0000950149-01-501626.txt : 20011112
0000950149-01-501626.hdr.sgml : 20011112
ACCESSION NUMBER: 0000950149-01-501626
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 5
CONFORMED PERIOD OF REPORT: 20011105
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011105
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SAFEWAY INC
CENTRAL INDEX KEY: 0000086144
STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411]
IRS NUMBER: 943019135
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1228
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-00041
FILM NUMBER: 1775381
BUSINESS ADDRESS:
STREET 1: 5918 STONERIDGE MALL RD
CITY: PLEASANTON
STATE: CA
ZIP: 94588
BUSINESS PHONE: 9254673000
MAIL ADDRESS:
STREET 1: 5918 STONERIDGE MALL ROAD
CITY: PLEASANTON
STATE: CA
ZIP: 94588
FORMER COMPANY:
FORMER CONFORMED NAME: SAFEWAY STORES INC
DATE OF NAME CHANGE: 19900226
8-K
1
f76790e8-k.txt
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 5, 2001
SAFEWAY INC.
----------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-00041 94-3019135
------------------------------------ ------------------------ ---------------------------------------
(State or other jurisdiction of Incorporation) (Commission File Number) (I.R.S. Employer Identification Number)
5918 Stoneridge Mall Road, Pleasanton, California 94588
--------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(925) 467-3000
--------------------------------------------------
(Registrants' telephone number, including area code)
N/A
-----------------------------------------------------------
(former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
DEBT OFFERING
On November 5, 2001, we completed an underwritten offering of
$400,000,000 aggregate principal amount of our 3.625% Notes Due 2003 (the
"Notes") under our registration statement on Form S-3, filed with the Securities
and Exchange Commission (the "Commission") on February 5, 2001 (File No.
333-55008), the prospectus dated February 12, 2001, an accompanying prospectus
supplement dated October 30, 2001 and the supplement thereto dated November 1,
2001, relating to our offer and sale of the Notes.
The sale of the Notes was underwritten by Deutsche Banc Alex. Brown
Inc., Banc of America Securities LLC, Banc One Capital Markets, Inc., BNY
Capital Markets, Inc. and Credit Suisse First Boston Corporation pursuant to an
underwriting agreement dated October 30, 2001 and an underwriting agreement
dated November 1, 2001. The terms and conditions of the Notes and related
matters are set forth in the Indenture dated as of September 10, 1997, between
us and The Bank of New York, as trustee (the "Indenture") and, pursuant to
Sections 2.2 and 10.4 of the Indenture, the Officers' Certificate filed as
Exhibit 4.2 hereto.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) The following exhibits are filed as part of this Report:
1.1 Underwriting Agreement, dated October 30, 2001, between
Safeway Inc. and Deutsche Banc Alex. Brown Inc., Banc of
America Securities LLC, Banc One Capital Markets, Inc.,
BNY Capital Markets, Inc. and Credit Suisse First Boston
Corporation
1.2 Underwriting Agreement, dated November 1, 2001, between
Safeway Inc. and Deutsche Banc Alex. Brown Inc., Banc of
America Securities LLC, Banc One Capital Markets, Inc.,
BNY Capital Markets, Inc. and Credit Suisse First Boston
Corporation
4.1 Indenture, dated as of September 10, 1997, between
Safeway Inc. and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 8-K dated September 10, 1997).
4.2 Officers' Certificate, dated as of November 5, 2001,
pursuant to Sections 2.2 and 10.4 of the Indenture.
4.3 Form of 3.625% Note Due 2003.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: November 5, 2001
SAFEWAY INC.
By: /s/ Robert A. Gordon
-----------------------------
Robert A. Gordon
Senior Vice President and
General Counsel
EXHIBIT INDEX
Exhibits
1.1 Underwriting Agreement, dated October 30, 2001, between
Safeway Inc. and Deutsche Banc Alex. Brown Inc., Banc of
America Securities LLC, Banc One Capital Markets, Inc.,
BNY Capital Markets, Inc. and Credit Suisse First Boston
Corporation
1.2 Underwriting Agreement, dated November 1, 2001, between
Safeway Inc. and Deutsche Banc Alex. Brown Inc., Banc of
America Securities LLC, Banc One Capital Markets, Inc.,
BNY Capital Markets, Inc. and Credit Suisse First Boston
Corporation
4.1 Indenture, dated as of September 10, 1997, between
Safeway Inc. and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 8-K dated September 10, 1997).
4.2 Officers' Certificate, dated as of November 5, 2001,
pursuant to Sections 2.2 and 10.4 of the Indenture.
4.3 Form of 3.625% Note Due 2003.
EX-1.1
3
f76790ex1-1.txt
EXHIBIT 1.1
EXHIBIT 1.1
SAFEWAY INC.
$350,000,000 3.625% NOTES DUE 2003
UNDERWRITING AGREEMENT
October 30, 2001
October 30, 2001
Deutsche Banc Alex. Brown Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Credit Suisse First Boston Corporation
c/o Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, New York 10019
Dear Sirs and Mesdames:
Safeway Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $350,000,000 aggregate principal amount of its 3.625% Notes Due
2003 (the "Securities") to be issued pursuant to the provisions of an Indenture
dated as of September 10, 1997 (the "Indenture") between the Company and The
Bank of New York, as Trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-55008), including a
prospectus, relating to the Securities and has filed with, or transmitted for
filing to, or shall promptly hereafter file with or transmit for filing to, the
Commission (i) a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and (ii) a related
prospectus dated February 12, 2001 (the "Basic Prospectus"). The term
"Registration Statement" means the registration statement (Registration No.
333-55008), as amended to the date of this Agreement. If the Company has filed
or files an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Securities,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus," and "preliminary prospectus" shall include in each
case the documents incorporated by reference therein, and the term "Registration
Statement" shall include the documents incorporated or deemed to be incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement (other than any Rule 462
Registration Statement) has become effective; no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) The Registration Statement, when it became effective, did
not contain and such Registration Statement, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter expressly for use therein or (B)
to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) (the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its properties
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in the State of
California and in each other jurisdiction in which such qualification is
required, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) Each subsidiary, if any, of the Company which is a
"significant subsidiary" as defined in Rule 405 of Regulation C of the
Securities Act (each a "Significant Subsidiary") has been duly
incorporated and is validly existing as a corporation and in good
standing under the laws of the jurisdiction of its incorporation.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
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(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not result in any violation of the
Restated Certificate of Incorporation or the By-Laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any statute or any order, rule or regulation of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiaries, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency having
jurisdiction over the Company is required for the performance by the
Company of its obligations under this Agreement, the Indenture and the
Securities, except such as may be required under the Securities Act and
the rules and regulations thereunder, and the Exchange Act and the rules
and regulations thereunder, the Trust Indenture Act and the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Securities.
