<PAGE> 1
As filed with the Securities and Exchange Commission on January 20, 1998
Registration No. 333-41793
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
Under
the Securities Act of 1933
ALBERTSON'S, INC.
(Exact name of Registrant as specified in its charter)
Delaware 82-0184434
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 Parkcenter Boulevard
P.O. Box 20
Boise, Idaho 83726
(208) 395-6200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Thomas R. Saldin, Esq.
Executive Vice President, Administration
and General Counsel
Albertson's, Inc.
250 Parkcenter Boulevard
P.O. Box 20
Boise, Idaho 83726
(208) 395-6200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. / X /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ----------------- ----------------- ----------------- --------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of
Securities Registered (1) Per Unit (2) Price (2) Registration Fee
to be Registered
- ----------------------- ----------------- ----------------- ----------------- --------------------
<S> <C> <C> <C> <C>
Debt Securities (3) $500,000,000 100% $500,000,000 $118,000
======================= ================= ================= ================= ====================
</TABLE>
(1) Or, in the case of Debt Securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate offering
price of the amount set forth above.
(2) Exclusive of accrued interest, if any. These figures are estimates made
solely for the purpose of computing the amount of registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(3) Pursuant to Rule 429, Debt Securities having an aggregate initial offering
price of $100,000,000 are being carried forward from Registration
Statement No. 333-2837. A filing fee in the amount of $34,483 associated
with such Debt Securities was previously paid with Registration Statement
No. 333-2837.
----------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to Section 8(a) may
determine.
Pursuant to Rule 429, the prospectus herein also relates to an amount of
Debt Securities having an aggregate initial offering price of $100,000,000 that
have not been sold under Registration Statement No. 333-2837.
<PAGE> 3
SUBJECT TO COMPLETION, DATED JANUARY __, 1998
[LOGO]
Albertson's, Inc.
Debt Securities
Albertson's, Inc. (the "Company") may from time to time offer debt
securities consisting of debentures, notes and/or other unsecured evidences of
indebtedness ("Debt Securities") in one or more series with an aggregate initial
offering price not to exceed $500,000,000. The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the time
of sale. The accompanying Prospectus Supplement sets forth with regard to the
series of Debt Securities in respect of which this Prospectus is being delivered
the title, aggregate principal amount, denominations, maturity, interest rate,
if any (which may be fixed or variable), and time of payment of any interest,
any terms for redemption at the option of the Company or the holder, any terms
for sinking fund payments, any listing on a securities exchange and the initial
public offering price and any other terms in connection with the offering and
sale of such Debt Securities.
The Company may sell Debt Securities to or through underwriters and may
also sell Debt Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Debt Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters, and the compensation, if any, of such underwriters or agents.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED
TO CONSUMMATE ANY SALE OF
DEBT SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT.
-------------------
The date of this Prospectus is January __, 1998
<PAGE> 4
AVAILABLE INFORMATION
Albertson's, Inc. ("Albertson's" or the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information filed
by the Company may be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices located
at Seven World Trade Center, 13th Floor, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials
can be obtained by mail from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, such material may also be inspected and copied at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and the
Pacific Exchange, Incorporated, 301 Pine Street, San Francisco, California
94104. In addition, the Commission maintains a World Wide Web site on the
Internet at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants, such as the Company,
that file electronically with the Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits thereto, referred to as
the "Registration Statement") with respect to the Debt Securities offered hereby
under the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby made
to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended January 30,
1997; Quarterly Report on Form 10-Q for the 13 weeks ended May 1, 1997;
Quarterly Report on Form 10-Q for the 26 weeks ended July 31, 1997; and
Quarterly Report on Form 10-Q for the 39 weeks ended October 30, 1997, each as
filed with the Commission pursuant to the Exchange Act, are incorporated herein
by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents which are incorporated herein by reference,
other than exhibits to such information (unless such exhibits are specifically
incorporated by reference into such documents). Requests
<PAGE> 5
should be directed to Albertson's, Inc., 250 Parkcenter Boulevard, Boise, Idaho
83706 or P.O. Box 20, Boise, Idaho 83726, Attention: Corporate Secretary,
telephone (208) 395-6200.
THE COMPANY
Albertson's is one of the largest retail food-drug chains in the United
States based on sales. As of October 30, 1997, the Company operated 857 stores
in 20 Western, Midwestern and Southern states and employed approximately 90,000
people. The Company's retail operations are supported by 11 Company-owned
distribution centers.
All of the Company's stores carry a broad range of national brands and
offer private label items when they are a value to the consumer. The Company
emphasizes everyday low prices, large up-to-date facilities, first-class
perishable and specialty departments, cleanliness and customer service.
