Registration No. 333-107350333-160138
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
Amendment No. 3TO
FormFORM S-4
REGISTRATION STATEMENT
UNDER
UNDER
INGLES MARKETS, INCORPORATED
Ingles Markets, Incorporated
| North Carolina | 5411 | 56-0846267 | ||
| (State or Other Jurisdiction of Incorporation or Organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification |
P.O. Box 6676
Brenda S. Tudor
Copies to:
2913 U.S. Highway 70 West Black Mountain, North Carolina 28711 | Ronald B. Freeman Black Mountain, North Carolina 28711 | |
Copies of communications to:
Andrew E. Balog, Esq.
Theodore I. Blum, Esq.
Greenberg Traurig, LLP
3290 Northside Parkway, Suite 400
Atlanta, Georgia 30327
Telephone No.: (305) 579-0500
Facsimile No.: (305) 579-0717
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effective date of this Registration Statement.Statement becomes effective.
If the securities being registered on this Formform are to bebeing offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o¨
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o¨
Indicate by a check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definition of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one):
| Large accelerated filer ¨ | Accelerated filer x | |
| Non-accelerated filer ¨ | Smaller reporting company ¨ | |
| (Do not check if a smaller reporting company) |
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ¨
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment whichthat specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until thisthe Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
OFFER TO EXCHANGE
TERMS OF EXCHANGE
See “Risk Factors” beginning on page 13 for a discussion of certain factors that should be considered by holders who tender their original notes in the exchange offer and by purchasers of the notes from persons eligible to use this prospectus for resale.
Theseis not complete and may be changed. We may not sell these securities have not been approved or disapproved byuntil the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 1, 2009
PROSPECTUS
$575,000,000
INGLES MARKETS, INCORPORATED
Offer to Exchange
Outstanding 8 7/8% Senior Notes due 2017
for
Registered 8 7/8% Senior Notes due 2017
Ingles Markets, Incorporated is offering to exchange up to $575,000,000 aggregate principal amount of its registered 8 7/8% senior notes due 2017, or the “registered notes,” for up to a like aggregate principal amount of its outstanding 8 7/8% senior notes due 2017, or the “outstanding notes.” As of the date of this prospectus, there is outstanding $575,000,000 aggregate principal amount of the outstanding notes. The terms of the registered notes are substantially identical to the terms of the outstanding notes, except that the registered notes are registered under the Securities Act of 1933, as amended, or the “Securities Act,” and the transfer restrictions and registration rights and related additional interest provisions applicable to the outstanding notes do not apply to the registered notes. The registered notes will represent the same debt as the outstanding notes and we will issue the registered notes under the same indenture.
The exchange offer will expire at 5:00 p.m., New York City time, on , 2009, unless extended.
Terms of the Exchange Offer
All outstanding notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer will be exchanged for the registered notes.
You may withdraw tendered outstanding notes at any time before the exchange offer expires.
The exchange of the outstanding notes for the registered notes will not be a taxable event for federal income tax purposes.
We will not receive any proceeds from the exchange offer.
The exchange offer is subject to customary conditions, including the conditions that the exchange offer not violate applicable law or any stateapplicable interpretation of the staff of the Securities and Exchange Commission.
The Registered Notes
The registered notes are being offered in order to satisfy our obligations under the registration rights agreement entered in connection with the private offering of the outstanding notes.
The registered notes will be our general senior unsecured obligations.
No public market currently exists for the registered notes. We do not intend to apply for listing of the registered notes on any securities commission nor hasexchange or to arrange for them to be quoted on any quotation system.
Before participating in the exchange offer, please refer to the section in this prospectus entitled “Risk Factors” beginning on page 10.
Neither the Securities and Exchange Commission ornor any state securities commission passed uponhas approved or disapproved of the accuracyregistered notes or adequacy ofdetermined if this prospectus.prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2003.2009
TABLE OF CONTENTS
| Page | ||||
| i | ||||
| ii | ||||
| iii | ||||
| iii | ||||
| 1 | ||||
| 10 | ||||
| 16 | ||||
| 16 | ||||
| 17 | ||||
| 18 | ||||
| 19 | ||||
| 22 | ||||
| 31 | ||||
| 69 | ||||
| 70 | ||||
| 71 | ||||
| 71 | ||||
We have filed with the SEC a registration statementYou should rely only on Form S-4 (File No. 333-107350). This prospectus, which forms part of this registration statement, does not contain all of the information included in the registration statement. For further information about us and the securities offeredcontained in this prospectus and in any other written communication authorized by us. We have not authorized anyone to provide you with different information, whether orally or in writing. We are not making an offer of these securities in any state or other jurisdiction where the offer is not permitted. You should refer tonot assume that the registration statement and its exhibits.
We file annual, quarterly and special reports andinformation contained in this prospectus is accurate as of any date other information withthan the SEC. You may read and copy at prescribed rates any document we file at the SEC’s public reference rooms at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC’s regional offices at 3475 Lenox Road, N.E., Suite 1006, in Atlanta, Georgia 30326-1232. Please call the SEC at 1-800-SEC-0330 for further informationdate printed on the public reference rooms. Our SEC filings are also available to the public at the SEC’s web site at www.sec.gov.
Our principal executive offices are located at 2913 U.S. Highway 70 West, Black Mountain, North Carolina 28711. Our telephone number is (828) 669-2941. Our website address is www.ingles-markets.com. Information on our web site is not partfront of this prospectus.
In this prospectus, unless the context indicates otherwise, the “Company,” “Ingles,” “we,” “us” and “our” refer to Ingles Markets, Incorporated, a North Carolina corporation, and its consolidated subsidiaries; “notes” refers to the outstanding notes and the registered notes collectively; and “indenture” refers to the indenture that applies to both the outstanding notes and the registered notes.
BROKER-DEALER PROSPECTUS DELIVERY OBLIGATION
Each broker-dealer that receives registered notes for its own account pursuant to this exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such registered notes. The letter of transmittal accompanying this prospectus states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of registered notes received in exchange for outstanding notes where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period ending of the earlier of (i)180 days after the date of this prospectus and (ii) the date on which a broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See“Plan of Distribution.”
i
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Securities and Exchange Commission, or the SEC, allows us to “incorporate by reference” information intoin this prospectus the information in other documents that we file with it, which means that we can disclose important information to you by referring you to another document filed separately with the SEC.those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus or a prospectus supplement. We incorporate by reference in this prospectus the documents listed below, and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended which we refer to as the Exchange Act, after the date of this prospectus and prior to the termination of the offering under this prospectus. The documents we incorporate by reference are:
Our Annual Report on Form 10-K for the fiscal year ended September 27, 2008;
Our definitive Proxy Statement dated December 23, 2008, as supplemented on January 26, 2009, relating to our 2009 annual meeting of stockholders;
Our Quarterly Report on Form 10-Q for the quarterly period ended December 27, 2008;
Our Quarterly Report on Form 10-Q for the quarterly period ended March 28, 2009; and
Our Current Reports on Form 8-K dated April 28, 2009, April 28, 2009, May 11, 2009, May 12, 2009 and May 27, 2009.
In addition, all documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement and prior to the effectiveness of the registration statement of which this prospectus forms a part shall be deemed to be incorporated by reference in this prospectus and to be part of this prospectus except forfrom the date they are filed.
Unless specifically stated to the contrary, none of the information superseded by this prospectus. We incorporate by reference the documents listed below:
We are also incorporating by reference additional documentsthat we disclose under Item 2.02, 7.01 or 9.01 of any Current Report on Form 8-K that we may, file withfrom time to time, furnish to the SEC under Section 13(a), 13(c), 14will be incorporated by reference into, or 15 (d) of the Exchange Act prior to the expiration ofotherwise included in, this exchange offer. If you are a note holder, we may have sent you someprospectus. The information contained in each of the documents incorporated by reference but you can obtain anyspeaks only as of them through us or the SEC. Documentsdate of such document. Any statement contained in a document incorporated by reference are available from us without charge, unless we have specificallyor deemed to be incorporated by reference an exhibit into a document thatherein, or contained in this prospectus incorporates. shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document or report that also is incorporated by reference or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may obtain a copy of any or all of the documents referred to above and a copy of the indenture which may have been or may be incorporated by reference into this prospectus (excluding certain exhibits to the documents) at no cost to you by requesting them in writing or by telephone from: telephoning us at the following address:
Ingles Markets, Incorporated Attention: Investor Relations
2913 U.S. Highway 70 West
Black Mountain, North Carolina 28711
Telephone: (828) 669-2941
To obtain timely delivery of any of our filings, agreements or other documents, you must make your request to us no later than , 2009. In the event that we extend the exchange offer, you must submit your request at least five business days before the expiration date of the exchange offer, as extended.
ii
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the periodic reporting and other informational requirements of the Securities Exchange Act of 1934. We file annual, quarterly and current reports and other information with the SEC.
We have filed a registration statement on Form S-4 with the SEC to register under the Securities Act the registered notes. This prospectus constitutes a part of that registration statement. As allowed by the SEC’s rules, this prospectus does not contain all the information set forth in the registration statement, certain parts of which have been omitted in accordance with the rules and regulations of the SEC. Please refer to the registration statement and related exhibits and schedules filed therewith for further information with respect to us and the registered notes offered hereby. Statements contained herein concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed by us with the SEC and each such statement is qualified in its entirety by such reference.
You may read and copy any materials we file with the SEC at the address indicated above.SEC’s Public Reference Room located at 100F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available at the web site maintained by the SEC at: http://www.sec.gov. Information about us, including our SEC filings, are also available on our Internet website at www.ingles-markets.com. The information contained on our website is neither a part of or incorporated by reference in this prospectus or any prospectus supplement.
You should rely only on the information provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We may not make an offer of the registered notes in any state where the offer is not permitted. The delivery of this prospectus does not, under any circumstances, mean that there has not been a change in our affairs since the date of this prospectus. It also does not mean that the information in this prospectus is correct after this date.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates by reference certain forward-looking statements within the meaning of Section 27A of the Securities Act. All statements other than statements of historical fact contained or incorporated by reference in this prospectus, including the statements under “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business” and elsewhere regarding our strategy, future operations, financial position, estimated revenues, projected costs, projections, prospects and plans and objectives of management, are forward-looking statements. The words “expect,” “anticipate,” “intend,” “plan,” “likely,” “goal,” “believe,” “seek” and similar expressions are intended to identify forward-looking statements. While these forward-looking statements and the related assumptions are made in good faith and reflect our current judgment regarding the direction of our business, actual results will almost always vary, sometimes materially, from any estimates, predictions, projections, assumptions or other future performance suggested herein. Such statements are based upon a number of assumptions and estimates which are inherently subject to significant risks and uncertainties many of which are beyond our control. Some of these assumptions inevitably will not materialize, and unanticipated events will occur which will affect our results. Some important factors (but not necessarily all factors) that affect our revenues, growth strategies, future profitability and operating results, or that otherwise could cause actual results to differ materially from those expressed in or implied by any forward-looking statement, include the following:
business and economic conditions generally in our operating area;
our ability to successfully implement our expansion and operating strategies and to manage rapid expansion;
pricing pressures and other competitive factors;
iii
sudden or significant changes in the availability of gasoline and retail gasoline prices;
SUMMARY
the maturation of new and expanded stores;
general concerns about food safety;
our ability to reduce costs and achieve improvements in operating results;
the availability and terms of financing;
increases in labor and utility costs;
success or failure in the ownership and development of real estate;
changes in the laws and government regulations applicable to us; and
| • | other risks and uncertainties, including those described under the caption “Risk Factors,” as well as those contained in and incorporated by reference from our most recent Annual Report on Form 10-K, as updated or supplemented by subsequent quarterly reports on Form 10-Q and current reports on Form 8-K filed with the SEC. |
Consequently, actual events affecting us and the impact of such events on our operations may vary significantly from those described in this prospectus or contemplated or implied by statements in this prospectus. Given these risks and uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements contained or incorporated by reference in this prospectus are made only as of the date of this prospectus. We do not undertake and specifically decline any obligation to update any such statements or to publicly announce the results of any revisions to any of such statements to reflect future events or developments.
iv
The followingThis summary contains a general discussion ofhighlights selected information about our business and the exchange offer. It likely doesis not complete and may not contain all the information that ismay be important to you. We urge you in making a decision to tender your originalread and review the entire prospectus, including “Risk Factors,” together with the more detailed business information and consolidated financial statements and related notes that are incorporated by reference into this prospectus before deciding to participate in exchange for new notes. For a more complete understanding of the exchange offer, you should read this entire prospectus and the other documents to which we refer. As used in this prospectus, all references to “Ingles,” “we,” “us” and all similar references are to Ingles Markets, Incorporated, a North Carolina corporation, and its consolidated subsidiaries, unless otherwise expressly stated or the context otherwise requires.offer.
Our “Ingles” service mark, “Laura Lynn” trademark and our service mark “You get a lot more. You pay a lot less.” are federally registered in the United States pursuant to applicable intellectual property laws and are the property of Ingles. In addition, we use the “Sealtest,” “Light N’ Lively” and “Pet” trademarks pursuant to agreements entered into in connection with our milk, fruit juice and spring water processing and packaging operations.
Except as otherwise set forth in this prospectus, the term “remodel” refers to both “major” and “minor” remodelings of our stores. A major remodel and expansion provides the quality of facilities and product offerings identical to that of our prototype stores described in this prospectus while minor remodels generally include repainting, remodeling and upgrading of the lighting throughout a store. Additionally, we refurbish existing equipment and add selected new equipment during both the major and minor remodeling processes.
Ingles operates on a 52 or 53 week fiscal year ending on the last Saturday in September. Throughout this document, references to fiscal year refer to the fiscal year ending on the last Saturday in September of the referenced year, and all references to the past five fiscal years refer to the five fiscal years ended September 28, 2002. Our comparable store sales discussed in this prospectus are defined as sales by grocery stores in operation for the entire duration of the current and previous fiscal years. Replacement stores and major and minor remodels are included in the comparable store sales calculation.
Our Company
We are a leading supermarket chain in the SoutheastSoutheastern United States, operating 199200 supermarkets in Georgia (83)(74), North Carolina (60)(67), South Carolina (32)(36), Tennessee (21)(20), Virginia (2) and Alabama (1). as of March 28, 2009. We generated net sales of $3.2 billion for the fiscal year ended September 27, 2008.
Our strategy is to locate our supermarkets primarily in suburban areas small towns and ruralneighborhood shopping centers. We believe that we were the first supermarket in many of our target communities which are either currently experiencing, or which we believe will experience, significant growth orand were therefore able to secure favorable locations and a loyal customer base. We remodel, expand and relocate stores in which we feelthese communities and build stores in new locations to retain and grow our superior store offerings present competitive advantages over the existing store offerings. Our supermarketscustomer base with an enhanced “one-stop” product offering, while retaining a high level of customer service and convenience. We offer customers a wide variety of nationally advertised food products, including grocery, meat and dairy products, produce, frozen foods and other perishables, and non-food products. Non-food products includinginclude fuel centers, pharmacies, health and beauty care products and general merchandise, as well asmerchandise. We also offer quality private label items. In addition, we
We believe that customer service and convenience, modern stores and competitive prices on a broad selection of quality merchandise are essential to developing and retaining a loyal customer base. Our new and remodeled supermarkets provide an enhanced level of customer convenience in order to accommodate the lifestyle of today’s shoppers. Design features of our modern stores focus on selling high-growth, high-margin products and services, including perishable departments featuring organic and home meal replacement items, in-store pharmacies, on-premises fuel centers, and an expanded selection of food and non-food items to our customers through the development of book sections, media centers, floral departments, bakery departments and prepared foods, including delicatessen, sections. Our average supermarket it approximately 45,000 square feet, while our new “prototype” stores are approximately 60,000 to 65,000 square feet. Since opening our first store in 1963, we have developed strong name recognition in our markets andprovide a reputation for combining low overall prices with high levels of quality, customer service and convenience, which has contributed to our 38 consecutive years of net sales growth. For the fiscal year ended September 28, 2002, we generated net sales of approximately $1.96 billion.“one-stop” shopping experience.
Substantially all of our stores are located within 250 miles of our 780,000 square foot warehouse and distribution center, near Asheville, North Carolina, from which we distribute groceries, produce, meat and dairy products to all of our Ingles stores. Our warehouse supplies our stores with approximately 65% of the goods they sell and we purchase the remaining 35% from third parties. The close proximity of our purchasing and distribution operations to our stores facilitates the timely distribution of consistently high quality meat, produce and other perishable items.
1
We own and operate a milk processing and packaging plant that supplies approximately 80% of the milk products sold by our supermarkets, as well as a variety of orange and other fruit juices and bottled water products. By processing these products ourselves, we are able to control the availability and quality of our products. In addition to supplying our stores, as of June 28, 2003, our milk processing and packaging plant sells approximately 68% of its products to third-party retailers, food service distributors and grocery warehouses in eight states, which provides us with an additional source of revenue.
We own and operate 76 shopping centers, 58 of which contain an Ingles supermarket. We also own 74 additional properties that contain a free-standing Ingles store. We have four additional undeveloped sites suitable for a free-standing store. The majority of land tracts which we own contains additional acreage which may either be sold or developed in the future. Our owned properties are generally located in the same geographic regions as our supermarkets.
We have an ongoing renovation and expansion plan to increase the number ofadd stores we have in our target marketmarkets and to modernize the appearance and layout of our existing stores. Over the past five full fiscal years, we have spent approximately $390.2$536 million to modernize and remodel our existing stores, relocate older stores to larger, more convenient locations and construct new stores in order to maintain the quality shopping experience that our customers expect from Ingles.expect. Typically, new and expanded stores occupy at least 65,000 square feet. As part of our renovation and expansion plan, we began in 2000 operatinggenerally include full-service pharmacies and gas stations at someboth new and expanded store properties.
Substantially all of our stores are located within 280 miles of our 919,000 square foot warehouse and distribution facilities, near Asheville, North Carolina, from which we distribute grocery, produce, meat and dairy products to all of our stores. As of June 28, 2003, we had 23 in-store pharmacies and 16 gas stations in operation.
Sales inSeptember 27, 2008, our grocery segment are subject to a slight seasonal variance due to holiday related sales. Sales are traditionally higher inwarehouse supplies our first fiscal quarter due to the inclusion of sales related to Thanksgiving and Christmas. Our second fiscal quarter traditionally has the lowest salesstores with approximately 49% of the year, unless Easter falls in that quarter.goods we sell and the remaining 51% is purchased from third parties. The fluid dairy segment of our business has slight seasonal variation to the extent of its sales into the grocery industry. Our real estate segment is not subject to seasonal variations.
Industry and Market Overview
The grocery business in the United States is a stable business. Since 1975, real consumer spending at food retailers has generally experienced annual growth and has not experienced an annual decline of more than 1% in any year. We believe that the potential impact of an economic slowdown on the grocery sector would be mitigated by a shift of consumers from restaurants to supermarkets and from branded products to more profitable private label products. We operate our 199 supermarkets in the Southeast region of the United States, 196 of which are located in Georgia, North Carolina, South Carolina and Tennessee. Over the past several years, these states have grown faster than the United States as a whole in terms of population, employment and per capita personal income. Since substantially all of our existing supermarkets are, and planned new supermarkets will be, in these states, we believe that we will continue to benefit from the economic strength of this region.
The following table sets forth the percentage growth in certain statistical categories in our principal markets and nationally from 1990 to 2000:
| Georgia | North Carolina | South Carolina | Tennessee | National | ||||||||||||||||
| Population(1) | 26.4 | % | 21.4 | % | 15.1 | % | 16.7 | % | 13.1 | % | ||||||||||
| Total employment(2) | 36.5 | % | 28.9 | % | 24.3 | % | 26.4 | % | 21.6 | % | ||||||||||
| Per capita annual personal income(3) | 57.5 | % | 56.5 | % | 51.5 | % | 56.0 | % | 51.5 | % | ||||||||||
2
Company Strengths
Recognized Name and Distinctive Image. We have cultivated a distinctive image as an American-owned supermarket chain that provides quality, value and service to its customers under the well-recognized Ingles name. Our shopping experience combines a high level of customer service, convenience-oriented product offerings, and low overall pricing. Our modern stores provide products and services such as home meal replacement items, delicatessens, bakeries, floral departments, media departments, greeting cards and a broad selection of health and beauty care items. In some of our locations, we have recently added full-service pharmacies and gas stations. This “one-stop” shopping concept is particularly important in the smaller, rural markets we serve since the number of local stores and their product offerings may be limited. Along with these factors, we seek to promote customer loyalty by providing quality products at competitive prices with an emphasis on convenient locations and high levels of customer service.
Regional Focus. Our strategy is to locate our supermarkets primarily in suburban areas, small towns and rural communities which are either currently experiencing, or which we believe will experience, significant growth or in which we feel our superior store offerings present competitive advantages over the existing store offerings. We seek to establish and maintain market leadership and earn attractive, consistent profit margins within our target markets by operating modern, full-service supermarkets in these areas. We believe that our regional focus provides an in-depth knowledge of local consumer preferences and allows for customization of our merchandising, pricing and operational strategies for local demographics and competition. Additionally, our strategy of maintaining the close proximity of our supermarketspurchasing and distribution facilities to our warehousestores enables the timely distribution of consistently high quality meat, produce and other perishable items.
We also own and operate a milk processing and packaging plant that supplies approximately 86% of the milk products sold by our supermarkets as of September 27, 2008, as well as a variety of fruit juices and bottled water products. In addition, our milk processing and packaging plant sells approximately 67% of its products to other retailers, food service distributors and grocery warehouses in 17 states, which provides us with an
additional source of revenue. Beginning in fiscal year 2005, we added organic milk products to our milk processing and packaging plant offerings for distribution facilityto our supermarkets and headquartersto outside parties.
Our significant real estate ownership is intended to promote more efficient supervisionan important component of our operations, increased speedoperations. We own and frequencyoperate 73 shopping centers, 57 of distributionwhich contain an Ingles supermarket, and lower distribution and transportation costs.
Modern Store Base. Overown 91 additional properties that contain a free-standing Ingles store. We also own ten undeveloped sites suitable for free-standing stores. The majority of the past five fiscal years,land that we have spent approximately $390.2 million to modernize and remodel existing stores, relocate older stores to larger, more convenient locations and construct new stores. Approximately 50% of our current store base has beenown contains additional acreage which may either newly built, renovatedbe sold or remodeleddeveloped in the last five years. We strive to maintain one of the most modern supermarket chainsfuture. Our owned real estate is generally located in the country and cater to the changing lifestyle needs ofsame geographic region as our customers.supermarkets.
Extensive Real Estate Portfolio. The purchase, sale andOur ownership of real estate are important componentsstore and shopping center locations provides increased flexibility to remodel or expand store properties and add features such as on-site fuel centers. Shopping center ownership provides us with tenant income and enhances store traffic through the presence of our operations, providing both operationaladditional products and economic benefits. Weservices that complement grocery store operations. Additionally, we believe that real estate ownership allows us to decrease our occupancy costs, maintain flexibility for future store expansion, control the development and management of each propertyour properties and benefit from value created by developingthrough the development and operatingoperation of free-standing supermarkets and shopping centers in smaller markets. Our management team continually reviews our real estate portfolio in order to maximize the utilization and profitability of our owned real estate, as well as our periodic purchases and sales of real estate. As of June 28, 2003, our real estate has a book value of approximately $563.1 million of which approximately $306.0 million is encumbered under our outstanding indebtedness.
Recent Developments
Management Experience and Depth. Our management team has substantial experience across all operating divisions of our business. On average, our senior management team has approximately 25 years of experience in the supermarket industry including approximately 17 years with Ingles. We believe that our management’s experience in our regional market is an important factor in the continuing success of Ingles. In addition to our senior management team, we have extensive management depth at the corporate, regional and store levels.
Growth Strategy
Our growth strategy is to focus on increasing revenues and profitability by capitalizing on the following:
Expand our Store Base Within Our Target Region. We believe that it is important to continue to expand our store base to capture new fill-in opportunities as the population in our region continues to grow. Our current expansion plan features 60,000 to 65,000 square foot prototype stores that have full-
3
Modernize and Expand Existing Stores. We believe that the appearance and features of our stores are an integral component of the customer’s shopping experience. We intend to continue to position ourselves as one of the most modern supermarket chains in the industry. Depending on the size and quality of an existing store, competitive pressures and demographic trends, we complete either a remodel of an existing store or a relocation of a store to a more convenient location. When completing major remodels, we generally expand the size of the store to provide features similar to those in our new prototype stores.
Continue Profit Expansion Through Improved Product Mix. We believe that customers in our markets are increasingly convenience-oriented and interested in products in our specialty departments, such as prepared foods and home meal replacement items, which typically carry higher margins than other grocery products. We actively promote these specialty department products, including products offered in our delicatessen and bakery departments and media centers. We also continue to focus on increasing sales of our private label “Laura Lynn” and “Ingles Best” brands which typically carry higher gross margins than comparable branded products. Our improved product mix has helped us to increase our gross margins from 24.8% in fiscal 1998 to 26.1% for the nine months ended June 28, 2003.
Invest in Technology to Enhance Operating Efficiency and Customer Service. In order to improve information systems for our management, simplify employee training and improve efficiency in store operations and to provide our customers with the excellent service that they have come to expect from Ingles, we are pursuing cost-justified investments in technological advancements. We have introduced security measures to reduce theft in our stores and, in some stores, self-check out (which allows one employee to monitor four customers who self-scan their merchandise for check out) to improve labor efficiency.
The Exchange Offer
On May 29, 2003,12, 2009, we completed the private offering of $100,000,000 of our 8 7/8% Senior Subordinated Notes due 2011. We entered into an exchange and registration rights agreement with the initial purchasers in the private offering in which we agreed, among other things, to deliver this prospectus to you and to complete the exchange offer within 180 days of the issuance of the outstanding notes from which we received net cash proceeds of approximately $545.1 million. We used approximately $340.4 million of these cash proceeds to repurchase our outstanding 8 7/8% senior subordinated notes due 2011 pursuant to our previously announced pending tender offer and consent solicitation for these notes. InThe tender offer and consent solicitation expired on May 26, 2009, and approximately $335.8 million aggregate principal amount, representing approximately 96.0%, of the exchange offer, yououtstanding subordinated notes were validly tendered and accepted On June 1, 2009, we used approximately $14.2 million of the cash proceeds from the offering to redeem the remaining outstanding subordinated notes. We also used cash proceeds from the offering to repay in full and terminate four lines of credit. We will use the remaining cash proceeds from the offering to repay certain other debt, fund capital expenditures and for general corporate purposes.
Also on May 12, 2009, as previously announced, we entered into a new unsecured revolving line of credit for $175 million. For a description of this new line of credit, please see “Description of Our Other Indebtedness.”
Additional Information
We were incorporated in 1965 under the laws of the State of North Carolina. Our executive offices are entitled to exchange your outstanding notes for registered noteslocated at 2913 U.S. Highway 70 West, Black Mountain, North Carolina 28711-9727. Our principal mailing address is P.O. Box 6676, Highway 70, Asheville, North Carolina 28816, and our telephone number is 828-669-2941. Our website is www.ingles-markets.com. Information contained on substantially identical terms. our website is not part of and is not incorporated by reference into this prospectus.
Summary of the Terms of the Exchange Offer
The following summarizes certain materialis a summary of the terms of the exchange offer. For a more complete description of the exchange offer, see “The Exchange Offer.”
Background | ||
4
The Exchange Offer | We are offering to exchange the registered notes which have been registered under the Securities Act for a like principal amount of the outstanding notes. You may only tender outstanding notes in minimal denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. See “The Exchange Offer—Terms of the Exchange Offer.” |
Registration Rights Agreement | On May 12, 2009, we and the initial purchasers entered into a registration rights agreement for the benefit of the holders of the outstanding notes. The registration rights agreement provides that if we do not consummate the exchange offer for the outstanding notes by January 17, 2010, we are required to pay additional interest on the outstanding notes at an initial rate of 0.25% per annum. The additional interest will increase by an additional 0.25% per annum with respect to each 90-day period until the exchange offer is consummated, up to a maximum of 1.00% per annum. After the exchange offer is complete, except as set forth in the next paragraph, you will no longer be entitled to any exchange or registration rights with respect to your |
The registration rights agreement requires us to file a shelf registration statement for a continuous offering in accordance with Rule 415 under the Securities Act for your benefit if:
the exchange offer is not consummated by January 17, 2010;
we are not permitted to consummate the exchange offer because the exchange offer is not permitted by applicable law or SEC policy;
you are prohibited by applicable law or SEC policy to participate in the exchange offer and indicate that you wish to have your outstanding notes registered under the Securities Act;
you may not resell registered notes you have acquired in the exchange offer to the public without delivering a prospectus and this prospectus (including any amendment or supplement thereto) is not appropriate or available for resales by you; or
you are a broker-dealer and hold outstanding notes acquired directly from us or any of our affiliates.
Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on [ ], 2009, or a later date and time to which we may extend it. We do not currently intend to extend the expiration of the exchange offer. See “The Exchange Offer—Expiration Date; Extensions; Amendments.” |
Withdrawal | You may withdraw your tender of outstanding notes in the |
Exchange Date | The date of |
Issuance of Registered Notes | We will issue registered notes in exchange for outstanding notes tendered and accepted in the exchange offer promptly following the exchange date. See “The Exchange Offer—Terms of the Exchange Offer.” |
Conditions to the Exchange Offer | The exchange offer is |
Procedures for Tendering | ||
If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of the letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of the letter of transmittal, together with the outstanding notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal. See “The Exchange Offer—Procedures for Delivery.”
Special Procedures for Beneficial | If you |
5
Guaranteed Delivery Procedures | ||
Resales | ||
you are not one of our “affiliates” as defined in Rule 405 under the Securities Act;
you are acquiring the registered notes in the ordinary course of your business; and
you have not engaged in, do not intend to engage in and have no arrangement or understanding with any person to participate in a distribution of the registered notes.
| If you are |
Our belief that transfers of registered notes would be permitted without registration or prospectus delivery under the conditions described above is based on SEC interpretations given to other, unrelated issuers in similar exchange offers. We cannot assure you |
that the SEC would make a similar interpretation with respect to our exchange offer. We will not be responsible for or indemnify you against any liability you may incur under the Securities Act. |
| If you are a broker-dealer and receive registered notes for your own account in exchange for outstanding notes that you acquired as a result of market-making or other trading activity, you must acknowledge that you will deliver this prospectus in connection with any resale of the registered notes. See “Plan of Distribution.” |
| We do not |
Consequences of Failure to Exchange | Outstanding notes that are not tendered in the exchange offer or are not accepted for exchange will continue to | |
except pursuant to an exemption from the requirements of the Securities Act;
unless the outstanding notes are registered under the Securities Act; or
if neither such registration nor such exemption is required by law.
Exchange Agent | U.S. Bank, |
Use of Proceeds | We will not receive any cash proceeds from the issuance of the registered notes in the exchange offer. See “Use of Proceeds.” |
Accounting Treatment | We will not recognize any gain or loss for accounting purposes upon completion of the exchange offer. |
U.S. Federal Tax Considerations | The exchange of the outstanding notes will not be a taxable exchange for federal income tax purposes. See “Certain U.S. Federal Income Tax Considerations.” |
Summary of the Terms Of Newof the Registered Notes
The following is a summary of the principal terms of the registered notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The “Description of the Registered Notes” section of this prospectus contains a more detailed description of the terms and conditions of the registered notes.
Issuer | Ingles Markets, Incorporated |
Registered Notes Offered | $ |
the registered notes have been registered under the Securities Act and thus generally will not be subject to restrictions on transfer applicable to the outstanding notes or bear restrictive legends;
the registered notes will bear a different CUSIP number from the outstanding notes; and
the registered notes will not be entitled to registration rights; and
the registered notes will not have the right to earn additional interest under circumstances relating to our registration obligations.