(j) The financial statements (together with the related notes
thereto) incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of and at the dates indicated and the
results of their operations for the periods specified, except as
otherwise disclosed therein; and except as otherwise stated therein or
in the Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
3
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending or, to the Company's
knowledge, threatened, to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(m) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
2. AGREEMENT TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Securities set forth in Schedule I
hereto opposite its name at a purchase price of 99.698% of the principal amount
of the Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after this Agreement has become effective as in your
judgment is advisable. The Company is further advised by you that the Securities
are to be offered to the public initially at 99.948% of the principal amount of
the Securities (the "Public Offering Price") plus, accrued interest, if any,
from November 5, 2001 to the date of payment and delivery, and to certain
dealers selected by you at a price that represents a concession not in excess of
.150% of the principal amount under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of .125% of the principal amount of the Securities, to any Underwriter or to
certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Securities shall be made in
Federal or other immediately available funds to an account designated by the
Company at 7:00 A.M., California time, on November 5, 2001, or at such other
time on the same or such other date, not later than November 14, 2001, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for the Securities shall be made against delivery to you for
the respective accounts of the several Underwriters of global certificates
representing the Securities registered in the name of Cede & Co. with any
transfer taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligation of the
Company to sell the Securities to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Securities are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
4
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date (the officer signing and delivering such
certificate may rely upon his or her knowledge as to proceedings
threatened).
(c) Latham & Watkins, special counsel for the Company, shall
have furnished to you their written opinion dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated, and is
validly existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) The execution, delivery and performance of this
agreement have been duly authorized by all necessary corporate
action of the Company, and this agreement has been duly executed
and delivered by the Company.
(iii) The Indenture has been (a) qualified under the
Trust Indenture Act of 1939, as amended, and (b) duly
authorized, executed and delivered by the Company and is the
legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(iv) The execution, delivery and performance of the
Securities have been duly authorized by the Company, the
Securities have been duly executed by the Company, and when the
Securities have been duly issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by
you in accordance with the terms of this agreement, the
Securities will be legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms.
5
(v) The Registration Statement has become effective
under the Act. To the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the Act and no proceedings therefor have
been initiated by the Commission. Any required filing of the
Prospectus pursuant to Rule 424 under the Act has been made in
accordance with Rule 424 under the Act.
(vi) The Registration Statement, as of the date it was
declared effective, and the Prospectus, as of its date, complied
as to form in all material respects with the requirements for
registration statements on Form S-3 under the Act and the rules
and regulations of the Commission thereunder; it being
understood, however, that such counsel need express no opinion
with respect to the financial statements, schedules or other
financial data included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus or
with respect to the Statement of Eligibility of the Trustee on
Form T-1 (the "Form T-1"). In passing upon the compliance as to
form of the Registration Statement and the Prospectus, such
counsel may have assumed that the statements made therein are
correct and complete.
(vii) The Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus
under the captions "Description of the Notes" and "Description
of Debt Securities," in each case insofar as such statements are
summaries of legal matters.
(viii) The issue and sale of the Securities being
delivered on the Closing Date by the Company and the compliance
by the Company with the provisions of this agreement and the
Indenture on the Closing Date do not:
(1) violate the Company's Governing Documents;
or
(2) result in the breach of or a default under
any of the indentures relating to the Company's 6.15%
Notes due 2006, 6.50% Notes due 2011, 7.25% Debentures
due 2031, 7.00% Notes due 2002, 7.25% Notes due 2004,
7.50% Notes due 2009, 9.30% Senior Secured Debentures
due 2007, 10% Senior Notes due 2002, 10% Senior
Subordinated Notes due 2001, 9.875% Senior Subordinated
Debentures due 2007, 9.65% Senior Subordinated
Debentures due 2004, 5.875% Notes due 2001, 6.05% Notes
due 2003, 6.85% Senior Notes due 2004, 7.00% Senior
Notes due 2007, 6.50% Notes due 2008 or 7.45% Senior
Debentures due 2027, and the Bank Credit Agreement dated
as of May 24, 2001 between the Company and a consortium
of banks led by Deutsche Banc Alex. Brown Inc. and J.P.
Morgan Securities Inc., as co-arrangers; or
(3) violate any federal, New York or California
statute, rule or regulation applicable to the Company;
or
(4) require any consents, approvals,
authorizations, registrations, declarations or filings
by the Company under any federal, New York
6
or California statute, rule or regulation applicable to
the Company, except such as have been obtained under the
Act and such as may be required under state securities
laws in connection with the purchase and distribution of
the Securities by you.
No opinion need be expressed in this
paragraph (viii) as to the application of Section 548 of
the Federal Bankruptcy Code and comparable provisions of
state law, or under other laws customarily excluded from
such opinions, including federal securities laws, state
securities laws, antifraud laws, antitrust or trade
regulations laws.
(ix) Each of the Incorporated Documents, as of
its respective filing or effective date, appeared on its
face to comply as to form in all material respects with
the applicable requirements for reports on Forms 10-K,
10-Q and 8-K and proxy statements under Regulation 14A,
as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder, and for
Registration Statements on Form 8-A under the Exchange
Act, and the rules of the Commission thereunder; it
being understood, however, that such counsel need
express no opinion with respect to financial statements,
schedules or other financial data included in,
incorporated by reference in, or omitted from such
reports, proxy statements and registration statements or
with respect to the Form T-1. In passing upon the
compliance as to form of the Incorporated Documents,
such counsel may assume that the statements made therein
are correct and complete.
(x) The Company is not an "investment company"
within the meaning of the Investment Company Act of
1940, as amended.
In addition, such counsel shall state that they
have participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company, and your
representatives, at which the contents of the
Registration Statement and the Prospectus and the
Incorporated Documents and related matters were
discussed and, although such counsel need not pass upon
or assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement
and the Prospectus or the Incorporated Documents and
need not make any independent check or verification
thereof, during the course of such participation, no
facts came to such counsel's attention that caused such
counsel to believe that the Registration Statement
(including the Incorporated Documents), at the time it
became effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus (including the Incorporated Documents), as of
November 1, 2001 or as of the date hereof, contained or
contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to
make the statements therein, in light
7
of the circumstances under which they were made, not
misleading; it being understood that such counsel need
express no belief with respect to the financial
statements, schedules or other financial data included
or incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus or with respect
to the Form T-1.