The Company operates three basic store formats:
Combination food-drug stores -- Combination stores are super grocery/super
drugstores under one roof. Most offer prescription drugs as well as an
expanded selection of cosmetics and non-foods in addition to specialty
departments such as service seafood and meat, bakery, lobby/video, service
delicatessen and floral. As of October 30, 1997, the Company operated 746
combination food-drug stores. These stores range in size from 35,000 to
75,000 square feet and account for approximately 91% of the Company's total
retail square footage.
Conventional supermarkets -- Conventional supermarkets are supermarkets
that offer a full selection in the basic departments of grocery, meat,
produce, dairy and limited non-food lines. Many also have in-store bakeries
and service delicatessens. As of October 30, 1997, the Company operated 72
conventional supermarkets. These stores range in size from 15,000 to 35,000
square feet and account for approximately 5% of the Company's total retail
square footage.
Warehouse stores -- Warehouse stores are no-frills stores that offer
shoppers the opportunity to save by buying in quantity. Special emphasis is
placed on quality meat and produce at discount prices. As of October 30,
1997, the Company operated 39 warehouse stores primarily under the name
"Max Food and Drug." These stores range in size from 17,000 to 73,000
square feet and account for approximately 4% of the Company's total retail
square footage.
The Company is committed to maintaining a modern store base, with an
emphasis on larger stores. All existing stores are continually evaluated, with
marginal performers closed and either leased, subleased or sold. As of October
30, 1997, approximately 96% of the Company's total retail square footage had
been opened or remodeled in the prior ten years. The Company currently operates
over 7 million square feet of distribution facilities that supply approximately
77% of all products purchased by the Company's retail stores.
Albertson's is a Delaware corporation organized as a successor to a
business founded by J. A. Albertson in 1939. Albertson's principal executive
offices are located at 250 Parkcenter Boulevard, Boise, Idaho 83706, and its
telephone number is (208) 395-6200.
<PAGE> 6
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes, which may include the payment of outstanding
indebtedness, the financing of capital expenditures and acquisitions and the
purchase and retirement of the Company's common stock. When a particular series
of debt securities is offered, the Prospectus Supplement relating thereto will
set forth the Company's intended use for the net proceeds received from the sale
of such Debt Securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated. Earnings consist of earnings from continuing operations
before income taxes and fixed charges (excluding interest capitalized). Fixed
charges consist of interest and the portion of rental expense deemed
representative of the interest factor.
<TABLE>
<CAPTION>
<C> <C> <C> <C> <C> <C> <C>
52 Weeks 53 Weeks 52 Weeks 52 Weeks 52 Weeks 39 Weeks 39 Weeks
Ended Ended Ended Ended Ended Ended Oct. Ended Oct.
Jan. 28, Feb. 3, Feb. 2, Feb. 1, Jan. 30, 31, 1996 30, 1997
1993 1994 1995 1996 1997
<S> ----------- ------------ ------------- ------------ ------------ ------------ ------------
Ratio of Earnings
to Fixed Charges 6.19 6.96 7.45 8.16 7.77 7.50 6.40
</TABLE>
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
accompanying Prospectus Supplement may relate. The particular terms and
provisions of the series of Debt Securities offered by an accompanying
Prospectus Supplement, and the extent to which the general terms and
provisions described below may apply thereto, will be described in the
accompanying Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be issued under an Indenture, dated as of May 1,
1992 (the "Indenture"), between the Company and First Trust of New York, N.A.,
as Trustee (the "Trustee", as successor in interest to the corporate trust
business of Morgan Guaranty Trust Company of New York), a copy of which is
filed as an exhibit to this Registration Statement. The following summaries of
certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by, reference to all of the
provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular provisions or defined terms of the Indenture are
referred to herein or in a Prospectus Supplement, such provisions or defined
terms are incorporated herein or therein by reference. Section and Article
references used herein are references to the Indenture.
General
The Debt Securities will be senior unsecured general obligations of the
Company that will rank on a parity with other senior unsecured indebtedness of
the Company from time to time outstanding. The Debt Securities offered by this
Prospectus will be limited to $500,000,000 aggregate principal amount (based
on the aggregate initial public offering price of such Debt Securities),
although the Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder. The Debt Securities may be issued
thereunder from time to time in separate series up to the aggregate amount
from time to time authorized by the Company for each series.