Maturity Date | May 15, 2017. |
Interest | Interest will accrue at a rate of 8 7/8% per year, payable semi-annually in cash in arrears on May 15 and November 15 of each year, commencing on November 15, 2009. |
Ranking | The registered notes will constitute senior unsecured debt of the Company and will have the same | |
| notes. The |
rank equally in right of payment with all of our and any guarantors’ existing and future senior debt;
6are senior in right of payment to all of our and any guarantors’ existing and future subordinated debt;
are effectively subordinated to our and any guarantors’ existing and future secured debt to the extent of the value of the assets securing such debt; and
are structurally subordinated to all of the existing and future liabilities of each of our subsidiaries that do not guarantee the notes.
Upon initial issuance, the registered notes, |
Company subsequently becomes a guarantor or obligor in respect of any other Indebtedness of the Company or any other restricted subsidiary, such restricted subsidiary shall also guarantee the registered notes on a senior basis. See “Description of the Registered Notes—Guarantees.” |
| As of March 28, 2009, on a pro forma basis after giving effect to the sale of the outstanding notes and use of the net proceeds therefrom, we had approximately $887.2 million of senior |
Optional Redemption | ||
Change of Control | If we experience certain kinds of changes of control, we must offer to purchase the registered notes at 101% of their principal amount, plus accrued and unpaid interest. For more details, see the section “Description of the |
Certain Covenants | The indenture governing the notes contains certain covenants |
incur additional debt;
prepay subordinated indebtedness;
pay dividends or make other distributions on, redeem or repurchase, capital stock;
make investments or other restricted payments;
enter into transactions with affiliates;
sell assets;
create liens on assets to secure debt; or
effect a consolidation or merger or sell all, or substantially all, of our assets.
| These covenants are subject to important exceptions and qualifications | ||
7
No Prior Public Market | The registered notes will generally be freely transferable but will be a new issue of securities for which there is currently no established market. Accordingly, there can be no assurance as to the development or liquidity of any market for the registered notes. Although the initial purchasers of the outstanding notes have advised us that they currently intend to make a market in the registered notes, they are not obligated to do so and they may discontinue market making activities at any time without notice. We do not intend to apply for a |
Risk Factors
We urge you to read carefully the risk factors beginning on page 10 for a discussion of factors you should consider before exchanging your outstanding notes for registered notes.
8
Summary Consolidated Financial and Other Data
The following table contains our summary consolidated financial and other data as of and for eachYou should carefully consider the risks described below together with all of the five fiscal years ended September 28, 2002 and the nine-month periods ended June 29, 2002 and June 28, 2003. Our summary consolidated financial data, not including our operating data, for each of the five fiscal years ended September 28, 2002 were derived from our audited consolidated financial statements. Our audited consolidated statements of income, statements of changes in stockholders’ equity and statements of cash flows for the three years ended September 28, 2002 and our audited consolidated balance sheets as of September 29, 2001 and September 28, 2002, together with the notes thereto and the report of Ernst & Young LLP, our independent auditors, areother information included or incorporated by reference in this prospectus. Our summary consolidatedprospectus before you decide to participate in the exchange offer. These risks could have a material adverse effect on our business, financial data, not including our operating data, for the nine-month periods ended June 29, 2002 and June 28, 2003 were derived from our unaudited condensed consolidated financial statements. Our unaudited condensed consolidated statementsposition or results of income, statements of changes in stockholders’ equity, and statements of cash flows for the nine months ended June 29, 2002 and June 28, 2003, as well as our unaudited consolidated balance sheet as of June 28, 2003 are also incorporated by reference in this prospectus. In the opinion of management, all adjustments considered necessary for a fair presentation have been included in our unaudited condensed consolidated financial statements. Interim results for the nine-month period ended June 28, 2003 are not necessarily indicative of results that can be expected for the fiscal year ending September 27, 2003.operations. The following table should be readrisk factors may not include all of the important factors that could affect our business or our industry or that could cause our future financial results to differ materially from historic or expected results. If any of the following risks occur, you could lose all or part of your investment in, conjunction with management’s discussion and analysis of financial condition and results of operations and the consolidated financial statements andexpected return on, the related notes incorporated by reference in this prospectus.
| Fiscal Year Ended | Nine Months Ended | ||||||||||||||||||||||||||||
| (52 Weeks) | (53 Weeks) | (52 Weeks) | (39 Weeks) | ||||||||||||||||||||||||||
| Sept. 26, | Sept. 25, | Sept. 30, | Sept. 29, | Sept. 28, | June 29, | June 28, | |||||||||||||||||||||||
| 1998 | 1999 | 2000 | 2001 | 2002(1) | 2002(1) | 2003 | |||||||||||||||||||||||
| (Restated) | |||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||
Income Statement Data: | |||||||||||||||||||||||||||||
| Net sales | $ | 1,647,152 | $ | 1,805,375 | $ | 1,916,200 | $ | 1,953,440 | $ | 1,960,462 | $ | 1,475,552 | $ | 1,488,130 | |||||||||||||||
| Gross profit | 408,681 | 450,445 | 490,914 | 511,556 | 520,725 | 389,683 | 388,359 | ||||||||||||||||||||||
| Operating and administrative expenses | 357,068 | 391,910 | 432,631 | 454,647 | 460,599 | 343,339 | 347,359 | ||||||||||||||||||||||
| Rental income, net | 7,176 | 9,078 | 10,149 | 10,302 | 10,355 | 7,099 | 6,530 | ||||||||||||||||||||||
| Income from operations | 44,153 | (2) | 67,612 | 68,432 | 67,212 | 70,481 | 53,443 | 47,530 | |||||||||||||||||||||
| Other income, net | 2,428 | 2,323 | 6,985 | 3,891 | 5,054 | 3,544 | 3,955 | ||||||||||||||||||||||
| Interest expense | 40,117 | 39,785 | 41,226 | 42,903 | 51,540 | 39,456 | 38,081 | ||||||||||||||||||||||
| Net income | 4,163 | (2) | 18,750 | 21,091 | 17,850 | 14,733 | 10,981 | 8,566 | |||||||||||||||||||||
| Ratio of earnings to fixed charges (unaudited) | 1.11x | 1.60x | 1.60x | 1.47x | 1.35x | 1.36x | 1.26x | ||||||||||||||||||||||
Balance Sheet Data: | |||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | 19,121 | $ | 13,960 | $ | 11,176 | $ | 12,345 | $ | 46,900 | $ | 67,449 | $ | 71,370 | |||||||||||||||
| Working capital | 19,071 | 9,115 | 22,059 | 37,452 | 91,399 | 109,703 | 132,730 | ||||||||||||||||||||||
| Total assets | 862,787 | 873,171 | 927,766 | 962,801 | 1,014,391 | 1,013,859 | 1,063,927 | ||||||||||||||||||||||
| Total debt (including short-term debt) | 483,173 | 464,494 | 515,637 | 549,545 | 596,632 | 605,563 | 657,537 | ||||||||||||||||||||||
| Stockholders’ equity | 218,236 | 224,122 | 232,138 | 236,500 | 238,559 | 238,378 | 237,418 | ||||||||||||||||||||||
Other Data: | |||||||||||||||||||||||||||||
| Depreciation and amortization | $ | 45,616 | $ | 41,923 | $ | 43,532 | $ | 45,266 | $ | 48,312 | $ | 36,072 | $ | 38,183 | |||||||||||||||
| Capital expenditures | 155,941 | 52,221 | 102,535 | 73,194 | 49,713 | 26,228 | 58,120 | ||||||||||||||||||||||
| Net cash provided by operating activities | 71,419 | 59,437 | 42,279 | 47,660 | 52,012 | 36,993 | 29,015 | ||||||||||||||||||||||
| Adjusted EBITDA(3) | 106,833 | 111,858 | 118,949 | 116,369 | 123,847 | 93,059 | 89,668 | ||||||||||||||||||||||
| Ratio of net debt to Adjusted EBITDA(4) | 4.3x | 4.0x | 4.2x | 4.6x | 4.4x | 5.8x | 6.5x | ||||||||||||||||||||||
9
| Fiscal Year Ended | Nine Months Ended | |||||||||||||||||||||||||||||
| (52 Weeks) | (53 Weeks) | (52 Weeks) | (39 Weeks) | |||||||||||||||||||||||||||
| Sept. 26, | Sept. 25, | Sept. 30, | Sept. 29, | Sept. 28, | June 29, | June 28, | ||||||||||||||||||||||||
| 1998 | 1999 | 2000 | 2001 | 2002(1) | 2002(1) | 2003 | ||||||||||||||||||||||||
| (Restated) | ||||||||||||||||||||||||||||||
| (Dollars in thousands) | ||||||||||||||||||||||||||||||
| Ratio of Adjusted EBITDA to interest | 2.7x | 2.8x | 2.9x | 2.7x | 2.4x | 2.4x | 2.4x | |||||||||||||||||||||||
| Adjusted EBITDA margin(5) | 6.5 | % | 6.2 | % | 6.2 | % | 6.0 | % | 6.3 | % | 6.3 | % | 6.0 | % | ||||||||||||||||
Operating Data: | ||||||||||||||||||||||||||||||
| Supermarkets: | ||||||||||||||||||||||||||||||
| In operation at beginning of period | 198 | 207 | 206 | 208 | 203 | 203 | 198 | |||||||||||||||||||||||
| Opened or acquired during period(6) | 11 | 3 | 4 | 2 | 0 | 0 | 4 | |||||||||||||||||||||||
| Closed or sold during period(6) | 2 | 4 | 2 | 7 | 5 | 2 | 3 | |||||||||||||||||||||||
| In operation at end of period | 207 | 206 | 208 | 203 | 198 | 201 | 199 | |||||||||||||||||||||||
| Minor remodels during period | 10 | 16 | 8 | 6 | 10 | 8 | 3 | |||||||||||||||||||||||
| Major remodels and replacements during period | 9 | 3 | 11 | 9 | 3 | 2 | 2 | |||||||||||||||||||||||
| Average store size at end of period (sq. ft.) | 40,038 | 40,776 | 42,855 | 44,726 | 45,454 | 45,140 | 46,234 | |||||||||||||||||||||||
10
| Fiscal Year Ended | Nine Months Ended | ||||||||||||||||||||||||||||||
| (52 Weeks) | (53 Weeks) | (52 Weeks) | (39 Weeks) | ||||||||||||||||||||||||||||
| Sept. 26, | Sept. 25, | Sept. 30, | Sept. 29, | Sept. 28, | June 29, | June 28, | |||||||||||||||||||||||||
| 1998 | 1999 | 2000 | 2001 | 2002 | 2002 | 2003 | |||||||||||||||||||||||||
| (Restated) | |||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||
Reconciliation of Net Income to Adjusted EBITDA: | |||||||||||||||||||||||||||||||
| Net Income | $ | 4,163 | $ | 18,750 | $ | 21,091 | $ | 17,850 | $ | 14,733 | $ | 10,981 | $ | 8,566 | |||||||||||||||||
| Add: | |||||||||||||||||||||||||||||||
| Interest Expense | 40,117 | 39,785 | 41,226 | 42,903 | 51,540 | 39,456 | 38,081 | ||||||||||||||||||||||||
| Income Taxes | 2,300 | 11,400 | 13,100 | 10,350 | 8,700 | 6,550 | 4,838 | ||||||||||||||||||||||||
| Depreciation and amortization | 45,616 | 41,923 | 43,532 | 45,266 | 48,312 | 36,072 | 38,183 | ||||||||||||||||||||||||
| EBITDA | 92,196 | 111,858 | 118,949 | 116,369 | 123,285 | 93,059 | 89,668 | ||||||||||||||||||||||||
| Add: | |||||||||||||||||||||||||||||||
| Non-recurring charge* | 14,637 | — | — | — | — | — | — | ||||||||||||||||||||||||
| Extraordinary Item | — | — | — | — | 562 | — | — | ||||||||||||||||||||||||
| Adjusted EBITDA | 106,833 | 111,858 | 118,949 | 116,369 | 123,847 | 93,059 | 89,668 | ||||||||||||||||||||||||
* See footnote (2) above
11
Reconciliation of Net Cash Provided by Operations to Adjusted EBITDA
| Fiscal Year Ended | Nine Months Ended | ||||||||||||||||||||||||||||
| (52 Weeks) | (53 Weeks) | (52 Weeks) | (39 Weeks) | ||||||||||||||||||||||||||
| Sept. 26, | Sept. 25, | Sept. 30, | Sept. 29, | Sept. 28, | June 29, | June 28, | |||||||||||||||||||||||
| 1998 | 1999 | 2000 | 2001 | 2002 | 2002 | 2003 | |||||||||||||||||||||||
| (Restated) | |||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||
| Net cash provided by operating activities | $ | 71,419 | $ | 59,437 | $ | 42,279 | $ | 47,660 | $ | 52,012 | $ | 36,993 | $ | 29,015 | |||||||||||||||
| Adjustments to reconcile cash provided by operating activities to Adjusted EBITDA: | |||||||||||||||||||||||||||||
| Interest expense | 40,117 | 39,785 | 41,226 | 42,903 | 51,540 | 39,456 | 38,081 | ||||||||||||||||||||||
| Income tax provision | 2,300 | 11,400 | 13,100 | 10,350 | 8,700 | 6,550 | 4,838 | ||||||||||||||||||||||
| Change in working capital | (11,511 | ) | 7,344 | 19,986 | 13,794 | 7,434 | 6,796 | 9,001 | |||||||||||||||||||||
| Other, net | (360 | ) | 1,403 | 3,441 | 3,351 | 1,845 | 960 | 2,558 | |||||||||||||||||||||
| Gains on disposals of property and equipment | 1,174 | 200 | 2,682 | 1,411 | 1,458 | 1,275 | 2,182 | ||||||||||||||||||||||
| Deferred income taxes | 2,000 | (3,250 | ) | (4,700 | ) | (5,400 | ) | 900 | 1,200 | 1,962 | |||||||||||||||||||
| Recognition of advance payments on purchases contracts | 2,494 | 3,791 | 4,579 | 3,675 | 3,515 | 2,586 | 2,562 | ||||||||||||||||||||||
| Receipt of advance payments on purchases contracts | $ | (800 | ) | $ | (8,252 | ) | $ | (3,644 | ) | $ | (1,375 | ) | $ | (3,557 | ) | $ | (2,757 | ) | $ | (531 | ) | ||||||||
| Adjusted EBITDA | $ | 106,833 | $ | 111,858 | $ | 118,949 | $ | 116,369 | $ | 123,847 | $ | 93,059 | $ | 89,668 | |||||||||||||||
12
RISK FACTORS
The new notes, like the original notes, entail the following risks. You should carefully consider these risk factors, as well as the other information contained in this prospectus, before exchanging the original notes for the new notes.
Risks Relating to Ingles and Our Business
Our expansion and renovation plans may not be successful which may adversely affect our business and financial condition due to the capital expenditures and management resources required to carry out our plans.
We have spent, and intend to continue to spend, significant capital and management resources on the development and implementation of our expansion and renovation plans. These plans, if implemented, may not be successful, and may not improve operating results which could adversely affect ourand may have an adverse effect on cash flow business and financial conditionmanagement resources due to the significant amount of capital invested and management resources invested.time expended.
The successful implementation of our renovation and expansion plans is subject to several factors including:
Our new stores may initially operate at a loss, depending on factors such as prevailing competition and our market position in the surrounding community. The level of sales and profit margins in our existing stores may not be duplicated in our new stores. Pursuing a strategy of growth, renovationstores, depending on factors such as prevailing competition, development cost, and expansionour market position in light of current highly competitive industry conditionsthe surrounding community. These factors could lead to a near-term decline in earnings as a result of opening and operating a substantial number of new stores, particularly with respect to stores in markets where we do not have an established presence.
Our warehouse and distribution center and milk processing and packaging plant, as well as all of our stores, are concentrated in the Southeastern United States, which makes us vulnerable to economic downturns, natural disasters and other adverse conditions or other catastrophic events in this region.
We operate in the Southeastern United States, with a strong concentrationwhich has experienced economic and demographic growth over the past several years. Our performance is therefore heavily influenced by economic developments in Georgia, North Carolina, South Carolina and Tennessee.this region. Our headquarters, warehouse and distribution center and milk processing and packaging plant are located in North Carolina and all of our stores are located in the Southeast region.Southeastern United States. As a result, our business ismay be more susceptible to regional factors than the operations of more geographically diversified competitors. These factors include, among others, changes in the economy, weather conditions, demographics and population.
13
Our performance is heavily influenced by economic developmentsDisruptions in the Southeast region. Although this area hascapital markets, as have been experienced economicduring 2008 and demographic growth over the past several years, a significant economic downturn2009, could adversely affect our ability to fund our short-term liquidity needs and our expansion and renovation plans.
Disruptions in the region could have a material adverse effect on our business, financial condition or results of operations. Further, a natural disaster or other catastrophic event, such as a fire, impairing our warehouse and distribution center in North Carolina could significantly disrupt our operations. This warehouse and distribution center supplies our stores with approximately 65% of the goods sold in our stores.
As a result of our real estate holdings, we are subject to varying degrees of risk and liability generally incident to the ownership and development of real estate. These risks and liabilities include, among other things:
A failure to adequately deal with these risks and liabilities could limit our revenues and available cash and could have a material adverse effect on our business, financial condition or results of operations.
A significant portion of our properties are mortgaged to secure payment of indebtedness, and if we were unable to meet mortgage payments, losses could be sustainedcapital markets as a result of foreclosure on the
14
Our principal stockholder, Robert P. Ingle, has the ability to elect a sale were in our best interests.
We maintain general liability and excess liability coverages. We maintain casualty insurance only on those properties where required to do so. We have elected to self-insure other properties. Certain types of losses, such as environmental hazards, however, may be either uninsurable or not economically insurable. Should an uninsured loss or a loss in excess of insured limits occur, we could lose our capital invested in one or moremajority of our properties although we may continue to be obligated on the mortgage indebtedness or other obligations related to the property. We could also lose the anticipated profits from any property severely damaged. Any such loss may materially adversely affect our business, financial condition or results of operations.
We place substantial reliance on the supermarket industry knowledge and experience and the continued services of our senior management, including our 69-year-old founder, Chairman of the Board and Chief Executive Officer, Robert P. Ingle. Our future success and our ability to manage future growth depend in large part upon the efforts of these persons and on our ability to attract and retain other highly qualified personnel. We do not have employment agreements withdirectors, appoint new members of our senior management team. In addition, we do not maintain key-person life insurance on members of our senior management team. The loss of services of any member of our senior management or our inability to attract and retain other highly qualified personnel may materially adversely affect our business, financial condition or results of operations.approve many actions requiring shareholder approval.
Mr. Ingle’s share ownership represents:
represents approximately 86% of the combined voting power of all classes of our capital stock as of September 27, 2008. As a result, Mr. Ingle has the power to elect a majority of our directors and approve any action requiring the approval of the holders of our Class A Common Stock and Class B Common Stock, including adopting certain amendments to our charter and approving mergers or sales of substantially all of our assets. Currently, fourthree of our tennine directors are members of the Ingle family. Circumstances may occur in which
If we lose the interestsservices of Mr.our key personnel, including Robert P. Ingle and Robert P. Ingle, II, our business could be in conflict withsuffer.
Our continued success depends upon the interestsavailability and performance of our executive officers, including Robert P. Ingle and Robert P. Ingle, II, who possess unique and extensive industry knowledge and experience. The loss of the holdersservices of the notes.
Under applicable environmental laws, as an owner or developerVarious aspects of real estate we may be responsible for remediation of environmental conditions and may beour business are subject to associated liabilities (including liabilities resulting from lawsuits brought by private litigants) relating to our stores, including our new gas
15
Federal, state and local governments could enact laws or regulations concerning environmental matters that affect our operations or facilities or increase the cost of producing our products. We believe that we currently conduct operations, and in the past have conducted operations, in substantial compliance with applicable environmental laws. We cannot predict the environmental liabilities that may result from legislation or regulations adopted in the future, or the administration and interpretation of such legislation or regulation, the effect of which could be retroactive. Nor can we predict how existing or future laws and regulations will be administered or interpreted or what environmental conditions may be found to exist at facilities or at other properties where we or our predecessors have arranged for the disposal of hazardous substances.
Liabilities or costs resulting from noncompliance with current or future applicable environmental laws or other claims relating to environmental matters could have a material adverse effect on our business financial condition or results of operations.as planned.
We are subject to federal, state and local laws and regulations relating to zoning, land use, environmental protection, work place safety, public health, community right-to-know, beer and wine sales, country of origin labeling of food products, pharmaceutical sales and gasoline station operations. Furthermore, our business is regulated by a variety of governmental agencies, including, but not limited to, the U.S. Food and Drug Administration, the U.S. Department of Agriculture, and the Occupational Health and Safety Administration. A number of states and local jurisdictions regulate the licensing of supermarkets, including beer and wine license grants. In addition, under certain local regulations, we are prohibited from selling beer and wine in certain of our stores. Employers are also subject to laws governing their relationship with employees, including minimum wage requirements, overtime, working conditions, disabled access and work permit requirements. Compliance with, or changes in, these laws could reduce the revenue and profitability of our supermarkets and could otherwise adversely affect our business, financial condition or results of operations. A number of federal, state and local laws exist which impose burdens or restrictions on owners with respect to access by disabled persons. Our compliance with these laws may result in modifications to our properties, or prevent us from performing certain further renovations, with respect to access by disabled persons.
Historically, tight labor marketsWe are also subject to various state and overtimefederal environmental laws relating to our stores, gas stations, distribution facilities and use of hazardous or toxic substances. As a result of these laws, we could be responsible for remediation of environmental conditions and may be subject to associated liabilities.
We are affected by certain operating costs have causedwhich could increase or fluctuate considerably.
We depend on qualified employees to operate our labor costs to increase. Westores and may be affected by future tight labor markets. Moreover, all of our stores are located in the Southeastern United States which has experienced lower average unemployment rates than other parts of the country, making it more difficult for us to attract and retain qualified employees. A shortage of qualified employees maycould require us to continue to enhance our wage and benefit package in order to better compete for and retain qualified employees. No assurance canemployees, and we may not be given that ourable to recover these increased labor costs as a percentage of sales will not increase, that such increase can be recovered through increased pricesprice increases charged to customers, or that we will notwhich could significantly increase our operating costs.
Finally, interchange fees charged to us for accepting debit and credit cards have increased substantially and may continue to increase as more customer transactions are settled with debit and credit cards.
We are affected by the availability and wholesale price of gasoline and retail gasoline prices, all of which can fluctuate quickly and considerably.
We operate fuel stations at 65 of our store locations. We believe fuel stations give customers a competitive fuel choice and increase store traffic by allowing customers to consolidate trips. While we obtain gasoline and diesel fuel from a number of different suppliers, long-term disruption in the availability and wholesale price of gasoline for resale could have difficulty in hiring qualified employees.
Fluctuating fuel costs adversely affect our operating costs in that we requirewhich depend on fuel for our fleet of tractors and trailers which distribute goods from our warehousedistribution facilities and distribution facility andfor our milk processing and packaging plant to all of our stores.fluid dairy operations. In addition, operations at our stores, especially our new, larger “prototype” stores are sensitive to rising utility fuel costs due to the amount of electricity and gas
16
Furthermore, fluctuating fuel costs could have an adverse effect on our total gasoline sales (both in terms of dollars and gallons sold), the profitability of gasoline sales, or our plans to develop additional fuel centers. Fuel centers are part of our one-stop shopping experience and are intended to increase customer traffic at our stores. We may not be able to recover these rising utilityAlso, retail gas price volatility could diminish customer usage of fueling centers and, fuel costs through increased prices charged tothus, adversely affect customer traffic at our customers.
We share the use of trademarks with others.
Because we share the use of the “Sealtest,” “Light N’ Lively” and “Pet” trademarks for dairy products with others, we face the risk that consumer preferences and perceptions with respect to any of our products using these trademarks may be influenced by adverse publicity affecting others’ products that also use the “Sealtest,” “Light N’ Lively” or “Pet” brand.
Risks Relating to the Supermarket Industry
Our industry is highly competitive. If we are unable to compete effectively, our financial condition and results of operations could be materiallyadversely affected.
The supermarket industry is highly competitive and continues to be characterized by narrow profit margins. The numberintense price competition, aggressive supercenter expansion, increasing fragmentation of retail formats, entry of non-traditional competitors and typemarket consolidation. Furthermore, some of our competitors vary by locationhave greater financial resources and include:could use these financial resources to take measures, such as altering product mix or reducing prices, which could adversely affect our competitive position.
We also face increasing competition from restaurants and fast food chains due to the increasing proportion of household food expenditures for food prepared outside the home. In addition, certain of our stores also compete with local video stores, florists, book stores, pharmacies and gas stations.
Our principal competitors include nationalDisruptions in the efficient distribution of food products to our warehouse and regional supermarket chains which compete with us on the basis of location, quality of products, service, price, product variety and store condition. An overall lack of inflation in food prices and increasingly competitive markets have made it difficult generally for grocery store operators to achieve comparable store sales gains. Because sales growth has been difficult to attain, our competitors have attempted to maintain market share through increased levels of promotional activities and discount pricing, creating a more difficult environment in which to consistently increase year-over-year sales gains.
We face increased competitive pressure in all of our markets, including western North Carolina where we maintain our headquarters, from existing competitors and from the threatened entry by one or more major new competitors. Some of our competitors have greater financial resources and are less leveraged and could use these resources to take measures which couldstores may adversely affect our competitive position. business.
Our business financial condition or results of operations could be adversely affected by competitivedisruptions in the efficient distribution of food products to our warehouse and to our stores. Such disruptions could be caused by, among other things, adverse weather conditions, fuel availability, food contamination recalls and civil unrest in foreign countries in which our suppliers do business.
Our operations are subject to economic conditions that impact consumer spending.
Our results of operations are sensitive to changes in overall economic conditions that impact consumer spending, including discretionary spending. Future economic conditions such as employment levels, business conditions, interest rates, energy and fuel costs and tax rates could reduce consumer spending or change consumer purchasing habits. A general reduction in the level of consumer spending or our inability to respond to shifting consumer attitudes regarding products, store location and other factors including product mix and pricing changes which may be made in response to competition from existing could adversely affect our business, financial condition and/or new competitors. From time to time, the relative strengthresults of our competitors changes depending on prevailing market conditions. For instance, we now face increased competition from Wal-Mart super centers located in and near some of the markets that we serve. These super centers draw customers from a wide geographic area and may compete with some of our stores even if not located in close proximity.operations.
Risks Relating to the Notes
Our substantial indebtedness could adversely affectmay impair our financial healthcondition and prevent us from fulfilling our obligations under these notes.the notes and our other debt instruments.
We have a significantsubstantial amount of indebtednessdebt. At March 28, 2009, on a pro forma basis after giving effect to the sale of the outstanding notes and substantialthe use of the proceeds therefrom, we had approximately $887.2 million of total debt, service obligations. As of June 28, 2003, our total indebtedness was approximately $657.5 million (including the notes), or 73% of our capitalization. We alsoand we had $145.0$190.0 million of availability under our credit facilities. We and our subsidiaries may be able to incur substantial additional indebtedness in the future. Aslines of June 28, 2003, we
17
credit. Our substantial indebtedness could have important consequences to you. For example,you, including:
making it could:more difficult for us to satisfy our obligations with respect to the notes;
limiting our ability to borrow additional amounts to fund working capital, capital expenditures, acquisitions, debt service requirements, execution of our growth strategy and other general corporate purposes;
requiring us to dedicate a substantial portion of our cash flow from operations to pay interest on our debt, which would reduce availability of our cash flow to fund working capital, capital expenditures, acquisitions, execution of our growth strategy and other general corporate purposes;
making us more vulnerable to adverse changes in general economic, industry and government regulations and in our business by limiting our flexibility in planning for, and making it more difficult for us to react quickly to, changing conditions; placing us at a competitive disadvantage compared with our competitors that have less debt; and exposing us to risks inherent in interest rate fluctuations because some of our borrowings will be at variable rates of interest, which could result in higher interest expense in the event of increases in interest rates. In addition, we may not be able to generate sufficient cash flow from our operations to repay our indebtedness when it becomes due and to meet our | ||
Despite current indebtedness levels, we may still incur more debt. This could further exacerbate the risks associated with our substantial indebtedness. Subject to specified limitations, the indenture governing the notes and our other debt agreements will permit us and our existing or future subsidiaries, if any, to incur substantial additional debt. If new debt is added to our current debt levels, the risks described above in the previous risk factor could intensify. See “Description of Other Indebtedness” and “Description of the Registered Notes—Certain Covenants—Limitation on Indebtedness” for additional information. The restrictive |
Any failure to comply with covenants in the instrumentsindenture governing the notes and our other debt agreements may affect our ability to operate our business successfully.
The indenture governing the notes will contain various provisions that limit our ability to, among other things:
incur additional debt;
prepay subordinated indebtedness;
pay dividends or make other distributions on, redeem or repurchase, capital stock;
make investments or other restricted payments;
enter into transactions with affiliates;
sell assets;
create liens on assets to secure debt; or
effect a consolidation or merger or sell all, or substantially all, of our assets.
These covenants could adversely affect our ability to finance our future operations or capital needs and pursue available business opportunities.
In addition, certain of our other debt agreements contain similar covenants and also require us to maintain specified financial ratios and satisfy certain financial condition tests. Events beyond our control, including changes in general economic and business conditions, may affect our ability to meet those financial ratios and financial condition tests. We cannot assure you that we will meet those ratios or tests or that the lenders will waive any failure to meet those ratios or tests. A breach of any of those covenants or any other restrictive covenants contained in any of our other debt agreements or a failure to pay required amounts thereunder could
result in an event of default. If an event of default which, if not cured or waived, could have a material adverse effect on us.
The notes will effectively be subordinated to all existing and future liabilities (including trade payables) of our subsidiaries. Our right to participate in any distribution of the assets of any of our subsidiaries upon the liquidation, reorganization or insolvency of our subsidiaries (and the consequent right ofoccurs, the holders of the notesaffected indebtedness could declare all amounts outstanding, together with accrued interest, to participatebe immediately due and payable, which, in turn, could cause the distributiondefault and acceleration of those assets) will be subject to the prior claimsmaturity of our subsidiaries’ creditors (including trade creditors), exceptother indebtedness. If we were unable to pay such amounts, the extentlenders under any of our secured indebtedness could proceed against the collateral pledged to them. In such an event, we cannot assure you that we otherwisewould have a claim against our subsidiary as a creditor of such subsidiary. As of June 28, 2003 our subsidiaries had aggregate indebtedness of $29.6 million.
These notes rank behind all of our existing indebtedness (other than trade payables and our previously issued 8 7/8% senior subordinated notessufficient assets to pay amounts due 2011) and all of our future borrowings (other than trade payables), except any future indebtedness that expressly provides that it ranks equal with, or subordinated in right of payment to,on the notes. The notes will rank equally with our 8 7/8% senior subordinated notes due 2011. As a result, upon any distribution to our creditors in a bankruptcy, liquidation or reorganization or similar proceeding relating to us or our property,you may receive less than the holders of senior indebtedness of our company willfull amount you would otherwise be entitled to be paid in full in cash before any payment may be made with respect to these notes. In addition, all paymentsreceive on the notes could be blocked in the eventnotes. See “Description of a payment default on senior indebtedness. SeeCertain Indebtedness” and “Description of the Notes — RankingRegistered Notes—Certain Covenants” for Senior Subordinated Notes.”additional information.
In the event of a bankruptcy, liquidation or reorganization or similar proceeding relating to our company, holders of the notes will participate with trade creditors and all other holders of subordinated indebtedness of Ingles in the assets remaining after we have paid all of the senior indebtedness. However, because the indenture requires that amounts otherwise payable to holders of the notes in a bankruptcy or similar proceeding be paid to holders of senior indebtedness instead, holders of the notes may receive less, ratably, than holders of trade payables in any such proceeding. In any of these cases, we may not have sufficient funds to pay all of our creditors and holders of notes may receive less, ratably, than the holders of senior indebtedness.
