security which has been sold or transferred pursuant to an effective Registration Statement pursuant to the Registration Rights Agreement, (iii) a Security from which the Securities Act Legend has been removed in accordance with the terms of the Securities, and (iv) a Security issued upon registration of transfer of, or in exchange for, Securities which are not Restricted Securities.
“Rule 144”
means Rule 144 under the Securities Act, including all successor provisions thereto.
15
“Rule 144A”
means Rule 144A under the Securities Act, including all successor provisions thereto.
“
Sale and Lease-back Transaction
” means any arrangement with any Person providing for the leasing to the Company or any Domestic Subsidiary of any Operating Property (except for temporary leases for a term, including any renewal thereof, of not more than 36 months and except for leases between the Company and a Domestic Subsidiary or between Domestic Subsidiaries), which Operating Property has been or is to be sold or transferred by the Company or such Domestic Subsidiary to that Person.
“Securities Act”
means the Securities Act of 1933, as amended from time to time.
“
Securities Guarantee
” means the Guarantee of the Securities of this series by a Subsidiary.
“Shelf Registration Statement”
has the meaning set forth in the Registration Rights Agreement.
“
Significant Subsidiary
” means any Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X of the Securities Act; provided, however, that 5% will be substituted for 10% in each place that it appears in such definition.
“
Stated Maturity
,” when used with respect to the notes and any payment of principal thereof or interest thereon, means the date specified in such note as the fixed date on which the principal of such note or interest payment is due and payable.
“
Subsidiary
” means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.
“
Treasury Rate”
means, as of any redemption date, the yield to maturity as of the earlier of (a) such redemption date or (b) the date on which such Securities are defeased or satisfied and discharged, of the most recently issued United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to June 1, 2017; provided, however, that if the period from the redemption date to June 1, 2017, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. Any such Treasury Rate shall be obtained by the Company.
“
Value
” means, with respect to a Sale and Lease-back Transaction, as of any particular time, the amount equal to the greater of (1) the net proceeds from the sale or transfer of the property leased pursuant to that Sale and Lease-back Transaction or (2) the fair value in the opinion of the Company’s Board of Directors or the Company’s President or any of the Company’s Vice Presidents of that property at the time of entering into the Sale and Lease-back Transaction, in either case multiplied by a fraction, the numerator of which shall be equal to the number of full years of the term of the lease which is part of the Sale and Lease-back Transaction remaining at the time of determination and the denominator of which shall be equal to the number of full years of such term, without regard to any renewal or extension options contained in the lease.
16
“
Voting Stock
” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
11.
Miscellaneous
.
No reference herein to the Indenture and no provision of this Security 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 Security at the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations (including, if this Security is a Global Security, the limitations set forth on the first page hereof) therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
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 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 this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
17
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall be construed as though they were written out in full according to applicable laws or regulations:
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TEN COM - as tenants in common
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TEN ENT - as tenants by the entireties
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JT TEN - as joint tenants with right of survivorship and not as tenants in common
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UNIF GIFT MIN ACT - Custodian
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(Cust) (Minor)
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under the Uniform Gifts to Minors Act
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(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please Print or Typewrite Name and Address Including Postal Zip Code of Assignee)
the within Security and all rights thereunder, and hereby irrevocably constitute(s) and appoint(s)
attorney to transfer said Security on the books of the Company, with full power of substitution in the premises.
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Date:
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Your Signature:
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Signature Guarantee:
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(Signature must be guaranteed)
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Sign exactly as your name appears on the other side of this Security.
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NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon the within instrument in every particular, without alteration or enlargement or any change whatever. The signature(s) must be guaranteed by an eligible guarantor institution with membership in an approved signature guarantee “medallion” program pursuant to Commission Rule 17Ad-15.
TRANSFER CERTIFICATE
Re:
SUPERVALU INC.
6.750% Notes due 2021 (the “Securities”)
Reference is hereby made to the Indenture dated as of July 1, 1987, between Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the “Trustee”), and SUPERVALU INC. (the “Company”) as amended and supplemented by the First Supplemental Indenture dated as of August 1, 1990 (the “First Supplemental Indenture”), the Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental Indenture dated as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth Supplemental Indenture dated as of September 17, 1999 (as amended and supplemented, the “Indenture”). Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture.
This Certificate relates to $ principal amount of Securities (the “Specified Securities”) represented by a Certificated Security registered in the name of the undersigned (the “Transferor”). The Transferor has requested a transfer of the Specified Securities to a QIB (as defined below) who will take delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”) (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
1
o
The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act; or
2
o
The Specified Securities are being transferred to the Company or any Subsidiary of the Company; or
3
o
The Specified Securities are being transferred pursuant to and in compliance with Rule 144A under the Securities Act to a person the Transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A) (a “QIB”) that is purchasing the Specified Securities for its own account or for the account of another QIB, in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A; and if the Specified Securities are beneficial interests in a Regulation S Global Security, such Specified Securities are being transferred in accordance with all applicable securities laws of the states of the United States and other jurisdictions; or
4
o
The Specified Securities are being acquired for the undersigned’s own account, without transfer; or
5
o
The Specified Securities are being transferred pursuant to and in compliance with Rule 903 or 904 of Regulation S under the Securities Act (and, if such transfer occurs prior to the expiration of the Restricted Period, the interest transferred will be held immediately thereafter through the Euroclear System or Clearstream Banking, S.A.); or
6
o
The Specified Securities are being transferred pursuant to Rule 144 under the Securities Act or another available exemption from the registration requirements of the Securities Act.
This Certificate and the statements contained herein are made for the benefit of the Trustee, the Company and the initial purchasers, in the initial offering of the Securities.
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(Insert Name of Transferor)
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By:
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Date:
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TO BE COMPLETED BY TRANSFEREE
IF (3) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB (as defined above) and is aware that the Specified Securities (as defined above) are being transferred in reliance on Rule 144A (as defined above), (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other QIBs over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned transferee by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act (as defined above), and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face thereof.
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Dated:
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(Insert Name of Transferee)
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By:
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Executive Officer
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FORM OF REGULATION S TRANSFER CERTIFICATE
Re:
SUPERVALU INC.
6.750% Notes due 2021
In connection with our proposed sale of $ aggregate principal amount of the 6.750% Notes due 2021 (the “Securities”) of SUPERVALU INC. (the “Company”), we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may be, and that the interest being transferred will be held immediately after such transfer through the Euroclear System or Clearstream Banking, S.A.; or
We also hereby certify that we [are] [are not] an affiliate of the Company and, to our knowledge, the transferee of the Securities [is] [is not] an affiliate of the Company.
Deutsche Bank Trust Company Americas, as Trustee, and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
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Very truly yours,
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[Name of Transferor]
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By:
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Authorized Signature
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cc: SUPERVALU INC.