In rendering such opinion, such counsel may
state that they express an opinion only as to federal
securities laws, New York and California (as to
paragraphs (viii)(3) and (viii)(4) only) law and the
General Corporation Law of the State of Delaware. Such
opinion may also be subject to customary assumptions and
limitations, including that opinions on enforceability
may be subject to the following exceptions, limitations
and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors; (ii) the effect of
general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding
therefor may be brought; (iii) the unenforceability
under certain circumstances under law or court decisions
of provisions providing for the indemnification of or
contribution to a party with respect to a liability
where such indemnification or contribution is contrary
to public policy; (iv) such counsel need not express an
opinion concerning the enforceability of the waiver of
rights or defenses contained in Section 4.4 of the
Indenture; (v) such counsel need not express an opinion
with respect to Sections 10.15 and 10.16 under the
Indenture; (vi) such counsel need not express an
opinion with respect to whether acceleration of the
Securities may affect the collectibility of that portion
of the stated principal amount thereof which might be
determined to constitute unearned interest thereon; and
(vii) the unenforceability of any provision requiring
the payment of attorney's fees, except to the extent a
court determines such fees to be reasonable.
(d) Meredith Parry, Vice President-Corporate Law and
Secretary of the Company, shall have furnished to you her
written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) the Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each jurisdiction
in which its ownership or lease of substantial
properties or the conduct of its business requires such
qualification, and in which the failure to be so
qualified and in good standing would have a material
adverse effect upon the Company and its subsidiaries
considered as a whole;
(ii) based solely on certificates from public
officials, each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation; has corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Prospectus; and
to the best of such counsel's knowledge has been duly
qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of
each other jurisdiction in which its ownership or lease
of substantial properties or the conduct of its business
requires such qualification, and in which failure to be
so qualified and in good standing would have a material
adverse effect upon the Company and its subsidiaries
considered as a whole; and all of the issued and
8
outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable, and the capital
stock owned by the Company in each such subsidiary is
owned by the Company free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(iii) to the best of such counsel's knowledge
there are no legal or governmental proceedings pending
or threatened to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject,
required to be described in the Prospectus, which are
not described as required; and
(iv) the issue and sale of the Securities being
delivered at the Closing Date by the Company and the
application of the net proceeds therefrom as
contemplated under "Use of Proceeds" in the Prospectus,
and the compliance by the Company with all of the
provisions of this Agreement will not conflict with or
result in a material breach or violation of any of the
terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument relating to
indebtedness in excess of $25 million to which the
Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or
any of its subsidiaries is subject.
(e) The Underwriters shall have received on the Closing
Date an opinion of Sidley Austin Brown & Wood LLP, counsel for
the Underwriters, dated the Closing Date, covering the matters
referred to in the first clause of subparagraph (i),
subparagraphs (ii), (iii), (iv), (viii) (but only as to the
opinion that the Securities conform in all material respects to
the description thereof in the Prospectus), (x), (xi) and the
penultimate paragraph of paragraph (c) above and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
The opinions of Latham & Watkins and Meredith Parry
described in paragraphs (c) and (d) above shall be rendered to
the Underwriters at the request of the Company and shall so
state therein.
(f) The Underwriters shall have received, on the Closing
Date, a letter dated the Closing Date, in form and substance
satisfactory to the Underwriters, from Deloitte & Touche LLP,
independent public accountants, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that such
letter shall use a "cut-off date" not earlier than the date
hereof.
(g) At the date of this Agreement, the Company shall
have furnished for review by the Underwriters copies of such
further information, certificates and documents as they may
reasonably request.
9
(h) If the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and documents
incorporated by reference and to each Underwriter a copy of the
Registration Statement (without exhibits thereto but including documents
incorporated by reference) and to furnish to you in New York City
without charge prior to 5:00 p.m. local time on the business day next
succeeding the date of this Agreement, and during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated therein by reference, and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
10
(f) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities
or (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of Deutsche Banc Alex. Brown Inc..
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and Company's accountants in
connection with the registration and delivery of the Securities under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers
in the quantities hereinabove specified, (ii) the preparation, issuance
and delivery of the Securities; (iii) the fees and disbursements of the
Trustee and its counsel; (iv) all expenses in connection with the
qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with any Blue Sky memorandum, (v) the printing and delivery to the
Underwriters of copies of any Blue Sky memorandum; (vi) any fees charged
by rating agencies for the rating of the Securities; (vii) the cost of
printing certificates representing the Securities, (viii) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered by the Company in connection with
the road show, (ix) all other costs and expenses of the Company in
connection with the performance of its obligations hereunder for which
provision is not otherwise made in this Section and (x) any other costs
and expenses of others in connection with the performance of the
Company's obligations hereunder which have been previously approved by
the Company. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 9 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Securities by them,
the costs and expenses of the Underwriters relating to investor
presentations on any "road shows" undertaken in connection with the
marketing of the Securities and any advertising expenses connected with
any offers they may make.
7. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section
11
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by
any Underwriter or any such controlling person in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto),
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either paragraph (a) or (b) of
this Section 7, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be
12
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all such
fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Deutsche Banc Alex. Brown Inc., in the
case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b)
above. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities shall be deemed to be in the same
respective proportions as the aggregate net proceeds from the offering
of the Securities (before deducting expenses) received by the Company
and the aggregate underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the
13
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amounts of Securities they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to
in paragraph (d) of this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, either of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York or California shall have been declared
by either Federal or New York State or California authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, that, in your judgment,
14
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bear to the
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided, however, that no such
reimbursement shall be required with respect to a termination of this Agreement
by the Underwriters pursuant to Section 8 or this Section 9.
10. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
15
12. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
SAFEWAY INC.
By: /s/ Melissa C. Plaisance
------------------------------
Name: Melissa C. Plaisance
Title: Senior Vice President-
Finance and Investor
Relations
Accepted as of the date hereof
Deutsche Banc Alex. Brown Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Credit Suisse First Boston Corporation
By: Deutsche Banc Alex. Brown Inc.