As of June 28, 2003, these notes were subordinated to $307.8 million of senior indebtedness and indebtedness of our subsidiaries which is effectively senior to the notes and approximately $145.0 million would have been available for borrowing as additional senior indebtedness under our lines of credit. We
18
| The |
In addition to being subordinate to our other senior indebtedness and all indebtedness of our subsidiaries, the notes will not be secured by any of our assets. Most
The notes will not be secured by any of our outstanding senior indebtedness is secured by liens on our operating assets and the assets of our subsidiaries. We may also incur additional secured indebtedness in the future without securing the notes. Therefore, ifassets. If we become insolvent or are liquidated, or if payment under these notesany of the instruments governing our secured debt is accelerated, the lenders under suchthose instruments wouldwill be entitled to exercise the remedies available to a secured lender under applicable law and pursuant to the instruments governing such indebtedness. Accordingly, such lenders would have a prior claim on those of our assets securing their indebtedness.
Becausedebt. In that event, because the notes will not be secured by any of our assets, it is possible that there would be no assetsour remaining from which claims of the holders of the notes could be satisfied or, if any such assets remained, such assets might be insufficient to satisfy suchyour claims in full.
CertainAs of March 28, 2009, on a pro forma basis after giving effect to the sale of the outstanding notes and the use of proceeds therefrom, the aggregate amount of our seniorsecured indebtedness requires uswas approximately $312.2 million. We will be permitted to maintain specified financial ratiosborrow substantial additional secured indebtedness in the future under the terms of the indenture. See “Description of the Registered Notes—Certain Covenants—Limitation on Indebtedness” and tests, among“Description of the Registered Notes—Certain Covenants—Limitation on Liens.”
The notes will be effectively subordinated to all indebtedness and other obligations, including a minimum tangible net worth test and a maximum leverage ratio. In addition, certainliabilities of our senior indebtedness has affirmative and negative covenants customary for financings ofsubsidiaries that type. A failure to comply with any of these covenants could lead to an event of default, which could result in an accelerationare not guarantors of the indebtedness. Acceleration of our senior indebtedness would constitute an event of default undernotes.
You will not have any claim as a creditor against the indenture. If an event of default exists on any of our senior indebtedness designated in the indenture, subordination provisions in the indenture may restrict payments to holderssubsidiaries that are not guarantors of the notes, untiland the indebtedness and other liabilities, including trade payables, whether secured or unsecured, of non-guarantor subsidiaries will be effectively senior to any claim you may have against these non-guarantor subsidiaries relating to the notes. As of the date of this offering memorandum, we had five subsidiaries and they will not initially guarantee the notes offered hereby. These non-guarantor subsidiaries represented approximately 10% of our assets as of March 28, 2009 and approximately 14% of our income from operations for the six month period ended March 28, 2009. As of March 28, 2009, these non-guarantor subsidiaries had approximately $26 million of debt outstanding. In the event of a bankruptcy, liquidation, reorganization or other winding up of our non-guarantor subsidiaries, holders of seniortheir indebtedness and their trade creditors will generally be entitled to payment of their claims from the assets of those non-guarantor subsidiaries before any assets are paid in full or the default is cured or waived or has ceasedmade available for distribution to exist. us.
In addition, the indenture restrictswill permit non-guarantor subsidiaries to incur additional indebtedness. Therefore, the notes would be effectively subordinated to this additional indebtedness that may be incurred by the non-guarantor subsidiaries.
We will require a significant amount of cash to service all our indebtedness, including the notes, and our ability to incurgenerate sufficient cash depends upon many factors, some of which are beyond our control.
Our ability to make payments on and refinance our debt and to fund working capital needs and planned capital expenditures depends on our ability to generate cash flow in the future. To some extent, this is subject to general economic, financial, competitive, legislative and regulatory factors and other factors that are beyond our control. We cannot assure you that our business will continue to generate cash flow from operations at levels sufficient to permit us to pay principal, premium, if any, and interest on our indebtedness or that our cash needs will not increase. If we are unable to generate sufficient cash flow from operations in the future to service our debt and meet our other needs, we may have to refinance all or a portion of our debt, obtain additional indebtedness,financing
or reduce expenditures or sell assets create liensthat we deem necessary to our business. We cannot assure you that any of these measures would be possible or other encumbrances, make specified payments, includingthat any additional financing could be obtained. The inability to obtain additional financing could have a material adverse effect on our financial condition and on our ability to meet our obligations to you under the paymentnotes.
We may not have the funds to purchase the notes upon the change of dividends (other thancontrol offer as required by the indenture governing the notes.
Upon a maximumchange of $0.66 per share of Class A Common Stock and $0.60 per share of Class B Common Stock per year) or enter into a merger or consolidation. A failure to comply with the restrictionscontrol, as defined in the indenture, could result in an event of default. For additional information see the description under “Description of Certain Indebtedness” and the “Description of the Notes — Certain Covenants.”
Upon the occurrence of certain specific kinds of change of control events,conditions, we will beare required to offer to repurchase all outstanding notes and each holder of the notes will have the right to require us, subject to various conditions, to repurchase all or any part of that holder’s notes at a price equal to 101% of the principal amount of those notes,thereof, plus accrued and unpaid interest if any, to the date of repurchase. The source of funds for that purchase of notes will be our available cash or cash generated from our existing and future subsidiaries, if any, operations or other potential sources, including borrowings, sales of assets or sales of equity. We cannot assure you that sufficient funds from such sources will be available at the time of any change of control to make required repurchases of notes tendered. In addition, uponthe terms of certain of our other debt agreements provide that certain change of control events wewill constitute an event of default thereunder. Our future debt agreements may be requiredcontain similar restrictions and provisions and may limit our ability to prepay 30%repurchase your notes. If the holders of the outstanding principal and interest of one of our loan agreements, which would have been approximately $22.0 million at June 28, 2003 and a prepayment penalty, which would have been approximately $6.6 million at June 28, 2003, andnotes exercise their right to require us to repurchase all the lender to one of our lines of credit may terminate such line of credit. Further, the repurchase of notes upon a change of control, will constitutethe financial effect of this repurchase could cause a default under anotherour other debt, even if the change of our lines of credit. However,control itself would not cause a default. Accordingly, it is possible that we will not have sufficient funds or be able to obtain the necessary financing, at the time of the change of control to make the required repurchase of notesour other debt and repayment of debtthe notes or that restrictions in one or more ofthe indenture and our credit facilitiesother debt agreements will not allow such payments. If a change of control occurred and we did not have sufficient funds or financing available to pay for the notes and any other indebtedness ranking equally with the notes that are tendered for repurchase, an event of default would be triggered under the notes and under that other outstanding indebtedness. Each of these defaults could have a material adverse effect on us and the holders of the notes.repurchases. In addition, certain important corporate events, such as leveraged recapitalizations that would increase the level of our indebtedness, would not
19
There is currently no trading market for theThe registered notes offered hereby. We domay not intend to list the notes on any national securities exchange or to seek the admission of the notes for trading in the NASDAQ National Market. We cannot assure you thathave an active trading market forand the notes will develop. If a trading market does not develop, youprice may experience difficulty in reselling notes, orbe volatile, so you may be unable to sell themyour registered notes at the price you desire or at all. If
We cannot ensure that a liquid market werewill develop for the registered notes, that you will be able to exist,sell any of the registered notes at a particular time, if at all, or that the prices that you receive when you sell will be favorable. Prior to this offering, there has been no public market for the outstanding notes. We do not intend to apply (and are not obligated to apply) for listing of the registered notes on any securities exchange or any automated quotation system. Therefore, we cannot assure you as to the liquidity of any trading pricemarket for the registered notes. Future trading prices of the registered notes may be adversely affected bywill depend on many factors, including our operating performance and financial condition, prevailing interest rates and the marketsmarket for similar securities, general economic conditionssecurities.
Broker-dealers may become subject to the registration and our financial condition, performance and prospects. The liquidity of, and the trading market for, the notes may be adversely affected by general declines or disruptions in the market for non-investment grade debt.
FORWARD LOOKING STATEMENTS
Various statements, estimates, predictions and projections stated under “Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business,” appearing elsewhere and incorporated by reference in this prospectus are “forward-looking statements” within the meaning of Section 27Adelivery requirements of the Securities Act and Section 21Eany profit on the resale of the Exchange Act. These statements appear in a number of places in this prospectus and the materials incorporated by reference herein and include statements regarding the intent, belief or current expectations of Ingles or its officers with respectregistered notes may be deemed to among other things, the ability to borrow funds under our senior credit facilities, the ability to successfully implement our operating and growth strategies, including trends affecting our business, financial condition and results of operations. While these forward-looking statements and the related assumptions are made in good faith and reflect our current judgment regarding the direction of our business, actual results will almost always vary, sometimes materially, from any estimates, predictions, projections, assumptions or other future performance suggested herein. These statements are based upon a number of assumptions and estimates, which are inherently subject to significant uncertainties and contingencies, many of which are beyond our control and reflect future business decisions, which are subject to change. Some of these assumptions inevitably will not materialize, and unanticipated events will occur which will affect our results. Some important factors (but not necessarily all factors) that could affect our revenues, growth strategies, future profitability and operating results, or that otherwise could cause actual results to differ materially from those expressed in or implied by any forward-looking statement, include the following:
20
Prospective investors are urged to carefully consider these factors in connection with the forward-looking statements. We do not intend to publicly release any revisions to any forward-looking statements contained in this prospectus to reflect events or circumstances occurring after the date hereof or to reflect the occurrence of unanticipated events.
21
THE EXCHANGE OFFER
Terms of the Exchange Offer
General
We sold the original notes on May 29, 2003, in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended. The initial purchasers of the notes subsequently resold the original notes to qualified institutional buyers in reliance on Rule 144Abe underwriting compensation under the Securities Act.
In connection with the sale of original notes to the initial purchasers pursuant to the Purchase Agreement, dated May 20, 2003, among us and Banc of America Securities LLC, Wachovia Securities, Inc. and ABN AMRO Incorporated, the holders of the original notes became entitled to the benefits of a registration rights agreement dated May 29, 2003, among us and the initial purchasers.
Under the registration rights agreement, we became obligated to file a registration statement in connection with an exchange offer within 60 days after May 29, 2003 and to use our commercially reasonable best efforts to have the exchange offer registration statement declared effective within 150 days after May 29, 2003. The exchange offer being made by this prospectus, if consummated within the required time periods, will satisfy our obligations under the registration rights agreement. This prospectus, together with the letter of transmittal, is being sent to all beneficial holders of original notes known to us.
Upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we will accept all original notes properly tendered and not withdrawn prior to the expiration date. We will issue $1,000 principal amount of new notes in exchange for each $1,000 principal amount of outstanding original notes accepted in the exchange offer. Holders may tender some or all of their original notes pursuant to the exchange offer.
Based on no-action letters issued by the staff of the Securities and Exchange Commission to third parties, we believe that holders of all new notes issued in exchange for original notes may offer for resale, resell and otherwise transfer the new notes, other than any holder that is an affiliate of ours within the meaning of Rule 405 under the Securities Act, without compliance with the registration and prospectus delivery provisions of the Securities Act. This is true as long as the new notes are acquired in the ordinary course of the holder’s business, the holder has no arrangement or understanding with any person to participate in the distribution of the new notes and neither the holder nor any other person is engaging in or intends to engage in a distribution of the new notes. AAny broker-dealer that acquired originalacquires registered notes directly from us cannot exchange the original notes in the exchange offer. Any holder who tenders in the exchange offer for the purpose of participatingits own account in a distribution of the newexchange for outstanding notes cannot rely on the no-action letters of the staff of the Securities and Exchange Commission andwhich it acquired through market-making or other trading activities must acknowledge that it will comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.transaction by that broker-dealer. Any profit on the resale of the registered notes and any commission or concessions received by a broker-dealer may be deemed to be underwriting compensation under the Securities Act.
Each broker-dealer that receives new
We will not receive any proceeds from the exchange offer. In consideration for issuing the registered notes for its own accountas contemplated by this prospectus, we will receive from you the outstanding notes in like principal amount. The outstanding notes surrendered in exchange for original notes, where original notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. See “Plan of Distribution” for additional information.
We shall be deemed to have accepted validly tendered original notes when, as and if we have given oral or written notice of the acceptance of such notes to the exchange agent. The exchange agent will act as agent for the tendering holders of original notes for the purposes of receiving the new notes from Ingles and delivering new notes to such holders.
If any tendered original notes are not accepted for exchange because of an invalid tender or the occurrence of the conditions set forth under “— Conditions” without waiver by us, certificates for any such unaccepted originalregistered notes will be returned, without expense, to the tendering holder of any such original notes as promptly as practicable after the expiration date.
22
Holders of original notes who tender in the exchange offer will notretired and cancelled and cannot be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of original notes, pursuant to the exchange offer. We will pay all charges and expenses, other than certain applicable taxes, in connection with the exchange offer. See “— Fees and Expenses.”
Shelf Registration Statement
Pursuant to the registration rights agreement, if the exchange offer is not completed prior to the date on which the earliest of any of the following events occurs:
we will, at our cost:
If any of the events described occurs, we will refuse to accept any original notes and will return all tendered original notes.
We will, if and when we file the shelf registration statement, provide to each holder of the original notes copies of the prospectus which is a part of the shelf registration statement, notify each holder when the shelf registration statement has become effective and take other actions as are required to permit unrestricted resale of the original notes. A holder that sells original notes pursuant to the shelf registration statement generally must be named as a selling security holder in the related prospectus and must deliver a prospectus to purchasers.reissued. The seller will be subject to civil liability provisions under the Securities Act in connection with these sales. A seller of the original notes also will be bound by applicable provisions of the registration rights agreement, including indemnification obligations. In addition, each holder of original notes must deliver information to be used in connection with the shelf registration statement and provide comments on the shelf registration statement in order to have its original notes included in the shelf registration statement and benefit from the provisions regarding any liquidated damages in the registration rights agreement.
Increase in Interest Rate
If:
23
the interest rate borne by the original notes will be increased by 0.25% per year for each 90 days of default with an aggregate maximum increase equal to 1.0% per year.
The sole remedy available to the holders of the original notes will be the immediate increase in the interest rate on the original notes as described above. Any amounts of additional interest due as described above will be payable in cash on the same interest payments dates as the original notes.
Expiration Date; Extensions; Amendment
We will keep the exchange offer open for not less than 30 days, or longer if required by applicable law, after the date on which notice of the exchange offer is mailed to the holders of the old notes. The term “expiration date” means the expiration date set forth on the cover page of this prospectus, unless we extend the exchange offer, in which case the term “expiration date” means the latest date to which the exchange offer is extended.
In order to extend the expiration date, we will notify the exchange agent of any extension by oral or written notice and will issue a public announcement of the extension, each prior to 5:00 p.m., New York City time, on the next business day after the previously scheduled expiration date.
We reserve the right
Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by oral or written notice. If the exchange offer is amended in a manner determined by us to constitute a material change, we promptly will disclose such amendment in a manner reasonably calculated to inform the holders of the original notes of such amendment. Depending upon the significance of the amendment, we may extend the exchange offer if it otherwise would expire during such extension period.
Without limiting the manner in which we may choose to make a public announcement of any extension, amendment or termination of the exchange offer, we will not be obligated to publish, advertise, or otherwise communicate any such announcement, other than by making a timely release to an appropriate news agency.
Procedures for Tendering
To tender in the exchange offer, a holder must complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signatures on the letter of transmittal guaranteed if required by instruction 2 of the letter of transmittal, and mail or otherwise deliver such letter of transmittal or such
24
The term “agent’s message” means a message, transmitted by a book-entry transfer facility to, and received by, the exchange agent, forming a part of a confirmation of a book-entry transfer, which states that such book-entry transfer facility has received an express acknowledgment from the participant in such book-entry transfer facility tendering the original notes that such participant has received and agrees to be bound by the terms of the letter of transmittal and that we may enforce such agreement against such participant.
The tender by a holder of original notes will constitute an agreement between such holder and Ingles in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.
Delivery of all documents must be made to the exchange agent at its address set forth below. Holders may also request their respective brokers, dealers, commercial banks, trust companies or nominees to effect such tender for such holders.
The method of delivery of original notes and the letter of transmittal and all other required documents to the exchange agent is at the election and risk of the holders. Instead of delivery by mail, it is recommended that holders use an overnight or hand delivery service. In all cases, sufficient time should be allowed to assure timely delivery to the exchange agent before 5:00 p.m., New York City time, on the expiration date. No letter of transmittal or original notes should be sent to Ingles.
Only a holder of original notes may tender original notes in the exchange offer. The term “holder” with respect to the exchange offer means any person in whose name original notes are registered on our books or any other person who has obtained a properly completed bond power from the registered holder.
Any beneficial holder whose original notes are registered in the name of its broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered holder promptly and instruct such registered holder to tender on its behalf. If such beneficial holder wishes to tender on its own behalf, such registered holder must, prior to completing and executing the letter of transmittal and delivering its original notes, either make appropriate arrangements to register ownership of the original notes in such holder’s name or obtain a properly completed bond power from the registered holder. The transfer of record ownership may take considerable time.
Signatures on a letter of transmittal or a notice of withdrawal, must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States referred to as an “eligible institution”, unless the original notes are tendered
If the letter of transmittal is signed by a person other than the registered holder of any original notes listed therein, such original notes must be endorsed or accompanied by appropriate bond powers and a proxy which authorizes such person to tender the original notes on behalf of the registered holder, in each case signed as the name of the registered holder or holders appears on the original notes.
If the letter of transmittal or any original notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or
25
All questions as to the validity, form, eligibility, including time of receipt, and withdrawal of the tendered original notes will be determined by us in our sole discretion, which determination will be final and binding. We reserve the absolute right to reject any and all original notes not properly tendered or any original notes our acceptance of which, in the opinion of counsel for us, would be unlawful. We also reserve the right to waive any irregularities or conditions of tender as to particular original notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of original notes must be cured within such time as we shall determine. None of Ingles, the exchange agent or any other person shall be under any duty to give notification of defects or irregularities with respect to tenders of original notes, nor shall any of them incur any liability for failure to give such notification. Tenders of original notes will not be deemed to have been made until such irregularities have been cured or waived. Any original notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned without cost to such holder by the exchange agent to the tendering holders of original notes, unless otherwise providedresult in the letter of transmittal, as soon as practicable following the expiration date.
In addition, we reserve the rightany change in our sole discretionindebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of earnings to fixed charges on an historical basis:
| Fiscal Years Ended(1) | Six Months Ended(2) | |||||||||||||||||||||||||||
| Sept. 25, 2004 | Sept. 25, 2005 | Sept. 30, 2006 | Sept. 29, 2007 | Sept. 27, 2008 | March 29, 2008 | March 28, 2009 | ||||||||||||||||||||||
| (in thousands of dollars) | ||||||||||||||||||||||||||||
Earnings | ||||||||||||||||||||||||||||
Net income | $ | 28,752 | $ | 26,570 | $ | 42,582 | $ | 58,638 | $ | 52,123 | $ | 25,688 | $ | 18,900 | ||||||||||||||
Fixed charges (from below) | 67,504 | 63,883 | 61,082 | 58,373 | 59,791 | 29,171 | 32,326 | |||||||||||||||||||||
Less capitalized interest | (754 | ) | (945 | ) | (874 | ) | (1,989 | ) | (4,597 | ) | (1,639 | ) | (1,971 | ) | ||||||||||||||
Income tax expense | 17,287 | 16,300 | 25,499 | 31,211 | 27,560 | 16,032 | 11,442 | |||||||||||||||||||||
Amortization of capitalized interest | 966 | 998 | 1,027 | 1,093 | 1,246 | 585 | 656 | |||||||||||||||||||||
| $ | 113,755 | $ | 106,806 | $ | 129,316 | $ | 147,326 | $ | 136,123 | $ | 69,837 | $ | 61,353 | |||||||||||||||
Fixed Charges | ||||||||||||||||||||||||||||
Interest expense | $ | 53,739 | $ | 50,921 | $ | 49,783 | $ | 46,675 | $ | 46,886 | $ | 23,140 | $ | 26,096 | ||||||||||||||
Capitalized interest | 754 | 945 | 874 | 1,989 | 4,597 | 1,639 | 1,971 | |||||||||||||||||||||
Loan cost amortization expense | 1,354 | 1,325 | 1,309 | 1,286 | 1,320 | 638 | 781 | |||||||||||||||||||||
Estimate of interest within rent expense | 11,657 | 10,692 | 9,116 | 8,423 | 6,988 | 3,754 | 3,478 | |||||||||||||||||||||
| $ | 67,504 | $ | 63,883 | $ | 61,082 | $ | 58,373 | $ | 59,791 | $ | 29,171 | $ | 32,326 | |||||||||||||||
Ratio of earnings to fixed charges | 1.69 | 1.67 | 2.12 | 2.52 | 2.28 | 2.39 | 1.90 | |||||||||||||||||||||
| (1) | Fiscal year 2006 was a 53-week year, whereas fiscal years 2004, 2005, 2007 and 2008 were 52-week years. |
| (2) | ||
By tendering, each holder will represent to us that, among other things,
We understand that the exchange agent will make a request promptly after the date of this prospectus to establish accounts with respect to the original notes at The Depository Trust Company for the purpose of facilitating the exchange offer,following table shows our cash and subject to the establishment of such accounts, any financial institution that is a participant in The Depository Trust Company’s system may make book-entry delivery of original notes by causing The Depository Trust Company to transfer such original notes into the exchange agent’s account with respect to the original notes in accordance with The Depository Trust Company’s procedures for such transfer. Although delivery of the original notes may be effected through book-entry transfer into the exchange agent’s account at The Depository Trust Company, an appropriate letter of transmittal properly completedcash equivalents and duly executed with any required signature guarantee, or an agent’s message in lieu of the letter of transmittal, and all other required documents must in each case be transmitted to and received or confirmed by the exchange agent at its address set forth below on or prior to the expiration date, or, if the guaranteed delivery procedures described below are complied with, within the time period provided under such procedures. Delivery of documents to The Depository Trust Company does not constitute delivery to the exchange agent.
26
Guaranteed Delivery Procedures
Holders who wish to tender their original notes and
Withdrawal of Tenders
Except as otherwise provided in this prospectus, tenders of original notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration date. However, where the expiration date has been extended, tenders of original notes previously accepted for exchangeconsolidated capitalization as of the original expiration date may not be withdrawn.
To withdraw a tender of original notes in the exchange offer, a written or facsimile transmission notice of withdrawal must be received by the exchange agent at its address set forth in this prospectus priorMarch 28, 2009, both (i) on an actual basis and (ii) on an as-adjusted basis to 5:00 p.m., New York City time, on the expiration date. Any such notice of withdrawal must:
27
Conditions
Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange, any new notes for any original notes, and may terminate or amend the exchange offer before the expiration date, if the exchange offer violates any applicable law or interpretation by the staff of the Securities and Exchange Commission.
If we determine in our reasonable discretion that the foregoing condition exists, we may
Exchange Agent
U.S. Bank, N.A. has been appointed as exchange agent for the exchange offer. Questions and requests for assistance and requests for additional copies of this prospectus or of the letter of transmittal should be directed to U.S. Bank, N.A. addressed as follows:
For Information by Telephone:
By Facsimile Transmission:
U.S. Bank, N.A. also serves as the trustee under the indenture governing the notes.
Fees and Expenses
We have agreed to bear the expenses of the exchange offer pursuant to the exchange and registration rights agreements. We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to brokers, dealers or others soliciting acceptances of the exchange offer. We, however, will pay the exchange agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection with providing the services.
28
The cash expenses to be incurred in connection with the exchange offer will be paid by us. Such expenses include fees and expenses of U.S. Bank, N.A. as exchange agent, accounting and legal fees and printing costs, among others.
Accounting Treatment
The new notes will be recorded at the same carrying value as the original notes as reflected in our accounting records on the date of exchange. Accordingly, no gain or loss for accounting purposes will be recognized by us. The expenses of the exchange offer and the unamortized expenses relatedgive effect to the issuance of the originaloutstanding notes will be amortized over the termand use of the notes.net proceeds therefrom.
Consequences of Failure to ExchangeThis table should be read in conjunction with “Selected Historical Consolidated Financial and other Data”included elsewhere in this prospectus and our consolidated financial statements incorporated by reference in this prospectus.
Holders
As of March 28, 2009 | ||||||||
Actual | As Adjusted | |||||||
| (unaudited) (dollars in millions) | ||||||||
Cash and cash equivalents | $ | 4.5 | $ | 77.5 | ||||
Long-term debt (including current maturities) | ||||||||
Credit facilities(1) | 40.6 | 0.0 | ||||||
Secured real estate and equipment loans | 387.9 | 312.2 | ||||||
8 7/8% Senior Subordinated Notes due 2011 | 349.8 | 0.0 | ||||||
8 7/8% Senior Notes due 2017 | 0.0 | 575.0 | ||||||
Less: discount | (0.0 | ) | (19.8 | ) | ||||
Total long-term debt | $ | 778.3 | $ | 867.4 | ||||
Stockholders’ equity | 396.0 | 396.0 | ||||||
Total capitalization | $ | 1,174.3 | $ | 1,263.4 | ||||
| (1) | On May 12, 2009, the date of sale of the outstanding notes, we entered into a new three-year senior unsecured credit facility for $175.0 million and we repaid and terminated four existing credit facilities. Approximately $190.0 million is available for borrowing under our new and existing credit facilities after giving effect to the sale of the outstanding notes and the application of the net proceeds therefrom. For a description of our new credit facility, see “Description of Our Other Indebtedness.” |
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA
The following table sets forth selected historical consolidated financial and other data for the fiscal years ended September 27, 2008, September 29, 2007, September 30, 2006, September 24, 2005 and September 25, 2004, which are derived from and should be read in conjunction with our audited consolidated financial statements (including related notes thereto) for such years incorporated by reference in this prospectus, and for the six months ended March 28, 2009 and March 29, 2008, which are derived from and should be read in conjunction with our unaudited consolidated financial statements (including related notes thereto) for such six-month periods incorporated by reference in this prospectus. The information included in “Other Operating and Financial Data” and “Store Data” for all periods presented is unaudited. The selected historical consolidated financial and other data should be read in conjunction with “Capitalization” included elsewhere in this prospectus and our consolidated financial statements (including related notes thereto) incorporated by reference in this prospectus. The results for the six-month periods ended March 28, 2009 and March 29, 2008 are not necessarily indicative of originalthe results for a full year or any future period.
| Fiscal Years Ended(1) | Unaudited Six Months Ended(2) | |||||||||||||||||||||||||||
| Sept. 25, 2004 | Sept. 24, 2005 | Sept. 30, 2006 | Sept. 29, 2007 | Sept. 27, 2008 | March 29, 2008 | March 28, 2009 | ||||||||||||||||||||||
| (In thousands of dollars, except percentages and store data) | ||||||||||||||||||||||||||||
Statement of Income Data: | ||||||||||||||||||||||||||||
Net sales | $ | 2,137,426 | $ | 2,273,941 | $ | 2,612,233 | $ | 2,851,593 | $ | 3,238,046 | $ | 1,559,909 | $ | 1,594,040 | ||||||||||||||
Gross profit | 558,625 | 585,699 | 652,194 | 686,235 | 747,859 | 365,153 | 389,871 | |||||||||||||||||||||
Operating and administrative expenses | 479,622 | 500,217 | 536,615 | 564,024 | 626,404 | 303,349 | 336,509 | |||||||||||||||||||||
Rental income, net | 7,089 | 6,162 | 4,980 | 4,419 | 3,322 | 2,113 | 1,546 | |||||||||||||||||||||
Gain (loss) from sale or disposal of assets | 12,587 | (145 | ) | (4,440 | ) | 6,880 | (1,331 | ) | (559 | ) | 279 | |||||||||||||||||
Other income, net | 1,100 | 2,293 | 1,745 | 3,013 | 3,123 | 1,502 | 1,252 | |||||||||||||||||||||
Interest expense | 53,739 | 50,921 | 49,783 | 46,675 | 46,886 | 23,140 | 26,096 | |||||||||||||||||||||
Net income | 28,752 | 26,570 | 42,582 | 58,638 | 52,123 | 25,688 | 18,900 | |||||||||||||||||||||
Balance Sheet Data (end of period): | ||||||||||||||||||||||||||||
Cash and cash equivalents | $ | 67,123 | $ | 29,284 | $ | 7,331 | $ | 4,373 | $ | 4,179 | $ | 4,295 | $ | 4,529 | ||||||||||||||
Total assets | 1,050,216 | 1,044,663 | 1,064,764 | 1,142,806 | 1,375,004 | 1,244,857 | 1,432,273 | |||||||||||||||||||||
Long-term debt | 602,434 | 569,428 | 556,315 | 543,257 | 717,156 | 626,102 | 778,287 | |||||||||||||||||||||
Stockholders’ equity | 261,217 | 276,849 | 304,673 | 348,144 | 384,814 | 366,107 | 395,975 | |||||||||||||||||||||
Other Operating and Financial Data: | ||||||||||||||||||||||||||||
Depreciation and amortization | $ | 58,705 | $ | 56,635 | $ | 59,930 | $ | 60,944 | $ | 69,098 | $ | 33,381 | $ | 38,491 | ||||||||||||||
Capital expenditures | 71,087 | 59,863 | 94,302 | 127,849 | 248,780 | 114,133 | 103,723 | |||||||||||||||||||||
Rent expense | 30,159 | 27,075 | 20,889 | 17,692 | 14,495 | 7,787 | 7,180 | |||||||||||||||||||||
Sales increases: | ||||||||||||||||||||||||||||
Total sales(3) | 7.4 | % | 6.4 | % | 14.9 | % | 9.2 | % | 13.6 | % | 14.1 | % | 2.2 | % | ||||||||||||||
Grocery segment comparable stores(3) | 6.7 | % | 6.1 | % | 11.6 | % | 11.0 | % | 13.5 | % | 13.9 | % | 1.1 | % | ||||||||||||||
Comparable store sales (excluding gas) | 6.2 | % | 3.9 | % | 7.9 | % | 8.4 | % | 8.0 | % | 8.4 | % | 5.0 | % | ||||||||||||||
Store Data:(4) | ||||||||||||||||||||||||||||
Number of stores (at end of period) | 196 | 197 | 197 | 197 | 197 | 197 | 200 | |||||||||||||||||||||
Weighted average sales per store (000’s) | $ | 10,302 | $ | 11,040 | $ | 12,701 | $ | 13,870 | $ | 15,806 | $ | 15,820 | $ | 15,427 | ||||||||||||||
Total square feet at end of period (000’s) | 9,251 | 9,468 | 9,585 | 9,728 | 10,196 | 9,871 | 10,577 | |||||||||||||||||||||
Average total square feet per store | 47,198 | 48,058 | 48,657 | 49,382 | 51,756 | 50,367 | 52,885 | |||||||||||||||||||||
Average square feet of selling space per store | 33,039 | 33,641 | 34,060 | 34,567 | 36,229 | 35,257 | 37,020 | |||||||||||||||||||||
Weighted average sales per square foot of selling space | $ | 313 | $ | 331 | $ | 375 | $ | 405 | $ | 448 | $ | 451 | $ | 419 | ||||||||||||||
| (1) | Fiscal year 2006 was a 53-week year, whereas fiscal years 2004, 2005, 2007 and 2008 were 52-week years. |
| (2) | The six month periods ended March 29, 2008 and March 28, 2009, respectively, each consist of 26 weeks. |
| (3) | Sales from replacement stores, major remodels, minor remodels and the addition of fuel stations to existing stores are included in the comparable store sales calculation from the date of completion of the replacement, remodel or addition. Gasoline sales from the addition of fuel stations to existing stores during the measurement period are included in comparable store sales. Sales increase percentages for fiscal years 2006 and 2007 are adjusted for the difference in weeks. |
| (4) | Weighted average sales per store include the effects of increases in square footage due to the opening of replacement stores and the expansion of stores through remodeling during the periods indicated, and includes gasoline sales. Selling space is estimated to be 70% of total store square footage. |
DESCRIPTION OF OUR OTHER INDEBTEDNESS
In addition to the registered notes whothat are eligible to participateexchangeable for the outstanding notes in thethis exchange offer but who do not tender their originaland the outstanding notes, will notwe have any further registration rights, and their original notes will continue to be subject to restrictions on transfer. Accordingly, such original notes may be resold onlythe following other material indebtedness:
in each case in accordance with any applicable securities laws of any state of the United States.