SCHEDULE A
Schedule of Increases and Decreases in Global Security
The initial principal amount of this Global Security is $ . The following increases or decreases in the principal amount of this Global Security have been made:
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Date made
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Amount of
increase in
principal amount
of this Global
Security
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Amount of
decrease in
principal amount
of this Global
Security
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Principal amount
of this Global
Security following
such decrease or
increase
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Signature of
authorized
signatory of
Trustee
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4 of the Security, check the box below:
o
Section 4
If you want to elect to have only part of the Security purchased by the Company pursuant to Section 4 of the Security, state the amount you elect to have purchased: $
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Date:
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Your Signature:
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(Sign exactly as your name appears on the Security)
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Signature Guarantee:
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Tax Identification No:
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Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of May 21, 2013
among
SUPERVALU INC.
and
GOLDMAN, SACHS & CO.
CREDIT SUISSE SECURITIES (USA) LLC
BARCLAYS CAPITAL INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. LLC
as the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the “
Agreement
”) dated as of May 21, 2013 among SUPERVALU INC., a Delaware corporation (the “
Company
”), and GOLDMAN, SACHS & CO., CREDIT SUISSE SECURITIES (USA) LLC, BARCLAYS CAPITAL INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and MORGAN STANLEY & CO. LLC (collectively, the “
Initial Purchasers
”).
This Agreement is made pursuant to the Purchase Agreement dated May 16, 2013 by and among the Company and the Initial Purchasers (the “
Purchase Agreement
”), which provides for the sale by the Company to the Initial Purchasers of $400,000,000 aggregate principal amount of the Company’s 6.750% Senior Notes due 2021 (the “
Securities
”). In order to induce the Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the Initial Purchasers’ obligations thereunder, the Company has agreed to provide to the Initial Purchasers and their respective direct and indirect transferees and assigns the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1.
Definitions
. As used in this Agreement, the following capitalized defined terms shall have the following meanings:
“
1933 Act
” shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
“
1934 Act
” shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
“
Additional Interest
” shall have the meaning set forth in Section 2(e) hereof.
“
Closing Time
” shall mean May 21, 2013.
“
Company
” shall have the meaning set forth in the preamble to this Agreement and also includes the Company’s successors.
“
Credit Suisse
” shall mean Credit Suisse Securities (USA) LLC and its successors.
“
Depositary
” shall mean The Depository Trust Company, or any other depositary appointed by the Company, including any agent thereof;
provided
,
however
, that any such depositary must at all times have an address in the Borough of Manhattan, The City of New York.
“
Exchange Offer
” shall mean the exchange offer by the Company of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
“
Exchange Offer Registration
” shall mean a registration under the 1933 Act effected pursuant to Section 2(a) hereof.
“
Exchange Offer Registration Statement
” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) covering the Registrable Securities, and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein.
“
Exchange Securities
” shall mean the 6.750% Senior Notes due 2021 issued by the Company under the Indenture containing terms identical to the Securities (except that (i) interest thereon shall accrue from the last date to which interest has been paid or duly provided for on the Securities or, if no such interest has been paid or duly provided for, from the Interest Accrual Date, (ii) provisions relating to an increase in the stated rate of interest thereon upon the occurrence of a Registration Default shall be eliminated, (iii) the transfer restrictions and legends relating to restrictions on ownership and transfer thereof as a result of the issuance of the Securities without registration under the 1933 Act shall be eliminated, (iv) the denominations thereof shall be $2,000 and integral multiples of $1,000) and (v) all of the Exchange Securities will be represented by one or more global Exchange Securities in book-entry form unless exchanged for Exchange Securities in definitive certificated form under the circumstances provided in the Indenture to be offered to Holders of Registrable Securities in exchange for Registrable Securities pursuant to the Exchange Offer.
“
FINRA
” shall mean the Financial Industry Regulatory Authority, Inc.
“
Goldman Sachs
” shall mean Goldman, Sachs & Co. and its successors.
“
Holders
” shall mean (i) the Initial Purchasers, for so long as they own any Registrable Securities, and each of their respective successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture and (ii) each Participating Broker-Dealer that holds Exchange Securities for so long as such Participating Broker-Dealer is required to deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities.
“
Indenture
” shall mean the Indenture dated as of July 1, 1987, as amended and supplemented by the First Supplemental Indenture dated as of August 1, 1990, the Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental Indenture dated as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth Supplemental Indenture dated as of September 17, 1999, each between the Company and Bankers Trust Company, as trustee, as the same may be further amended or supplemented from time to time in accordance with the terms thereof.
“
Interest Accrual Date
” means May 21, 2013.
“
Initial Purchasers
” shall have the meaning set forth in the preamble of this Agreement.
“
Majority Holders
” shall mean the Holders of a majority of the aggregate principal amount of Registrable Securities outstanding, excluding Exchange Securities referred to in clause (ii) of the definition of “Holders” above;
provided
that whenever the consent or approval of Holders of a specified percentage of Registrable Securities or Exchange Securities is required hereunder, Registrable Securities and Exchange Securities held by the Company or any of its
3
affiliates (as such term is defined in Rule 405 under the 1933 Act) shall be disregarded in determining whether such consent or approval was given by the Holders of such required percentage.
“
Notifying Broker-Dealer
” shall have the meaning set forth in Section 3(f).
“
Participating Broker-Dealer
” shall have the meaning set forth in Section 3(f).
“
Person
” shall mean an individual, partnership, joint venture, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“
Private Exchange Securities
” shall have the meaning set forth in Section 2(a) hereof.
“
Prospectus
” shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to a prospectus, including post-effective amendments, and in each case including all material incorporated or deemed to be incorporated by reference therein.
“
Purchase Agreement
” shall have the meaning set forth in the preamble to this Agreement.
“
Registrable Securities
” shall mean the Securities;
provided
,
however
, that any Securities shall cease to be Registrable Securities when (i) a Registration Statement with respect to such Securities shall have been declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to such Registration Statement, (ii) such Securities shall have been sold to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities shall have ceased to be outstanding, (iv) such Securities have been exchanged for Exchange Securities which have been registered pursuant to the Exchange Offer Registration Statement upon consummation of the Exchange Offer unless, in the case of any Exchange Securities referred to in this clause (iv), such Exchange Securities are held by Participating Broker-Dealers or otherwise are not freely tradable without any limitations or restrictions under the 1933 Act (in which case such Exchange Securities will be deemed to be Registrable Securities until such time as such Exchange Securities are sold to a purchaser in whose hands such Exchange Securities are freely tradeable without any limitations or restrictions under the 1933 Act) or (v) such Securities have been exchanged for Private Exchange Securities pursuant to this Agreement (in which case such Private Exchange Securities will be deemed to be Registrable Securities until such time as such Private Exchange Securities are sold to a purchaser in whose hands such Private Exchange Securities are freely tradeable without any limitations or restrictions under the 1933 Act).
“
Registration Default
” shall have the meaning set forth in Section 2(e).