By: /s/ Christopher T. Whitman
------------------------------
Name: Christopher T. Whitman
Title: Managing Director
SCHEDULE I
Principal Amount of
Securities to be
Underwriter Purchased
----------- -------------------
Deutsche Banc Alex. Brown Inc. $140,000,000
Banc of America Securities LLC 105,000,000
Banc One Capital Markets, Inc. 35,000,000
BNY Capital Markets, Inc. 35,000,000
Credit Suisse First Boston Corporation 35,000,000
Total $350,000,000
============
EX-1.2
4
f76790ex1-2.txt
EXHIBIT 1.2
EXHIBIT 1.2
SAFEWAY INC.
$50,000,000 3.625% NOTES DUE 2003
UNDERWRITING AGREEMENT
November 1, 2001
November 1, 2001
Deutsche Banc Alex. Brown Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Credit Suisse First Boston Corporation
c/o Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, New York 10019
Dear Sirs and Mesdames:
Safeway Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $50,000,000 aggregate principal amount of its 3.625% Notes Due
2003 (the "Securities") to be issued pursuant to the provisions of an Indenture
dated as of September 10, 1997 (the "Indenture") between the Company and The
Bank of New York, as Trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (Registration No. 333-55008),
including a prospectus, relating to the Securities and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit for
filing to, the Commission (i) a prospectus supplement as supplemented by a
supplement (the "Prospectus Supplement") specifically relating to the Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), and (ii) a related prospectus dated February 12, 2001 (the
"Basic Prospectus"). The term "Registration Statement" means the registration
statement (Registration No. 333-55008), as amended to the date of this
Agreement. If the Company has filed or files an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus," and
"preliminary prospectus" shall include in each case the documents incorporated
by reference therein, and the term "Registration Statement" shall include the
documents incorporated or deemed to be incorporated by reference therein. The
terms "supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement (other than any Rule 462
Registration Statement) has become effective; no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) The Registration Statement, when it became effective, did
not contain and such Registration Statement, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this Section 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter expressly for use therein or (B)
to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) (the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its properties
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in the State of
California and in each other jurisdiction in which such qualification is
required, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) Each subsidiary, if any, of the Company which is a
"significant subsidiary" as defined in Rule 405 of Regulation C of the
Securities Act (each a "Significant Subsidiary") has been duly
incorporated and is validly existing as a corporation and in good
standing under the laws of the jurisdiction of its incorporation.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
2
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not result in any violation of the
Restated Certificate of Incorporation or the By-Laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any statute or any order, rule or regulation of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiaries, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency having
jurisdiction over the Company is required for the performance by the
Company of its obligations under this Agreement, the Indenture and the
Securities, except such as may be required under the Securities Act and
the rules and regulations thereunder, and the Exchange Act and the rules
and regulations thereunder, the Trust Indenture Act and the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Securities.
(j) The financial statements (together with the related notes
thereto) incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of and at the dates indicated and the
results of their operations for the periods specified, except as
otherwise disclosed therein; and except as otherwise stated therein or
in the Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
3
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending or, to the Company's
knowledge, threatened, to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(m) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
2. AGREEMENT TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Securities set forth in Schedule I
hereto opposite its name at a purchase price of 99.624% of the principal amount
of the Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after this Agreement has become effective as in your
judgment is advisable. The Company is further advised by you that the Securities
are to be offered to the public initially at 99.874% of the principal amount of
the Securities (the "Public Offering Price") plus, accrued interest, if any,
from November 5, 2001 to the date of payment and delivery, and to certain
dealers selected by you at a price that represents a concession not in excess of
.150% of the principal amount under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of .125% of the principal amount of the Securities, to any Underwriter or to
certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Securities shall be made in
Federal or other immediately available funds to an account designated by the
Company at 7:00 A.M., California time, on November 5, 2001, or at such other
time on the same or such other date, not later than November 14, 2001, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for the Securities shall be made against delivery to you for
the respective accounts of the several Underwriters of global certificates
representing the Securities registered in the name of Cede & Co. with any
transfer taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligation of the
Company to sell the Securities to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Securities are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
4
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date (the officer signing and delivering such
certificate may rely upon his or her knowledge as to proceedings
threatened).
(c) Latham & Watkins, special counsel for the Company, shall
have furnished to you their written opinion dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated, and is
validly existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) The execution, delivery and performance of this
agreement have been duly authorized by all necessary corporate
action of the Company, and this agreement has been duly executed
and delivered by the Company.
(iii) The Indenture has been (a) qualified under the
Trust Indenture Act of 1939, as amended, and (b) duly
authorized, executed and delivered by the Company and is the
legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(iv) The execution, delivery and performance of the
Securities have been duly authorized by the Company, the
Securities have been duly executed by the Company, and when the
Securities have been duly issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by
you in accordance with the terms of this agreement, the
Securities will be legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms.
5
(v) The Registration Statement has become effective
under the Act. To the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the Act and no proceedings therefor have
been initiated by the Commission. Any required filing of the
Prospectus pursuant to Rule 424 under the Act has been made in
accordance with Rule 424 under the Act.
(vi) The Registration Statement, as of the date it was
declared effective, and the Prospectus, as of its date, complied
as to form in all material respects with the requirements for
registration statements on Form S-3 under the Act and the rules
and regulations of the Commission thereunder; it being
understood, however, that such counsel need express no opinion
with respect to the financial statements, schedules or other
financial data included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus or
with respect to the Statement of Eligibility of the Trustee on
Form T-1 (the "Form T-1"). In passing upon the compliance as to
form of the Registration Statement and the Prospectus, such
counsel may have assumed that the statements made therein are
correct and complete.
(vii) The Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus
under the captions "Description of the Notes" and "Description
of Debt Securities," in each case insofar as such statements are
summaries of legal matters.
(viii) The issue and sale of the Securities being
delivered on the Closing Date by the Company and the compliance
by the Company with the provisions of this agreement and the
Indenture on the Closing Date do not:
(1) violate the Company's Governing Documents;
or
(2) result in the breach of or a default under
any of the indentures relating to the Company's 6.15%
Notes due 2006, 6.50% Notes due 2011, 7.25% Debentures
due 2031, 7.00% Notes due 2002, 7.25% Notes due 2004,
7.50% Notes due 2009, 9.30% Senior Secured Debentures
due 2007, 10% Senior Notes due 2002, 10% Senior
Subordinated Notes due 2001, 9.875% Senior Subordinated
Debentures due 2007, 9.65% Senior Subordinated
Debentures due 2004, 5.875% Notes due 2001, 6.05% Notes
due 2003, 6.85% Senior Notes due 2004, 7.00% Senior
Notes due 2007, 6.50% Notes due 2008 or 7.45% Senior
Debentures due 2027, and the Bank Credit Agreement dated
as of May 24, 2001 between the Company and a consortium
of banks led by Deutsche Banc Alex. Brown Inc. and J.P.