Regulatory Approvals
We do not believe that the receipt of any material federal or state regulatory approval will be necessary in connection with the exchange offer, other than the effectiveness of the exchange offer registration statement under the Securities Act.
Other
Participation in the exchange offer is voluntary and holders of original notes should carefully consider whether to accept the terms and conditions of this exchange offer. Holders of the original notes are urged to consult their financial and tax advisors in making their own decisions on what action to take with respect to the exchange offer.
29
DESCRIPTION OF CERTAIN INDEBTEDNESS
Unless otherwise specified, Ingles Markets, Incorporated is the sole borrower under each facility described below.
OurAs of March 28, 2009, on a pro forma basis after giving effect to the sale of the outstanding notes and the use of proceeds therefrom, our consolidated outstanding indebtedness was approximately $887.2 million, as of June 28, 2003 aggregated $657.5 million. Our outstanding indebtedness as of June 28, 2003, other than the outstanding 8 7/8% Senior Subordinated Notes due 2011, included:
| Total Amount | Total Commitment | ||||||||
| Facility | Outstanding | Amount | |||||||
| (Dollars in millions) | |||||||||
| Unsecured lines of credit | $ | — | $ | 145.0 | |||||
| Secured loans to Ingles | 278.2 | 278.2 | |||||||
| Secured loan to Sky King, Inc. | 2.2 | 2.2 | |||||||
| Secured loans to Shopping Center Financing, LLC and Shopping Center Financing II, LLC | 27.4 | 27.4 | |||||||
| Total | $ | 307.8 | $ | 452.8 | |||||
| Total Amount Outstanding | Total Commitment Amount | |||||
| (dollars in millions) | ||||||
Lines of credit | $ | 0.0 | $ | 190.0 | ||
Senior secured debt | 312.2 | 312.2 | ||||
8 7/8% Senior Notes due 2017 | 575.0 | 575.0 | ||||
Total | $ | 887.2 | $ | 1,077.20 | ||
Lines of Credit
As of March 28, 2009, on a pro forma basis after giving effect to the sale of the outstanding notes and the use of proceeds therefrom, Ingles has a totalhad one senior unsecured line of fivecredit for $175.0 million and two senior unsecured lines of credit allfor $15.0 million, representing aggregate commitments of which are unsecured. As of June 28, 2003, there were no borrowings outstanding under these lines of credit. Ingles used a portion of the proceeds from the original notes to repay all amounts outstanding under its$190.0 million.
The two lines of credit and in connection with that offering negotiated certain extensions to its lines of credit. As of the date hereof, Ingles has aggregate availability of $145.0for $15.0 million under our lines of credit. Of these lines of credit, $120.0 million of availability matures in October 2006 and the remainder matures between November 2003 and November 2004. Under the lines of credit, Ingles may choose amongcontain various interest rate options. Generally, the interest rate options are related to LIBOR plus 1% to 1.5%, the Prime Rate or the Federal Funds Rate.
The lines of credit contain customary operational covenants, including but not limited to, covenants:
The lines of credit also contain financialrestrictive covenants which, among other things, requirerequires Ingles to maintain:
| maintain minimum levels | ||
30
Under the most restrictive of these covenants, Ingles is required to maintain:
Under the provisionsnet worth and maintenance of certain of our lines of credit, in the event that Ingles enters into or amends any guarantee, indenture or other financing agreement containing financial covenants more favorable to the lender than the financial covenants contained in the line of credit, then the lender under the line of credit has the option to amend the line of credit to provide for those more favorable financial covenants.
The lines of creditratios. They also contain customary events of default. An event of default under
On May 12, 2009, Ingles entered into the lines of credit will allow the lenders to accelerate or, in some cases, will automatically cause the acceleration of the maturity of the debt under the lines of credit. One$175.0 million line of credit, in particular, allowswhich is governed by a Credit Agreement, the lendermaterial terms of which include, among others:
Maturity. The Credit Agreement is scheduled to terminate in the event that Robert P. Inglemature, and the Ingles Markets, Incorporated Investment/Profit Sharing Plancommitments thereunder will terminate, on May 12, 2012.
Interest Rate and Trust, in the aggregate, fail to maintain 51% of the voting control of Ingles.
Many of the lines of credit require Ingles to pay a commitment feeFees. Each Eurodollar Rate Loan shall bear interest on the unused portion ofoutstanding principal amount thereof for each interest period at a rate per annum equal to the line of credit.
Eurodollar Rate for such interest periodplus the Applicable Rate, as described below; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rateplus the Applicable Rate, as described below; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rateplus the Applicable Rate, as described below. The provisions of one of our lines of credit prohibit Ingles from obtainingCompany will pay fees on letters of credit issued under the Credit Agreement at a rate equal to the Applicable Rate, as described below, times the daily amount available to be drawn under such letters of credits. The Applicable Rate will be the percentage per annum, based upon the Company’s Consolidated Leverage Ratio from time to time, described in the following chart that corresponds to one of two pricing levels.
Applicable Rate
Pricing Level | Consolidated Leverage Ratio | Eurodollar Rate Loans Letters of Credit | Base Rate Loans | |||||
| 1 | Less than 4.00 to 1.00 | 2.75 | % | 1.75 | % | |||
| 2 | Greater than or equal to 4.00 to 1.00 | 3.00 | % | 2.00 | % |
The Company will pay certain fees with respect to the Credit Agreement, including (i) a quarterly commitment fee equal to 0.25% times the actual daily amount by which the aggregate commitments exceed the sum of (x) the outstanding amount of committed loans and (y) the outstanding amount of letter of credit obligations, (ii) fees specified in fee letters between any issuing lender and the Company and (iii) customary annual administration fees.
Mandatory Prepayments. If at any time the Company’s outstanding borrowings under the Credit Agreement (including outstanding letters of credit and swing line loans) exceed the aggregate revolving commitments as in effect at such time, the Company will be required to prepay an amount equal to such excess.
When the aggregate amount of Excess Proceeds resulting from permitted Asset Sales exceed $20 million, the Company will be required apply 100% of such excess proceeds to prepay outstanding amounts under the Credit Agreement. Such mandatory prepayments will permanently reduce the available commitments under the Credit Agreement.
Voluntary Reductions and Prepayments. Subject to certain conditions and restrictions, the Credit Agreement allows the Company to voluntarily reduce the amount of the revolving commitments and to prepay the loans.
Covenants. The Credit Agreement contains affirmative and negative covenants that, among other things, limit or restrict the Company’s ability (as well as those of the Company’s restricted subsidiaries) to: create liens and encumbrances; incur debt; merge, dissolve, liquidate or consolidate; make acquisitions and investments; dispose of or transfer assets; pay dividends or make other distributions on, redeem or repurchase, capital stock; amend material documents; change the nature of the Company’s business; make certain payments of debt; and engage in certain transactions with affiliates, in each case, subject to certain qualifications and exceptions.
In addition, the Company is required to maintain (x) a Consolidated Fixed Charge Coverage ratio of not less than 1.20 to 1.00 as of the end of any fiscal quarter or any other lender withoutdate of determination as required under the approvalCredit Agreement, (y) a Consolidated Leverage Ratio of not greater than 5.00 to 1.00 as of the bank.end of any fiscal quarter or any other date of determination as required under the Credit Agreement and (z) Consolidated Net Worth at any time of not less than the sum of (i) $336,579 (ii) an amount equal to 50% of Consolidated Net Income earned in each full fiscal quarter ending after March 31, 2009 (with no deduction for a net loss in any such fiscal quarter) and (iii) an amount equal to 50% of the aggregate increases in shareholders’ equity of the Company and its subsidiaries after May 12, 2009 by reason of the issuance and sale of equity interests of the Company or any subsidiary (other than issuances to the Company or a wholly-owned subsidiary), including upon any conversion of debt securities of the Company into such equity interests.
Events of Default. The Credit Agreement contains customary events of default such as non-payment of obligations under the Credit Agreement, violation of affirmative and negative covenants, material inaccuracy of representations, cross defaults under other material debt, bankruptcy, ERISA and judgment defaults, invalidity of the credit documents (or the Company’s assertion of any such invalidity), change of control and the invalidity of the subordination provisions of subordinated debt documents.
All capitalized terms used in the foregoing description of the Credit Agreement that are not otherwise defined therein have the meanings ascribed to them in the Credit Agreement. The foregoing description of the
Credit Agreement is not complete and is qualified in its entirety by reference to the Credit Agreement. A copy of the Credit Agreement is incorporated by reference as an exhibit to the registration statement which includes this prospectus. See “Where You Can Find More Information.”
Other Loans
Ingles is a party to certain secured loan agreements which have maturity dates ranging from JanuaryDecember 1, 20042010 to JulyApril 1, 2018.2028. In connection with these loans, Ingles granted the lenders security interests in the real property and personal property of many of Ingles’ stores.
Many of the loan agreements described above place restrictions on Ingles’ ability to dispose of the secured property or to place additional liens on the secured property. In addition, manycertain of the loan agreements provide that Ingles will be in default under a particular loan agreement if Ingles is in default under its other loan agreements with the lender under such loan agreements.
Under the terms of a $50.7 million master lease agreement Ingles may be required to repurchase all of the equipment subject to the agreement if:
The provisions of anotherone loan agreement, which as of JuneMarch 28, 20032009 had an outstanding balance of approximately $71.2$47.3 million, allow the lender to require Ingles to prepay 30% of the outstanding principal, as well as interest and a pre-payment fee, in the event that there is a change in control, which is defined as the acquisition by a person of:
all or substantially all of Ingles’ assets; or
the power to elect at least a majority of Ingles’ board of directors.
Shopping Center Financing, LLC and Shopping Center Financing II, LLC, which isare wholly-owned subsidiaries of Ingles that own shopping centers managed by Ingles, is a party to a $14.8have entered into loan agreements in the principal amount of $13.7 million and $12.2 million, respectively. The obligations under those loan agreement. The loan isagreements are secured by threea total of seven shopping centers, which are managed by Ingles. Under the terms of theand each loan agreement if, among other things, the debt service coverage ratio of the three shopping centers for the immediately preceding 12 months is less than 1.10 to 1.0, thenpermits the lender maythereunder to replace Ingles as
31
Additionally, many of the loan agreements prohibit repayment of the loans prior to the expiration of a certain period of time, typically, two years from the date of the loan. Many of the loan agreements also require Ingles to pay a penalty in the event Ingles wishes to prepay the outstanding balance of the loan prior to maturity.
32
Purpose of the Exchange Offer
In connection with the sale of the outstanding notes in the private placement on May 12, 2009, we and the initial purchasers entered into a registration rights agreement for the benefit of the holders of the outstanding notes, under which we agreed to deliver this prospectus to you and to consummate the exchange offer.DESCRIPTION OF THE NOTESWe are making this exchange offer in reliance on interpretations of the staff of the SEC set forth in several no-action letters. We have not, however, sought our own no-action letter. Based upon these interpretations by the SEC, we believe that you, or any other person receiving registered notes, generally may offer for resale, resell or otherwise transfer such registered notes without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the Securities Act. We also believe that a holder may offer, sell or transfer the registered notes only if the holder acquires the registered notes in the ordinary course of its business and is not participating, does not intend to participate and has no arrangement or understanding or understanding with any person to participate in a distribution of the registered notes.
The originalAny holder of the outstanding notes using the exchange offer to participate in a distribution of registered notes cannot rely on the no-action letters referred to above. A broker-dealer that acquired outstanding notes directly from us, but not as a result of market-making activities or other trading activities, must comply with the registration and prospectus delivery requirements of the Securities Act in the absence of an exemption from such requirements.
Each broker-dealer that receives registered notes for its own account in exchange for outstanding notes, as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such registered notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of registered notes received in exchange for outstanding notes where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. The letter of transmittal states that by so acknowledging and delivering a prospectus, a broker-dealer will not be considered to admit that it is an “underwriter” within the meaning of the Securities Act. We have agreed that, for a period ending on the earlier of: (i) 180 days after the date of this prospectus and (ii) the date on which a broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities, we will make this prospectus, as amended or supplemented, available to broker-dealers for use in connection with any resales. See “Plan of Distribution.”
Except as described above, this prospectus may not be used for an offer to resell, resale or other transfer of registered notes.
The exchange offer is not being made to, nor will we accept tenders for exchange from holders of outstanding notes in any jurisdiction in which the exchange offer or the acceptance of tenders would not be in compliance with the securities or blue-sky laws of such jurisdiction.
Terms of the Exchange Offer
Upon the terms and subject to the conditions of the exchange offer, we will accept any and all outstanding notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on the expiration date for the exchange offer. The date of acceptance for exchange of the outstanding notes, and completion of the exchange offer, is the exchange date, which will be as soon as practicable following the expiration date (unless extended as described in this prospectus). Promptly following the exchange date, we will issue an aggregate principal amount of up to $575 million of the registered notes for a like principal amount of outstanding notes tendered and accepted in connection with the exchange offer. The registered notes issued in connection with the exchange offer will be delivered promptly following the exchange date. Holders may tender some or all of their outstanding notes in connection with the exchange offer, but only in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof.
The terms of the newregistered notes will be identical in all material respects to the terms of the outstanding notes for which they have been exchanged, except that:
the registered notes will have been registered under the Securities Act, and thus the registered notes generally will not be subject to the restrictions on transfer applicable to the outstanding notes or bear restrictive legends;
the registered notes will bear a different CUSIP number from the outstanding notes;
the registered notes will not be entitled to registration rights; and
the registered notes will not have the right to earn additional interest under circumstances relating to our registration obligations.
The registered notes will evidence the same debt as the outstanding notes and will be issued under the Indenture and entitled to the same benefits under the Indenture as the outstanding notes being exchanged. As of the date of this prospectus, $575 million in aggregate principal amount of the outstanding notes is outstanding. This prospectus and a letter of transmittal are being sent to all registered holders of outstanding notes. There will be no fixed record date for determining registered holders entitled to participate in this exchange offer.
The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered for exchange.
We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC.
Holders of outstanding notes do not have any appraisal or dissenters’ rights in connection with the exchange offer. Outstanding notes which are not tendered for exchange or are tendered but not accepted in connection with the exchange offer will remain outstanding and be entitled to the benefits of the Indenture. However, such outstanding notes generally will not be entitled to any registration rights under the registration rights agreement. See“—Issuances of the Registered Notes; Consequences of Failures to Properly Tender outstanding notes in the Exchange Offer.”
We shall be considered to have accepted validly tendered outstanding notes if and when we have given oral or written notice to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the registered notes from us.
If any tendered outstanding notes are not accepted for exchange because of an invalid tender, the occurrence of certain other events described in this prospects or otherwise, we will return the outstanding notes, without expense, to the tendering holder promptly after the expiration date.
Holders who tender outstanding notes will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes on exchange of outstanding notes in connection with the exchange offer. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. See “—Fees and Expenses.”
Expiration Date; Extensions; Amendments
The expiration date for the exchange offer is 5:00 p.m., New York City time, on [ ] 2009, unless extended by us in our sole discretion, in which case the term “expiration date” shall mean the latest date and time to which the exchange offer is extended.
We reserve the right, in our sole discretion:
to extend the offer or to terminate the exchange offer if, in our reasonable judgment, any of the conditions described below shall not have been satisfied, by giving oral or written notice of the extension or termination to the exchange agent; or
to amend the terms of the exchange offer in any manner.
If we amend the exchange offer in a manner that we consider material, we will disclose such amendment by means of a prospectus supplement, and we will extend the exchange offer for a period of five to ten business days.
If we determine to extend, amend or terminate the exchange offer, we will publicly announce this determination by making a timely release through an appropriate news agency.
Interest on the Registered Notes
Interest on the registered notes will bear interest at 8 7/8% from the most recent date to which interest on the outstanding notes has been paid or, if no interest has been paid on the outstanding notes, from their issue date. Interest will be payable semi-annually in arrears on May 15 and November 15 of each year.
Conditions to the Exchange Offer
Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange registered notes for, any outstanding notes and may terminate the exchange offer as provided in this prospectus before the acceptance of the outstanding notes, if prior to the expiration date:
the exchange offer violates any applicable law; or
the exchange offer violates any applicable interpretation of the staff of the SEC.
The conditions listed above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these conditions. We may waive these conditions in our reasonable discretion in whole or in part at any time and from time to time prior to the expiration date. The failure by us at any time to exercise any of the above rights shall not be considered a waiver of such right, and such right shall be considered an ongoing right which may be asserted at any time and from time to time.
If we determine in our reasonable discretion that any of the conditions are not satisfied, we may:
refuse to accept any outstanding notes and return all tendered outstanding notes to the tendering holders;
| • | extend the exchange offer and retain all outstanding notes tendered before the expiration of the exchange offer, subject, however, to the rights of holders to withdraw these outstanding notes (see“—Withdrawal of Tenders” below); or |
waive unsatisfied conditions relating to the exchange offer and accept all properly tendered outstanding notes which have not been withdrawn.
Procedures For Tendering
Unless the tender is being made in book-entry form, to tender in the exchange offer, a holder must:
complete, sign and date the letter of transmittal, or a facsimile of it;
have the signatures guaranteed if required by the letter of transmittal; and
mail or otherwise deliver the letter of transmittal or the facsimile, the outstanding notes and any other required documents to the exchange agent prior to 5:00 p.m., New York City time, on the expiration date.
Any financial institution that is a participant in DTC’s Book-Entry Transfer Facility system may make book-entry delivery of the outstanding notes by causing DTC to transfer the outstanding notes into the exchange agent’s account. Although delivery of outstanding notes may be effected through book-entry transfer into the exchange agent’s account at DTC, the letter of transmittal (or facsimile), with any required signature guarantees and any other required documents, must, in any case, be transmitted to and received or confirmed by the exchange agent at its address set forth under “—Exchange Agent” below, prior to 5:00 p.m., New York City time, on the expiration date. Delivery of documents to DTC in accordance with its procedures does not constitute delivery to the exchange agent.
The tender by a holder of outstanding notes will constitute an agreement between us and the holder in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.
The method of delivery of outstanding notes and the letter of transmittal and all other required documents to the exchange agent is at the election and risk of the holders. Instead of delivery by mail, we recommend that holders use an overnight or hand delivery service. In all cases, holders should allow sufficient time to assure delivery to the exchange agent before the expiration date. No letter of transmittal of outstanding notes should be sent to us. Holders may request their respective brokers, dealers, commercial banks, trust companies or nominees to effect the tenders for such holders.
Any beneficial owner whose outstanding notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact the registered holder promptly and instruct such registered holder to tender on behalf of the beneficial owner. If the beneficial owner wishes to tender on that owner’s own behalf, the beneficial owner must, prior to completing and executing the letter of transmittal and delivering such beneficial owner’s outstanding notes, either make appropriate arrangements to register ownership of the outstanding notes in such beneficial owner’s name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time.
Signatures on letters of transmittal or notices of withdrawal must be guaranteed by an eligible guarantor institution within the meaning of Rule 17Ad-15 under the Exchange Act, unless the outstanding notes tendered pursuant thereto are tendered:
by a registered holder who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the letter of transmittal; or
for the account of an eligible guarantor institution.
In the event that a signature on a letter or transmittal or a notice of withdrawal is required to be guaranteed, such guarantee must be by:
a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority;
a commercial bank or trust company having an office or correspondent in the United States; or
an “eligible guarantor institution.”
If the letter of transmittal is signed by a person other than the registered holder of any outstanding notes, the outstanding notes must be endorsed by the registered holder or accompanied by a properly completed bond power, in each case signed or endorsed in blank by the registered holder.
If the letter of transmittal or any outstanding notes or bond powers are signed or endorsed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and, unless waived by us, submit evidence satisfactory to us of their authority to act in that capacity with the letter of transmittal.
We will determine all questions as to the validity, form, eligibility (including time of receipt) and acceptance and withdrawal of tendered outstanding notes in our sole discretion. We reserve the absolute right to reject any and all outstanding notes not properly tendered or any outstanding notes whose acceptance by us would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to any particular outstanding notes either before or after the expiration date. Our interpretation of the terms and conditions of the exchange offer (including the instructions in the letter of transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of outstanding notes must be cured within a time period we will determine. Although we intend to request the exchange agent to notify holders of defects or irregularities relating to tenders of outstanding notes, neither we, the exchange agent nor any other person will have any duty or incur any liability for failure to give such notification. Tenders of outstanding notes will not be considered to have been made until such defects or irregularities have been cured or waived. Any outstanding notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent to the tendering holders, unless otherwise provided in the letter of transmittal, promptly following the expiration date.
In addition, we reserve the right, as set forth above under “—Conditions to the Exchange Offer”, to terminate the exchange offer. By tendering, each holder represents to us, among other things, that:
the registered notes acquired in connection with the exchange offer are being obtained in the ordinary course of business of the person receiving the registered notes, whether or not such person is the holder;
neither the holder nor any such other person has an arrangement or understanding with any person to participate in the distribution of such registered notes; and
neither the holder nor any such other person is our “affiliate” (as defined in Rule 405 under the Securities Act).
If the holder is a broker-dealer which will receive registered notes for its own account in exchange for outstanding notes, it will acknowledge that it acquired such outstanding notes as the result of market-making activities or other trading activities and it will deliver a prospectus in connection with any resale of such registered notes. See “Plan of Distribution.”
Guaranteed Delivery Procedures
A holder who wishes to tender its outstanding notes and:
whose outstanding notes are not immediately available;
who cannot deliver the holder’s outstanding notes, the letter of transmittal or any other required documents to the exchange agent prior to the expiration date; or
who cannot complete the procedures for book-entry transfer before the expiration date; may effect a tender if:
the tender is made through an eligible guarantor institution;
before the expiration date, the exchange agent receives from the eligible guarantor institution:
(i) a properly completed and duly executed notice of guaranteed delivery by facsimile transmission, mail or hand delivery,
(ii) the name and address of the holder, and
(iii) the certificate number(s) of the outstanding notes and the principal amount of outstanding notes tendered, stating that the tender is being made and guaranteeing that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal and the certificate(s) representing the outstanding notes (or a confirmation of book-entry transfer), and any other documents required by the letter of transmittal will be deposited by the eligible guarantor institution with the exchange agent; and
the exchange agent receives, within three New York Stock Exchange trading days after the expiration date, a properly completed and executed letter of transmittal or facsimile, as well as the certificate(s) representing all tendered outstanding notes in proper form for transfer or a confirmation of book-entry transfer, and all other documents required by the letter of transmittal.
Upon request, the exchange agent will send to you a notice of guaranteed delivery if you wish to tender your outstanding notes according to the guaranteed delivery procedures.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of outstanding notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration date.
To withdraw a tender of outstanding notes in connection with the exchange offer, a written or facsimile transmission notice of withdrawal must be received by the exchange agent at its address set forth herein prior to 5:00 p.m., New York City time, on the expiration date. Any such notice of withdrawal must:
specify the name of the person who deposited the outstanding notes to be withdrawn;
identify the outstanding notes to be withdrawn (including the certificate number(s) and principal amount of such outstanding notes);
be signed by the depositor in the same manner as the original signature on the letter of transmittal by which such outstanding notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee register the transfer of such outstanding notes into the name of the person withdrawing the tender; and
specify the name in which any such outstanding notes are to be registered, if different from that of the depositor.
We will determine all questions as to the validity, form and eligibility (including time of receipt) of such notices of withdrawal. Any outstanding notes so withdrawn will be considered not to have been validly tendered for purposes of the exchange offer, and no registered notes will be issued unless the outstanding notes withdrawn are validly re-tendered. Any outstanding notes which have been tendered but which are not accepted for exchange or which are withdrawn will be returned to the holder without cost to such holder promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn outstanding notes may be re-tendered by following one of the procedures described above under“—Procedures for Tendering” at any time prior to the expiration date.
Information Regarding the Registration Rights Agreement
As noted, we are effecting this exchange offer to comply with the registration rights agreement. The registration rights agreement requires us to use our reasonable best efforts to:
file with the SEC a registration statement for the exchange offer;
cause such registration statement to be declared effective under the Securities Act;
have such registration statement remain effective until the closing of the exchange offer;
commence the exchange offer promptly after the exchange offer registration statement is declared effective by the Commission; and
consummate the exchange offer not later than January 17, 2010.
In addition, the registration rights agreement requires us to file a shelf registration statement for a continuous offering in accordance with Rule 415 under the Securities Act for your benefit if:
the exchange offer is not consummated by January 17, 2010;
we are not permitted to consummate the exchange offer because the exchange offer is not permitted by applicable law or SEC policy;
you are prohibited by applicable law or SEC policy to participate in the exchange offer and indicate that you wish to have your outstanding notes registered under the Securities Act;
you may not resell registered notes you have acquired in the exchange offer to the public without delivering a prospectus and this prospectus (including any amendment or supplement thereto) is not appropriate or available for resales by you; or
you are a broker-dealer and hold outstanding notes acquired directly from us or any of our affiliates.
In the event that the exchange offer is not consummated by January 17, 2010 or, if required, the shelf registration statement has not become effective or such shelf registration statement ceases to be effective at any time during the shelf registration period (subject to certain exceptions), the interest rate on the affected outstanding notes will be increased by 0.25% per annum for the first 90-day period thereafter, and the amount of such additional interest will increase by an additional 0.25% for each subsequent 90-day period, up to a maximum of 1.0% per annum over the original interest rate of the outstanding notes. Once the exchange offer is consummated or the registration default affecting the shelf registration statement is cured, the annual interest rate on the outstanding notes will revert to the original interest rate. Any amounts of additional interest due will be payable in cash on the same interest payment dates as interest on the outstanding notes is otherwise payable.
Our obligations to register the registered notes will terminate upon the consummation of the exchange offer. However, under the circumstances specified above, we may be required to file a shelf registration statement for a continuous offer in connection with the outstanding notes.
The foregoing description of the registration rights agreement is not a complete, and is qualified in its entirety by reference to all of the provisions of the registration rights agreement. A copy of the registration rights agreement is incorporated by reference as an exhibit to the registration statement which includes this prospectus. See “Where You Can Find More Information.”
Exchange Agent
U.S. Bank, National Association, has been appointed as exchange agent for the exchange offer. Questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal should be directed to the exchange agent at its offices at 60 Livingston Avenue, EP-MN-WS2N, St. Paul, MN 55107. The exchange agent’s telephone number is (800) 934-6802 and facsimile number is (651) 495-8158.
Fees and Expenses
We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer. We will pay certain other expenses to be incurred in connection with the exchange offer, including the fees and expenses of the exchange agent and certain accounting and legal fees.
Holders who tender their outstanding notes for exchange will not be obligated to pay transfer taxes; however, if:
registered notes are to be delivered to, or issued in the name of, any person other than the registered holder of the outstanding notes tendered; or
tendered outstanding notes are registered in the name of any person other than the person signing the letter of transmittal; or
a transfer tax is imposed for any reason other than the exchange of outstanding notes in connection with the exchange offer;
then the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption from them is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to the tendering holder.
Accounting Treatment
The registered notes will be recorded at the same carrying value as the outstanding notes as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the completion of the exchange offer. The expenses of the exchange offer that we pay will increase our deferred financing costs and will be amortized over the term of the notes in accordance with generally accepted accounting principles.
Issuance of the Registered Notes; Consequences of Failures to Properly Tender Outstanding Notes in the Exchange Offer
Issuance of the registered notes in exchange for the outstanding notes in the exchange offer will be made only after timely receipt by the exchange agent of the certificate(s) representing the outstanding notes (or a confirmation of book-entry transfer), a properly completed and duly executed letter of transmittal (or an agent’s message from DTC) and all other required documents. Therefore, holders of the outstanding notes desiring to tender such outstanding notes in exchange for registered notes should allow sufficient time to ensure timely delivery. We are under no duty to give notification of defects or irregularities of tenders of outstanding notes for exchange. Outstanding notes that are not tendered or that are tendered but not accepted by us will, following completion of the exchange offer, continue to be subject to the existing restrictions upon transfer thereof under the Securities Act, and, upon completion of the exchange offer, certain registration rights under the registration rights agreement will terminate. In the event the exchange offer is completed, we will not be required to register the remaining outstanding notes. Remaining outstanding notes will continue to be subject to the following restrictions on transfer:
the remaining outstanding notes may be resold only (i) if registered pursuant to the Securities Act, (ii) if an exemption from registration is available, or (iii) if neither such registration nor such exemption is required by law; and
the remaining outstanding notes will bear a legend restricting transfer in the absence of registration or an exemption.
We do not currently anticipate that we will register the remaining outstanding notes under the Securities Act. To the extent that outstanding notes are tendered and accepted in connection with the exchange offer, any trading market for remaining outstanding notes could be adversely affected.
Transfer Taxes
We will pay all transfer taxes, if any, applicable to the exchange of outstanding notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:
certificates representing outstanding notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of outstanding notes tendered;
tendered outstanding notes are registered in the name of any other person other than the person signing the letter of transmittal; or
a transfer tax is imposed for any reason other than the exchange of outstanding notes under the exchange offer.
If satisfactory evidence of payment of such taxes is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed to the tendering holder.
Other
Participating in the exchange offer is voluntary and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your decision on what action to take.
DESCRIPTION OF THE REGISTERED NOTES
We will issue the registered notes under the Indenture for the outstanding notes dated as of December 11, 2001May 12, 2009 between the Companyus and U.S. Bank, N.A.,National Association, as Trustee.trustee.
You can find the definitions of many of the terms used in this description under the section “—Certain Definitions.” In this description, the words “Ingles,” “we,” “our” or “us” refer only to Ingles Markets, Incorporated and not to any of its subsidiaries.
Any outstanding notes that remain outstanding after the completion of the exchange offer, together with the registered notes issued in exchange for the outstanding notes, will be treated as a single class of debt securities under the indenture. Unless otherwise indicated, the outstanding notes and the registered notes to be issued in the exchange offer are collectively referred to as the “Notes” in this summary description. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939. References in this section to the “Company” means Ingles Markets, Incorporated without its subsidiaries.
1939, as amended. The form and terms of the new notes are the same in all material respectsIndenture will be qualified as the form and terms of the original notes, except that the new notes will have been registeredan indenture under the Securities Act of 1933 and, therefore, will not bear legends restricting their transfer. The original notes have not been registered under the Securities Act of 1933 and are subject to certain transfer restrictions.Trust Indenture Act.
The following description is a summary of the materialIndenture and Notes is not complete, and is qualified in its entirety by reference to all of the provisions of the Indenture. It does not restateIndenture and the Notes. We urge you to read the Indenture in its entirety.because it defines your rights as a holder of the Notes. A copy of the form of indenture will be made available to you upon requestIndenture is incorporated by reference as an exhibit to the Company as set forth under “— Additionalregistration statement which includes this prospectus. See “Where You Can Find More Information.” For definitions of certain capitalized terms used in the following summary, see “— Certain Definitions.”