<PAGE> 7
Reference is made to the applicable Prospectus Supplement for a
description of the following terms of the series of Debt Securities ("Offered
Securities") in respect of which this Prospectus is being delivered: (1) the
title of the Offered Securities; (2) any limit on the aggregate principal
amount of the Offered Securities; (3) the person to whom any interest on any
Offered Security shall be payable, if other than the person in whose name the
Offered Security is registered on the Regular Record Date; (4) the date or
dates on which the Offered Securities will mature; (5) the rate or rates at
which the Offered Securities will bear interest, if any, or the method by
which such rate or rates are determined, the date or dates from which any
interest will accrue, the Interest Payment Dates on which any such interest on
the Offered Securities will be payable, and the Regular Record Dates for
interest payable on any such Interest Payment Dates; (6) the place or places
where the principal of and any premium and interest on the Offered Securities
will be payable; (7) the period or periods within which, the price or prices
at which, and the terms and conditions upon which the Offered Securities may,
pursuant to any optional or mandatory provisions, be redeemed or purchased, in
whole or in part, by the Company; (8) the obligation of the Company, if any,
to redeem or repurchase the Offered Securities pursuant to any sinking fund or
analogous provisions or at the option of the Holders and the price or prices
at which and the terms and conditions upon which such Offered Securities shall
be redeemed or purchased, in whole or in part, and any provisions for the
remarketing of such Offered Securities; (9) the denominations in which any
Offered Securities will be issuable, if other than denominations of $1,000 and
any integral multiple thereof; (10) any index, formula or other method used to
determine the amount of payments of principal of and any premium and interest
on the Offered Securities; (11) if other than the principal amount thereof,
the portion of the principal amount of the Offered Securities which will be
payable upon declaration of the acceleration of the Maturity thereof; (12) the
applicability of any provisions described under "Certain Covenants of the
Company"; (13) the applicability of any provisions described under "Defeasance
and Covenant Defeasance"; (14) whether any of the Offered Securities are to be
issuable in permanent global form, and, if so, the terms and conditions, if
any, upon which interests in such Offered Securities in global form may be
exchanged, in whole or in part, for the individual Offered Securities
represented thereby; (15) any Events of Default with respect to the Offered
Securities of such series, if not otherwise set forth under "Events of
Default"; and (16) any other terms of the Offered Securities not inconsistent
with the provisions of the Indenture. (Section 301)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount below
their stated principal amount. (Section 301) Federal income tax consequences
and other special considerations applicable to any such Original Issue
Discount Securities will be described in the Prospectus Supplement relating
thereto. "Original Issue Discount Security" means any security that provides
for an amount less than the principal amount thereof to be due and payable
upon the declaration of acceleration of the Maturity thereof upon the
occurrence of an Event of Default and the continuation thereof. (Section 101)
Exchange, Registration, Transfer and Payment
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of principal, premium, if any, and interest, if any, on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registerable, at the office or agency of the Company
maintained for such purpose and at any other office or agency maintained for
such purpose. (Sections 305 and 1002) Unless otherwise indicated in the
applicable Prospectus Supplement, the Debt Securities will be issued in
denominations of $1,000 or integral multiples thereof. (Section 302) No
service charge will be made for any registration of transfer or
<PAGE> 8
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in
connection therewith. (Section 305)
All moneys paid by the Company to a Paying Agent for the payment of
principal, premium, if any, or interest, if any, on any Debt Security which
remain unclaimed for two years after such principal, premium or interest has
become due and payable may be repaid to the Company, and thereafter the
Holder of such Debt Security may look only to the Company for payment
thereof. (Section 1003)
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Debt Securities of that series to
be redeemed and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Debt Security, or portion
thereof, called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 305)
Book-Entry System
The provisions set forth below in this section headed "Book-Entry System"
will apply to the Debt Securities of any series if the Prospectus Supplement
relating to such series so indicates.
The Debt Securities of such series will be represented by one or more
global securities (collectively, a "Global Security") registered in the name
of a depositary (the "Depositary") or a nominee of the Depositary identified
in the Prospectus Supplement relating to such series. Except as set forth
below, a Global Security may be transferred, in whole and not in part, only
to the Depositary or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial interests in a
Global Security will be limited to participants or persons that may hold
interests through participants. Ownership of interests in such Global
Security will be shown on, and the transfer of those ownership interests will
be effected only through, records maintained by the Depositary (with respect
to participants' interests) and such participants (with respect to the owners
of beneficial interests in such Global Security). The laws of some
jurisdictions may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder and
owner of such Global Security, the Depositary or such nominee, as the case
may be, will be considered the sole owner and holder of the related Debt
Securities for all purposes of such Debt Securities and for all purposes
under the Indenture. Except as set forth below or as otherwise provided in
the applicable Prospectus Supplement, owners of beneficial interests in a
Global Security will not be entitled to have the Debt Securities represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities in definitive form
and will not be considered to be the owners or holders of any Debt Securities
under the Indenture or such Global Security. (Section 305)
<PAGE> 9
Accordingly, each person owning a beneficial interest in a Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder of Debt Securities
under the Indenture or such Global Security. The Company understands that
under existing industry practice, in the event the Company requests any
action of holders of Debt Securities or an owner of a beneficial interest in
a Global Security desires to take any action that the Depositary, as the
holder of such Global Security, is entitled to take, the Depositary would
authorize the participants to take such action, and that the participants
would authorize beneficial owners owning through such participants to take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner and holder of such
Global Security.