Morgan Securities Inc., as co-arrangers; or
(3) violate any federal, New York or California
statute, rule or regulation applicable to the Company;
or
(4) require any consents, approvals,
authorizations, registrations, declarations or filings
by the Company under any federal, New York
6
or California statute, rule or regulation applicable to
the Company, except such as have been obtained under the
Act and such as may be required under state securities
laws in connection with the purchase and distribution of
the Securities by you.
No opinion need be expressed in this paragraph (viii) as
to the application of Section 548 of the Federal Bankruptcy Code
and comparable provisions of state law, or under other laws
customarily excluded from such opinions, including federal
securities laws, state securities laws, antifraud laws,
antitrust or trade regulations laws.
(ix) Each of the Incorporated Documents, as of its
respective filing or effective date, appeared on its face to
comply as to form in all material respects with the applicable
requirements for reports on Forms 10-K, 10-Q and 8-K and proxy
statements under Regulation 14A, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission
thereunder, and for Registration Statements on Form 8-A under
the Exchange Act, and the rules of the Commission thereunder; it
being understood, however, that such counsel need express no
opinion with respect to financial statements, schedules or other
financial data included in, incorporated by reference in, or
omitted from such reports, proxy statements and registration
statements or with respect to the Form T-1. In passing upon the
compliance as to form of the Incorporated Documents, such
counsel may assume that the statements made therein are correct
and complete.
(x) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company, and your
representatives, at which the contents of the Registration
Statement and the Prospectus and the Incorporated Documents and
related matters were discussed and, although such counsel need
not pass upon or assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the
Prospectus or the Incorporated Documents and need not make any
independent check or verification thereof, during the course of
such participation, no facts came to such counsel's attention
that caused such counsel to believe that the Registration
Statement (including the Incorporated Documents), at the time it
became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus (including the Incorporated
Documents), as of November 1, 2001 or as of the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in light
7
of the circumstances under which they were made, not misleading;
it being understood that such counsel need express no belief
with respect to the financial statements, schedules or other
financial data included or incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus or
with respect to the Form T-1.
In rendering such opinion, such counsel may state that
they express an opinion only as to federal securities laws, New
York and California (as to paragraphs (viii)(3) and (viii)(4)
only) law and the General Corporation Law of the State of
Delaware. Such opinion may also be subject to customary
assumptions and limitations, including that opinions on
enforceability may be subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and
remedies of creditors; (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which
any proceeding therefor may be brought; (iii) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy;
(iv) such counsel need not express an opinion concerning the
enforceability of the waiver of rights or defenses contained in
Section 4.4 of the Indenture; (v) such counsel need not express
an opinion with respect to Sections 10.15 and 10.16 under the
Indenture; (vi) such counsel need not express an opinion with
respect to whether acceleration of the Securities may affect
the collectibility of that portion of the stated principal
amount thereof which might be determined to constitute unearned
interest thereon; and (vii) the unenforceability of any
provision requiring the payment of attorney's fees, except to
the extent a court determines such fees to be reasonable.
(d) Meredith Parry, Vice President-Corporate Law and Secretary
of the Company, shall have furnished to you her written opinion, dated
the Closing Date, in form and substance satisfactory to you, to the
effect that:
(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which its
ownership or lease of substantial properties or the conduct of
its business requires such qualification, and in which the
failure to be so qualified and in good standing would have a
material adverse effect upon the Company and its subsidiaries
considered as a whole;
(ii) based solely on certificates from public officials,
each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectus; and to the best of such counsel's knowledge has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such
qualification, and in which failure to be so qualified and in
good standing would have a material adverse effect upon the
Company and its subsidiaries considered as a whole; and all of
the issued and
8
outstanding capital stock of each such Significant Subsidiary
has been duly authorized and validly issued and is fully paid
and non-assessable, and the capital stock owned by the Company
in each such subsidiary is owned by the Company free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) to the best of such counsel's knowledge there are
no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is
the subject, required to be described in the Prospectus, which
are not described as required; and
(iv) the issue and sale of the Securities being
delivered at the Closing Date by the Company and the application
of the net proceeds therefrom as contemplated under "Use of
Proceeds" in the Prospectus, and the compliance by the Company
with all of the provisions of this Agreement will not conflict
with or result in a material breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument relating to indebtedness in excess of
$25 million to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject.
(e) The Underwriters shall have received on the Closing Date an
opinion of Sidley Austin Brown & Wood LLP, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in the first
clause of subparagraph (i), subparagraphs (ii), (iii), (iv), (viii) (but
only as to the opinion that the Securities conform in all material
respects to the description thereof in the Prospectus), (x), (xi) and
the penultimate paragraph of paragraph (c) above and such counsel shall
have received such papers and information as they may reasonably request
to enable them to pass upon such matters.
The opinions of Latham & Watkins and Meredith Parry described in
paragraphs (c) and (d) above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on the Closing Date, a
letter dated the Closing Date, in form and substance satisfactory to the
Underwriters, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that such letter shall use a "cut-off date" not earlier than
the date hereof.
(g) At the date of this Agreement, the Company shall have
furnished for review by the Underwriters copies of such further
information, certificates and documents as they may reasonably request.
9
(h) If the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00
p.m., Washington, D.C. time, on the date of this Agreement.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and documents
incorporated by reference and to each Underwriter a copy of the
Registration Statement (without exhibits thereto but including documents
incorporated by reference) and to furnish to you in New York City
without charge prior to 5:00 p.m. local time on the business day next
succeeding the date of this Agreement, and during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated therein by reference, and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
10
(f) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities
or (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of Deutsche Banc Alex. Brown Inc..