Principal, Maturity Principal and Interest
The Indenture governing our $250.0 million 8 7/8% Senior Subordinated Notes due 2011We issued in December 2001 permitted the issuance from time to time of additional notes in the$575,000,000 aggregate principal amount of $100.0 million ranking equally with any outstanding notes issuedin denominations of $2,000 and integral multiples of $1,000, maturing on May 15, 2017. We will issue up to the same amount of registered notes. The Notes will mature on May 15, 2017. We may issue additional notes under the Indenture from time to time. Any issuance of additional notes is subject to all of the covenants in the Indenture. The $100.0 million principal amount of notes issued at the original note closing were issued pursuant to this provision of the Indenture.
The $100.0 million principal amount of Notes offered in exchange for the original notes will be identical to the original notes (except for transfer restrictions applicable to the original notes) and our outstanding $250.0 million principal amount of 8 7/8% Senior Subordinated Notes due 2011. The outstanding notes, the registered notes and any additional notes subsequently issued after the exchange notes aredate of this prospectus under the indenture shall be treated as a single class for all purposes under the Indenture. For purposes of this “Description of the Notes,” referencesIndenture, including, without limitation, waivers, amendments, redemptions and offers to the Notes include the outstanding $250.0 million principal amount of 8 7/8% Senior Subordinated Notes due 2011, the original notes and the exchange notes, unless otherwise indicated.purchase.
The Notes are unsecured senior subordinated obligations of the Company. Each Note will bearThe payment of principal, premium, if any, and interest on the Notes rank equal in right of payment with all other senior Indebtedness of the Company. The Notes are effectively subordinated to all existing and future Indebtedness of the Company secured by a Lien, to the extent of the value of the assets securing such Indebtedness.
Interest on the Notes accrue at thea rate of 8 7/8% 7/8% per annum from May 29, 2003 or from the most recent interest payment date on which interest has been paid,and is be payable semiannually in arrears on June 1May 15 and December 1November 15 in each year, commencing June 1, 2003.
on November 15, 2009. The Company will pay interest to the Person in whose name the Notenote (or any predecessor Note)note) is registered at the close of business on the May 151 or November 151, as the case may be, immediately preceding the relevantsuch interest payment date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Notes will be issued only in fully registered form without coupons, in denominations of $1,000$2,000 and any integral multiple of $1,000. No service charge will be made for any registration of transfer, exchange or redemption of Notes,notes, except in certain circumstances for any tax or other governmental charge that may be imposed.
Settlement for the Notes will be made in same day funds. All payments of principal and interest will be made by the Company in same day funds. The Notes will trade in the Same-Day Funds Settlement System of The Depository Trust Company (the “Depositary” or “DTC”) until maturity, and secondary market trading activity for the Notesnotes will therefore settle in same day funds.
All references to “interest” in the indenture will include any and all interest payable as a result of a registration default.
Guarantees
Upon initial issuance, theThe Notes willare not becurrently guaranteed by any of our Subsidiaries. However, if any Restricted Subsidiary of the Company subsequently becomes a guarantor or obligor in respect of any other
33
If the Company defaults in payment of the principal of, premium, if any, or interest on the Notes, each of the Guarantors will be unconditionally, jointly and severally obligated to duly and punctually pay the principal of, premium, if any, and interest on the Notes.
The obligations of each Guarantor under its Guarantee are limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under the Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under Federalfederal or state law. Each Guarantor that makes a payment or distribution under its Guarantee will be entitled to a contribution from any other Guarantor in a pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP.
Notwithstanding the foregoing, in certain circumstances a Guarantee of a Guarantor may be released pursuant to the provisions of subsection (c) under “—Certain Covenants — Covenants—Limitation on Issuances of Guarantees of and Pledges for Indebtedness.Indebtedness.” The Company may also, may, at any time, cause a Restricted Subsidiary to become a Guarantor by executing and delivering a supplemental indenture providing for the guarantee of payment of the Notes by such Restricted Subsidiary on the basis provided in the Indenture.
Optional Redemption
After December 1, 2006,May 15, 2013, the Company may redeem all or a portion of the Notes, on not less than 30 nor more than 60 days’ prior notice, in amounts of $1,000 or an integral multiple thereof at the following redemption prices (expressed as percentages of the principal amount), if redeemed during the 12-month period beginning December 1 of the years indicated below:
| Redemption | ||||
| Year | Price | |||
| 2006 | 104.438 | % | ||
| 2007 | 102.903 | % | ||
| 2008 | 101.369 | % | ||
and thereafter at 100%
Year | Redemption Price | ||
2013 | 104.438 | % | |
2014 | 102.219 | % | |
2015 and thereafter | 100.000 | % |
The amount payable to the holder of a Note shall be equal to the applicable redemption price of the principal amount, in each case, together withNotes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date that is on or prior to the redemption date).
In addition, at any time prior to December 1, 2004,May 15, 2012, the Company, at its option, may use the net proceeds of one or more Public Equity Offerings to redeem up to an aggregate of 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price equal to 108.875% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date that is on or prior to the redemption date). At least 65% of the aggregate principal amount of Notes issued under the Indenture must
remain outstanding immediately after the occurrence of such redemption. In order to effect this redemption, the Company must mail a notice of redemption no later than 30 days after the closing of the related Public Equity Offering and must complete such redemption within 60 days of the closing of the Public Equity Offering.
In addition, prior to May 15, 2013, the Company may redeem the Notes at its option, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ notice at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant regular record date to receive interest due on an interest payment date that is on or prior to the redemption date).
If less than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national security exchange, if any, on which the Notes are listed, or if the Notes are not listed, on a pro rata basis, by lot or by any other method the Trustee shall deem fair and reasonable. Notes redeemed in part must be redeemed only in integral multiples of
34
Sinking Fund
The Notes will not be entitled to the benefit of any sinking fund.
Purchase of Notes Uponupon a Change of Control
If a Change of Control occurs, each holder of Notes will have the right to require that the Company purchase all or any part (in integral multiples of $1,000) of such holder’s Notes pursuant to a Change of Control Offer. In the Change of Control Offer, the Company will offer to purchase all of the Notes, at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date)date that is on or prior to such date of purchase).
Within 30 days of any Change of Control or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company must notify the Trustee and give written notice of the Change of Control to each holder of Notes (the “Change of Control Offer”), by first-class mail, postage prepaid, at his address appearing in the security register. The notice must state, among other things,
that a Change of Control has occurred and the date of such event;
the circumstances and relevant facts regarding such Change of Control, including information with respect to pro forma historical income, cash flow and capitalization after giving effect to such Change of Control;
the purchase price and the 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 the notice is mailed, nor, in any event, earlier than the commencement of the Change in Control, or such later date as is necessary to comply with requirements under the Exchange Act;
that any Note not tendered will continue to accrue interest;
that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Purchase Date; and
other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
If a Change of Control Offer is made, the Company may not have available funds sufficient to pay the Change of Control Purchase Price for all of the Notes that might be delivered by holders of the Notes seeking to accept the Change of Control Offer. The failure of the Company to make or consummate the Change of Control Offer or pay the Change of Control Purchase Price when due will give the Trustee and the holders of the Notes the rights described under “—Events of Default.”
In addition to the obligations of the Company under the Indenture with respect to the Notes in the event of a Change of Control, some of the long-term Indebtedness of the Company also contains or may in the future contain an event of default upon events similar to those defined as a Change of Control with respect to the Notes which allows the lender to accelerate the repayment of amounts outstanding under such indebtedness. The definition of a change of control in such other indebtedness may differ from the definition included in the Notes and, in connection with indebtedness that may be entered into in the future, may include events which would not trigger a Change of Control for purposes of the Notes.
The definition of Change of Control includes a phrase relating to the sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the assets of the Company. The term “all or
35
The existence of a holder’s right to require the Company to repurchase such holder’s Notes upon a Change of Control may deter a third party from acquiring the Company in a transaction which constitutes a Change of Control.
The provisions of the Indenture will not afford holders of the Notes the right to require the Company to repurchase the Notes in the event of a highly leveraged transaction or transactions with the Company’s management or its Affiliates, including a reorganization, restructuring, merger or similar transaction (including an acquisition of the Company by management or its affiliates) involving the Company that may adversely affect holders of the Notes, if such transaction is not a transaction defined as a Change of Control. A transaction involving the Company’s management or its Affiliates, or a transaction involving a recapitalization of the Company, will result in a Change of Control only if it is the type of transaction specified by such definition.
The Company will comply 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.
The Company will 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 described in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Ranking for Senior Subordinated NotesCertain Covenants
The payment of the principal of, premium, if any, and interest on, the Notes will rank junior to and be subordinated, as described in the Indenture, in right of payment, to the prior payment in full of all Senior Indebtedness. The Notes will be senior subordinated indebtedness of the Company ranking equal to all other existing and future senior subordinated indebtedness of the Company and senior to all existing and future Subordinated Indebtedness of the Company.
Upon the occurrence of any default in the payment of any Designated Senior Indebtedness beyond any applicable grace period and after the receipt by the Trustee from a representative of holders of any Designated Senior Indebtedness (collectively, a “Senior Representative”) of written notice of such default, no payment (other than payments previously made pursuant to the provisions described under “— Defeasance or Covenant Defeasance of Indenture”) or distribution of any assets of the Company of any kind or character (excluding certain permitted equity interests or subordinated securities) may be made on account of the principal of, premium, if any, or interest on, the Notes or on account of the purchase, redemption, defeasance or other acquisition of or in respect of, the Notes unless and until such default shall have been cured or waived or shall have ceased to exist or such Designated Senior Indebtedness shall have been discharged or paid in full after which the Company shall resume making any and all required payments in respect of the Notes, including any missed payments.
Upon the occurrence and during the continuance of any non-payment default with respect to any Designated Senior Indebtedness for which all cure periods have expired and pursuant to which the maturity thereof may be accelerated immediately other than any such default the existence of which the Company is in good faith contesting (a “Non-payment Default”) and after the receipt by the Trustee and the Company from a Senior Representative of written notice of such Non-Payment Default, and as to which the Company has not provided written notice of dispute to the Trustee and such Senior Representative, no payment (other than payments previously made pursuant to the provisions described under “— Defeasance or Covenant Defeasance of Indenture”) or distribution of any assets of the
36
The Payment Blockage Period shall commence upon the receipt of notice of the Non-payment Default by the Trustee and the Company from a Senior Representative and shall end on the earliest of
When the Payment Blockage Period ends, the Company will promptly resume making any and all required payments in respect of the Notes, including any missed payments. In no event will a Payment Blockage Period extend beyond 179 days from the date of the receipt by the Company or the Trustee of the notice initiating such Payment Blockage Period (such 179-day period referred to as the “Initial Period”). Any number of notices of Non-payment Defaults may be given during the Initial Period. However, during any period of 365 consecutive days only one Payment Blockage Period, during which payment of principal of, or interest on, the Notes may not be made, may commence and the duration of such period may not exceed 179 days and there must be a 186 consecutive day period in any 365 day period during which no Payment Blockage Period is in effect. No Non-payment Default with respect to Designated Senior Indebtedness that existed or was continuing on the date of the commencement of any Payment Blockage Period will be, or can be, made the basis for the commencement of a second Payment Blockage Period, whether or not within a period of 365 consecutive days, unless such default has been cured or waived for a period of not less than 90 consecutive days subsequent to the commencement of such initial Payment Blockage Period.
If the Company fails to make any payment on the Notes when due or within any applicable grace period, whether or not on account of the payment blockage provisions referred to above, such failure would constitute an Event of Default under the Indenture and would enable the holders of the Notes to accelerate the maturity thereof. See “— Events of Default.”
The Indenture will provide that in the event of any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding, relative to the Company or its assets, or any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, or any assignment for the benefit of creditors or other marshalling of assets or liabilities of the Company (except in connection with the consolidation or merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease of its properties and assets substantially as an entirety upon the terms and conditions described under “Consolidation, Merger, Sale of Assets”), all Senior Indebtedness must be paid in full before any payment or distribution (excluding distributions of certain permitted equity interests or subordinated securities) is made on account of the principal of, premium, if any, or interest on the Notes or on account of the purchase, redemption, defeasance or other acquisition of or in respect of the Notes (other than payments previously made pursuant to the provisions described under “— Defeasance or Covenant Defeasance of Indenture”).
By reason of such subordination, in the event of liquidation or insolvency, creditors of the Company who are holders of Senior Indebtedness may recover more, ratably, than the holders of the Notes, and funds which would be otherwise payable to the holders of the Notes will be paid to the holders of the Senior Indebtedness to the extent necessary to pay the Senior Indebtedness in full and the Company may be unable to meet its obligations fully with respect to the Notes.
37
The Indenture will limit, but not prohibit, the incurrence by the Company and its Subsidiaries of additional Indebtedness, and the Indenture will prohibit the incurrence by the Company of Indebtedness that is subordinated in right of payment to any Senior Indebtedness of the Company and senior in right of payment to the Notes.
The Notes will effectively rank behind all Indebtedness and other liabilities and commitments (including trade payables and lease commitments) of the Company’s Subsidiaries. Any right of the Company to receive assets of any such Subsidiary upon the liquidation or reorganization of any such Subsidiary (and the consequent right of the holders of the Notes to participate in those assets) will effectively rank behind the claims of that Subsidiary’s creditors, except to the extent that the Company is itself recognized as a creditor of such Subsidiary, in which case the claims of the Company would still rank behind to any security in the assets of such Subsidiary and any Indebtedness of such Subsidiary senior to that held by the Company.
As of June 28, 2003, the aggregate amount of Senior Indebtedness outstanding was approximately $307.8 million all of which is secured. The aggregate amount of Indebtedness of Subsidiaries to which the original notes would have been effectively subordinated was approximately $29.6 million and no Subordinated Indebtedness or Pari Passu Indebtedness would have been outstanding. See “Risk Factors — Our substantial indebtedness could adversely affect our financial health and prevent us from fulfilling our obligations under these notes.”
“Senior Indebtedness” means the principal of, premium, if any, and interest (including interest, to the extent allowable, accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy law) on any Indebtedness of the Company (other than as otherwise provided in this definition), whether outstanding on the date of the Indenture or thereafter created, incurred or assumed, and whether at any time owing, actually or contingent, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the Notes.
Notwithstanding the foregoing, “Senior Indebtedness” shall not include:
“Designated Senior Indebtedness” means any Senior Indebtedness which at the time of determination has an aggregate principal amount outstanding of at least $25 million and which is specifically designated in the instrument evidencing such Senior Indebtedness or the agreement under which such Senior Indebtedness arises as “Designated Senior Indebtedness” by the Company. With respect to any lender
38
Each Guarantee of a Guarantor, if any, will be an unsecured senior subordinated obligation of such Guarantor, rankingpari passu with, or senior in right of payment to, all other existing and future Indebtedness of such Guarantor that is expressly subordinated to Senior Guarantor Indebtedness. The Indebtedness evidenced by the Guarantees will be subordinated to Senior Guarantor Indebtedness to the same extent as the Notes are subordinated to Senior Indebtedness and during any period when payment on the Notes is blocked by Designated Senior Indebtedness, payment on any Guarantees is similarly blocked.
“Senior Guarantor Indebtedness” means the principal of, premium, if any, and interest (including interest, to the extent allowable, accruing after the filing of a petition initiating any proceeding under any state, federal or foreign bankruptcy law) on any Indebtedness of any Guarantor (other than as otherwise provided in this definition), whether outstanding on the date of the Indenture or thereafter created, incurred or assumed, and whether at any time owing, actually or contingent, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to any Guarantee. Notwithstanding the foregoing, “Senior Guarantor Indebtedness” shall not include:
Certain Covenants
The Indenture contains,contain, among others, the following covenants:
Limitation on Indebtedness.Indebtedness
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, “incur”), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company’s Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal
39
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the “Permitted Indebtedness”):
40(6) Indebtedness of the Company owing to a Restricted Subsidiary;providedthat any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached to the Indenture and is unsecured and is subordinated in right of payment from and after such time as the Notes shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company’s obligations under the Notes;provided,further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (6);
(8) guarantees of any Restricted Subsidiary made in accordance with the provisions of “—Limitation on Issuances of Guarantees of and Pledges for Indebtedness”;
(9) obligations of the Company or any Restricted Subsidiary entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (1) Indebtedness of the Company or any Restricted Subsidiary and/or (2) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary;provided,however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable thereunder;
(10) Indebtedness of the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims;
41(13) any renewals, extensions, substitutions, refundings, refinancings or replacements (collectively, a “refinancing”) of any Indebtedness described in paragraph (a) of this Section and clauses (3) and (5) (other than any Existing Notes outstanding on the Issue Date) of this paragraph (b) of this definition of “Permitted Indebtedness,” including any successive refinancings so long as the borrower under such refinancing is the Company or, if not the Company, the same as the borrower of the Indebtedness being refinanced and the aggregate principal amount of Indebtedness represented thereby (or if such Indebtedness provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof, the original issue price of such Indebtedness plus any accreted value attributable thereto since the original issuance of such Indebtedness) is not increased to a principal amount in excess of the principal amount on the Issue Date, plus the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus the amount of expenses of the Company incurred in connection with such refinancing and (1) in the case of any refinancing of Indebtedness that is Subordinated Indebtedness, such new Indebtedness is made subordinated to the Notes at least to the same extent as the Indebtedness being refinanced and (2) in the case of senior Indebtedness or Subordinated Indebtedness, as the case may be, such refinancing does not reduce the Average Life to Stated Maturity or the Stated Maturity of such Indebtedness; and
For purposes of determining compliance with this “Limitation on Indebtedness” covenant, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness permitted by this covenant, the Company in its sole discretion shall classify or reclassify such item of Indebtedness and only be required to include the amount of such Indebtedness as one of such types. Accrual of interest, accretion or amortization of original issue discount and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, will not be deemed to be an incurrence of Indebtedness for purposes of this covenant;provided, in each such case, that the amount thereof is included in Consolidated Interest Expense of the Company as accrued.
Limitation on Restricted Payments.Payments
(a) The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly:
| (1) declare or pay any dividend on, or make any distribution to holders of, any shares of the Company’s Capital Stock (other than dividends or distributions payable solely in shares of its Qualified Capital Stock or in options, warrants or other rights to acquire shares of such Qualified Capital Stock); (2) purchase, redeem, defease or otherwise acquire or retire for value, directly or indirectly, the Company’s Capital Stock or any Capital Stock of any Affiliate of the Company (other than Capital Stock of any Wholly Owned Restricted Subsidiary of the Company) or options, warrants or other rights to acquire such Capital Stock; (3) make any principal payment on, or repurchase, redeem, defease, retire or otherwise acquire for value, prior to any scheduled principal payment, sinking fund payment or maturity, any Subordinated Indebtedness excluding any Existing Notes; (4) declare or pay any dividend or distribution on any Capital Stock of any Restricted Subsidiary to any Person (other than (a) to the Company or any of its Wholly Owned Restricted Subsidiaries or (b) dividends or distributions made by a Restricted Subsidiary on a pro rata basis to all stockholders of such Restricted Subsidiary); or (5) make any Investment in any Person (other than any Permitted Investments) |
(any of the foregoing actions described in clauses (1) through (5) above, other than any such action that is a Permitted Payment (as defined below), collectively, “Restricted Payments”) (the amount of any such Restricted Payment, if other than cash, shall be the Fair Market Value of the assets proposed to be transferred, as determined by the board of directors of the Company, whose determination shall be conclusive and evidenced by a board resolution), unlessunless:
42(2) immediately before and immediately after giving effect to such Restricted Payment on apro formabasis, the Company could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the provisions described under “—Limitation on Indebtedness”; and
(A) 50% of the aggregate Consolidated Net Income of the Company accrued on a cumulative basis during the period beginning on the first day of the Company’s fiscal quarter beginning after the Issue Date and ending on the last day of the Company’s last fiscal quarter ending prior to the date of the Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss);
(B) the aggregate Net Cash Proceeds received after the date of the Indenture by the Company either (1) as capital contributions in the form of common equity to the Company or (2) from the issuance or sale (other than to any of its Subsidiaries) of Qualified Capital Stock of the Company or any options, warrants or rights to purchase such Qualified Capital Stock of the Company (except, in each case, to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set forth below in clause (2) or (3) of paragraph (b) below) (and excluding the Net Cash Proceeds from the issuance of Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid);
(D) the aggregate Net Cash Proceeds received after the date of the Indenture by the Company from the conversion or exchange, if any, of debt securities or Redeemable Capital Stock of the Company or its Restricted Subsidiaries into or for Qualified Capital Stock of the Company plus, to the extent such debt securities or Redeemable Capital Stock were issued after the date of the Indenture, the aggregate of Net Cash Proceeds from their original issuance (and excluding the Net Cash Proceeds from the conversion or exchange of debt securities or Redeemable Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); | |
(b)(E) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the date of the Indenture, an amount (to the extent not included in Consolidated Net Income) equal to (x) the cash return of capital with respect to such Investment, plus (y) 50% of any amounts received in cash in excess of the return of capital to the extent such amount is not otherwise included in Consolidated Net Income of the Company or its Restricted Subsidiaries, in any case, less the cost of the disposition of such Investment and net of taxes; and
(F) in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Company’s interest in such Subsidiary provided that such amount shall not in any case exceed (x) the amount of the Restricted Payment deemed made at the time the Subsidiary was designated as an Unrestricted Subsidiary, plus (y) 50% of any increase in the Fair Market Value of such Company’s interest in such Subsidiary over such Subsidiary’s value on the date such Subsidiary was designated an Unrestricted Subsidiary to the extent such amount is not otherwise included in Consolidated Net Income of the Company or its Restricted Subsidiaries.
43
(c)(b) Notwithstanding the foregoing, and in the case of clauses (2) through (5) and (7) below, so long as no Default or Event of Default is continuing or would arise therefrom, the foregoing provisions shall not prohibit the following actions (each of clauses (1) through (4), (6), (7), (8) and (6)(9) being referred to as a “Permitted Payment”):
| (1) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment was permitted by the provisions of paragraph (a) of this Section and such payment shall have been deemed to have been paid on such date of declaration and shall not have been deemed a “Permitted Payment” for purposes of the calculation required by paragraph (a) of this Section; | |
44(4) the repurchase, redemption, defeasance, retirement, refinancing, acquisition for value or payment of principal of any Subordinated Indebtedness (other than Redeemable Capital Stock) (a “refinancing”) through the substantially concurrent issuance of new Subordinated Indebtedness of the Company,provided that any such new Subordinated Indebtedness
due and payable upon a declaration of acceleration thereof, then such lesser amount as of the date of determination), plus the lesser of (1) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (2) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of expenses of the Company incurred in connection with such refinancing;
(c) has a Stated Maturity for its final scheduled principal payment later than the Stated Maturity for the final scheduled principal payment of the Notes; and
(d) is expressly subordinated in right of payment to the Notes at least to the same extent as the Subordinated Indebtedness to be refinanced;
(5) the payment of cash dividends on the Company’s shares of Common Stock in the aggregate amount per fiscal quarter equal to $0.165 per share for each share of Class A Common Stock of the Company outstanding as of the one record date for dividends payable in respect of such fiscal quarter and $0.15 per share for each share of Class B Common Stock of the Company outstanding as of the one record date for dividends payable in respect of such fiscal quarter (as such $0.165 and $0.15 shall be adjusted for specified changes in the capitalization of the Company upon recapitalizations, reclassifications, stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions),provided,however, in the event a Change of Control occurs, the aggregate amounts permitted to be paid in cash dividends per fiscal quarter shall not exceed the aggregate amounts of cash dividends paid in the same fiscal quarter most recently occurring prior to such Change of Control,provided,further, that for purposes of this exception, shares of Common Stock issued for less than Fair Market Value (other than shares issued pursuant to options or otherwise in accordance with the Company’s employee stock option, purchase or option plans) shall not be deemed outstanding. (For clarity purposes, dividends paid pursuant to this exception will be included as Restricted Payments in determining whether the Company has capacity to make additional Restricted Payments);
(6) the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company or any Restricted Subsidiary of the Company held by any present or former employee or director of the Company (or any of its Restricted Subsidiaries) pursuant to any management equity subscription agreement or stock option agreement or other management or employee benefit plan or similar agreement; provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock shall not exceed $1.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $2.0 million in any calendar year);provided furtherthat such amount in any calendar year may be increased by an amount not to exceed (x) the cash proceeds from the sale of Capital Stock of the Company or a Restricted Subsidiary to members of management and directors of the Company and its Subsidiaries that occurs after the date of the Indenture, less (y) (i) the amount of any Restricted Payments previously made pursuant to clause (x) of this subparagraph (6) and (ii) the aggregate net cash proceeds received by the Company since the date of the Indenture upon the exercise of stock options; andprovided furtherthat cancellation of Indebtedness owing to the Company from members of management of the Company or any of its Restricted Subsidiaries in connection with a repurchase of Capital Stock of the Company or a Restricted Subsidiary will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of the Indenture, and (B) no Default or Event of Default shall have occurred and be continuing immediately before or after such transaction;
(7) repurchases of Capital Stock and all warrants, options or other rights to acquire Capital Stock, deemed to occur upon the exercise of any options, warrants or convertible securities if the Capital Stock represents a portion of the exercise price of such options, warrants or convertible securities and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to any employee to pay for taxes payable by such employee upon such grant or award;
(8) the repurchase and retirement of Class B Common Stock held by the Company’s Profit Sharing Plan,provided that the aggregate price paid for all such repurchased and retired Class B Common Stock does not exceed $2.0 million in any calendar year; and
(9) additional Restricted Payments that, when taken with all other Restricted Payments made pursuant to this clause (9) since the date of the Indenture, do not exceed $25.0 million.
Limitation on Transactions with Affiliates.Affiliates
The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and
| (1) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be available in a comparable transaction in arm’s-length dealings with an unrelated third party, | |
45(3) with respect to any transaction or series of related transactions involving aggregate value in excess of $1.0 million, either
(b) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view;
provided, however,that this provision shall not apply to to:
(i) transactions and agreements in existence on the date of the Indenture and any renewals, amendments, modifications and changes to such agreements which are not adverse in any material respect to the Company;
(ii) transactions between or among the Company or any of the Restricted Subsidiaries;
(iii) Restricted Payments permitted by the Indenture;
(iv) compensation (including bonuses and (ii) employeeequity compensation) paid to and other benefits (including retirement, health and other benefit plans, profit sharing plans or management equity subscription agreements) and indemnification arrangements with any officerprovided on behalf of officers, directors, managers, employees or directorconsultants of the Company including underor any stock option or stock incentive plans, entered intoRestricted Subsidiary, in each case in the ordinary course of business.business;
(v) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any stockholders’ agreement (including any registration rights agreement or purchase agreement but excluding any management agreement related thereto) to which it is a party as of the date of the Indenture and any similar agreements which it may enter into thereafter;
(vi) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners, lessors or lessees of property (real or personal) or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of the Indenture which are fair to the Company and its Restricted Subsidiaries, on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary with unaffiliated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, on terms that are in the reasonable determination of the senior management of the Company, at least as favorable as might reasonably have been obtained at such time from an unaffiliated third party;
(vii) the issuance of Qualified Capital Stock (including all warrants, options or other rights to acquire Qualified Capital Stock) of the Company;
(viii) loans and advances to officers, directors, managers and employees for business related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices and in compliance with all applicable laws; and
(ix) loans to the Company’s Profit Sharing Plan in aggregate amounts at any time outstanding not to exceed $2.0 million to enable the Plan to provide benefits to eligible employees during “black-out” periods.
Limitation on Liens.Liens
The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, create, incur or affirm any Lien (other than a Permitted Lien) of any kind securing any Pari Passu Indebtedness or Subordinated Indebtedness (including any assumption, guarantee or other liability with respect thereto by any Restricted Subsidiary) upon any property or assets (including any intercompany notes) of the Company or any Restricted Subsidiary owned on the date of the Indenture or acquired after the date of the Indenture, or assign or convey any right to receive any income or profits therefrom, unless the Notes (or a Guarantee in the case of Liens of a Guarantor) are directly secured equally and ratably with (or, in the case of Subordinated Indebtedness, prior or senior thereto, with the same relative priority as the Notes shall have with respect to such Subordinated Indebtedness) the obligation or liability secured by such Lien except for Liens.
provided, however, that in the case of clauses (A) and (B), any such Lien only extends to the assets that were subject to such Lien securing such Indebtedness prior to the related acquisition by the Company or its Restricted Subsidiaries.
Notwithstanding the foregoing, any Lien securing the Notes granted pursuant to this covenant shall be automatically and unconditionally released and discharged upon the release by the holders of the Pari Passu Indebtedness or Subordinated Indebtedness described above of their Lien on the property or assets of the Company or any Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as the holders of all such Pari Passu Indebtedness or Subordinated Indebtedness also release their Lien on the property or assets of the Company or such Restricted Subsidiary, or upon any sale, exchange or transfer to any Person not an Affiliate of the Company of the property or assets secured by such Lien, or of all of the Capital Stock held by the Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Lien.
Limitation on Sale of Assets.Assets
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (1) at least 75% of the
46
With respect to an Asset Swap constituting an Asset Sale, the Company or any Restricted Subsidiary shall be required to receive in cash an amount equal to 75% of the Proceeds of the Asset Sale which do not consist of like-kind assets acquired with the Asset Swap.
(b) If allThe Company shall apply, or a portion ofcause such Restricted Subsidiary to apply, the Net Cash Proceeds of any Asset Sale or any Real Estate Subsidiary Financing Proceeds (collectively, a(a “Net Cash Proceeds Transaction”) are not required, within 365 days of receipt thereof either:
(1) to be applied to repay permanently any Seniorreduce senior Indebtedness or Senior Guarantor Indebtedness then outstanding as required by the terms thereof, or the Company determines not to apply such Net Cash Proceeds or any Real Estate Subsidiary Financing Proceeds to the permanent prepayment of such Senior Indebtedness or Senior Guarantor Indebtedness, or if no such Senior Indebtedness or Senior Guarantor Indebtedness is then outstanding, then the Company or a Restricted Subsidiary, may within 180 daysand, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the Net Cash Proceeds Transaction invest the Net Cash Proceedsavailability under such revolving credit facility;
(2) to make an investment or any Real Estate Subsidiary Financing Proceedscapital expenditure in properties and other assets that (as determined by the board of directors of the Company) replace the properties and assets that were the subject of the Net Cash Proceeds Transactionsuch Asset Sale or in properties and assets (including Capital Stock) that will be used in the businessesbusiness of the Company orand its Restricted Subsidiaries as existing on the date of the Indenture or in businesses reasonably related thereto. thereto;
(3) to acquire Capital Stock of another Person provided such Person becomes a Restricted Subsidiary; and/or
(4) to effect a combination of prepayment and investment permitted by the foregoing clauses (1), (2) and (3).
The amount of such Net Cash Proceeds or any Real Estate Subsidiary Financing Proceeds not used or invested within 180365 days of the Net Cash Proceeds Transaction as set forth in this paragraph constitutes “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds exceeds $10.0$25.0 million or more, the Company will apply the Excess Proceeds to the repayment of the Notes and any other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from any Asset Sale as follows:
| (A) the Company will make an offer to purchase (an “Offer”) from all holders of the Notes in accordance with the procedures set forth in the Indenture in the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the Notes, and the denominator of which is the sum of the outstanding principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of the Notes and such Pari Passu Indebtedness (subject to proration in the event such amount is less than the aggregate Offered Price (as defined herein) of all Notes tendered); and | |
(B) to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness (or accreted value in the case of Indebtedness issued with original issue discount), the Company will make an offer to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a “Pari Passu Offer”) in an amount (the “Pari Passu Debt Amount��) equal to the excess of the Excess Proceeds over the Note Amount;providedthat in no event will the Company be required to make a Pari Passu Offer in a Pari Passu Debt Amount exceeding the principal amount (or accreted value) of such Pari Passu Indebtedness plus the amount of any premium required to be paid to repurchase such Pari Passu Indebtedness.