The Company expects that the Depositary, upon receipt of any payment of
principal, premium, if any, or interest, if any, in respect of a Global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of the
Depositary. The Company expects that payments by participants to owners of
beneficial interests in a Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
participants. Neither the Company nor the Trustee nor any agent of the
Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests in a Global Security for any Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between the
Depositary and its participants or the relationship between such participants
and the owners of beneficial interests in such Global Security owning through
such participants.
Unless and until it is exchanged in whole or in part for Debt Securities
in definitive form, a Global Security may not be transferred except as a
whole by the Depositary to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary.
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities represented by a Global Security will be exchangeable for Debt
Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral
multiple thereof if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if
at any time the Depositary ceases to be a clearing agency registered under
the Exchange Act, (ii) the Company in its discretion at any time determines
not to have all of the Debt Securities represented by a Global Security and
notifies the Trustee thereof or (iii) an Event of Default has occurred and is
continuing with respect to the Debt Securities. (Section 305) Any Debt
Security that is exchangeable pursuant to the preceding sentence is
exchangeable for Debt Securities issuable in authorized denominations and
registered in such names as the Depositary shall direct. Subject to the
foregoing, a Global Security is not exchangeable, except for a Global
Security or Global Securities of the same aggregate denominations to be
registered in the name of the Depositary or its nominee.
<PAGE> 10
Certain Covenants of the Company
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will not have the benefit of any covenants that limit or
restrict the Company's business or operations, the pledging of the Company's
assets or the incurrence of indebtedness by the Company. If so indicated in
the applicable Prospectus Supplement, certain covenants contained in the
Indenture which are summarized below will be applicable (unless waived or
amended) to the series of Debt Securities to which such Prospectus Supplement
relates so long as any of the Debt Securities of such series are outstanding.
The covenants contained in the Indenture and any series of Debt Securities
would not necessarily afford holders of the Debt Securities protection in the
event of a highly leveraged or other transaction involving the Company that
may adversely affect holders.
Limitations on Liens
If the Company or any Subsidiary shall, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become liable for or suffer to
exist any evidence of indebtedness for money borrowed or evidenced by a bond,
debenture, note or other similar instrument, whether or not for money
borrowed ("Debt"), secured by a Lien on (1) any Principal Property of the
Company or of any Subsidiary or (2) any shares of capital stock or Debt of
any Subsidiary (which Debt is then held by the Company or any Subsidiary),
the Company will secure or cause such Subsidiary to secure the Debt
Securities of any series entitled to the benefit of such covenant equally and
ratably with such secured Debt for so long as such secured Debt shall be so
secured, unless the aggregate amount of all such secured Debt, together with
all Attributable Debt of the Company and its Subsidiaries with respect to
Sale and Leaseback Transactions involving Principal Properties (with the
exception of such transactions that are excluded as described in "Limitations
on Sale and Leaseback Transactions" below), would not exceed 10% of
Consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be excluded from
secured Debt in any computation under such restriction, Debt secured by (i)
Liens on property of, or on any shares of capital stock of or Debt of, any
corporation existing at the date of the Indenture or at the time such
corporation becomes a Subsidiary; (ii) Liens in favor of the Company or any
Wholly-owned Subsidiary; (iii) Liens in favor of governmental bodies to
secure progress, advance or certain other payments; (iv) (A) if made in the
ordinary course of business, Liens as security for the performance of
contracts other than in connection with the borrowing of money, deferred
purchase price of property or services, an advance of moneys or the securing
of Debt, (B) Liens with governmental agencies to qualify the Company or any
Subsidiary to do business, maintain self-insurance or obtain certain other
benefits, (C) mechanics' Liens, landlord Liens or statutory Liens securing
obligations incurred in the ordinary course of business not overdue or being
contested in good faith by appropriate proceedings and not incurred directly
or indirectly in connection with the borrowing of money, the deferred
purchase price of property or services or an advance of moneys, or (D)
easements, exceptions, reservations or similar encumbrances on real property
that do not materially interfere with the operation of such property or
impair the value of such property for the purposes for which such property is