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and Company's accountants in
connection with the registration and delivery of the Securities under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers
in the quantities hereinabove specified, (ii) the preparation, issuance
and delivery of the Securities; (iii) the fees and disbursements of the
Trustee and its counsel; (iv) all expenses in connection with the
qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with any Blue Sky memorandum, (v) the printing and delivery to the
Underwriters of copies of any Blue Sky memorandum; (vi) any fees charged
by rating agencies for the rating of the Securities; (vii) the cost of
printing certificates representing the Securities, (viii) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered by the Company in connection with
the road show, (ix) all other costs and expenses of the Company in
connection with the performance of its obligations hereunder for which
provision is not otherwise made in this Section and (x) any other costs
and expenses of others in connection with the performance of the
Company's obligations hereunder which have been previously approved by
the Company. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 9 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Securities by them,
the costs and expenses of the Underwriters relating to investor
presentations on any "road shows" undertaken in connection with the
marketing of the Securities and any advertising expenses connected with
any offers they may make.
7. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section
11
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to such Underwriter, but
only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either paragraph (a) or (b)
of this Section 7, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be
12
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Deutsche Banc
Alex. Brown Inc., in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective proportions
as the aggregate net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the aggregate
underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether
13
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal
amounts of Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) of this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter
or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment
for any of the Securities.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, either of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York or California shall have been declared
by either Federal or New York State or California authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in your judgment,
14
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bear to the
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided, however, that no such
reimbursement shall be required with respect to a termination of this Agreement
by the Underwriters pursuant to Section 8 or this Section 9.
10. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
15
12. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
SAFEWAY INC.
By: /s/ Melissa C. Plaisance
----------------------------
Name: Melissa C. Plaisance
Title: Senior Vice President -
Finance and Investor
Relations
Accepted as of the date hereof
Deutsche Banc Alex. Brown Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
Credit Suisse First Boston Corporation
By: Deutsche Banc Alex. Brown Inc.
By: /s/ Christopher T. Whitman
----------------------------
Name: Christopher T. Whitman
Title: Managing Director
SCHEDULE I
Principal Amount of
Securities to be
Underwriter Purchased
----------- -------------------
Deutsche Banc Alex. Brown Inc. $20,000,000
Banc of America Securities LLC 15,000,000
Banc One Capital Markets, Inc. 5,000,000
BNY Capital Markets, Inc. 5,000,000
Credit Suisse First Boston Corporation 5,000,000
Total $50,000,000
===========
EX-4.2
5
f76790ex4-2.txt
EXHIBIT 4.2
EXHIBIT 4.2
SAFEWAY INC.
OFFICERS' CERTIFICATE PURSUANT TO
SECTIONS 2.2 AND 10.4 OF THE INDENTURE
Vasant M. Prabhu and Melissa C. Plaisance do hereby certify that they
are the Executive Vice President and Chief Financial Officer, and the Senior
Vice President -- Finance and Investor Relations, respectively, of Safeway Inc.,
a Delaware corporation (the "Company"), and do further certify, pursuant to
resolutions of the Board of Directors of the Company adopted on January 25, 2001
(the "Resolutions"), and in accordance with Sections 2.2 and 10.4 of the
Indenture (the "Indenture") dated as of September 10, 1997 between the Company
and The Bank of New York, as trustee (the "Trustee"), as follows:
1. Attached hereto as Annex A is a true and correct copy of a
specimen note (the "Form of Note") representing the Company's 3.625%
Notes Due 2003 (the "Notes").
The Company is issuing initially $400,000,000 aggregate
principal amount of the Notes. The Company may issue additional Notes
from time to time after the date hereof. These Notes and any additional
Notes subsequently issued under the Indenture shall be treated as a
single class for all purposes under the Indenture. No additional Notes
may be issued if an Event of Default has occurred with respect to such
Notes.
2. The Form of Note sets forth certain of the terms required to
be set forth in this certificate pursuant to Section 2.2 of the
Indenture, and said terms are incorporated herein by reference. $350
million aggregate principal amounts of the Notes were issued at the
initial public offering price of 99.948% of principal amount and $50
million aggregate principal amount of the Notes were issued at the
initial public offering price of 99.874%.
3. In addition to the covenants set forth in Article IV of the
Indenture, the Notes shall include the following additional covenants,
and such additional covenants shall be subject to covenant defeasance
pursuant to Section 8.4 of the Indenture:
"Section 4.7 Limitation on Liens.
The Company shall not, nor shall it permit any of its
Subsidiaries to, create, incur, or permit to exist, any Lien on any of
their respective properties or assets, whether now owned or hereafter
acquired, or upon any income or profits therefrom, in order to secure
any Indebtedness of the Company, without effectively providing that the
Notes shall be equally and ratably secured until such time as such
Indebtedness is no longer secured by such Lien, except: (i) Liens
existing as of November 5, 2001 (the "Closing Date"); (ii) Liens granted
after the Closing Date on any assets or properties of the Company or any
of its Subsidiaries securing Indebtedness of the Company created in
favor of the Holders of the Notes; (iii) Liens securing Indebtedness of
the Company which is incurred to extend, renew or refinance Indebtedness
which is secured by Liens permitted to be incurred under the Indenture;
provided that such Liens do not extend to or cover any property or
assets of the Company or any of its Subsidiaries other than the property
or assets securing the Indebtedness being refinanced and that the
principal amount of such Indebtedness does not exceed the principal
amount of the Indebtedness being refinanced; (iv) Permitted Liens; and
(v) Liens created in substitution of or as replacements for any Liens
permitted by the preceding clauses (i) through (iv), provided that,
based on a good faith determination of an officer of the Company, the
property or asset encumbered under any such
substitute or replacement Lien is substantially similar in nature to
the property or asset encumbered by the otherwise permitted Lien which
is being replaced.
Notwithstanding the foregoing, the Company and any Subsidiary
of the Company may, without securing the Notes, create, incur or permit
to exist Liens which would otherwise be subject to the restrictions set
forth in the preceding paragraph, if after giving effect thereto and at
the time of determination, Exempted Debt does not exceed the greater of
(i) 10% of Consolidated Net Tangible Assets or (ii) $350,000,000.
Section 4.8 Limitation on Sale and Lease-Back Transactions.