The offer price for the Notes will be payable in cash in an amount equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to the date (the “Offer Date”) such Offer is consummated (the “Offered Price”), in accordance with the procedures set forth in the Indenture. To the extent that the aggregate Offered Price of the Notes tendered pursuant to the Offer is less than the Note Amount relating thereto or the aggregate amount of Pari Passu Indebtedness that is purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes and Pari Passu
47
(d) If the Company becomes obligated to make an Offer pursuant to clause (c) above, the Notes and the Pari Passu Indebtedness shall be purchased by the Company, at the option of the holders thereof, in whole or in part in integral multiples of $1,000, on a date that is not earlier than 30 days and not later than 60 days from the date the notice of the Offer is given to holders, or such later date as may be necessary for the Company to comply with the requirements under the Exchange Act.
(e) The Indenture will provide that the Company will comply 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 an Offer.
Limitation on Issuances of Guarantees of and Pledges for Indebtedness.Indebtedness
(a) The Company will not cause or permit any Restricted Subsidiary, other than a Guarantor, directly or indirectly, to secure the payment of any Senior Indebtedness of the Company and the Company will not, and will not permit any Restricted Subsidiary to, pledge any intercompany notes representing obligations of any Restricted Subsidiary (other than a Guarantor) or any Capital Stock of a Restricted Subsidiary (other than (x) a Guarantor or (y) Milkco, Inc.) to secure the payment of any Senior Indebtedness unless in each case such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture providing for a guarantee of payment of the Notes by such Restricted Subsidiary, which guarantee shall be on the same terms as the guarantee of the Seniorsuch Indebtedness (if a guarantee of Seniorsuch Indebtedness is granted by any such Restricted Subsidiary) except that the guarantee of the Notes need not be secured and shall be subordinated to the claims against such Restricted Subsidiary in respect of Senior Indebtedness or Senior Guarantor Indebtedness to the same extent as the Notes are subordinated to Senior Indebtedness of the Company under the Indenture.secured.
(b) The Company will not cause or permit any Restricted Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee, assume or in any other manner become liable with respect to any Indebtedness of the Company or any other Restricted Subsidiary unless such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of the Notes on the same terms as the guarantee of such Indebtedness except thatthat:
(B) if such Indebtedness is by its terms expressly subordinated to the Notes, any such assumption, guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated to such Restricted Subsidiary’s Guarantee of the Notes at least to the same extent as such Indebtedness is subordinated to the Notes.
(c) Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary of the Notes shall provide by its terms that it (and all Liens securing the same) shall be automatically and unconditionally released and discharged upon
| (1) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of the Company’s Capital Stock in, or all or substantially all the assets of, such Restricted Subsidiary, or the designation of such Restricted Subsidiary as an Unrestricted Subsidiary, which transaction is in compliance with the terms of the Indenture and such Restricted Subsidiary is released from all guarantees, if any, by it of other |
48
Limitation on Senior Subordinated Indebtedness. The Company will not, and will not permit or cause any Guarantor to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise in any manner become directly or indirectly liable for or with respect to or otherwise permit to exist any Indebtedness that is subordinate in right of payment to any Indebtedness of the Company or any Restricted Subsidiaries or
(2) the release by the holders of the Indebtedness of the Company described in clauses (a) and (b) above of their security interest or their guarantee by such Guarantor,Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Indebtedness), at such time as (A) no other Indebtedness of the Company has been secured or guaranteed by such Restricted Subsidiary, as the case may be, unlessor (B) the holders of all such other Indebtedness which is secured or guaranteed by such Restricted Subsidiary also pari passu with the Notesrelease their security interest in or the Guaranteeguarantee by such Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Guarantor or subordinated in right of payment to the Notes or such Guarantee at least to the same extent as the Notes or such Guarantee are subordinated in right of payment to Senior Indebtedness or Senior Indebtedness of such Guarantor, as the case may be, as set forth in the Indenture.Indebtedness).
Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.Subsidiaries
The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary toto:
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make any Investment in the Company or any other Restricted Subsidiary; or
(4) transfer any of its properties or assets to the Company or any other Restricted Subsidiary.
However, this covenant will not prohibit any encumbrance or restriction (1) pursuant to an agreement in effect on the date of the Indenture; (2) with respect to a Restricted Subsidiary that is not a Restricted Subsidiary of the Company on the date of the Indenture, in existence at the time such Person becomes a Restricted Subsidiary of the Company and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary,provided that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary or the properties or assets of the Company or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary; (3) pursuant to any agreement of a Guarantor governing any Indebtedness permitted by clause (1) of the definition of Permitted Indebtedness as to the assets financed with the proceeds of, or used to finance, such Indebtedness; (4) contained in any Acquired Indebtedness or other agreement of any entity or related to assets acquired by or merged into or consolidated with the Company or any Restricted Subsidiaries so long as such encumbrance or restriction was not entered into in contemplation of the acquisition, merger or consolidation transaction; (5) under any agreement related to a Non-Recourse Real Estate Subsidiary which is only related to the assets held by such Non-Recourse Real Estate Subsidiary; and (6)(5) under any agreement that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (5)(4), or in this clause (6)(5),providedthat the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced or replaced.
49
Limitation on Unrestricted Subsidiaries.Subsidiaries
The Company may designate after the Issue Date any Subsidiary (other than a Guarantor) as an “Unrestricted Subsidiary” under the Indenture (a “Designation”) only if:
(a) no Default shall have occurred and be continuing at the time of or after giving effect to such Designation;
(b) the Company would be permitted to make an Investment (other than a Permitted Investment) at the time of Designation (assuming the effectiveness of such Designation) pursuant to the first paragraph of “—Limitation on Restricted Payments” above in an amount (the “Designation Amount”) equal to the greater of (1) the net book value of the Company’s interest in such Subsidiary calculated in accordance with GAAP or (2) the Fair Market Value of the Company’s interest in such Subsidiary as determined in good faith by the Company’s board of directors;
(d) such Unrestricted Subsidiary does not own any Capital Stock in any Restricted Subsidiary of the Company which is not simultaneously being designated an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly or indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary Indebtedness,provided that an Unrestricted Subsidiary may provide a Guarantee for the Notes; and
(f) such Unrestricted Subsidiary is not a party to any agreement, contract, arrangement or understanding at such time with the Company or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company or, in the event such condition is not satisfied, the value of such agreement, contract, arrangement or understanding to such Unrestricted Subsidiary shall be deemed a Restricted Payment.
In the event of any such Designation, the Company shall be deemed to have made an Investment constituting a Restricted Payment pursuant to the covenant“— Limitation “Limitation on Restricted Payments”for all purposes of the Indenture in the Designation Amount.
The Indenture will also provide that the Company shall not and shall not cause or permit any Restricted Subsidiary to at any timetime:
| (a) provide credit support for, guarantee or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness) (other than Permitted Investments in Unrestricted Subsidiaries); or | |
(b) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary.
For purposes of the foregoing, the Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to be the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) if:
| (a) no Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; |
50(b) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if incurred at such time, have been permitted to be incurred for all purposes of the Indenture; and
All Designations and Revocations must be evidenced by a resolution of the board of directors of the Company delivered to the Trustee certifying compliance with the foregoing provisions.
Provision of Financial Statements.Statements
Whether or not the Company is subject to Section 13(a) or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to SectionsSection 13(a) or 15(d) if the Company were so subject, such documents to be filed with the Commission on or prior to the date (the “Required Filing Date”) by which the Company would have been required so to file such documents if the Company were so subject.
The Company will also in any event (a) within 15 days of each Required Filing Date (1) transmit by mail to all holders, as their names and addresses appear in the security register, without cost to such holders and (2) file with the Trustee copies of the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to SectionsSection 13(a) or 15(d) of the Exchange Act if the Company were subject to either of such Sections and (b) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective holder at the Company’s cost.
If any Guarantor’s financial statements would be required to be included in the financial statements filed or delivered pursuant to the Indenture if the Company were subject to Section 13(a) or 15(d) of the Exchange Act, the Company shall include such Guarantor’s financial statements in any filing or delivery pursuant to the Indenture.
The Indenture will also providesprovide that, so long as any of the Notes remain outstanding, the Company will make available to any prospective purchaser of Notes or beneficial owner of Notes in connection with any sale thereof the information required by Rule 144A(d)(4) under the Securities Act, until such time as the Company has either exchanged the Notes for securities identical in all material respects which have been registered under the Securities Act or until such time as the holders thereof have disposed of such Notes pursuant to an effective registration statement under the Securities Act.
Additional Covenants.Covenants
The Indenture will also containscontain covenants with respect to the following matters: (1) payment of principal, premium and interest; (2) maintenance of an office or agency in The City of New York; (3) arrangements regarding the handling of money held in trust; (4) maintenance of corporate existence; (5) payment of taxes and other claims; (6) maintenance of properties; and (7) maintenance of insurance.
Consolidation, Merger, Sale of Assets
The Company will not, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons, or permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions, if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Company and its Restricted
51
| (1) either (a) the Company will be the continuing corporation or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a Consolidated basis (the “Surviving Entity”) will be a corporation duly organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and such Person expressly assumes, by a supplemental indenture, in a form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and the Indenture and the Registration Rights Agreement, as the case may be, and the Notes and the Indenture and the Registration Rights Agreement will remain in full force and effect as so supplemented (and any Guarantees will be confirmed as applying to such Surviving Entity’s obligations); | |
(2) immediately before and immediately after giving effect to such transaction on apro formabasis (and treating any Indebtedness not previously an obligation of the Company or any of its Restricted Subsidiaries which becomes the obligation of the Company or any of its Restricted Subsidiaries as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default will have occurred and be continuing;
(3) immediately after giving effect to such transaction on apro formabasis (on the assumption that the transaction occurred on the first day of the four-quarter period for which financial statements are available
ending immediately prior to the consummation of such transaction with the appropriate adjustments with respect to the transaction being included in suchpro formacalculation), the Company (or the Surviving Entity if the Company is not the continuing obligor under the Indenture) could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the provisions of “—Certain Covenants—Limitation on Indebtedness”;
(4) at the time of the transaction, each Guarantor, if any, unless it is the other party to the transactions described above, will have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under the Indenture and the Notes; and
(5) at the time of the transaction, the Company or the Surviving Entity will have delivered, or caused to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an officers’ certificate and an opinion of counsel, each to the effect that such consolidation, merger, transfer, sale, assignment, conveyance, transfer, lease or other transaction and the supplemental indenture in respect thereof comply with the Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
Each Guarantor, if any, will not, and the Company will not permit any Guarantor to, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other Person (other than the Company or any Guarantor) or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons (other than the Company or any Guarantor) or permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Guarantor and its Restricted Subsidiaries on a Consolidated basis to any other Person or group of Persons (other than the Company or any Guarantor), unless at the time and after giving effect theretothereto:
52(2) immediately before and immediately after giving effect to such transaction on apro formabasis, no Default or Event of Default will have occurred and be continuing; and
Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or another Restricted Subsidiary and (ii) the Company may merge with an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the jurisdiction of organization of the Company in another state of the United States,States;provided that, in
the case of clauses (i) and (ii), (a) so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and provided that(b) the successor Person (in the case of a consolidation, merger or transfer involving the Company or a Guarantor) assumes all the obligations of the Company or Guarantor, as applicable, under the Registration Rights Agreement, the Indenture and the Notes or its Guarantee, as the case may be, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee.
In the event of any transaction (other than a lease) described in and complying with the conditions listed in the first two paragraphs of this Section in which the Company or any Guarantor, as the case may be, is not the continuing corporation, the successor Person formed or remaining or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor, as the case may be, and the Company or any Guarantor, as the case may be, would be discharged (other than in a transaction that results in the transfer of assets constituting or accounting for less than 95% of the Consolidated assets (as of the last balance sheet date available to the Company) of the Company or the Consolidated revenue of the Company (as of the last 12-month period for which financial statements are available)) from all obligations and covenants under the Indenture and the Notes or its Guarantee, as the case may be, and the Registration Rights Agreement.
Events of Default
An Event of Default will occur under the Indenture if:
53(2) there shall be a default in the payment of the principal of (or premium, if any, on) any Note at its Maturity (upon acceleration, optional or mandatory redemption, if any, required repurchase or otherwise);
(4) one or more defaults shall have occurred under any of the agreements, indentures or instruments under which the Company, any Guarantor or any Restricted Subsidiary then has outstanding Indebtedness in excess of $15.0 million, individually or in the aggregate, and either (a) such default results from the failure to pay such Indebtedness at its stated final maturity or (b) such default or defaults have resulted in the acceleration of the maturity of such Indebtedness;
| (5) any Guarantee shall for any reason cease to be, or shall for any reason be asserted in writing by any Guarantor or the Company 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 Guarantee; | |
54
(7) any holder or holders of at least $15.0 million in aggregate principal amount of Indebtedness of the Company, any Guarantor or any Restricted Subsidiary after a default under such Indebtedness shall notify the Trustee of the sale or disposition of any assets of the Company, any Guarantor or any Restricted Subsidiary that have been pledged to or for the benefit of such holder or holders to secure such Indebtedness or shall commence proceedings, or take any action (including by way of set-off), to retain in satisfaction of such Indebtedness or to collect on, seize, dispose of or apply in satisfaction of Indebtedness, assets of the Company, any Guarantor or any Restricted Subsidiary (including funds on deposit or held pursuant to lock-box and other similar arrangements);
(9)(a) the Company, any Guarantor or any Significant Subsidiary commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent,
(b) the Company, any Guarantor or any Significant Subsidiary consents to the entry of a decree or order for relief in respect of the Company, such Guarantor or such Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against it,
(d) the Company, any Guarantor or any Significant Subsidiary (1) consents to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company, any Guarantor or such Significant Subsidiary or of any substantial part of their respective properties, (2) makes an assignment for the benefit of creditors or (3) admits in writing its inability to pay its debts generally as they become due or
(e) the Company, any Guarantor or any Significant Subsidiary takes any corporate action in furtherance of any such actions in this clause (9).
If an Event of Default (other than as specified in clauses (8) and (9) of the prior paragraph)paragraph with respect to the Company or a Guarantor) shall occur and be continuing with respect to the Indenture, the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding may, and the Trustee at the request of such holders shall, declare all unpaid principal of, premium, if any, and accrued interest on all Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the holders of the Notes) and upon any such declaration, such principal, premium, if any, and interest shall become due and payable immediately. If an Event of Default specified in clause (8) or (9) of the prior paragraph with respect to the Company or a Guarantor occurs and is continuing, then all the Notes shallipso factobecome and be due and payable immediately in an amount equal to the principal amount of the Notes, together with accrued and unpaid interest, if any, to the date the Notes become due and payable, without any declaration or other act on the part of the Trustee or any holder. Thereupon, the Trustee may, at its discretion, proceed to protect and enforce the rights of the holders of Notes by appropriate judicial proceedings.
After a declaration of acceleration, but before a judgment or decree for payment of the money due has been obtained by the Trustee, the holders of a majority in aggregate principal amount of Notes outstanding by written notice to the Company and the Trustee may rescind and annul such declaration and its consequences ifif:
| (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1) all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue interest on all Notes then outstanding, (3) the principal of, and premium, if any, on any Notes then outstanding which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes and (4) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate borne by the Notes; (b) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (c) all Events of Default, other than the non-payment of principal of, premium, if any, and interest on the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in the Indenture. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
The holders of not less than a majority in aggregate principal amount of the Notes outstanding may on behalf of the holders of all outstanding Notes waive any past default under the Indenture and its consequences, except a default (1) in the payment of the principal of, premium, if any, or interest on any Note (which may only be waived with the consent of each holder of Notes effected)affected) or (2) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the holder of each Note affected by such modification or amendment.
No holder of any of the Notes has any right to institute any proceedings with respect to the Indenture or any remedy thereunder, unless the holders of at least 25% in aggregate principal amount of the outstanding Notes have made written request, and offered reasonable indemnity, to the Trustee to institute
55
The Company is required to notify the Trustee within five business days of the occurrence of any Default. The Company is required to deliver to the Trustee, on or before a date not more than 60 days after the end of each fiscal quarter and not more than 120 days after the end of each fiscal year, a written statement as to compliance with the Indenture, including whether or not any Default has occurred. The Trustee is under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the holders of the Notes unless such holders offer to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred thereby.
The Trust Indenture Act contains limitations on the rights of the Trustee, should it become a creditor of the Company or any Guarantor, if any, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The Trustee is permitted to engage in other transactions, but if it acquires any conflicting interest it must eliminate such conflict upon the occurrence of an Event of Default or else resign.
Defeasance or Covenant Defeasance of Indenture
The Company may, at its option and at any time, elect to have the obligations of the Company, any Guarantor and any other obligor upon the Notes discharged with respect to the outstanding Notes (“defeasance”). Such defeasance means that the Company, any such Guarantor and any other obligor under the Indenture shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, except forfor:
(2) the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes, and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee; and
(4) the defeasance provisions of the Indenture. In addition, the Company may, at its option and at any time, elect to have the obligations of the Company and any Guarantor released with respect to certain covenants that are described in the Indenture (“covenant defeasance”) and thereafter any omission to comply with such obligations shall not constitute a Default or an Event of Default with respect to the Notes. In the event covenant defeasance occurs, certain events (not including non-payment, bankruptcy and insolvency events) described under “—Events of Default” will no longer constitute an Event of Default with respect to the Notes.
In order to exercise either defeasance or covenant defeasance,
56(b) in the case of defeasance, the Company shall have delivered to the Trustee an opinion of independent counsel in the United States stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of the Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel in the United States shall confirm that, the holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as clauses (8) or (9) under the first paragraph under “—Events of Default” are concerned, at any time during the period ending on the 91st day after the date of deposit;
(e) such defeasance or covenant defeasance shall not cause the Trustee for the Notes to have a conflicting interest as defined in the Indenture and for purposes of the Trust Indenture Act with respect to any securities of the Company or any Guarantor; | |
57(f) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default under, the Indenture or any other material agreement or instrument to which the Company, any Guarantor or any Restricted Subsidiary is a party or by which it is bound;
(h) the Company will have delivered to the Trustee an opinion of independent counsel in the United States to the effect that after the 91st day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(i) the Company shall have delivered to the Trustee an officers’ certificate stating that the deposit was not made by the Company with the intent of preferring the holders of the Notes or any Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company, any Guarantor or others;
(j) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 91st day after the date of such deposit; and
(k) the Company will have delivered to the Trustee an officers’ certificate and an opinion of independent counsel, each stating that all conditions precedent provided for relating to either the defeasance or the covenant defeasance, as the case may be, have been complied with.
Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes as expressly provided for in the Indenture) as to all outstanding Notes under the Indenture whenwhen:
| (a) either |
| (1) all such Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid or Notes whose payment has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided for in the Indenture) have been delivered to the Trustee for cancellation; or | |
(b) the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount in United States dollars sufficient to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, including principal of, premium, if any, and accrued interest at such Maturity, Stated Maturity or redemption date;
(c) the Company or any Guarantor has paid or caused to be paid all other sums payable under the Indenture by the Company and any Guarantor; and
(d) the Company has delivered to the Trustee an officers’ certificate and an opinion of independent counsel each stating that (1) all conditions precedent under the Indenture relating to the satisfaction and discharge of such Indenture have been complied with and (2) such satisfaction and discharge will not result in a breach or violation of, or constitute a default under, the Indenture or any other material agreement or instrument to which the Company, any Guarantor or any Subsidiary is a party or by which the Company, any Guarantor or any Subsidiary is bound.
Modifications and Amendments
Modifications and amendments of the Indenture may be made by the Company, each Guarantor, if any, and the Trustee with the consent of the holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for Notes);provided,however, that no such modification or amendment may, without the consent of the holder of each outstanding Note affected thereby:
| (1) change the Stated Maturity of the principal of, or any installment of interest on, or change to an earlier date any redemption date of, or waive a default in the payment of the principal of, premium, if any, or interest on, any such Note or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change the coin or currency in which the principal of any such Note or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment after the Stated Maturity thereof (or, in the case of redemption, on or after the redemption date); | |
58(2) after the Company’s obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control or make and consummate an Offer with respect to any Asset Sale that has been consummated or, after such Change of Control has occurred or such Asset Sale has been consummated, modify any of the provisions or definitions with respect thereto;
(4) modify any of the provisions relating to supplemental indentures requiring the consent of holders or relating to the waiver of past defaults or relating to the waiver of certain covenants, except to increase the percentage of such outstanding Notes required for such actions or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each such Note affected thereby;
(5) except as otherwise permitted under “—Consolidation, Merger, Sale of Assets,” consent to the assignment or transfer by the Company or any Guarantor of any of its rights and obligations under the Indenture; or
Notwithstanding the foregoing, without the consent of any holders of the Notes, the Company, any Guarantor, any other obligor under the Notes and the Trustee may modify or amend the Indenture:
(2) to add to the covenants of the Company, any Guarantor or any other obligor upon the Notes for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Company or any Guarantor or any other obligor upon the Notes, as applicable, in the Indenture, in the Notes or in any Guarantee;
(3) to cure any ambiguity, or to correct or supplement any provision in the Indenture, the Notes or any Guarantee which may be defective or inconsistent with any other provision in the Indenture, the Notes or any Guarantee or make any other provisions with respect to matters or questions arising under the Indenture, the Notes or any Guarantee;providedthat, in each case, such provisions shall not adversely affect the interest of the holders of the Notes;
(4) to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(5) to add a Guarantor or co-obligor under the Indenture;
(6) to evidence and provide the acceptance of the appointment of a successor Trustee under the Indenture;
(7) to make any change that would provide any additional rights or benefits to the Holders and that does not adversely affect the legal rights under the Indenture of any such Holder;
(8) to conform the text of the Indenture or the Notes to any provision of this “Description of the Notes” to the extent that such provision in the “Description of the Notes” was intended to be a verbatim recitation of a provision of the Indenture or Notes;
(9) to make any amendment to the provisions of the Indenture relating to the transfer and legending of Notes as permitted by the Indenture, including to facilitate the issuance and administration of the Notes;provided,however, that (i) compliance with the Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes; or
(10) to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the benefit of the holders of the Notes as additional security for the payment and performance of the Company’s and any Guarantor’s obligations under the Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee pursuant to the Indenture or otherwise.
The holders of a majority in aggregate principal amount of the Notes outstanding may waive compliance with certain restrictive covenants and provisions of the Indenture.
Governing Law
The Indenture, the Notes and any Guarantee arewill be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.
59
Concerning the Trustee
The Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of the Company, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as Trustee with such conflict or resign as Trustee.
The holders of a majority in principal amount of the then outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default occurs (which has not been cured), the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any holder of Notes unless such holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
Additional Information
Anyone who receives this prospectus may obtain a copy of the Indenture without charge by writing to Ingles Markets, Incorporated, 2913 U.S. Highway 70 West, Black Mountain, North Carolina 28711, Attention: Chief Financial Officer.
Certain Definitions
Set forth below are certain defined terms used in the Indenture. Reference is made to the Indenture for a full disclosure of all defined terms used therein, as well as any other capitalized terms used herein for which no definition is provided.
“Acquired Indebtedness”Indebtedness” means Indebtedness of a Person (1) existing at the time such Person becomes a Restricted Subsidiary or (2) assumed in connection with the acquisition of assets from such Person, in each case, other than Indebtedness incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, as the case may be. Acquired Indebtedness shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Restricted Subsidiary, as the case may be.
“Affiliate”Affiliate” means, with respect to any specified Person: (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; (2) any other Person that owns, directly or indirectly, 5%10% or more of any class or series of such specified Person’s (or any of such Person’s direct or indirect parent’s) Capital Stock or any officer or director of any such specified Person or other Person or, with respect to any natural Person, any person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin; or (3) any other Person 5%10% or more of the Voting Stock of which is beneficially owned or held directly or indirectly by such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Premium” means, with respect to any Note on any applicable redemption date, the greater of (i) 1.0% of the then outstanding principal amount of such Note and (ii) the excess of:
(a) the present value at such redemption date of the sum of (i) the redemption price of such Note at May 15, 2013 (such redemption price being set forth in the table appearing above under “—Optional Redemption”) plus (ii) all required interest payments due on such Note through May 15, 2013 (excluding accrued but unpaid interest), such present value to be computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points;over
(b) the then outstanding principal amount of such Note.
“Asset Sale”Sale” means any sale, issuance, conveyance, transfer, lease or other disposition (including, without limitation, by way of merger, consolidation or sale and leaseback transaction) (collectively, a “transfer”), directly or indirectly, in one or a series of related transactions, of:
| (1) any Capital Stock of any Restricted Subsidiary; | |
(2) all or substantially all of the properties and assets of any division or line of business of the Company or any Restricted Subsidiary; or
(3) any other properties or assets of the Company or any Restricted Subsidiary other than in the ordinary course of business.
For the purposes of this definition, the term “Asset Sale” shall not include any transfer of properties and assets
60
(B) that is by the Company to any Guarantor, or by any Guarantor to the Company or any Guarantor in accordance with the terms of the Indenture including any issuance of Capital Stock,
(D) that is of obsolete equipment in the ordinary course of business,
(E) any disposition of Cash Equivalents,
(G) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(H) to the extent permitted under Section 1031 of the Tax Code, any exchange of like property,
(I) lease, assignment or sublease of any real or personal property in the ordinary course of business, or
(J) the Fair Market Value of which in the aggregate does not exceed $5.0 million in any transaction or series of related transactions.
“Asset Swap”Swap” means the exchange by the Company or a Restricted Subsidiary of a portion of its property, business or assets, in the ordinary course of business, for property, business or assets which, or Capital Stock of a Person all or substantially all of whose assets, are of a type used in the business of the Company on the date of the Indenture or in a Permitted Business, or a combination of any property, business or assets or Capital Stock of such a Person and cash or Cash Equivalents.
“Average Life to Stated Maturity”Maturity” means, as of the date of determination with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of (a) the number of years from the date of determination to the date or dates of each successive scheduled principal payment of such Indebtedness multiplied by (b) the amount of each such principal payment by (2) the sum of all such principal payments.
“Bankruptcy Law”Law” means Title 11, United States Bankruptcy Code, of 1978,as amended, or any similar United States federal or state law or foreign law relating to bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.
“Capital Lease Obligation”Obligation” of any Person means any obligation of such Person and its Restricted Subsidiaries on a Consolidated basis under any capital lease of (or other agreement conveying the right to use) real or personal property which, in accordance with GAAP, is required to be recorded as a capitalized lease obligation.
“Capital Stock”Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the date of the Indenture, partnership interests (whether general or limited), limited liability company interests, 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, including any Preferred Stock, and any rights (other than debt securities convertible into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
“Cash Equivalents”Equivalents means” means:
61
(2) deposits, certificates of deposit or acceptances of any financial institution that is a member of the Federal Reserve System and whose senior unsecured debt is rated at least “A-1” by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“S&P”), or at least “P-1” by Moody’s Investors Service, Inc. (“Moody’s”);
(4) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any agency thereof and backed by the full faith and credit of the United States maturing within 365 days from the date of acquisition; and
(5) money market funds which invest substantially all of their assets in securities described in the preceding clauses (1) through (4).
“Change of Control”Control” means the occurrence of any of the following events:
(A) the outstanding Voting Stock of the Company is changed into or exchanged for (1) Voting Stock of the surviving corporation which is not Redeemable Capital Stock or (2) cash, securities and other property (other than Capital Stock of the surviving corporation) in an amount which could be paid by the Company as a Restricted Payment as described under “—Certain Covenants—Limitation on Restricted Payments” (and such amount shall be treated as a Restricted Payment subject to the provisions in the Indenture described under “—Certain Covenants—Limitation on Restricted Payments”)and
(B) immediately after such transaction, no “person” or “group,” other than Permitted Holders, is the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock entitled to exercise more than 35% of the total voting power of all outstanding Voting Stock of the surviving corporation; or
(4) the Company is liquidated or dissolved or adopts a plan of liquidation or dissolution other than in a transaction which complies with the provisions described under “—Consolidation, Merger, Sale of Assets.”
For purposes of this definition, any transfer of an equity interest of an entity that was formed for the purpose of acquiring voting stock of the Company will be deemed to be a transfer of such portion of such voting stock as corresponds to the portion of the equity of such entity that has been so transferred.
“Class A Common Stock”Stock” means the Company’s Class A Common Stock, $0.05 par value per share.
“Class B Common Stock”Stock” means the Company’s Class B Common Stock, $0.05 par value per share.
“Commission”Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of the Indenture such Commission
62
“Commodity Price Protection Agreement”Agreement” means any forward contract, commodity swap, commodity option or other similar financial agreement or arrangement relating to, or the value which is dependent upon, fluctuations in commodity prices.
“Common Stock”Stock” means the Company’s Class A Common Stock and Class B Common Stock.
“Company”Company” means Ingles Markets, Incorporated, a corporation incorporated under the laws of North Carolina, until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person.
“Consolidated Fixed Charge Coverage Ratio”Ratio” of any Person means, for any period, the ratio ofof:
(b) the sum of Consolidated Interest Expense for such period, cash and non-cash dividends paid on any Redeemable Capital Stock or Preferred Stock of such Person and its Restricted Subsidiaries during such period, |
in each case after givingpro formaeffect (as calculated in accordance with Article 11 of Regulation S-X under the Securities Act of 1933 or any successor provision) toto:
| (1) the incurrence of the Indebtedness giving rise to the need to make such calculation and (if applicable) the application of the net proceeds therefrom, including to refinance other Indebtedness, as if such Indebtedness was incurred, and the application of such proceeds occurred, on the first day of such period; | |
63
(4) any acquisition or disposition by the Company and its Restricted Subsidiaries of any company or any business or any assets out of the ordinary course of business, whether by merger, stock purchase or sale or asset purchase or sale, or any related repayment of Indebtedness, in each case since the first day of such period, assuming such acquisition or disposition had been consummated on the first day of such period;
“Consolidated Income Tax Expense”Expense” of any Person means, for any period, the provision for federal, state, local and foreign income taxes of such Person and its Consolidated Restricted Subsidiaries for such period as determined in accordance with GAAP.
“Consolidated Interest Expense”Expense” of any Person means, without duplication, for any period, the sum ofof:
| (a) the interest expense of such Person and its Restricted Subsidiaries for such period, on a Consolidated basis, including, without limitation, |
| (1) amortization of debt discount, | |
(5) accrued interest, plus
(b)(1) the interest component of the Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period and
(2) all capitalized interest of such Person and its Restricted Subsidiaries, plus
(c) the interest expense under any Guaranteed Debt of such Person and any Restricted Subsidiary to the extent not included under clause (a)(4) above, whether or not paid by such Person or its Restricted Subsidiaries.
“Consolidated Net Income (Loss)” of any Person means, for any period, the Consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period on a Consolidated basis as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income (or loss), by excluding, without duplication,
| (1) all extraordinary gains or losses net of taxes (less all fees and expenses relating thereto), | |
64(2) the portion of net income (or loss) of such Person and its Restricted Subsidiaries on a Consolidated basis allocable to minority interests in unconsolidated Persons or Unrestricted Subsidiaries to the extent that cash dividends or distributions have not actually been received by such Person or one of its Consolidated Restricted Subsidiaries,
(4) any gain or loss, net of taxes, realized upon the termination of any employee pension benefit plan,
(5) gains or losses, net of taxes (less all fees and expenses relating thereto), in respect of dispositions of assets other than (a) in the ordinary course of business and (b) other than for purposes of calculating the Restricted Payment Basket, the disposition of real estate outside the ordinary course of business if either: (i) no shopping center or grocery store was operated on such real estate for a period of 12 months preceding the date of disposition or (ii) the shopping center or grocery store operated on such real estate has generated an annual net loss in the two consecutive fiscal years preceding the date of disposition,
(6) the net income of any Restricted Subsidiary to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders,
(7) any restoration to net income of any contingency reserve, except (a) to the extent provision for such reserve was made out of income accrued at any time following the date of the Indenture and (b) the contingency reserve for contingent income tax liabilities not to exceed $2.0 million in the aggregate, or
(8) any net gain arising from the acquisition of any securities or extinguishment, under GAAP, of any Indebtedness of such Person.