“
Registration Expenses
” shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC,
4
stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state or other securities or blue sky laws and compliance with the rules of FINRA (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with qualification of any of the Exchange Securities or Registrable Securities under state or other securities or blue sky laws and any filing with and review by FINRA), (iii) all expenses of any Persons in preparing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements, certificates representing the Securities, Private Exchange Securities (if any) or Exchange Securities and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred in connection with the listing, if any, of any of the Securities, Private Exchange Securities (if any) or Exchange Securities on any securities exchange or exchanges or on any quotation system, (vi) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vii) the fees and disbursements of counsel for the Company and the fees and expenses of independent public accountants for the Company or for any other Person, business or assets whose financial statements are included in any Registration Statement or Prospectus, including the expenses of any special audits or “cold comfort” letters required by or incident to such performance and compliance, (viii) the fees and expenses of a “qualified independent underwriter” as defined by Conduct Rule 2720 of FINRA (if required by FINRA rules) and the fees and disbursements of its counsel, (ix) the fees and expenses of the Trustee, any registrar, any depositary, any paying agent, any escrow agent or any custodian, in each case including fees and disbursements of their respective counsel, and (x) in the case of an underwritten offering, any fees and disbursements of the underwriters customarily paid by issuers or sellers of securities and the fees and expenses of any special experts retained by the Company in connection with any Registration Statement but excluding (except as otherwise provided herein) fees of counsel to the underwriters or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
“
Registration Statement
” shall mean any registration statement of the Company relating to any offering of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement (including, without limitation, any Exchange Offer Registration Statement and any Shelf Registration Statement), and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein.
“
SEC
” shall mean the Securities and Exchange Commission or any successor thereto.
“
Securities
” shall have the meaning set forth in the preamble to this Agreement.
“
Shelf Registration
” shall mean a registration effected pursuant to Section 2(b) hereof.
“
Shelf Registration Statement
” shall mean a “shelf” registration statement of the Company pursuant to the provisions of Section 2(b) of this Agreement which covers all of the Registrable Securities or Private Exchange Securities (if any), as the case may be, on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by
5
the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein.
“
TIA
” shall mean the Trust Indenture Act of 1939, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
“
Trustee
” shall mean the trustee with respect to the Securities, the Private Exchange Securities (if any) and the Exchange Securities under the Indenture.
For purposes of this Agreement, (i) all references in this Agreement to any Registration Statement, preliminary prospectus or Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in any Registration Statement, preliminary prospectus or Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated or deemed to be incorporated by reference in such Registration Statement, preliminary prospectus or Prospectus, as the case may be; (iii) all references in this Agreement to amendments or supplements to any Registration Statement, preliminary prospectus or Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated or deemed to be incorporated by reference in such Registration Statement, preliminary prospectus or Prospectus, as the case may be; (iv) all references in this Agreement to Rule 144, Rule 144A, Rule 405 or Rule 415 under the 1933 Act, and all references to any sections or subsections thereof or terms defined therein, shall in each case include any successor provisions thereto; and (v) all references in this Agreement to days (but not to business days) shall mean calendar days.
2.
Registration Under the 1933 Act
.
(a)
Exchange Offer Registration
. The Company shall (A) file with the SEC on or prior to the 135th day after the Closing Time an Exchange Offer Registration Statement covering the offer by the Company to the Holders to exchange all of the Registrable Securities for a like aggregate principal amount of Exchange Securities, (B) use its reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective by the SEC no later than the 180th day after the Closing Time, (C) use its reasonable best efforts to cause such Registration Statement to remain effective until the closing of the Exchange Offer and (D) use its reasonable best efforts to consummate the Exchange Offer no later than 45 days after the effective date of the Exchange Offer Registration Statement. Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of distributing such Exchange Securities) to trade such Exchange Securities from and after their
6
receipt without any limitations or restrictions under the 1933 Act or under the securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i)
promptly mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii)
keep the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders and, during the Exchange Offer, offer to all Holders who are legally eligible to participate in the Exchange Offer the opportunity to exchange their Registrable Securities for Exchange Securities;
(iii)
use the services of a depositary with an address in the Borough of Manhattan, The City of New York for the Exchange Offer;
(iv)
permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last business day on which the Exchange Offer shall remain open, by sending to the institution specified in the Prospectus or the related letter of transmittal or related documents a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing its election to have such Securities exchanged;
(v)
notify each Holder that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi)
otherwise comply in all material respects with all applicable laws relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any of the Initial Purchasers holds any Securities acquired by it and having the status of an unsold allotment in the initial distribution, the Company shall, upon the request of any such Initial Purchaser, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange for such Securities a like principal amount of debt securities of the Company that are identical (except that such debt securities shall be subject to transfer restrictions and shall bear a legend relating to restrictions on ownership and transfer as a result of the issuance thereof without registration under the 1933 Act and shall provide for the payment of Additional Interest) to the Exchange Securities (the “
Private Exchange Securities
”). The Company shall use its reasonable best efforts to have the Private Exchange Securities bear the same CUSIP and ISIN numbers as the Exchange Securities and, if unable to do so, the Company will, at such time as any Private Exchange Security ceases to be a “restricted security” within the meaning of Rule 144 under the 1933 Act, permit any such Private Exchange Security to be exchanged for a like principal amount of Exchange Securities. The Company shall not have any
7
liability under this Agreement solely as a result of any such Private Exchange Securities not bearing the same CUSIP and ISIN numbers as the Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any) shall be issued under the Indenture, which shall be qualified under the TIA. The Indenture shall provide that the Exchange Securities, the Private Exchange Securities (if any) and the Securities shall vote and consent together on all matters as a single class and shall constitute a single series of debt securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the Company shall:
(i)
accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto;
(ii)
deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities so accepted for exchange by the Company; and
(iii)