The Company shall not, nor shall it permit any of its
Subsidiaries to, enter into any sale and lease-back transaction for the
sale and leasing back of any property or asset, whether now owned or
hereafter acquired, of the Company or any of its Subsidiaries (except
such transactions (i) entered into prior to the Closing Date or (ii)
for the sale and leasing back of any property or asset by a Subsidiary
of the Company to the Company or (iii) involving leases for less than
three years or (iv) in which the lease for the property or asset is
entered into within 120 days after the later of the date of
acquisition, completion of construction or commencement of full
operations of such property or asset) unless (a) the Company or such
Subsidiary would be entitled under Section 4.7 to create, incur or
permit to exist a Lien on the assets to be leased in an amount at least
equal to the Attributable Liens in respect of such transaction without
equally and ratably securing the Notes or (b) the proceeds of the sale
of the assets to be leased are at least equal to their fair market
value and the proceeds are applied to the purchase or acquisition (or
in the case of real property, the construction) of assets or to the
repayment of Indebtedness of the Company or a Subsidiary of the Company
which by its terms matures not earlier than one year after the date of
such repayment."
4. In addition to the Events of Default set forth in Section
6.1 of the Indenture the Notes shall include the following additional
Event of Default, which shall be deemed an Event of Default under
Section 6.1(g) of the Indenture:
"acceleration of $150,000,000 or more, individually or in
the aggregate, in principal amount of Indebtedness of the Company under
the terms of the instrument under which such Indebtedness is issued or
secured, except as a result of compliance with applicable laws, orders
or decrees, if such Indebtedness shall not have been discharged or such
acceleration is not annulled within 10 days after written notice."
5. In addition to the definitions set forth in Article I of the
Indenture, the Notes shall include the following additional
definitions, which, in the event of a conflict with the definition of
terms in the Indenture, shall control:
"Attributable Liens" means in connection with a sale and
lease-back transaction the lesser of (a) the fair market value of the
assets subject to such transaction and (b) the present value
(discounted at a rate per annum equal to the average interest borne by
all outstanding Securities issued under the Indenture determined on a
weighted average basis and compounded semi-annually) of the obligations
of the lessee for rental payments during the term of the related lease.
"Bank Credit Agreement" means the Credit Agreement dated as
of May 24, 2001 among the Company and Canada Safeway Limited, as
borrowers, Deutsche Banc Alex. Brown Inc. and J.P. Morgan Securities
Inc., as co-arrangers, The Bank of Nova Scotia, as administrative
agent,
2
Deutsche Bank AG New York Branch, The Chase Manhattan Bank, Bank of
America N.A. and Citicorp USA, Inc., as syndication agents, US Bank
National Association, as documentation agent, and the other agents and
lenders which are parties thereto, as such agreement may be amended
(including any amendment, restatement, refinancing and successors
thereof), supplemented or otherwise modified from time to time,
including any increase in the principal amount of the obligations
thereunder.
"Capital Lease" means any Indebtedness represented by a lease
obligation of a person incurred with respect to real property or
equipment acquired or leased by such person and used in its business
that is required to be recorded as a capital lease in accordance with
GAAP.
"Consolidated Net Tangible Assets" means the total amount of
assets of the Company and its Subsidiaries (less applicable
depreciation, amortization and other valuation reserves) after
deducting therefrom (i) all current liabilities of the Company and its
Subsidiaries and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like intangibles,
determined on a consolidated basis in accordance with GAAP.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement
designed to protect the Company or any of its Subsidiaries against
fluctuations in currency values.
"Exempted Debt" means the sum of the following as of the date
of determination: (i) Indebtedness of the Company incurred after the
Closing Date and secured by Liens not otherwise permitted by the first
sentence under Section 4.7, and (ii) Attributable Liens of the Company
and its Subsidiaries in respect of sale and lease-back transactions
entered into after the Closing Date, other than sale and lease-back
transactions permitted by the limitation on sale and lease-back
transactions set forth under Section 4.8. For purposes of determining
whether or not a sale and lease-back transaction is "permitted" by
Section 4.8, the last paragraph under Section 4.7 (creating an
exception for Exempted Debt) will be disregarded.
"Indebtedness" of any person means, without duplication, any
indebtedness, whether or not contingent, in respect of borrowed money
or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements with respect thereto) or
representing the balance deferred and unpaid of the purchase price of
any property (including pursuant to Capital Leases), except any such
balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such person prepared on a
consolidated basis in accordance with GAAP (but does not include
contingent liabilities which appear only in a footnote to a balance
sheet), and shall also include, to the extent not otherwise included,
the guaranty of items which would be included within this definition.
"Interest Swap Obligations" means the obligations of any
person pursuant to any interest rate swap agreement, interest rate
collar agreement or other similar agreement or arrangement designed to
protect such person or any of its Subsidiaries against fluctuations in
interest rates.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form; provided that, as to any such arrangement in corporate form, such
corporation shall not, as to any person of which such corporation is a
Subsidiary, be considered to be a Joint Venture to which such person is
a party.
3
"Lien" means any lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement
to give any security interest).
"Permitted Liens" means (i) Liens securing Indebtedness of
the Company under the Bank Credit Agreement and any initial or
subsequent renewal, extension, refinancing, replacement or refunding
thereof; (ii) Liens on accounts receivable, merchandise inventory,
equipment, and patents, trademarks, trade names and other intangibles,
securing Indebtedness of the Company; (iii) Liens on any asset of the
Company, any Subsidiary of the Company, or any Joint Venture to which
the Company or any of its Subsidiaries is a party, created solely to
secure obligations incurred to finance the refurbishment, improvement
or construction of such asset, which obligations are incurred no later
than 24 months after completion of such refurbishment, improvement or
construction, and all renewals, extensions, refinancings, replacements
or refundings of such obligations; (iv)(a) Liens given to secure the
payment of the purchase price incurred in connection with the
acquisition (including acquisition through merger or consolidation) of
property (including shares of stock), including Capital Lease
transactions in connection with any such acquisition, and (b) Liens
existing on property at the time of acquisition thereof or at the time
of acquisition by the Company or a Subsidiary of the Company of any
person then owning such property whether or not such existing Liens
were given to secure the payment of the purchase price of the property
to which they attach; provided that, with respect to clause (a), the
Liens shall be given within 24 months after such acquisition and shall
attach solely to the property acquired or purchased and any
improvements then or thereafter placed thereon; (v) Liens in favor of
customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(vi) 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; (vii) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating
to such letters of credit and the products and proceeds thereof; (viii)
Liens on key-man life insurance policies granted to secure Indebtedness
of the Company against the cash surrender value thereof; (ix) Liens
encumbering customary initial deposits and margin deposits and other
Liens in the ordinary course of business, in each case securing
Indebtedness of the Company under Interest Swap Obligations and
Currency Agreements and forward contract, option, futures contracts,
futures options or similar agreements or arrangements designed to
protect the Company or any of its Subsidiaries from fluctuations in
interest rates, currencies or the price of commodities; (x) Liens
arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Company
or any of its Subsidiaries in the ordinary course of business; and (xi)
Liens in favor of the Company or any Subsidiary of the Company.