“Consolidated Non-cash Charges”Charges” of any Person means, for any period, the aggregate depreciation, amortization and other non-cash charges of such Person and its Subsidiaries on a Consolidated basis for such period, as determined in accordance with GAAP (excluding any non-cash charge which requires an accrual or reserve for cash charges for any future period).
“Consolidated Rental Expense” of any Person means, for any period, all payments made or required to be made by the Company or any of its Restricted Subsidiaries, as lessee or sublessee under any operating lease of real or personal property as rental payments and contingent rentals under operating leases, in each case, as calculated in accordance with GAAP in the manner set forth in the footnotes to the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2000.
“Consolidated Tangible Assets”Assets” of any Person means, at any time, for such Person and its Restricted Subsidiaries on a consolidated basis, an amount equal to (a) the consolidated assets of the Person and its Restricted Subsidiaries minus (b) all Intangible Assets of the Person and its Restricted Subsidiaries at that time.
“Consolidated Tangible Net Worth”Consolidationof any Person means, at any time, for such Person and its Restricted Subsidiaries on a consolidated basis, an amount computed equal to (a) the consolidated stockholders’ equity of the Person and its Restricted Subsidiaries, minus, (b) all Intangible Assets of the Person and its Restricted Subsidiaries, in each case as of such time.
“Consolidation”” means, with respect to any Person, the consolidation of the accounts of such Person and each of its subsidiaries if and to the extent the accounts of such Person and each of its Subsidiaries would normally be consolidated with those of such Person, all in accordance with GAAP. The term “Consolidated” shall have a similar meaning.
“Currency Hedging Agreements”Agreements” means one or more of the following agreements which shall be entered into by one or more financial institutions: foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values.
“Default”Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Designated Noncash Consideration”Non-cash Consideration” means the fair market value of non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with an Asset Sale that is so designated pursuant to an officer’s certificate, setting forth the basis of the valuation. The aggregate fair market value of the Designated NoncashNon-cash Consideration held by the Company or any Restricted Subsidiary at any given time, taken together with the fair market value at the time of receipt of all other Designated NoncashNon-cash Consideration received and still held by the Company or any Restricted Subsidiary at such time, may not exceed the greater of (x) $20$20.0 million in aggregate or (y) 2% of the Company’s Consolidated Tangible Assets, at the time of the receipt of the Designated NoncashNon-cash Consideration (with the fair market value being measured at the time received and without giving effect to subsequent changes in value).
“Disinterested Director”Director” means, with respect to any transaction or series of related transactions, a member of the board of directors of the Company who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions.
“Equity Offering” means any public or private sale of common stock (other than Redeemable Capital Stock) of the Company with gross proceeds to the Company of at least $25.0 million.
“Exchange Act”Act” means the Securities Exchange Act of 1934, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
65“Existing Notes” means the Senior Subordinated Notes issued pursuant to that certain Indenture dated as of December 11, 2001 between the Company and U.S. Bank, N.A., as Trustee.
“Fair Market Value”Value” means, with respect to any asset or property, the sale value that would be obtained in an arm’s-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value shall be determined by the board of directors of the Company acting in good faith and shall be evidenced by a resolution of the board of directors.
“Generally Accepted Accounting Principles”Principles” or ““GAAP”GAAP” means generally accepted accounting principles in the United States, consistently applied, which are in effect on the date of the Indenture.
“Guarantee”Guarantee” means the guarantee by any Guarantor of the Company’s Indenture Obligations.
“Guaranteed Debt”Debt” of any Person means, without duplication, all Indebtedness of any other Person referred to in the definition of Indebtedness below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement
| (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, | |
(2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss,
(3) to supply funds to, or in any other manner invest in, the debtor (including any agreement to pay for property or services without requiring that such property be received or such services be rendered),
(4) to maintain working capital or equity capital of the debtor, or otherwise to maintain the net worth, solvency or other financial condition of the debtor or to cause such debtor to achieve certain levels of financial performance or
(5) otherwise to assure a creditor against loss;
providedthat the term “guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business.
“Guarantor”Guarantor” means any Subsidiary which becomes a guarantor of the Notes after the date of the Indenture by executing a guarantee of the Notes pursuant to the “Limitation on Liens” covenant or the “Limitation on Issuance of Guarantees of and Pledges for Indebtedness” covenant until a successor replaces such party pursuant to the applicable provisions of the Indenture and, thereafter, shall mean such successor.
“Indebtedness”Holder” means the Person in whose name a Note is registered in the security register.
“Indebtedness” means, with respect to any Person, without duplication,
66
(2) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments,
(4) all obligations under Interest Rate Agreements, Currency Hedging Agreements or Commodity Price Protection Agreements of such Person,
(5) all Capital Lease Obligations of such Person,
| (6) all Indebtedness referred to in clauses (1) through (5) above of other Persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien, upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, (7) all Guaranteed Debt of such Person, (8) all Redeemable Capital Stock issued by such Person valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends, (9) Preferred Stock of any Restricted Subsidiary of the Company, and (10) any amendment, supplement, modification, deferral, renewal, extension, refunding or refinancing of any liability of the types referred to in clauses (1) through (9) above. |
For purposes hereof, the “maximum fixed repurchase price” of any Redeemable Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Redeemable Capital Stock, such Fair Market Value to be determined in good faith by the board of directors of the issuer of such Redeemable Capital Stock.
“Indenture Obligations”Obligations” means the obligations of the Company and any other obligor under the Indenture or under the Notes, including any Guarantor, to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with the Indenture, the Notes and the performance of all other obligations to the Trustee and the holders under the Indenture and the Notes, according to the respective terms thereof.
“Initial Purchasers” means Banc of America Securities LLC, Wachovia Capital Markets, LLC and BB&T Capital Markets, a division of Scott & Stringfellow, LLC.
“Intangible Assets”Assets” means intellectual property, goodwill and other intangible assets, in each case determined in accordance with GAAP.
“Interest Rate Agreements”Agreements” means one or more of the following agreements which shall be entered into by one or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types of interest rate hedging agreements from time to time.
“Investment”Investment” means, with respect to any Person, directly or indirectly, any advance, loan (including guarantees), or other extension of credit or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase, acquisition or ownership by such Person of any Capital Stock, bonds, notes, debentures or other securities issued or owned by any other Person and all other items that would be classified as investments on a balance sheet prepared in accordance with GAAP.
“Issue Date”Date” means the original issue date of the Notes under the Indenture.
“Lien”Lien” means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), privilege, security interest, assignment, deposit, arrangement, easement, hypothecation, claim, preference, priority or other encumbrance upon or with respect to any property of any kind (including any conditional sale, capital lease or other title retention agreement, any leases in the nature thereof, and any agreement to give any security interest), real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement.
“Maturity”Maturity” means, when used with respect to the Notes, the date on which the principal of the Notes becomes due and payable as therein provided or as provided in the Indenture, whether at Stated Maturity, the Offer Date or the redemption date and whether by declaration of acceleration, Offer in respect of
67
“Net Cash Proceeds”Proceedsmeans” means:
| (a) with respect to any Asset Sale by any Person, the proceeds thereof (without duplication in respect of all Asset Sales) in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of, or stock or other assets when disposed of for, cash or Equivalents (except to the extent that such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary) net of |
| (1) brokerage commissions and other reasonable fees and expenses (including fees and expenses of counsel and investment bankers) related to such Asset Sale, (2) provisions for all taxes payable as a result of such Asset Sale, (3) payments made to retire Indebtedness where payment of such Indebtedness is secured by the assets or properties the subject of such Asset Sale, (4) amounts required to be paid to any Person (other than the Company or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale, and (5) appropriate amounts to be provided by |
“Non-Recourse Real Estate Subsidiary”means a Restricted Subsidiary of the Company designated as a Non-Recourse Real Estate Subsidiary and substantially all of whose assets consist of real property, buildings, additions and accessions thereto and related assets; provided that (x) the Company may not designate a Restricted Subsidiary as a Non-Recourse Real Estate Subsidiary if a Default shall have occurred and be continuing at the time of or after giving effect to such designation, (y) the Company and the Restricted Subsidiary may not be directly or indirectly obligated to make additional Investments in the Non-Recourse Real Estate Subsidiary after its initial financing transaction and (z) neither the Company nor any Restricted Subsidiary which is not a Non-Recourse Real Estate Subsidiary is directly or indirectly liable as to any Indebtedness of such Non-Recourse Real Estate Subsidiary (by virtue of the Company or any such Restricted Subsidiary being the primary obligor on, guarantor of, or otherwise liable in any respect to, such Indebtedness), and which, upon the occurrence of a default with respect to such Indebtedness of such Non-Recourse Real Estate Subsidiary, does not result in, or permit any holder of any Indebtedness of the Company or any Restricted Subsidiary, other thanas the case may be, as a Non-Recourse Real Estate Subsidiary to declare, a default onreserve, in accordance with GAAP, against any liabilities associated with such Indebtedness ofAsset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other than a Non-Recourse Real Estate Subsidiarypost-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as reflected in an officers’ certificate delivered to the Trustee, and
(b) with respect to any issuance or causesale of Capital Stock or options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been converted into or exchanged for Capital Stock as referred to under “—Certain Covenants—Limitation on Restricted Payments,” the proceeds of such issuance or sale in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of, Indebtednessor stock or other assets when disposed of for, cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Company or any Restricted SubsidiarySubsidiary), net of attorney’s fees, accountant’s fees and brokerage, consultation, underwriting and other than any Non-Recourse Real Estate Subsidiary to be acceleratedfees and expenses actually incurred in connection with such issuance or sale and net of taxes paid or payable prior to its Stated Maturity; provided further that notwithstanding the foregoing any Non-Recourseas a result thereof.
68
“Pari Passu Indebtedness”Indebtedness” means (a) any Indebtedness of the Company that is equal in right of payment to the Notes and (b) with respect to any Guarantee, Indebtedness which ranks equal in right of payment to such Guarantee.
“Permitted Business”Business” means the lines of business conducted by the Company and its Restricted Subsidiaries on the date hereof and business reasonably related, complimentary or ancillary thereto, including reasonably related extensions or expansions thereof.
“Permitted Holders”Holders” means (i) Robert P. Ingle,Ingle; (ii) the spouse, issue, issues’issue’s spouses or grandchildren or other members of the immediate family of Robert P. Ingle or such other person; (iii) any trusts created for the benefit of the Persons described in clauses (i), (ii) or (iv) or any trust for the benefit of any such trust; (iv) in the event of the incompetence or death of any of the Persons described in clauses (i) and (ii), such Person’s estate, executor, administrator, committee or other personal representative or beneficiaries, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Company; or (v) the Ingles Markets, Incorporated Investment/Profit Sharing Plan and Trust.
“Permitted Investment”Investmentmeans” means:
| (1) Investments in the Company or any Guarantor or any Person which, as a result of such Investment, in one transaction or a series of related transactions, (a) becomes a Guarantor or (b) is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or any Guarantor; (2) Indebtedness of the Company or a Restricted Subsidiary described under clauses (5), (6), | |
(3) Investments in any of the Notes; (4) cash or Cash Equivalents; (5) [Reserved]; (6) Investments acquired by the Company or any Restricted Subsidiary in connection with an Asset Sale permitted under “—Certain Covenants—Limitation on Sale of Assets” to the extent such Investments are non-cash proceeds as permitted under such covenant; (7) Investments in existence on the date of the Indenture; (8) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with a disposition of assets (including Asset Sales); (9) any Investment acquired by the Company or any of its Restricted Subsidiaries: (a) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of such other Person; or (b) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (10) any permitted hedging obligations; (11) Investments the payment for which consists of Capital Stock (other than Redeemable Capital Stock) of the Company or a Restricted Subsidiary; (12) guarantees of Indebtedness permitted to be incurred under the Indenture; (13) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment; (14) Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause that are at that time outstanding, not to exceed $5.0 million at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value) in any Person with which the Company or any Restricted Subsidiary has entered into a licensing, management, franchise, joint venture, consulting or similar agreement on customary terms and conditions; (15) loans and advances to officers, directors, managers and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices and in compliance with applicable laws; (16) loans to the Company’s Profit Sharing Plan in accordance with clause (ix) under “—Certain Covenants—Limitation on Transactions with Affiliates”; and (17) In addition to Investments pursuant to clauses (1) through (16) above, Investments in the aggregate not to exceed the greater of (a) $25.0 million or (b) 2.5% of Consolidated Tangible Assets, at any one time outstanding. |
In connection with any assets or property contributed or transferred to any Person as an Investment, such property and assets shall be equal to the Fair Market Value (as determined by the Company’s Board of Directors) at the time of Investment.
“Person”Permitted Liens” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate proceedings and as to which the Company or its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP, shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired;
(5) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(6) any interest or title of a lessor under any Capital Lease Obligation;provided that such Liens do not extend to any property or assets which is not leased property subject to such Capital Lease Obligation;
(7) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(8) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;
(9) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or any of its Restricted Subsidiaries, including rights of offset and set-off;
(10) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under the Indenture;
(11) [Reserved];
(12) Liens securing Acquired Indebtedness incurred in accordance with the “Limitation on Indebtedness” covenant (any Liens securing any refinancing thereof);provided that:
(a) such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; and
(b) such Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Restricted Subsidiary of the Company and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(13) Liens on assets of a Restricted Subsidiary of the Company that is not a Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under the Indenture;
(14) leases, subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary cause of business of the Company and its Restricted Subsidiaries;
(15) banker’s Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary course of business;
(16) Liens arising from filing Uniform Commercial Code financing statements regarding leases;
(17) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;
(18) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(19) Liens securing the Notes and the Guarantees;
(20) Liens in favor of the Company or a Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company;
(21) Liens securing Indebtedness incurred under clauses (1) and (4) of the definition of Permitted Indebtedness;
(22) Liens securing any refinancing which is incurred to refinance any Indebtedness which has been secured by a Lien permitted under the Indenture and which has been incurred in accordance with the provisions of the Indenture;provided,however, that such Liens: (i) are no less favorable to the holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens than the Liens in respect of the Indebtedness being refinanced; and (ii) do not extend to or cover any property or assets of the Company or any of its Restricted Subsidiaries whose value exceeds the assets or property which secured the Indebtedness so refinanced;provided,further, that in the event that the property or assets being secured is not the same property or assets which secured the Indebtedness so refinanced, the Company shall provide an officers’ certificate to the Trustee certifying that the Liens securing such refinancing are in compliance with this clause (22);
(23) Liens securing Indebtedness or other obligations of a Guarantor owing to the Company or another Guarantor permitted to be incurred pursuant to the Indenture; and
(24) other Liens securing Indebtedness permitted to be incurred in compliance with the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described under “—Limitation on Indebtedness,”provided that the aggregate principal amount of all obligations secured pursuant to this clause (24) shall not exceed 15% of Consolidated Tangible Assets at any one time outstanding.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
69
“Preferred Stock”Stock” means, with respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Capital Stock of any other class in such Person.
“Public Equity Offering”means an underwritten public offering of common stock (other than Redeemable Capital Stock) of the Company with gross proceeds to the Company of at least $25 million pursuant to a registration statement that has been declared effective by the Commission pursuant to the Securities Act (other than a registration statement on Form S-4 (or any successor form covering substantially the same transactions), Form S-8 (or any successor form covering substantially the same transactions) or otherwise relating to equity securities issuable under any employee benefit plan of the Company).
“Purchase Money Obligation”Obligation” means any Indebtedness secured by a Lien on assets related to the business of the Company or any Restricted Subsidiary and any additions and accessions thereto, which are purchased by the Company at any time after the Notes are issued;providedthatthat:
| (1) the security agreement or conditional sales or other title retention contract pursuant to which the Lien on such assets is created (collectively a “Purchase Money Security Agreement”) shall be entered into (a) within 180 days after the purchase or substantial completion of the construction of such assets or (b) at any time with respect to refinancings of Purchase Money Obligations, and shall at all times be confined solely to the assets so purchased or acquired, any additions and accessions thereto and any proceeds therefrom, and | |
(2)(A) the aggregate outstanding principal amount of Indebtedness secured thereby (determined on a per asset basis in the case of any additions and accessions) shall not at the time such Purchase Money Security Agreement is entered into exceed 100% of the purchase price to the Company of the assets subject thereto or (B) the Indebtedness secured thereby shall be with recourse solely to the assets so purchased or acquired, any additions and accessions thereto and any proceeds therefrom.
“Qualified Capital Stock”Stock” of any Person means any and all Capital Stock of such Person other than Redeemable Capital Stock.
“Real Estate Subsidiary Financing Proceeds”means any cash permanently received by the Company or any Restricted Subsidiary (other than a Non-Recourse Real Estate Subsidiary) in connection with an Investment in a Non-Recourse Real Estate Subsidiary and the transactions contemplated thereby.
“Redeemable Capital Stock”Stock” means any Capital Stock that, either by its terms or by the terms of any security into which it is convertible or exchangeable or otherwise, is or upon the happening of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity of the principal of the Notes or is redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (other than upon a change of control of or sale of assets by the Company in circumstances where the holders of the Notes would have similar rights), or is convertible into or exchangeable for debt securities at any time prior to such final Stated Maturity at the option of the holder thereof.
“Registration Rights Agreement” means the Registration Rights Agreement related to the Notes, dated as of the Issue Date, among the Company and the Initial Purchasers.
“Restricted Subsidiary”Subsidiary” means any Subsidiary of the Company that has not been designated by the board of directors of the Company by a board resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to and in compliance with the covenant described under “Certain Covenants —Limitation on Unrestricted Subsidiaries.”
“Securities Act”Act” means the Securities Act of 1933, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Stated Maturity”Maturity” means, when used with respect to any Indebtedness or any installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as the case may be, is due and payable.
70
“Subordinated Indebtedness”Indebtedness” means Indebtedness of the Company or a Guarantor subordinated in right of payment to the Notes or a Guarantee, as the case may be.
“Subsidiary”Subsidiary” of a Person meansmeans:
| (1) any corporation more than 50% of the outstanding voting power of the Voting Stock of which is owned or controlled, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other Subsidiaries thereof, or | |
(2) any limited partnership of which such Person or any Subsidiary of such Person is a general partner, or
(3) any other Person in which such Person, or one or more other Subsidiaries of such Person, or such Person and one or more other Subsidiaries, directly or indirectly, has more than 50% of the outstanding partnership or similar interests or has the power, by contract or otherwise, to direct or cause the direction of the policies, management and affairs thereof.
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity as of such redemption date of constant maturity United States Treasury securities (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 redemption 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 such redemption date to May 15, 2013;provided,however, that if no published maturity exactly corresponds with such date, then the Treasury Rate shall be interpolated or extrapolated on a straight-line basis from the arithmetic mean of the yields for the next shortest and next longest published maturities;provided further,however, that if the period from such redemption date to May 15, 2013, 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.
“Trust Indenture Act”Act” means the Trust Indenture Act of 1939, or any successor statute.
“Unrestricted Subsidiary”Subsidiary” means any Subsidiary of the Company (other than a Guarantor) designated as such pursuant to and in compliance with the covenant described under “Certain Covenants —Covenants—Limitation on Unrestricted Subsidiaries.”
“Unrestricted Subsidiary Indebtedness”Indebtedness” of any Unrestricted Subsidiary means Indebtedness of such Unrestricted Subsidiary
| (1) as to which neither the Company nor any Restricted Subsidiary is directly or indirectly liable (by virtue of the Company or any such Restricted Subsidiary being the primary obligor on, guarantor of, or otherwise liable in any respect to, such Indebtedness) and | |
(2) which, upon the occurrence of a default with respect thereto, does not result in, or permit any holder of any Indebtedness of the Company or any Subsidiary to declare, a default on such Indebtedness of the Company or any Subsidiary or cause the payment thereof to be accelerated or payable prior to its Stated Maturity;provided that notwithstanding the foregoing any Unrestricted Subsidiary may guarantee the Notes.
“Voting Stock”Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power in the aggregate under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
“Wholly Owned Restricted Subsidiary”Subsidiary” means a Restricted Subsidiary all the Capital Stock of which is owned by the Company or another Wholly Owned Restricted Subsidiary (other than directors’ qualifying shares).
Book-Entry Delivery and Form
Except as set forth below, the Notes will be issued only in fully registered form, without interest coupons, in denominations of $1,000 and integral multiples thereof. Notes will not be issued in bearer form.
The Notes initially will be issued in registered, global form without interest coupons (the “Global Notes”) filed in book-entry form. The Notes will be deposited upon issuance with the trustee, as custodian for The Depository Trust Company (“DTC”), in New York, New York, and registered in the name of DTC or its nominee, the DTC, and the DTC or its nominee will initially be the sole registered holder of the Notes for all purposes under the indenture. Unless it is exchanged in whole or in part for debt securities in definitive form as described below, a global security may not be transferred. However,
71
Upon the issuance of a global security, the DTC or its nominee will credit on its internal system the principal amount at maturity of the individual beneficial interest represented by the global security acquired by the persons in exchange for the original notes. Ownership of beneficial interests in a global security will be limited to persons that have accounts with the DTC or persons that hold interests through participants. Ownership of beneficial interests will be shown on, and the transfer of such ownership will be effected only through, records maintained by the DTC or its nominee with respect to interests of participants and the records of participants with respect to interests of persons other than participants. Principal and interest payments on global securities registered in the name of the DTC’s nominee will be made in immediate available funds to the DTC’s nominee as the registered owner of the global securities. The Company and the trustee will treat the DTC’s nominee as the owner of the global securities for all other purposes as well. Accordingly, the Company, the trustee, any paying agent and the initial purchasers will have no direct responsibility or liability for any aspect of the records relating to payments made on account of beneficial interests in the global securities or for maintaining, supervising or reviewing any records relating to these beneficial interests. It is the DTC’s current practice, upon receipt of any payment of principal or interest, to credit direct participants’ accounts on the payment date according to their respective holdings of beneficial interests in the global securities. These payments will be the responsibility of the direct and indirect participants and not of the DTC, the Company, the trustee or the initial purchasers.
So long as the DTC or its nominee is the registered owner or holder of the global security, the DTC or its nominee, as the case may be, will be considered the sole owner or holder of the Notes represented by the global security for the purposes of:
Beneficial interests on the Notes will be evidenced only by, and transfers of the Notes will be effected only through, records maintained by the DTC and its participants.
Except as described above, owners of beneficial interests in a global security will not be entitled to receive physical delivery of certificated notes in definitive form and will not be considered the holders of the global security for any purposes under the indenture. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of the DTC. And, if that person is not a participant, the person must rely on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the indenture. Under existing industry practices, if the Company requests any action of holders or an owner of a beneficial interest in a global security desires to take any action under the indenture, the DTC would authorize the participants holding the relevant beneficial interest to take that action. The participants then would authorize beneficial owners owning through the participants to take the action or would otherwise act upon the instructions of beneficial owners owning through them.
The DTC has advised the Company that it will take any action permitted to be taken by a holder of Notes only at the direction of one or more participants to whose account the DTC interests in the global security are credited. Further, the DTC will take action only as to the portion of the aggregate principal amount at maturity of the Notes as to which the participant or participants has or have given the direction. Although the DTC has agreed to the procedures described above in order to facilitate transfers of interests in global securities among participants of the DTC, it is under no obligation to perform these procedures, and the procedures may be discontinued at any time. None of the Company, the trustee, any agent of the issuers or the initial purchasers will have any responsibility for the performance by the DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
72
Exchange of Book-Entry Notes for Certificated Notes. A beneficial interest in the Global Note may not be exchanged for a Note in certificated form unlessCERTAIN U.S. FEDERAL TAX CONSIDERATIONS
In all cases, certificated Notes delivered in exchange for the Global Note or beneficial interests therein 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). Any certificated Note issued in exchange for an interest in the Global Note will bear the legend restricting transfers that is borne by the Global Note. Any such exchange will be effected through the DTC Deposit/Withdraw at Custodian (“DWAC”) system and an appropriate adjustment will be made in the records of the Security Registrar to reflect a decrease in the principal amount of the Global Note.
Certain Book-Entry Procedures for the Global Note. The descriptions of the operations and procedures of DTC that follow are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to change by them from time to time. The Company takes no responsibility for these operations and procedures and urges investors to contact the system or their participants directly to discuss these matters.
DTC has advised the Company that it is:
DTC was created to hold securities for its participants (“participants”) and facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical transfer and delivery of certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. Indirect access to the DTC system is available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly (“indirect participants”).
DTC has advised the Company that its current practice, upon the issuance of the Global Notes, is to credit, on its internal system, the respective principal amount of the individual beneficial interests represented by such Global Note to the accounts with DTC of the participants through which such interests are to be held. Ownership of beneficial interest in the Global Note will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominees (with respect to interest of participants) and the records of participants and indirect participants (with respect to interests of persons other than participants).
As long as DTC, or its nominee, is the registered Holder of the Global Note, DTC or such nominee, as the case may be, will be considered the sole owner and Holder of the Notes represented by such Global Note for all purposes under the Indenture and the Notes. Except in the limited circumstances described above under “— Exchanges of Book-Entry Notes for Certificated Notes,” owners of beneficial interests in Global Note will not be entitled to have any portions of such Global Note registered in their names, and
73
Investors may hold their interests in the Global Note directly through DTC, if they are participants in such system, or indirectly through organizations which are participants in such system. All interests in the Global Note will be subject to the procedures and requirements of DTC.
The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in the Global Note to such persons may be limited to that extent. Because DTC can act only on behalf of its participants, which in turn act on behalf of indirect participants and certain banks, the ability of a person having beneficial interests in the Global Note to pledge such interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.
Payments of the principal, of, premium, if any, and interest on the Global Note will be made to DTC or its nominee as the registered owner thereof. Neither the Company, the Trustee nor any of their respective agents will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interest in the Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
The Company expects that DTC or its nominee, upon receipt of any payment of principal of, premium, if any, or interest in respect of a Global Note representing any Notes held by it or its nominee, will credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the Global Note for such Notes as shown on the records of DTC or its nominee. The Company also expects that payments by participants to owners of beneficial interests in such Global Note held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in “street name.” Such payments will be the responsibility of such participants. None of the Company or the Trustee will be liable for any delay by DTC or any of its participants in identifying the beneficial owners of the Notes, and the Company and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee as the registered owner of the Notes for all purposes.
Interests in the Global Note will trade in DTC’s Same-Day Funds Settlement System and secondary market trading activity in such interests will therefore settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its participants. Transfers between participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds.
DTC has advised the Company that it will take any action permitted to be taken by a holder of Notes only at the direction of one or more participants to whose accounts with DTC interests in the Global Note are credited and only in respect of such portion of the aggregate principal amount of the Notes as to which such participant or participants has or have given such direction. However, if there is an Event of Default under the Notes, DTC reserves the right to exchange the Global Note for legended Notes in certificated form, and to distribute such Notes to its participants.
Although DTC has agreed to the foregoing procedures in order to facilitate transfer of beneficial ownership interests in the Global Notes among participants of DTC, they are under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of the Company, the Trustee nor any of their respective agents will have any responsibility for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations, including maintaining, supervising or reviewing the records relating to or payments made on account of, beneficial ownership interests in the Global Note.
74
MATERIAL UNITED STATES FEDERAL INCOME
General
The following is a general discussion ofsummarizes the material U.S. federal income tax consequences and, in the case of an exchange of an outstanding note for a Non-United States Holder (as defined below), certain U.S. federal estate tax consequences, ofregistered note pursuant to the exchange offer. This discussion does not purport to be a complete analysis of original notes issuedall the potential tax consequences. It is based on May 29, 2003 for new notes offered hereby and the purchase, ownership and disposition of the new notes. Except where noted, the summary deals only with original notes or new notes held as capital assets within the meaning of section 1221provisions of the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury regulations promulgated or proposed thereunder, judicial authority, published administrative positions of the Internal Revenue Service (the “IRS”) and other applicable authorities, all as in effect on the date of this prospectus, and all of which are subject to change, possibly on a retroactive basis. We have not sought any ruling from the IRS with respect to the statements made and the conclusions reached in this summary, and there can be no assurance that the IRS will agree with our statements and conclusions. This summary applies only to a person who holds the outstanding note and the registered note as “capital assets” within the meaning of section 1221 of the Code (generally, property held for investment).
This summary does not purport to deal with all aspects of U.S. federal income taxation that might be relevant to a particular holder in light of the holder’s particular circumstances or status, nor does it address considerations applicable to an investor that may be subject to special situations, such astax rules, like a financial institution, tax-exempt organization, pension fund, S corporation, partnership or other pass-through entity or investors in those of broker-dealers, tax-exempt organizations, individual retirement accounts and other tax deferred accounts, financial institutions,entities, regulated investment company, real estate investment trust, insurance companies, persons holding original notescompany, broker-dealer, dealer or new notestrader in securities or currencies, a person who holds a note as part of a hedging orhedge, straddle, synthetic security, conversion transaction or other risk reduction transaction, a straddle or a constructive sale, persons who have ceased to be United States citizens or to be taxed as resident aliens and United States Holders (as defined below)holder whose functional currency“functional currency” is not the U.S. dollar. Furthermore,dollar, a person deemed to sell a note under the discussion below is based upon theconstructive sale provisions of the Code, and regulations, rulings and judicial decisions thereunder as of the date hereof, and such authorities may be repealed, revoked or modified so as to result in U.S. federal income tax consequences different from those discussed below. In addition, except as otherwise indicated, the following does not consider the effect of any applicablea controlled foreign state, local or other tax laws or estate or gift tax considerations.
As used herein,corporation, a “United States Holder” ispassive foreign investment company, a beneficial owner of an original note or a new note that is: (i) aformer citizen or individual resident of the United States; (ii) a corporation, or entity taxable as a corporation, that was created or organized in or under the laws of the United States or any political subdivision thereof; (iii) an estate the income of which isa taxpayer subject to U.S. federal incomethe alternative minimum tax. Moreover, the effect of any state, local or non-U.S. tax regardless of its source; or (iv) a trust if: (a) a court within the United Stateslaws is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all substantial decisions of the trust; or (b) the trust was in existence on August 20, 1996, and on August 19, 1996 was treated as a domestic trust and has elected to be treated as a U.S. person.not discussed.
A “Non-United States Holder” is a beneficial ownerThe exchange of an originaloutstanding note orfor a new that is not a United States Holder.
For U.S. federal income tax purposes, income earned through a foreign or domestic partnership or other flow-through entity is attributed to its owners. Accordingly, if a partnership or other flow through entity holds notes, the U.S. federal income tax treatment of a partner in the partnership or owner of an equity interest in the flow-through entity will generally depend on the status of the partner or owner and the activities of the partnership or flow-through entity.
Special rules may apply to certain Non-United States Holders, such as “controlled foreign corporations,” “passive foreign investment companies” and “foreign personal holding companies,” that are subject to special treatment under the Code. Such entities should consult their own tax advisors to determine the U.S. federal, state, local and other tax consequences that may be relevant to them or to their shareholders.
Persons considering the exchange of original notes for new notes or the purchase of new notes should consult their own tax advisors concerning the U.S. federal income tax consequences of the exchange of original notes for new notes or the purchase, ownership and disposition of the new notes in light of their particular situations as well as any consequences arising under the laws of any other taxing jurisdiction.
United States Holders
Exchange of Notes
A United States Holder’s receipt of a new note in exchange for an originalregistered note pursuant to the exchange offer will not result inconstitute a taxable exchange to us or the United States Holder. Accordingly: (i) no
75
A United States Holder will be required to include in gross income the stated interest on a new note at the time such interest accrues or is received, in accordance with the United States Holder’s method of accounting for U.S. federal income tax purposes.