cause the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of Registrable Securities so accepted for exchange equal in principal amount to the principal amount of the Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and such Private Exchange Security (if any) will accrue from the last date on which interest was paid or duly provided for on the Securities surrendered in exchange therefor or, if no interest has been paid or duly provided for on such Securities, from the Interest Accrual Date. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer, or the making of any exchange by a Holder, does not violate any applicable law or any applicable interpretation of the staff of the SEC, (ii) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer, and (iii) that the Holders tender the Registrable Securities to the Company in accordance with the Exchange Offer. Each Holder of Registrable Securities (other than Participating Broker-Dealers) who wishes to exchange such Registrable Securities for Exchange Securities in the Exchange Offer will be required to represent that (i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of the Company, (ii) any Exchange Securities to be received by it will be acquired in the ordinary course of business and (iii) it has no arrangement with any Person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Securities, and shall be required to make such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the 1933 Act available. To the extent permitted by law, the Company shall inform the Initial Purchasers of the names and addresses of the Holders of Securities to whom the Exchange Offer is made and, to the extent such information is available to the Company, the names and addresses of the beneficial owners of such Securities,
8
and the Initial Purchasers shall have the right to contact such Holders and beneficial owners and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b)
Shelf Registration
. (i) If, because of any change in law or applicable interpretations thereof by the staff of the SEC, the Company is not permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for any other reason (A) the Exchange Offer Registration Statement is not declared effective within 180 days following the Closing Time or (B) the Exchange Offer is not consummated within 45 days after effectiveness of the Exchange Offer Registration Statement (
provided
that if the Exchange Offer Registration Statement shall be declared effective after such 180-day period or if the Exchange Offer shall be consummated after such 45-day period, then the Company’s obligations under this clause (ii) arising from the failure of the Exchange Offer Registration Statement to be declared effective within such 180-day period or the failure of the Exchange Offer to be consummated within such 45-day period, respectively, shall terminate), or (iii) if any Holder (other than an Initial Purchaser holding Securities acquired directly from the Company) is not eligible to participate in the Exchange Offer or elects to participate in the Exchange Offer but does not receive Exchange Securities which are freely tradeable without any limitations or restrictions under the 1933 Act or (iv) upon the request of any of the Initial Purchasers within 90 days following the consummation of the Exchange Offer (
provided
that, in the case of this clause (iv), such Initial Purchaser shall hold Registrable Securities (including, without limitation, Private Exchange Securities) that it acquired directly from the Company), the Company shall, at its cost:
(A)
as promptly as practicable, but no later than (a) the 180th day after the Closing Time or (b) the 60th day after any such filing obligation arises, whichever is later, file with the SEC a Shelf Registration Statement relating to the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by the Majority Holders of such Registrable Securities and set forth in such Shelf Registration Statement;
(B)
use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as practicable, but in no event later than the 225th day after the Closing Time (or, in the case of a request by any of the Initial Purchasers pursuant to clause (iv) above, within 30 days after such request). In the event that the Company is required to file a Shelf Registration Statement pursuant to clause (iii) or (iv) above, the Company shall file and use its reasonable best efforts to have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by such Holder or such Initial Purchaser, as applicable;
(C)
use its reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required, in order to permit the Prospectus forming part thereof to be usable by Holders for a period of two years after the latest date on which any Securities are originally issued by the Company (subject to extension pursuant to the last paragraph of Section 3) or, if earlier, when all of the Registrable Securities covered by such Shelf Registration Statement (i) have been sold
9
pursuant to the Shelf Registration Statement in accordance with the intended method of distribution thereunder, or (ii) cease to be Registrable Securities; and
(D)
notwithstanding any other provisions hereof, use its best efforts to ensure that (i) any Shelf Registration Statement and any amendment thereto and any Prospectus forming a part thereof and any supplements thereto comply in all material respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any Prospectus forming part of any Shelf Registration Statement and any amendment or supplement to such Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, clauses (ii) and (iii) shall not apply to any statement in or omission from a Shelf Registration Statement or a Prospectus made in reliance upon and conformity with information relating to any Initial Purchaser, Holder, Participating Broker-Dealer or underwriter of Registrable Securities furnished to the Company in writing by such Initial Purchaser, Holder, Participating Broker-Dealer or underwriter, respectively, expressly for use in such Shelf Registration Statement or Prospectus.
The Company shall not permit any securities other than Registrable Securities to be included in any Shelf Registration Statement without the prior written consent of Goldman Sachs and Credit Suisse, which consent shall not be unreasonably withheld. The Company further agrees, if necessary, to supplement or amend the Shelf Registration Statement if reasonably requested by the Majority Holders with respect to information relating to the Holders and otherwise as required by Section 3(b) below, to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as practicable thereafter and to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c)
Expenses
. The Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and 2(b) and, in the case of any Shelf Registration Statement, will reimburse the Holders or the Initial Purchasers for the reasonable fees and disbursements of one counsel (in addition to any local counsel) designated in writing by the Majority Holders (or, if a Shelf Registration Statement is filed solely pursuant to clause (iv) of the first paragraph of Section 2(b), designated by the Initial Purchasers) to act as counsel for the Holders of the Registrable Securities in connection therewith. Each Holder shall pay all fees and disbursements of its counsel other than as set forth in the preceding sentence or in the definition of Registration Expenses and all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to a Shelf Registration Statement.
(d)
Effective Registration Statement
.
(i)
The Company shall be deemed not to have used its reasonable best efforts to cause the Exchange Offer Registration Statement or any Shelf Registration Statement,
10
as the case may be, to become, or to remain, effective during the requisite periods set forth herein if the Company voluntarily takes any action that could reasonably be expected to result in any such Registration Statement not being declared effective or remaining effective or in the Holders of Registrable Securities (including, under the circumstances contemplated by Section 3(f) hereof, Exchange Securities) covered thereby not being able to exchange or offer and sell such Registrable Securities during that period unless (A) such action is required by applicable law or (B) such action is taken by the Company in good faith and for valid business reasons (but not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets or a material corporate transaction or event so long as the Company promptly complies with the notification requirements of Section 3(k) hereof, if applicable. Nothing in this paragraph shall prevent the accrual of Additional Interest on any Securities or Exchange Securities.
(ii)
An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof shall not be deemed to have become effective unless it has been declared effective by the SEC;
provided
,
however
, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement shall be deemed not to have been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(iii)
During any 365-day period, the Company may, by notice as described in Section 3(e), suspend the availability of a Shelf Registration Statement (and, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Securities by Participating Broker-Dealers as contemplated by Section 3(f), the Exchange Offer Registration Statement) and the use of the related Prospectus for up to two periods of up to 45 consecutive days each (except for the consecutive 45-day period immediately prior to final maturity of the Securities), but no more than an aggregate of 90 days during any 365-day period, upon the happening of any event or the discovery of any fact referred to in Section 3(e)(vi), but subject to compliance by the Company with its obligations under the last paragraph of Section 3.