6. Each of the undersigned is authorized to approve the form,
terms and conditions of the Notes pursuant to the Resolutions.
7. Attached hereto as Annex B is a true and correct copy of the
Resolutions.
8. The Notes shall be issued as Global Securities (subject to
exchange for definitive certificated Notes under the circumstances
provided in the Indenture) and The Depository Trust Company shall be
Depository for the Notes.
4
9. Attached hereto as Annex C are true and correct copies of the
letter addressed to the Trustee entitling the Trustee to rely on the
Opinion of Counsel attached thereto, which Opinion relates to the Notes
and complies with Section 10.4(b) of the Indenture.
10. Each of the undersigned has reviewed the provisions of the
Indenture, including the covenants and conditions precedent pertaining
to the issuance of the Notes.
11. In connection with this certificate each of the undersigned
has examined documents, corporate records and certificates and has
spoken with other officers of the Company.
12. Each of the undersigned has made such examination and
investigation as is necessary to enable the undersigned to express an
informed opinion as to whether or not the covenants and conditions
precedent of the Indenture pertaining to the issuance of the Notes have
been satisfied.
13. In our opinion all of the covenants and conditions precedent
provided for in the Indenture for the issuance of the Notes have been
satisfied.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Indenture or the Notes, as the case may be.
5
IN WITNESS WHEREOF, each of the undersigned officers has executed this
certificate this 5th day of November, 2001.
/s/ Vasant M. Prabhu
------------------------------------------
Name: Vasant M. Prabhu
Title: Executive Vice President and
Chief Financial Officer
/s/ Melissa C. Plaisance
------------------------------------------
Name: Melissa C. Plaisance
Title: Senior Vice President - Finance and
Investor Relations
EX-4.3
6
f76790ex4-3.txt
EXHIBIT 4.3
EXHIBIT 4.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SAFEWAY INC.
3.625% Note Due 2003
No. T- $
CUSIP No. 786514 BD 0
SAFEWAY INC., a Delaware corporation (the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of
DOLLARS
on November 5, 2003, and to pay interest thereon from November 5, 2001, or the
most recent interest payment date to which interest has been paid or provided
for, as the case may be, payable on May 5 and November 5 of each year,
commencing May 5, 2002, at the rate of 3.625% per annum, until the principal
hereof is paid or made available for payment, and (to the extent that the
payment of such interest is permitted by law) to pay interest at the rate per
annum borne by this Security on any overdue principal and on any overdue
installment of interest until paid. The interest so payable, and punctually paid
or duly provided for, on any interest payment date will be paid to the person in
whose name this Security (or one or more predecessor Securities) is registered
at the close of business on the regular record date for such interest, which
shall be the fifteenth calendar day preceding such interest payment date
(whether or not a Business Day). Any such interest not so punctually paid or
duly provided for will forthwith cease to be
payable to the Holder on such regular record date and may either be paid to the
person in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Company, notice whereof shall be
given to the Trustee and the Holders not less than 10 days prior to such special
record date, or be paid at any time in any other lawful manner. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
Principal of and interest on the Securities will be payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, the transfer of the Securities
will be registrable, the Securities may be presented for exchange, and notices
and demands to or upon the Company in respect of this Security and the Indenture
may be served, at the office or agency of the Company maintained for such
purpose (which initially will be the office of the Trustee located at 20 Broad
Street, Lower Level, New York, New York 10005, Attention: Corporate Trust Reorg.
Dept.); provided that, unless all of the outstanding Securities are Global
Securities, the Company will at all times maintain an office or agency for such
purposes in the Borough of Manhattan, The City of New York; and provided,
further, that, except as provided in the next sentence, payment of interest may,
at the option of the Company, be made by check mailed to the address of the
person entitled thereto. If this Security is a Global Security, the interest
payable on this Security will be paid to Cede & Co., the nominee of the
Depositary, or its registered assigns as the registered owner of this Security,
by wire transfer of immediately available funds on each of the applicable
interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date:
SAFEWAY INC.
BY BY
-------------------------- --------------------------
Vasant M. Prabhu Melissa C. Plaisance
Executive Vice President & Senior Vice President -
Chief Financial Officer Finance and Investor Relations
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the 3.625%
Notes due November 5, 2003
described in the
within-mentioned
Indenture.
THE BANK OF NEW YORK
BY
--------------------------
AUTHORIZED SIGNATORY
SAFEWAY INC.
3.625% Note Due 2003
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of September 10,
1997, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The Bank of New York, as Trustee (the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, originally issued
in $400,000,000 aggregate principal amount, subject to increase in accordance
with the Indenture (herein called the "Securities"). All terms used but not
defined in this Security shall have the meanings assigned to them in the
Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay principal of and interest on this Security
at the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by the Officers' Certificate dated November 5,
2001 delivered pursuant thereto and the TIA. The Securities are subject to all
such terms, and the Securityholders are referred to the Indenture and said Act
for a statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund and the Securities
are not subject to redemption or repurchase by the Company at the option of the
Holders.
4. Redemption.
The Securities are not subject to redemption prior to maturity.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer, or the exchange for an equal principal
amount, of this Security is registrable with the Registrar upon surrender of
this Security for registration of transfer at the office or agency of the
Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder in whose name this Security is registered as the owner thereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
1
The Trustee and any Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Securityholders. Subject to certain limitations described in the
Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on any of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared (or, in certain cases, shall ipso facto become)
due and payable in the manner and with the effect provided in the Indenture.
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding,
judicial or otherwise, with respect to the Indenture or for the appointment of a
receiver or trustee, or for any other remedy under the Indenture, unless such
Holder shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities and unless also the Holders of
at least a majority in principal amount of the Securities at the time
outstanding shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceedings as trustee, and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities at the time outstanding a direction inconsistent with such request,
and shall have failed to institute such proceeding, within 60 days. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of the principal hereof or any interest
hereon on or after the respective due dates expressed herein.
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13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture
and the Securities.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
| |
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
_______________________________________________________________________________
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Security in every particular, without
alteration or enlargement or any change
whatsoever.