If a United States Holder purchases a new note (or purchased the original note for which the new note was exchanged, as the case may be) at a price that is less than its principal amount, the excess of the principal amount over the United States Holder’s purchase price will be treated as “market discount.” However, the market discount will be considered to be zero if it is less than 1/4 of 1% of the principal amount multiplied by the number of complete years to maturity from the date the United States Holder purchased the new note or original note, as the case may be.
Under the market discount rules of the Code, a United States Holder generally will be required to treat any principal payment on, or any gain realized on the sale, exchange, retirement or other disposition of, a new note (or the original note for which the new note was exchanged, as the case may be) as ordinary income (generally treated as interest income) to the extent of the market discount which accrued but was not previously included in income. In addition, the United States Holder may be required to defer, until the maturity of the new note or its earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness incurred or continued to purchase or carry the new note (or the original note for which the new note was exchanged, as the case may be). In general, market discount will be considered to accrue ratably during the period from the date of the purchase of the new note (or original note for which the new note was exchanged, as the case may be) to the maturity date of the new note, unless the United States Holder makes an irrevocable election (on an instrument-by-instrument basis) to accrue market discount under a constant yield method. A United States Holder of a new note may elect to include market discount in income currently as it accrues (under either a ratable or constant yield method), in which case the rules described above regarding the treatment as ordinary income of gain upon the disposition of the new note and upon the receipt of certain payments and the deferral of interest deductions will not apply. The election to include market discount in income currently, once made, applies to all market discount obligations acquired on or after the first day of the first taxable year to which the election applies, and may not be revoked without the consent of the Internal Revenue Service. United States Holders should consult their own tax advisors before making this election.
A United States Holder that purchases a note (or purchased the original note for which the new note was exchanged, as the case may be) for an amount in excess of its stated principal amount will be considered to have purchased the new note (or original note) with “amortizable bond premium” in an amount equal to such excess. A United States Holder may elect to amortize the premium over the remaining term of the new note under a constant yield method. The amount amortized in any year will be treated as a reduction to the United States Holder’s interest income from the new note and will reduce the United States Holder’syour tax basis in the new note. However, because of our rights to optionally redeem the notes during the period beginning on December 1, 2006 and ending on November 30, 2009 (see “Descriptionoutstanding note exchanged therefor.
THE FOREGOING DISCUSSION DOES NOT PURPORT TO ADDRESS ALL OF THE U.S. FEDERAL INCOME TAX CONSEQUENCES OF EXCHANGING AN OUTSTANDING NOTE FOR A REGISTERED NOTE OR THE CONSEQUENCES OF ACQUIRING, HOLDING OR DISPOSING OF AN OUTSTANDING NOTE OR A REGISTERED NOTE THAT MAY BE RELEVANT TO A PARTICULAR HOLDER IN LIGHT OF HIS PARTICULAR CIRCUMSTANCES OR IN LIGHT OF ANY SPECIAL RULES TO WHICH HE MAY BE SUBJECT. IF YOU ARE CONSIDERING AN EXCHANGE OF AN OUTSTANDING NOTE FOR A REGISTERED NOTE, YOU SHOULD CONSULT YOUR OWN TAX ADVISER CONCERNING YOUR TAX CONSEQUENCES, INCLUDING THE TAX CONSEQUENCES ARISING UNDER U.S. FEDERAL, STATE, LOCAL OR FOREIGN LAWS.
The staff of the Notes — Optional Redemption”), special rules will applySEC has taken the position that will result in the deferral of amortization of all or some of the premium based on the assumptionany broker-dealer that we will exercise our redemption rights so as to maximize the yield to the holders of notes. If such optional redemption rights expire unexercised, bond premium may be recalculated. United States Holders that elect to amortize bond premium should consult with theirreceives registered notes for its own tax advisors concerning the manner in which the bond premium
76
The election to amortize premium on a constant yield method, once made, applies to all debt obligations held or subsequently acquired by the electing United States Holder on or after the first day of the taxable year to which the election applies and may not be revoked without the consent of the Internal Revenue Service. United States Holders should consult their own tax advisors before making this election.
As an alternative to the above-described rules for including interest payments and market discount in income and amortizing bond premium, a United States Holder may elect to include in gross income all interest that accrues on a new note, including stated interest, market discount and adjustments for bond premium, on the constant yield method. If a United States Holder makes such an election, it will be deemed to have made an election to amortize bond premium, or to include market discount under the constant yield method, as the case may be. Either of these deemed elections will apply to all debt instruments held or subsequently acquired by the United States Holder. Particularly for United States Holders who are on the cash method of accounting, a constant yield election may have the effect of causing the United States Holder to include interest in income earlier than would be the case if no such election were made, and the election may not be revoked without the consent of the Internal Revenue Service. United States Holders should consult their own tax advisors before making this election.
Except as discussed above under the heading “— Exchange of Notes”, a United States Holder generally will recognize capital gain or loss on the sale, exchange, redemption, retirement or other disposition of a new note in an amount equal to the difference between the amount of cash plus the net fair market value of any property received, other than any such amount attributable to accrued interest (which will be taxable as such if not previously included in income), and the United States Holder’s adjusted tax basis in the new note (or, in the case of a new note acquired in exchange for an original note, the tax basis of such original note, as discussed above under the caption “— Exchange of Notes”). In the absence of a constant yield election, a United States Holder’s adjusted tax basis in a new note will generally be its cost for the new note increased by the amount of any market discount previously included in the United States Holder’s gross income and decreased, if applicable, by any amortized bond premium.
Any gain recognized by a non-corporate United States Holder on the sale, exchange, redemption, retirement or other disposition of a new note that such United States Holder has held for more than one year (taking into account for this purpose, in the case of a new note received in exchange for an original note in the exchange offer in exchange for the periodoutstanding notes that were acquired by such broker-dealer as a result of time that the original note was held), generally will be subject to a maximum tax rate of 15%, which maximum tax rate will increase under current law to 20% for dispositions occurring during taxable years beginning onmarket-making or after January 1, 2009. The deductibility of capital lossesother trading activities, may be subjectdeemed to certain limitations.
In general, information reporting requirements will apply to the payment of interest and proceeds received from the sale, exchange, redemption, retirement or other disposition of the new notes. A United States Holder will be subject to backup withholding at the applicable statutory rates on these payments unless the United States Holder (i) is a corporation or comes within certain other exempt categories, and when required demonstrates such fact or (ii) provides a taxpayer identification number, complies with certain certification requirements and otherwise complies with the backup withholding rules. United States persons required to establish their exempt status generally must provide certification on Internal Revenue Service Form W-9. Pursuant to recently enacted legislation, the backup withholding rate is 28%, which rate will increase under current law to 31% for taxable years beginning on or after January 1, 2011.
77
Any amounts withheld under the backup withholding rules from a payment to a holder of the new notes will be allowed as a refund or a credit against such holder’s U.S. federal income tax liability, provided that the required information is furnished to the Internal Revenue Service.
Non-United States Holders
The payment to a Non-United States Holder of interest on a new note generally will not be subject to U.S. federal withholding tax pursuant to the “portfolio interest exception,” provided that (1) the Non-United States Holder does not directly, indirectly or constructively own 10% or more of the total combined voting power of all of our classes of stockan “underwriter” within the meaning of the Code, (2) the Non-United States Holder is notSecurities Act and must deliver a controlled foreign corporation that is related to us through sufficient stock ownership within the meaning of the Code, (3) the Non-United States Holder is not a bank whose receipt of interest on a new note is described in section 881(c)(3)(A) of the Code, (4) the interest is not effectively connected with the conduct by the Non-United States Holder of a trade or business in the United States, and (5) either (A) the beneficial owner of the new note certifies to us or our paying agent, under penalties of perjury, that it is not a United States Holder and provides its name and address on an Internal Revenue Service Form W-8BEN (or a suitable substitute form) or (B) a securities clearing organization, bank or other financial institution that holds the new notes on behalf of such Non-United States Holder in the ordinary course of its trade or business certifies to us or our paying agent, under penalties of perjury, that such an Internal Revenue Service Form W-8BEN or W-8IMY (or suitable substitute form) has been received from the beneficial owner by it or by a financial institution between it and the beneficial owner and furnishes the payor with a copy thereof. Alternative methods may be applicable for satisfying the certification requirement described in (5) above. These methods will generally require, in the case of new notes held by a foreign partnership, that the certificate described in (5) above be provided by the partners in addition to the foreign partnership, and that the partnership provide certain additional information. A look through rule would apply in the case of tiered partnerships.
If a Non-United States Holder cannot satisfyprospectus meeting the requirements of the portfolio interest exception described above, payments of interest made to such Non-United States Holder will be subject to a 30% withholding tax, unless the beneficial owner of the new note provides us or our paying agentSecurities Act in connection with a properly executed (1) Internal Revenue Service Form W-8BEN (or successor form) claiming an exemption from or reduction in the rate of withholding under the benefit of an applicable income tax treaty or (2) Internal Revenue Service Form W-8ECI (or successor form) stating that interest paid on the new note is not subject to withholding tax because it is effectively connected with the beneficial owner’s conduct of a trade or business in the United States. In addition, the Non-United States Holder may under certain circumstances be required to obtain a U.S. taxpayer identification number and make certain certifications to us. Prospective investors should consult their tax advisors regarding the effect, if any of the withholding regulations.
Except for the possible application of U.S. federal withholding tax discussed above, or backup withholding tax discussed below, a Non-United States Holder generally will not be subject to U.S. federal income tax on payments of interest and principal on the new notes, or on any gain realized upon the sale, exchange, redemption, retirement or other disposition of a new note, provided (1) such gain is not effectively connected with the conduct by such holder of a trade or business in the United States (and, if required by an applicable income tax treaty as a condition for subjecting the Non-United States Holder to U.S. taxation on a net income basis, the gain is not attributable to a permanent establishment maintained by the Non-United States Holder in the United States) and (2) in the case of gains derived by an individual, such individual is not present in the United States for 183 days or more in the taxable year of disposition and certain other conditions are met.
78
If a Non-United States Holder is engaged in a trade or business in the United States and interest on the new note is effectively connected with the conductresale of such trade or business, such Non-United States Holder will be subject to U.S. federal income tax on the interest, in the same manner as if it were a United States Holder, except to the extent that an applicable income tax treaty otherwise provides. In addition, if such Non-United States Holder is a foreign corporation, it may be subject to a branch profits tax equal to 30% of its effectively connected earnings and profits (which may include both any interest on a new note and any gain on a disposition of a new note), subject to adjustment, for that taxable year unless it qualifies for a lower rate under an applicable income tax treaty.
Subject to any applicable estate tax treaty provisions, if you are an individual and are not a citizen or resident of the United States (as specially defined for U.S. federal estate tax purposes) at the time of your death, your new notes will generally not be subject to the U.S. federal estate tax, unless, at the time of your death, (i) you own, directly, indirectly or constructively, 10% or more of the total combined voting power of all of our classes of stock or (ii) payments with respect to your new notes are effectively connected with your conduct of a trade or business in the United States.
We must report annually to the Internal Revenue Service and to each Non-United States Holder any interest that is subject to withholding, or that is exempt from U.S. withholding tax pursuant to a tax treaty, or interest that is exempt from U.S. withholding tax under the portfolio interest exception. Copies of these information returns may also be made available under the provisions of a specific tax treaty or agreement with the tax authorities of the country in which the Non-United States Holder resides.
Non-United States Holders may be subject to backup withholding and additional information reporting requirements. However, backup withholding and additional information reporting requirements do not generally apply to payments of portfolio interest made by us or a paying agent to Non-United States Holders if the certification described above under “U.S. Federal Withholding Tax” is received. If the foreign office of a foreign “broker,” as defined in the applicable Treasury regulations, pays the proceeds of a sale, exchange, redemption, retirement or other disposition of a new note to the seller thereof outside the United States, backup withholding and additional information reporting requirements will generally not apply. However, additional information reporting requirements, but not backup withholding, will generally apply to a payment of the proceeds of a sale, exchange, redemption, retirement or other disposition of a new note by a foreign office of a broker that is a United States person or a “U.S. related person,” unless the broker has documentary evidence in its records that the holder is a Non-United States Holder and certain other conditions are met or the holder otherwise establishes an exemption. For this purpose, a “U.S. related person” is (1) a foreign person that derives 50% or more of its gross income from all sources in specified periods from activities that are effectively connected with the conduct of a trade or business in the United States, (2) a “controlled foreign corporation” (a foreign corporation controlled by certain U.S. shareholders), or (3) a foreign partnership, if at any time during its tax year, one or more of its partners are U.S. persons, as defined in the regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership, or if at any time during its taxable year, such foreign partnership is engaged in a trade or business in the United States. Payment of the proceeds of a sale, exchange, redemption, retirement or other disposition of a new note by a U.S. office of any U.S. or foreign broker is generally subject to both backup withholding and additional information reporting unless the holder certifies under penalties of perjury that it is a Non-United States Holder or otherwise establishes an exemption. Pursuant to recently enacted legislation, the backup withholding rate is 28%, which rate will increase under current law to 31% for taxable years beginning on or after January 1, 2011.
Any amounts withheld under the backup withholding rules from a payment to a holder of the new notes will be allowed as a refund or a credit against such holder’s U.S. federal income tax liability, provided that the required information is furnished to the Internal Revenue Service.
79
Non-United States Holders should consult their tax advisers concerning the possible application of the Treasury regulations to any payments made on or with respect to the new notes.
PLAN OF DISTRIBUTION
Each broker-dealer that receives registered notes for its own account pursuant toin the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of suchthe registered notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of the registered notes received in exchange for the outstanding notes where suchthe outstanding notes were acquired as a result of market-making activities or other trading activities. We have agreed to allow broker-dealers and other persons, if any, subject to similar prospectus delivery requirements to usethat, for a period ending of the earlier of (i)180 days after the date of this prospectus and (ii) the date on which a broker-dealer is no longer required to satisfy such delivery requirements.deliver a prospectus in connection with market-making or other trading activities, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any resale.
We will not receive any proceeds from any sale of the registered notes by broker-dealers. Registered notes received by any broker-dealerbroker-dealers for itstheir own account pursuant toin the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the registered notes or accommodationa combination of suchthese methods of resale,resale. These resales may be made at market prices prevailing at the time of resale, at prices related to suchthese prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any suchof the registered notes. Any broker-dealer that resells registered notes that were received by it for its own account pursuant toin the exchange offer and any broker or dealer that participates in a distribution of suchthe registered notes may be deemed to be an “underwriter” within the meaningsmeaning of the Securities Act, and any profit on any suchthe resale of the registered notes and any commissionscommission or concessions received by any suchthose persons may be deemed to be underwriting compensation under the Securities Act. The letterAny such broker-dealer must comply with the registration and prospectus delivery requirements of transmittal statesthe Securities Act in connection with any resale transaction, including the delivery of a prospectus that contains information with respect to any selling holder required by acknowledging that it will deliver and bythe Securities Act in connection with any resale of the registered notes. By delivering a prospectus, however, a broker-dealer will not be deemed to admit that it is an “underwriter”underwriter within the meaning of the Securities Act.
Furthermore, any broker-dealer that acquired any of its outstanding notes directly from us:
may not rely on the applicable interpretation of the staff of the SEC’s position contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan, Stanley & Co. Inc., SEC no-action letter (June 5, 1991) and Shearman & Sterling, SEC no-action letter (July 2, 1993); and
must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the registered notes.
We have agreed that for a periodto pay all expenses incident to the performance of 180 days from May 20, 2003, i.e. until November 16, 2003, we would not, withoutour obligations in relation to the prior written consentexchange offer (including the expenses of Banc of America Securities LLC, directly or indirectly, issue, sell, offer to sell, grant any optionone counsel for the sale of, or otherwise dispose of, any securities similar to the notes, or any securities convertible into or exchangeable for the notes or any such similar securities, except for the notes sold to the initial purchasers pursuant to the purchase agreement.
We have been advised by the initial purchasersholders of the outstanding notes that, following completionnotes) other than commissions or concessions of any brokers or dealers. We will indemnify the exchange offer, they intend to make a market inholders of the registered notes to be issued inagainst certain liabilities, including liabilities under the exchange offer; however, they are under no obligation to do so and any market activities with respect toSecurities Act.
The validity of the registered notes may be discontinued at any time without any notice.
LEGAL MATTERS
The legality of the notes offered in this prospectus and other mattershereby will be passed upon for us by Kilpatrick StocktonGreenberg Traurig, LLP, Winston-Salem, North Carolina. The tax matters addressed in this prospectus will be passed upon for us by Paul, Hastings, Janofsky & Walker LLP, New York, New York.
EXPERTS
The consolidated financial statements of Ingles Markets, Incorporated appearing in Ingles Markets, Incorporated’s Annual Report (Form 10-K) for the year ended September 28, 2002,27, 2008 (including the schedule appearing therein), and the effectiveness of Ingles Markets, Incorporated’s internal control over financial reporting as of September 27, 2008 have been audited by Ernst & Young LLP, independent auditors,registered public accounting firm, as set forth in their reportreports thereon, includedappearing therein, and incorporated herein by reference. Such consolidated financial statements and schedule as of September 27, 2008 are incorporated herein by reference in reliance upon such reportreports given on the authority of such firm as experts in accounting and auditing.
80
INGLES MARKETS, INCORPORATED
$575,000,000
OFFER TO EXCHANGE
Outstanding
8��7/8% Senior Notes due 2017
for
Registered
8 7/8% Senior Notes due 2017
PROSPECTUS
, 2009
We have not authorized any dealer, sales representative or any other person to give any information or to make any representations not contained in this prospectus or the accompanying letter of transmittal. This prospectus and the accompanying letter of transmittal do not offer to sell or buy any securities in any jurisdiction where it is unlawful.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers
| ITEM 20. | INDEMNIFICATION OF OFFICERS AND DIRECTORS |
The Company’s By-lawsAmended and Restated By-Laws provide subjectthat the Company has the power to indemnify any present or former director, officer, employee or agent or any person who has served or is serving in such capacity at the requirements set forth therein, thatrequest of the Company in any other corporation, partnership, joint venture, trust or other enterprise or as a trustee or administrator under an employee benefit plan, with respect to any person who wasliability or is threatened to be made a party tolitigation expenses resulting from any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company), the Company shall indemnifyincluding reasonable attorneys’ fees, incurred by any such person by reason of the fact that he is or was a director or an officer, and may indemnify such person by reason of the fact that he is or was an employee or agent of the Company or is or was serving at its request as a director, officer, employee or agent in another corporation, partnership, joint venture, trust or other enterprise or as a trustee or administrator under an employee benefit plan, in either case against any liability or litigation expenses (including reasonable attorney’s fees) incurred by such person in connection with such action, suit or proceeding to the extent and upon the terms and conditions provided by law. To the extent and upon the terms and conditions provided by law, the Company shall indemnify any and all of its officers and directors against such liability and litigation expense, including reasonable attorneys’ fees, arising out of their status as such or their activities in any of the foregoing capacities (excluding, however, liability or litigation expense which any such expenses that any such personof the foregoing may incur thaton account of his activities which were at the time taken known or believed by themhim to be clearly in conflict with the best interests of the Company or, with respect to any criminal action or proceeding, unlawful), and such officers and directors shall be entitled to recover from the Company, and the Company shall pay, all reasonable costs, expenses and attorneys’ fees in connection with the enforcement of rights to indemnification granted under the Company’s Amended and Restated By-Laws. Any person who at any time after the adoption of the Company’s Amended and Restated By-Laws (i.e., August 29, 2007) serves or has served as either an officer or director for or on behalf of the Company shall be deemed to be doing or to have done so in reliance upon and inconsideration for the right of indemnification provided in the Amended and Restated By-Laws. Such right shall inure to the benefit of the legal representatives of any such person and shall not be exclusive of any other right to which such person may be entitled apart from the Amended and Restated By-Laws. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
In addition, the Company’s Articles of Incorporation, as amended, provide, subject to the requirements set forth therein, that no director shall have personal liability arising out of an action, whether by or in right of the Company or otherwise, for monetary damages for breach of his duties as a director; provided, however, that such limitation on liability shall not affect a director’s liability for (i) acts or omissions not made in good faith that were at the time taken known or believed by himhim/her to be in conflict with the best interests of the Company, (ii) unlawful distributions, (iii) transactions from which hehe/she derived an improper personal benefit or (iv) acts or omissions occurring prior to the effectiveness of such Articles of Incorporation, (i.e.as amended (i.e., August 10, 1988). The indemnification provisions of the Company’s Articles of Incorporation shall not effect any indemnification provision in favor of any director of the Company contained in any by-law, contract or resolution of the Company.
The Company’s Amended and Restated By-Laws further provide that ultimate determination of the right to indemnification and the amount thereof may be made, at the option of the person to be indemnified, pursuant to procedure set forth from time to time in such By-Laws or by any of the following procedures: (i) order of the court or administrative body or agency having jurisdiction of the action, suit or proceeding, (ii) resolution adopted by a majority vote of a quorum consisting of directors of the Company without counting in such majority or quorum any directors who were parties to such action, suit or proceeding, or if such a quorum of disinterested directors cannot be obtained, by independent counsel in a written opinion, (iii) resolution adopted by a majority in interest of the shares of all classes of stock of the Company entitled to vote at any meeting, or (iv) order of any court having jurisdiction over the Company. Any such determination that a payment by way of indemnity should be made shall be binding upon the Company. Such right of indemnification shall not be exclusive of any other
II-1
right which such directors and officers of the Company, and the other persons above mentioned, may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification or reimbursement under any By-Laws, agreement or vote of the shareholders, their rights under the indemnification provisions of the Amended and Restated By-Laws being cumulative. These rights of indemnification apply to any member of any committee appointed by the Company’s board of directors as fully as though such person had been a director, officer or employee of the Company.
The Company’s Amended and Restated By-Laws further provide that expenses incurred by a director, officer, employee or agent in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding if and as authorized (i) by a majority of the members of the Company’s board of directors who were not parties to such action, (ii) by a majority in interest of the shares of all classes of stock of the Company entitled to vote at any meeting, (iii) under any charter or By-law provision of the Company requiring same, or (iv) by any applicable resolution or contract upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Company against such expenses.
The Company’s Amended and Restated By-Laws expressly provide that its indemnification provisions and the indemnity provided for thereunder shall extend to the maximum indemnification possible under the laws of the State of North Carolina, and if one or more words, phrases, clauses, sentences or sections of such indemnification provisions should be held unenforceable for any reason, all of the remaining portions of such provisions shall remain in full force and effect.
Item 21. ExhibitsThe Company’s Amended and Financial Statement Schedules
The Exhibits filedRestated By-laws further provide that the Company has the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a partdirector, officer, employee or agent of this Registration Statementanother corporation, partnership, joint venture, trust or other enterprise or as a trustee or administrator under an employee benefit plan against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability.
The Company has obtained primary and excess insurance policies insuring the directors and officers of the Company and its subsidiaries against certain liabilities they may incur in their capacity as directors and officers. Under such policies, the insurer, on behalf of the Company, may also pay amounts for which the Company has granted indemnification to the directors or officers.
These indemnification provisions are as follows:
| Exhibit | ||||
| Number | Document Name | |||
| 4 | .1 | Indenture dated as of December 11, 2001 between the registrant, as issuer, and U.S. Bank N.A., as Trustee, with respect to the registrant’s 8 7/8% Senior Subordinated Notes due 2011 (incorporated by reference herein to Exhibit 4.3 to registrant’s Annual Report on Form 10-K filed on December 20, 2001) | ||
| 4 | .2 | Form of registrant’s 8 7/8% Senior Subordinated Notes due 2011 (incorporated by reference herein to Exhibit 4.4 to registrant’s Annual Report on Form 10-K filed on December 20, 2001) | ||
| 5 | .1 | Opinion of Kilpatrick Stockton LLP | ||
| 8 | .1 | Opinion of Paul, Hastings, Janofsky & Walker LLP | ||
| 12 | .1 | Statement re Computation of Earnings to Fixed Charges | ||
| 21 | Subsidiaries of Ingles Markets, Incorporated | |||
| 23 | .1 | Consent of Ernst & Young LLP* | ||
| 23 | .2 | Consent of Kilpatrick Stockton LLP (included in Exhibit 5.1) | ||
| 23 | .3 | Consent of Paul, Hastings, Janofsky & Walker LLP (included in Exhibit 8.1) | ||
| 24 | Power of Attorney (contained on signature page of Registration Statement) | |||
| 25 | Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 (incorporated by reference herein to Exhibit 25 to registrant’s Registration Statement on Form S-4 filed on February 1, 2002, Registration No. 333-81972) | |||
| 99 | .1 | Form of Letter of Transmittal | ||
| 99 | .2 | Form of Notice of Guaranteed Delivery | ||
| 99 | .3 | Form of Letter from the registrant to Registered Holders and Depository Trust Company Participants | ||
| 99 | .4 | Form of Letter to Clients | ||
II-2
| ITEM 21. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
(a) Exhibits:
Exhibit | Description | |
| 3.1 | Articles of Incorporation of Ingles Markets, Incorporated (included as Exhibit 3.1 to Ingles Markets, Incorporated’s Registration Statement on Form S-1, File No. 33-23919, previously filed with the SEC and incorporated herein by this reference). | |
| 3.2 | Articles of Amendment to Articles of Incorporation of Ingles Markets, Incorporated (included as Exhibit 3.3 to Ingles Markets, Incorporated’s Annual Report on Form 10-K for the fiscal year ended September 25, 2004, File No. 0-14706, previously filed with the SEC and incorporated herein by this reference). | |
| 3.3 | Amended and Restated By-Laws of Ingles Markets, Incorporated (included as Exhibit 99.1 to Ingles Markets, Incorporated’s Current Report on Form 8-K, File No. 0-14706, previously filed with the SEC on August 30, 2007 and incorporated herein by this reference). | |
| 4.1 | Indenture, dated as of May 12, 2009, between Ingles Markets, Incorporated and U.S. Bank, National Association, as Trustee, governing the 8 7/8% Senior Notes Due 2017, including the form of unregistered 8 7/8% Senior Note Due 2017 (included as Exhibit 4.1 to Ingles Markets, Incorporated’s Current Report on Form 8-K, File No. 0-14706, previously filed with the SEC on May 15, 2009 and incorporated herein by this reference). | |
| 4.2 | Registration Rights Agreement, dated May 12, 2009, among the Company and Banc of America Securities LLC, Wachovia Capital Markets, LLC and BB&T, a division of Scott & Stringfellow, LLC (included as Exhibit 4.3 to Ingles Markets, Incorporated’s Current Report on Form 8-K, File No. 0-14706, previously filed with the SEC on May 15, 2009 and incorporated herein by this reference). | |
| 4.3 | Form of Registered 8 7/8% Senior Note due 2017 (included in Exhibit 4.1). | |
| 4.4 | Credit Agreement, dated as of May 12, 2009, among the Company and the lenders party thereto, , Bank of America, as administrative agent, swing line lender and l/c issuer, Branch Banking and Trust Company, as syndication agent, Wachovia Bank, National Association, as documentation agent, and Banc of America Securities LLC, Branch Banking and Trust Company and Wachovia Capital Markets, LLC, as joint lead arrangers and joint book managers (included as Exhibit 10.1 to Ingles Markets, Incorporated’s Current Report on Form 8-K, File No. 0-14706, previously filed with the SEC on May 15, 2009 and incorporated herein by this reference). | |
| *5.1 | Opinion of Greenberg Traurig, LLP. | |
| 10.1 | Loan Agreement between Ingles Markets, Incorporated and Metropolitan Life Insurance Company dated March 21, 1990 (included as Exhibit 19 to Ingles Markets, Incorporated’s Quarterly Report on Form 10-Q for the quarter ended March 31, 1990, File No. 0-14706, previously filed with the SEC and incorporated herein by this reference). | |
| +10.2 | Amended and Restated Ingles Markets, Incorporated Investment/Profit Sharing Plan effective September 29, 2002 (included as Exhibit 10.11 to Ingles Markets, Incorporated’s Annual Report on Form 10-K for the fiscal year ended September 28, 2002, File No. 0-14706, previously filed with the SEC and incorporated herein by this reference). | |
| +10.3 | First Amendment to the Ingles Markets, Incorporated Investment/Profit Sharing Plan (included as Exhibit 10.3 to Ingles Markets, Incorporated’s Annual Report on Form 10-K for the fiscal year ended September 27, 2003, File No. 0-14706, previously filed with the SEC and incorporated herein by reference). | |
II-3
Exhibit | Description | |
| +10.4 | Ingles Markets, Incorporated Non-qualified Plan (included as Exhibit 10.5 to Ingles Markets, Incorporated’s Annual Report on Form 10-K for the fiscal year ended September 24, 2005, File No. 0-14706, previously filed with the SEC and incorporated herein by this reference). | |
| **12.1 | Statement of Computation of Ratio of Earnings to Fixed Charges. | |
| 21.1 | Subsidiaries of Ingles Markets, Incorporated (included as Exhibit 21.1 to Ingles Markets, Incorporated’s Annual Report on Form 10-K for the fiscal year ended September 27, 2008, File No. 0-14706, previously filed with the SEC and incorporated herein by this reference). | |
| *23.1 | Consent of Ernst & Young LLP. | |
| *23.2 | Consent of Greenberg Traurig, LLP (included in Exhibit 5.1). | |
| **24.1 | Power of Attorney. (included on signature page to this Registration Statement) | |
| **25.1 | Form T-1 Statement of Eligibility for Trustee under Indenture. | |
| **99.1 | Form of Letter of Transmittal with respect to Exchange Offer. | |
| **99.2 | Form of Notice of Guaranteed Delivery. | |
| **99.3 | Form of Letter to Clients | |
| **99.4 | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees | |
| * | Exhibits filed with this |
| + | Management contract or compensatory plan or arrangement. |
| ** | Previously filed. |
(b) Financial Statement Schedules:
Item 22. UndertakingsNo financial statement schedules are filed because the required information is not applicable or is included in the consolidated financial statements or related notes.
| ITEM 22. | UNDERTAKINGS |
1. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
2. The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
II-4
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
3. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
4. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
5. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to provisions pursuant to which the directors, officers or controlling persons may be indemnified by the registrant or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-2
6. The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to ItemsItem 4, 10(b), 11, or 13 of Form S-4this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
7. That, for purposes of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of the registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
8. That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant hereby undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
II-5
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
9. To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-3
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-4 andIngles Markets, Incorporated has duly caused this Pre-Effective Amendment No. 31 to its registration statementthe Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereuntohereunto duly authorized, in the City of Asheville, State ofBlack Mountain, North Carolina, on November 19, 2003.
| By: | /s/ RONALD B. FREEMAN | |
| Ronald B. Freeman | ||
Vice President-Finance and Chief | ||
Pursuant to the requirements of the Securities Act of 1933, this Pre-Effective Amendment No. 31 to the registration statementRegistration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert P. Ingle | Chief Executive Officer (Principal Executive Officer) and Director | July 1, 2009 | ||||
/s/ RONALD B. FREEMAN Ronald B. Freeman | Vice President-Finance, Chief Financial Officer, Director (Principal Financial Officer and Accounting Officer) and Director | July 1, 2009 | ||||
* James W. Lanning | President, Chief Operating Officer and Director | July 1, 2009 | ||||
* Robert P. Ingle, II | Chairman of the Board | |||||
*
| ||||||
Charles | ||||||
E. Russell | Director | July 1, 2009 | ||||
*
| Director | July 1, 2009 | ||||
*
| Director | July 1, 2009 | ||||
*
| Director | July 1, 2009 | ||||
*
| July 1, 2009 | |||||
| *By: | /s/ Ronald B. Freeman as Attorney-in-fact | |||||
II-4II-7
INDEX TO EXHIBITS
EXHIBIT INDEX
Exhibit | |||||
Description | |||||
| 5.1 | Opinion of | ||||
| 23.1 | Consent of Ernst & Young | ||||
| 23.2 | Consent of | ||||
II-5