(e)
Increase in Interest Rate
. In the event that:
(i)
the Exchange Offer Registration Statement is not filed with the SEC on or prior to the 135th day following the Closing Time, or
(ii)
the Exchange Offer Registration Statement is not declared effective by the SEC on or prior to the 180th day following the Closing Time, or
(iii)
the Exchange Offer is not consummated on or prior to the 45
th
day following the effective date of the Exchange Offer Registration Statement, or
11
(iv)
if required, a Shelf Registration Statement is not filed with the SEC on or prior to (A) the 180th day following the Closing Time or (B) the 60th day after the filing obligation arises, whichever is later, or
(v)
if required, a Shelf Registration Statement is not declared effective on or prior to the 225th day following the Closing Time (or, if a Shelf Registration Statement is required to be filed upon the request of any Initial Purchaser, within 30 days after such request), or
(vi)
a Shelf Registration Statement is declared effective by the SEC but such Shelf Registration Statement ceases to be effective or such Shelf Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Registrable Securities for any reason and (A) the aggregate number of days in any consecutive 365-day period for which the Shelf Registration Statement or such Prospectus shall not be effective or usable exceeds 90 days, (B) the Shelf Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Shelf Registration Statement or such Prospectus shall not be effective or usable for a period of more than 45 consecutive days, or
(vii)
the Exchange Offer Registration Statement is declared effective by the SEC but, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Securities as contemplated by Section 3(f) of this Agreement, the Exchange Offer Registration Statement ceases to be effective or the Exchange Offer Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Exchange Securities for any reason during the 180-day period referred to in Section 3(f)(B) of this Agreement (as such period may be extended pursuant to the last paragraph of Section 3 of this Agreement) and (A) the aggregate number of days in any consecutive 365-day period for which the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable exceeds 90 days, (B) the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Exchange Offer Registration Statement or the Prospectus shall not be effective or usable for a period of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being hereinafter called a “
Registration Default
”), the per annum interest rate borne by the Registrable Securities shall be increased (“
Additional Interest
”) by one-quarter of one percent (0.25%) per annum immediately following such 135-day period in the case of clause (i) above, immediately following such 180-day period in the case of clause (ii) above, immediately following such 45-day period in the case of clause (iii) above, immediately following any such 180-day period or 60-day period, whichever ends later, in the case of clause (iv) above, immediately following any such 225-day period or 30-day period, whichever ends first, in the case of clause (v) above, immediately following the 90th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 45
th
consecutive day, whichever occurs first, that a Shelf Registration Statement shall not be effective or a Shelf Registration Statement or the Prospectus included therein shall not be usable as contemplated by
12
clause (vi) above, or immediately following the 90th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 45
th
consecutive day, whichever occurs first, that the Exchange Offer Registration Statement shall not be effective or the Exchange Offer Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vii) above, which rate will be increased by an additional one-quarter of one percent (0.25%) per annum immediately following each 90-day period that any Additional Interest continues to accrue under any circumstances;
provided
that the aggregate increase in such annual interest rate may in no event exceed one-half of one percent (0.50%) per annum. Upon the filing of the Exchange Offer Registration Statement after the 135-day period described in clause (i) above, the effectiveness of the Exchange Offer Registration Statement after the 180-day period described in clause (ii) above, the consummation of the Exchange Offer after the 45-day period described in clause (iii) above, the filing of the Shelf Registration Statement after the 180-day period or 60-day period day, as the case may be, described in clause (iv) above, the effectiveness of a Shelf Registration Statement after the 225-day period or 30-day period, as the case may be, described in clause (v) above, or the Shelf Registration Statement once again being effective or the Shelf Registration Statement and the Prospectus included therein becoming usable in connection with resales of Registrable Securities, as the case may be, in the case of clause (vi) above, or the Exchange Offer Registration Statement once again becoming effective or the Exchange Offer Registration Statement and the Prospectus included therein becoming usable in connection with resales of Exchange Securities, as the case may be, in the case of clause (vii) thereof, the interest rate borne by the Securities from the date of such filing, effectiveness, consummation or resumption of effectiveness or usability, as the case may be, shall be reduced to the original interest rate so long as no other Registration Default shall have occurred and shall be continuing at such time and the Company is otherwise in compliance with this paragraph;
provided
,
however
, that, if after any such reduction in interest rate, one or more Registration Defaults shall again occur, the interest rate shall again be increased pursuant to the foregoing provisions.
The Company shall notify the Trustee within three business days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “Event Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the Holders of Registrable Securities, on or before the applicable semiannual interest payment date, immediately available funds in sums sufficient to pay the Additional Interest then due. The Additional Interest due shall be payable on each interest payment date to the record Holder of Securities entitled to receive the interest payment to be paid on such date as set forth in the Indentures. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the applicable Event Date.
Anything herein to the contrary notwithstanding, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, its Securities for Exchange Securities in the Exchange Offer will not be entitled to receive any Additional Interest. For purposes of clarity, it is hereby acknowledged and agreed that, under current interpretations of law by the SEC, Initial Purchasers holding unsold allotments of Securities acquired from the Company are not eligible to participate in the Exchange Offer.
(f)
Specific Enforcement
. Without limiting the remedies available to the Initial Purchasers and the Holders, the Company acknowledges that any failure by the Company to
13
comply with its obligations under Sections 2(a) and 2(b) hereof may result in material irreparable injury to the Initial Purchasers, the Holders or the Participating Broker-Dealers for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers, any Holder and any Participating Broker-Dealer may obtain such relief as may be required to specifically enforce the Company’s obligations under Sections 2(a) and 2(b).
3.
Registration Procedures
. In connection with the obligations of the Company with respect to the Registration Statements pursuant to Sections 2(a) and 2(b) hereof, the Company shall:
(a)
prepare and file with the SEC a Registration Statement or, if required, Registration Statements, within the time periods specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf Registration Statement, be available for the sale of the Registrable Securities by the selling Holders thereof and (iii) shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2 hereof;
(b)
prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary under applicable law to keep such Registration Statement effective for the applicable period; cause each Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply with the provisions of the 1933 Act and the 1934 Act with respect to the disposition of all Securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof;
(c)
in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities, at least ten business days prior to filing, that a Shelf Registration Statement with respect to the Registrable Securities is being filed and advising such Holders that the distribution of Registrable Securities will be made in accordance with the method elected by the Majority Holders; (ii) furnish to each Holder of Registrable Securities, to counsel for the Initial Purchasers, to counsel for the Holders and to each underwriter of an underwritten offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder, counsel or underwriter may reasonably request, including financial statements and schedules and, if such Holder, counsel or underwriter so requests, all exhibits (including those incorporated by reference) in order to facilitate the public sale or other disposition of the Registrable Securities; and (iii) subject to the penultimate paragraph of this Section 3, the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, or any amendment or supplement thereto by each of the Holders and underwriters of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by any Prospectus or any amendment or supplement thereto;
14
(d)
