Exhibit 4.3.2
SUPPLEMENTAL INDENTURE NO. 1
This SUPPLEMENTAL INDENTURE NO. 1 dated as of January 23, 2004 (the
"Supplemental Indenture"), between AMERICAN STORES COMPANY, LLC, a Delaware
limited liability company and formerly a corporation incorporated under the laws
of the State of Delaware, known as AMERICAN STORES COMPANY (the "Company"), and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, successor trustee under the
Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, prior to the Conversion referred to below, American Stores
Company, a Delaware corporation, and the original trustee, The First National
Bank of Chicago, entered into the Indenture, dated as of May 1, 1995 the
"Indenture"), providing for the issuance of the unsecured debentures, notes and
other evidences of indebtedness of American Stores Company; and
WHEREAS, as of the date of this Supplemental Indenture, the following
debentures and notes of American Stores Company (collectively referred to herein
as the "Securities") have been issued under the Indenture and are outstanding:
(i) $200 Million of 7.4% Debentures due May 15, 2005; (ii) $350 Million of 8.0%
Debentures due June 1, 2026; (iii) $100 Million of 7.9% Debentures due 2017;
(iv) $200 Million of 7.5% Debentures due 2037; (v) $45 Million of 6.5% Medium
Term Notes, Series B, due March 20, 2008; and (vi) $100 Million of 7.1% Medium
Term Notes, Series B, due March 20, 2028; and
WHEREAS, effective as of the date hereof, American Stores Company has
filed a Certificate of Conversion with the Secretary of State of the state of
Delaware, pursuant to which it has converted from a Delaware corporation into a
Delaware limited liability company known as American Stores Company, LLC (the
"Conversion"); and
WHEREAS, Section 266(d) of the Delaware General Corporation Law provides
that the conversion of a Delaware corporation into a Delaware limited liability
company shall not be deemed to affect any obligations or liabilities of such
corporation incurred prior to such conversion; and
WHEREAS, Section 266(f) of the Delaware General Corporation Law provides
that unless otherwise provided in the resolution of conversion, the converting
corporation shall not be required to wind up its affairs or pay its liabilities
and distribute its assets, and the conversion shall not constitute a dissolution
of such corporation and shall constitute a continuation of the existence of the
converting corporation in the form of the Delaware Limited Liability Company;
and
WHEREAS, Section 18-214 of the Delaware Limited Liability Company Act
(the "DLLCA") provides that all of the rights, privileges and powers of a
Delaware corporation that
has converted into a Delaware limited liability company, and all property, real,
personal and mixed, and all debts due to such corporation, as well as all other
things and causes of action belonging to such corporation, remain vested in the
limited liability company to which such corporation has converted and shall be
the property of such limited liability company, and the title to any real
property vested by deed or otherwise in such corporation shall not revert or be
in any way impaired by reason of such conversion, and all rights of creditors
and all liens upon any property of such corporation shall be preserved
unimpaired, and all debts, liabilities and duties of such corporation shall
remain attached to the Delaware limited liability company to which such
corporation has converted, and may be enforced against it to the same extent as
if said debts, liabilities and duties had originally been incurred or contracted
by it in its capacity as a limited liability company, and the rights,
privileges, powers and interests in property of such corporation, as well as the
debts, liabilities and duties of such corporation, shall not be deemed, as a
consequence of the conversion, to have been transferred to the Delaware limited
liability company for any purpose of the laws of the State of Delaware; and
WHEREAS, as a result of the Conversion and without need for any further
action, the Securities and the Indenture are the continuing obligations of the
Company; and
WHEREAS, the Company and the Trustee are entering into this Supplemental
Indenture to reflect the foregoing;
NOW, THEREFORE, the Company and the Trustee mutually covenant and agree
for the equal and ratable benefit of the holders of the Securities as follows:
ARTICLE 1
ASSUMPTION AND CONFIRMATION BY THE COMPANY
Section 1.1 Assumption and Confirmation of the Securities. The Company
hereby expressly assumes, agrees and confirms its continuing obligation
notwithstanding the Conversion, promptly to pay, perform and discharge when due
each and every debt, obligation, covenant and agreement incurred, made or to be
paid, performed or discharged by the Company under the Indenture and the
Securities. The Company hereby confirms (i) its continuing agreement to be bound
by all the terms, provisions and conditions of the Indenture and the Securities
notwithstanding the Conversion, and (ii) that it may exercise every right and
power of the Company under the Indenture and the Securities notwithstanding the
Conversion.
Section 1.2 Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
ARTICLE 2
MISCELLANEOUS
Section 2.1 Defined Terms; Effect of Supplemental Indenture. Capitalized
terms used herein but not otherwise defined have the meanings given to them in
the Indenture. Upon the execution and delivery of this Supplemental Indenture by
the Company and the Trustee, the
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Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of a Security heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby.
Section 2.2 Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 2.3 Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 2.4 Confirmation and Preservation of Indenture. The Indenture as
supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
Section 2.5 Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939 (the "TIA") that is required under the TIA to be
part of and govern any provision of this Supplemental Indenture, such provision
of the TIA shall control. If any provision of this Supplemental Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this Supplemental Indenture, as the case may
be.
Section 2.6 Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.7 Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the holders of the Securities, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Securities.
Section 2.8 Successors. All agreements of the Company in this
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
Section 2.9 Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture and the Securities relating to the
conduct of or affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 2.10 Governing Law. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York, but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
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Section 2.11 Multiple Originals. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is enough
to prove this Supplemental Indenture.
Section 2.12 Headings. The Article and Section headings herein have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed as of the date first written above.
AMERICAN STORES COMPANY, LLC
BY : XXXXXXXXX'X, INC.
ITS SOLE MEMBER
By: /S/ Xxxx Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
By: /S/ Xxxxxx Xxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Vice President
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