use its reasonable best efforts to register or qualify the Registrable Securities under all applicable state securities or “blue sky” laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Securities shall reasonably request, to cooperate with the Holders and the underwriters of any Registrable Securities in connection with any filings required to be made with FINRA, to keep each such registration or qualification effective during the period such Registration Statement is required to be effective and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder;
provided
,
however
, that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d) or (ii) take any action which would subject it to general service of process or taxation in any such jurisdiction if it is not then so subject;
(e)
in the case of a Shelf Registration, notify each Holder of Registrable Securities and counsel for such Holders promptly and, if requested by such Holder or counsel, confirm such advice in writing promptly (i) when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of any request by the SEC or any state securities authority for post-effective amendments or supplements to a Registration Statement or Prospectus or for additional information after a Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to such offering cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (vi) of the happening of any event or the discovery of any facts during the period a Shelf Registration Statement is effective which is contemplated in Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such Shelf Registration Statement or the related Prospectus untrue in any material respect or which constitutes an omission to state a material fact in such Shelf Registration Statement or Prospectus and (vii) of any determination by the Company that a post-effective amendment to a Registration Statement would be appropriate. Without limitation to any other provisions of this Agreement, the Company agrees that this Section 3(e) shall also be applicable, mutatis mutandis, with respect to the Exchange Offer Registration Statement and the Prospectus included therein to the extent that such Prospectus is being used by Participating Broker-Dealers as contemplated by Section 3(f);
(f)
(A) in the case of an Exchange Offer, (i) include in the Exchange Offer Registration Statement (A) a “Plan of Distribution” section (which section shall be reasonably acceptable to Goldman Sachs and Credit Suisse) covering the use of the Prospectus included in the Exchange Offer Registration Statement by broker-dealers who have exchanged their Registrable Securities for Exchange Securities for the resale of such Exchange Securities and (B) a statement to the effect that any such broker-dealers who wish to use the related Prospectus in connection with the resale of Exchange Securities acquired as a result of market-making or other trading activities will be required to notify the Company to that effect, together with instructions
15
for giving such notice (which instructions shall include a provision for giving such notice by checking a box or making another appropriate notation on the related letter of transmittal) (each such broker-dealer who gives notice to the Company as aforesaid being hereinafter called a “
Notifying Broker-Dealer
”), (ii) furnish to each Notifying Broker-Dealer who desires to participate in the Exchange Offer, without charge, as many copies of each Prospectus included in the Exchange Offer Registration Statement, including any preliminary prospectus, and any amendment or supplement thereto, as such broker-dealer may reasonably request, (iii) include in the Exchange Offer Registration Statement a statement that any broker-dealer who holds Registrable Securities acquired for its own account as a result of market-making activities or other trading activities (a “
Participating Broker-Dealer
”), and who receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer, may be a statutory underwriter and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities, (iv) subject to the penultimate paragraph of this Section 3, the Company hereby consents to the use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or supplement thereto by any Notifying Broker-Dealer in connection with the sale or transfer of Exchange Securities, and (v) include in the transmittal letter or similar documentation to be executed by an exchange offeree in order to participate in the Exchange Offer the following provision:
“If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities, it represents that the Registrable Securities to be exchanged for Exchange Securities were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities pursuant to the Exchange Offer; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the 1933 Act;”
(B)
to the extent any Notifying Broker-Dealer participates in the Exchange Offer, (i) the Company shall use its reasonable best efforts to maintain the effectiveness of the Exchange Offer Registration Statement for a period of 180 days (subject to extension pursuant to the last paragraph of this Section 3) following the last date on which exchanges are accepted pursuant to the Exchange Offer, and (ii) the Company will comply, insofar as relates to the Exchange Offer Registration Statement, the Prospectus included therein and the offering and sale of Exchange Securities pursuant thereto, with its obligations under Section 2(b)(D), the last paragraph of Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p), and the last two paragraphs of this Section 3 as if all references therein to a Shelf Registration Statement, the Prospectus included therein and the Holders of Registrable Securities referred, mutatis mutandis, to the Exchange Offer Registration Statement, the Prospectus included therein and the applicable Notifying Broker-Dealers and, for purposes of this Section 3(f), all references in any such paragraphs or sections to the “Majority Holders” shall be deemed to mean, solely insofar
16
as relates to this Section 3(f), the Notifying Broker-Dealers who are the Holders of the majority in aggregate principal amount of the Exchange Securities which are Registrable Securities; and
(C)
the Company shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement as would otherwise be contemplated by Section 3(b) or 3(k) hereof, or take any other action as a result of this Section 3(f), for a period exceeding 180 days (subject to extension pursuant to the last paragraph of this Section 3) after the last date on which exchanges are accepted pursuant to the Exchange Offer and Notifying Broker-Dealers shall not be authorized by the Company to, and shall not, deliver such Prospectus after such period in connection with resales contemplated by this Section 3;
(g)
(i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable Securities and counsel for any underwriters of Registrable Securities copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement or Prospectus or for additional information;
(h)
use its reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement as soon as practicable and provide immediate notice to each Holder of the withdrawal of any such order;
(i)
in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post-effective amendments thereto (without documents incorporated or deemed to be incorporated therein by reference or exhibits thereto, unless requested);
(j)
in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and cause such Registrable Securities to be in such denominations (consistent with the provisions of the Indenture) and in a form eligible for deposit with the Depositary and registered in such names as the selling Holders or the underwriters, if any, may reasonably request in writing at least one business day prior to the closing of any sale of Registrable Securities;
(k)
in the case of a Shelf Registration, upon the occurrence of any event or the discovery of any facts as contemplated by Section 3(e)(vi) hereof, use its best efforts to prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain at the time of such delivery any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify each Holder to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or
17
omission. At such time as such public disclosure is otherwise made or the Company determines that such disclosure is not necessary, in each case to correct any misstatement of a material fact or to include any omitted material fact, the Company agrees promptly to notify each Holder of such determination and to furnish each Holder such number of copies of the Prospectus, as amended or supplemented, as such Holder may reasonably request;
(l)
obtain CUSIP and ISIN numbers for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with printed or word-processed certificates for the Exchange Securities or Registrable Securities, as the case may be, in a form eligible for deposit with the Depositary;
(m)
(i) cause the Indenture to be qualified under the TIA in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, (ii) cooperate with the Trustee and the Holders to effect such changes, if any, to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and (iii) execute, and use its reasonable best efforts to cause the Trustee to execute, all documents as may be required to effect such changes, if any, and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(n)
in the case of a Shelf Registration, the holders of a majority in principal amount of the Registrable Securities registered pursuant to such Shelf Registration Statement shall have the right to direct the Company to effect not more than one underwritten registration and, in connection with such underwritten registration, the Company shall enter into agreements (including underwriting agreements or similar agreements) and take all other customary and appropriate actions (including those reasonably requested by the holders of a majority in principal amount of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, in a manner that is reasonable and customary:
(i)
make such representations and warranties to the Holders of such Registrable Securities and the underwriters, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings as may be reasonably requested by such Holders and underwriters;
(ii)
obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, and the Holders of a majority in principal amount of the Registrable Securities being sold) addressed to each selling Holder and the underwriters, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters;
(iii)
obtain “cold comfort” letters and updates thereof with respect to such Shelf Registration Statement and the Prospectus included therein, all amendments and supplements thereto and all documents incorporated or deemed to be incorporated by reference therein from the Company’s independent certified public accountants and from the independent certified public accountants for any other Person or any business or
18
assets whose financial statements are included or incorporated by reference in the Shelf Registration Statement, each addressed to the underwriters, and use reasonable best efforts to have such letters addressed to the selling Holders of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters to underwriters in connection with similar underwritten offerings and such letters to be delivered at the time of the pricing of such underwritten registration with an update to such letter to be delivered at the time of closing of such underwritten registration;
(iv)
if an underwriting agreement or other similar agreement is entered into, cause the same to set forth indemnification and contributions provisions and procedures substantially equivalent to the indemnification and contributions provisions and procedures set forth in Section 5 hereof with respect to the underwriters and all other parties to be indemnified pursuant to Section 5 hereof or such other indemnification and contributions as shall be satisfactory to the Company, the applicable underwriters and the Holders of the majority in principal amount of the Registrable Securities being sold; and
(v)
deliver such other documents and certificates as may be reasonably requested and as are customarily delivered in similar offerings.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be delivered at the closing under any underwriting or similar agreement as and to the extent required thereunder. In the case of any such underwritten offering, the Company shall provide written notice to the Holders of all Registrable Securities of such underwritten offering at least 30 days prior to the filing of a prospectus supplement for such underwritten offering. Such notice shall (x) offer each such Holder the right to participate in such underwritten offering, (y) specify a date, which shall be no earlier than 15 days following the date of such notice, by which such Holder must inform the Company of its intent to participate in such underwritten offering and (z) include the instructions such Holder must follow in order to participate in such underwritten offering;
(o)
in the case of a Shelf Registration, make available for inspection by representatives of the Holders of the Registrable Securities and any underwriters participating in any disposition pursuant to a Shelf Registration Statement and any counsel or accountant retained by such Holders or underwriters, all financial statements and other records, documents and properties of the Company reasonably requested by any such Persons, and cause the respective officers, directors, employees, and any other agents of the Company to supply all information reasonably requested by any such Persons in connection with a Shelf Registration Statement;
(p)
(i) in the case of an Exchange Offer, a reasonable time prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a part thereof, any amendment to an Exchange Offer Registration Statement or amendment or supplement to such Prospectus, provide copies of such documents to the Initial Purchasers, and make such changes in any such documents prior to the filing thereof as the Initial Purchasers or their counsel may reasonably request; (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf Registration Statement or amendment or supplement to such Prospectus, provide copies of such
19
document to the Holders of Registrable Securities, to the Initial Purchasers, to the underwriter or underwriters, of an underwritten offering of Registrable Securities, and to counsel for any such Holders, Initial Purchasers or underwriters, and make such changes in any such document prior to the filing thereof as the Holders of Registrable Securities, the Initial Purchasers, any such underwriter or underwriters or any of their respective counsel may reasonably request; and (iii) cause the representatives of the Company to be available for discussion of such documents as shall be reasonably requested by the Holders of Registrable Securities, the Initial Purchasers on behalf of such Holders or any underwriter, and shall not at any time make any filing of any such document of which such Holders, the Initial Purchasers on behalf of such Holders, their counsel or any underwriter shall not have previously been advised and furnished a copy or to which such Holders, the Initial Purchasers on behalf of such Holders, their counsel or any underwriter shall reasonably object within a reasonable time period;
(q)
in the case of a Shelf Registration, use its reasonable best efforts to cause all Registrable Securities to be listed on any securities exchange on which similar debt securities issued by the Company are then listed if requested by the Majority Holders or by the underwriter or underwriters of an underwritten offering of Registrable Securities, if any;
(r)
in the case of a Shelf Registration, use its reasonable best efforts to cause the Registrable Securities to be rated with the appropriate rating agencies, if so requested by the Majority Holders of Registrable Securities or by the underwriter or underwriters of an underwritten offering, unless the Registrable Securities are already so rated;
(s)
otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and, with respect to each Registration Statement and each post-effective amendment, if any, thereto and each filing by the Company of an Annual Report on Form 10-K, make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(t)
cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a condition to such Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities to furnish to the Company such information regarding such Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing and require such Holder to agree in writing to be bound by all provisions of this Agreement applicable to such Holder.
In the case of a Shelf Registration Statement, each Holder agrees and, in the event that any Participating Broker-Dealer is using the Prospectus included in the Exchange Offer Registration Statement in connection with the sale of Exchange Securities pursuant to Section 3(f), each such Participating Broker-Dealer agrees that, upon receipt of any notice from the Company of the happening of any event or the discovery of any facts of the kind described in Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or Participating Broker-Dealer, as the case may be, will forthwith discontinue disposition of Registrable Securities
20
pursuant to a Registration Statement until receipt by such Holder or Participating Broker-Dealer, as the case may be, of (i) the copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof or (ii) written notice from the Company that the Shelf Registration Statement or the Exchange Offer Registration Statement, respectively, are once again effective or that no supplement or amendment is required. If so directed by the Company, such Holder or Participating Broker-Dealer, as the case may be, will deliver to the Company (at the Company’s expense) all copies in its possession, other than permanent file copies then in its possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. Nothing in this paragraph shall prevent the accrual of Additional Interest on any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of Registrable Securities pursuant to the immediately preceding paragraph, the Company shall be deemed to have used its reasonable best efforts to keep the Shelf Registration Statement or, in the case of Section 3(f), the Exchange Offer Registration Statement, as the case may be, effective during such period of suspension;
provided
that (i) such period of suspension shall not exceed the time periods provided in Section 2(d)(iii) hereof and (ii) the Company shall use its reasonable best efforts to file and have declared effective (if an amendment) as soon as practicable thereafter an amendment or supplement to the Shelf Registration Statement or the Exchange Offer Registration Statement or both, as the case may be, or the Prospectus included therein and shall extend the period during which the Shelf Registration Statement or the Exchange Offer Registration Statement or both, as the case may be, shall be maintained effective pursuant to this Agreement (and, if applicable, the period during which Participating Broker-Dealers may use the Prospectus included in the Exchange Offer Registration Statement pursuant to Section 3(f) hereof) by the number of days during the period from and including the date of the giving of such notice to and including the earlier of the date when the Holders or Participating Broker-Dealers, respectively, shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions and the effective date of written notice from the Company to the Holders or Participating Broker-Dealers, respectively, that the Shelf Registration Statement or the Exchange Offer Registration Statement, respectively, are once again effective or that no supplement or amendment is required.
4.
Underwritten Registrations
. If any of the Registrable Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Majority Holders of such Registrable Securities included in such offering and shall be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
21
5.
Indemnification and Contribution
.
(a)
The Company agrees to indemnify and hold harmless each Initial Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who participates in an offering of Registrable Securities (each, an “
Underwriter
”) and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided
that (subject to Section 5(d) below) any such settlement is effected with the written consent of the Company; and
(iii)
against any and all expense whatsoever, as incurred (including, subject to Section 5(c) below, the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided
,
however
, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with respect to such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(b)
Each Holder, severally but not jointly, agrees to indemnify and hold harmless the Company, each director of the Company, each officer of the Company who signed the Registration Statement, each Initial Purchaser, each Participating Broker-Dealer, each
22
Underwriter and each other selling Holder and each Person, if any, who controls the Company, any Initial Purchaser, any Underwriter, any Participating Broker-Dealer or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 5(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto);
provided
,
however
, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c)
Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. Counsel to the respective indemnified parties shall be selected as follows: (i) counsel to the Initial Purchasers and all Persons, if any, who control any Initial Purchasers within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by Goldman Sachs and Credit Suisse; (ii) counsel to the Company, its directors, each of its officers who signed the Registration Statement and all Persons, if any, who control the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Company; (iii) counsel to the Holders (other than any Initial Purchasers or Participating Broker-Dealers) and all Persons, if any, who control any Holders (other than any Initial Purchasers or Participating Broker-Dealers) within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Holders who held or hold, as the case may be, a majority in aggregate principal amount of the Registrable Securities held by all such Holders; (iv) counsel to the Underwriters of any particular offering of Registrable Securities and all Persons, if any, who control any such Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such Underwriters; and (v) counsel to the Participating Broker-Dealers (other than any Initial Purchasers) and all Persons, if any, who control any such Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Participating Broker-Dealers who held or hold, as the case may be, a majority in aggregate principal amount of the Exchange Securities referred to in Section 3(f) hereof held by all such Participating Broker-Dealers. An indemnifying party may participate at its own expense in the defense of any such action;
provided
,
however
, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party or parties be liable for (A) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties’ own counsel for all Initial Purchasers and all other Persons referred to in clause (i) of this paragraph, (B) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties’ own counsel for the Company and all other Persons referred to in clause (ii) of this paragraph, (C) the fees and expenses of more than one counsel (in addition to
23
any local counsel) separate from the indemnifying parties’ own counsel for all Holders (other than any Initial Purchasers or Participating Broker-Dealers) and all other Persons referred to in clause (iii) of this paragraph, (D) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties’ own counsel for all Underwriters of any particular offering of Registrable Securities and all other Persons referred to in clause (iv) of this paragraph, and (E) the fees and expenses of more than counsel (in addition to any local counsel) separate from the indemnifying parties’ own counsel for all Participating Broker-Dealers (other than any Initial Purchasers) and all other Persons referred to in clause (v) of this paragraph, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 5 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 5(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party shall not be liable for any settlement of the nature contemplated by Section 5(a)(ii) effected without its written consent if such indemnifying party (x) reimburses such indemnified party in accordance with such request to the extent that the indemnifying party in its judgment considers such request to be reasonable and (y) provides written notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in each case no later than 45 days after receipt by such indemnifying party of the aforesaid request from the indemnified party.
(e)
If the indemnification provided for in this Section 5 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party or parties on the one hand and the indemnified party or parties
24
on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or parties or such indemnified party or parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f)
The Company, the Holders, and the Initial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (e) above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 5 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which Registrable Securities sold by it were offered exceeds the amount of any damages that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each Person, if any, who controls an Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, and each director of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
The respective obligations of the Initial Purchasers, Holders, Participating Broker-Dealers and Underwriters to contribute pursuant to this Section 5 are several in proportion to the principal amount of Securities purchased by them and not joint.
The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter or any Person controlling any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, or by or on behalf of the Company, its officers or directors or any Person controlling the Company, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities or Exchange Securities pursuant to a Shelf Registration Statement.
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6.
Miscellaneous
.
(a)
Rule 144 and Rule 144A
. For so long as the Company is subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file all reports required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC thereunder, that if it ceases to be so required to file such reports, it will upon the request of any Holder or beneficial owner of Registrable Securities (i) make publicly available such information (including, without limitation, the information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to be delivered, promptly following a request by any Holder or beneficial owner of Registrable Securities or any prospective purchaser or transferee designated by such Holder or beneficial owner, such information (including, without limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii) take such further action that is reasonable in the circumstances, in each case to the extent required from time to time to enable such Holder to sell its Registrable Securities without registration under the 1933 Act within the limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from time to time, or (z) any similar rules or regulations hereafter adopted by the SEC. Upon the request of any Holder or beneficial owner of Registrable Securities, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements.
(b)
No Inconsistent Agreements
. The Company has not entered into nor will the Company on or after the date of this Agreement enter into any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof;
provided
that the Company will not be precluded from entering into any agreement after the date hereof which may or does result, directly or indirectly, in the payment of Additional Interest. The rights granted to the Holders hereunder do not and will not in any way conflict with and are not and will not be inconsistent with the rights granted to the holders of any of the Company’s other issued and outstanding securities under any other agreements entered into by the Company or any of its subsidiaries.
(c)
Amendments and Waivers
. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or departure.
(d)
Notices
. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, electronic mail, or any courier guaranteeing overnight delivery (i) if to a Holder or Participating Broker-Dealer (other than an Initial Purchaser), at the most current address set forth on the records of the registrar under the Indenture, (ii) if to an Initial Purchaser, at the most current address given by such Initial Purchaser to the Company by means of a notice given in accordance with the provisions of this Section 6(d), which address initially is the address set forth in the Purchase Agreement; (iii) if to the Company, initially at the address set forth in the Purchase Agreement
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and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(d) and (iv) if to any Underwriter, at the most current address given by such Underwriter to the Company by means of a notice given in accordance with the provisions of this Section 6(d), which address initially shall be the address set forth in the applicable underwriting agreement.
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if sent via electronic mail; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(e)
Successors and Assigns
. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders;
provided
that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits hereof.
(f)
Third Party Beneficiary
. Each Holder and Participating Broker-Dealer shall be a third party beneficiary of the agreements made hereunder between the Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder. Each Holder, by its acquisition of Securities, shall be deemed to have agreed to the provisions of Section 5(b) hereof.
(g)
Counterparts
. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h)
Headings
. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i)
Restriction on Resales
. If the Company or any of its subsidiaries or affiliates (as defined in Rule 144 under the 1933 Act) shall redeem, purchase or otherwise acquire any Registrable Security or any Exchange Security which is a “restricted security” within the meaning of Rule 144 under the 1933 Act, the Company will deliver or cause to be delivered such Registrable Security or Exchange Security, as the case may be, to the Trustee for cancellation
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and neither the Company nor any of its subsidiaries or affiliates will hold or resell such Registrable Security or Exchange Security or issue any new Security or Exchange Security to replace the same.
(j)
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k)
Severability
. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
[
SIGNATURE PAGE FOLLOWS
]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
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SUPERVALU INC.
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By:
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/s/ Sherry M. Smith
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Name: Sherry M. Smith
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Title: Chief Financial Officer and Executive Vice President
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Confirmed and accepted as of the date first above written:
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GOLDMAN, SACHS & CO.
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CREDIT SUISSE SECURITIES (USA) LLC
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BARCLAYS CAPITAL INC.
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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MORGAN STANLEY & CO. LLC
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By: GOLDMAN, SACHS & CO.
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By:
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/s/ Michael Hickey
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Name: Michael Hickey
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Title: Vice President
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By: CREDIT SUISSE SECURITIES (USA) LLC
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By:
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/s/ Brian Anton
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Name: Brian Anton
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Title: Director
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[
Signature Page to Registration Rights Agreement
]