or may reasonably be expected to be used by the Company or its Subsidiaries;
(v) Liens for taxes, assessments or governmental charges or levies not yet
due and payable or payable without penalty or being contested in good faith
by appropriate proceedings; (vi) Liens created by or resulting from any
litigation or legal proceeding that is being contested in good faith by
appropriate proceedings, Liens arising out of judgments or awards as to which
the time for prosecuting an appeal or proceeding for review has not expired,
or Liens arising out of individual final judgments or awards in amounts of
less than $100,000, provided that the aggregate amount of all such individual
<PAGE> 11
final judgments or awards shall not at any one time exceed $1,000,000; (vii)
Liens on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation),
and purchase money and construction Liens that are entered into within 360
days after the latest to occur of the acquisition, completion of construction
or the commencement of full operation of such property; (viii) Liens securing
industrial revenue or pollution control bonds; (ix) Liens created in
connection with a project financed with, and created to secure, a Nonrecourse
Obligation; and (x) any extension, renewal or refunding of any Lien referred
to in the foregoing clauses (i) through (ix), inclusive, to the extent the
amount of Debt secured by such Lien is not increased from the amount
originally so secured. (Section 1008)
Limitations on Sale and Leaseback Transactions
Neither the Company nor any Subsidiary may enter into any Sale and
Leaseback Transaction involving any Principal Property, unless the aggregate
amount of all Attributable Debt of the Company and its Subsidiaries with
respect to all such transactions plus all secured Debt (with the exception of
secured Debt which is excluded as described in "Limitations on Liens" above)
would not exceed 10% of Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any Sale and
Leaseback Transaction if (i) the lease is for a period, including renewal
rights, not in excess of three years; (ii) the sale or transfer of the
Principal Property is made within 180 days after the latest to occur of the
acquisition, construction or the commencement of full operation of such
property; (iii) the lease secures or relates to industrial revenue or
pollution control bonds; (iv) the transaction is between the Company and a
Wholly-owned Subsidiary or between Wholly-owned Subsidiaries; (v) the lease
payment obligation is created in connection with a project financed with, and
such obligation constitutes, a Nonrecourse Obligation; or (vi) the Company or
such Subsidiary, within 180 days after the sale is completed, applies to the
retirement of Funded Debt of the Company (other than Funded Debt subordinate
to the Debt Securities) or of any Subsidiary (other than through payment at
maturity or a mandatory sinking fund or other mandatory prepayment) or to the
purchase of other property which will constitute Principal Property of a
value at least equal to the value of the Principal Property leased, an amount
not less than the greater of (a) the net proceeds from the sale of the
Principal Property leased or (b) the fair market value of the Principal
Property leased. (Section 1009)
Certain Definitions Applicable to Covenants
Certain terms defined in Section 101 of the Indenture and applicable to
the covenants are summarized below:
"Attributable Debt" means, as to any particular lease under which the
Company or any Subsidiary is at the time liable and at any date as of which
the amount thereof is to be determined, the total net amount of rent required
to be paid under such lease during the remaining term thereof (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to
such date at a rate per annum equal to the weighted average interest rate per
annum borne by the Debt Securities of each series outstanding pursuant to the
Indenture compounded semi-annually. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount
of the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges. In the case of any lease
<PAGE> 12
which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Capital Lease Obligations" means any rental obligations which, under
generally accepted accounting principles, are or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the
amount thereof accounted for as indebtedness (net of interest expense) in
accordance with such principles.
"Consolidated Net Tangible Assets" means the net book value of all assets
of the Company and its consolidated Subsidiaries, excluding any amounts
carried as assets for shares of capital stock held in treasury, debt discount
and expense, goodwill, patents, trademarks and other intangible assets, less
all liabilities of the Company and its consolidated Subsidiaries (except
Funded Debt, minority interests in consolidated Subsidiaries, deferred taxes
and general contingency reserves of the Company and its consolidated
Subsidiaries), which in each case would be included on a consolidated balance
sheet of the Company and its consolidated Subsidiaries as of the date of
determination, all as determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Funded Debt" means (a) all indebtedness of the Company and its
Subsidiaries for money borrowed, or evidenced by a bond, debenture, note or
other similar instrument, whether or not for money borrowed, maturing on, or
renewable or extendible at the option of the obligor to, a date more than one
year from the date of the determination thereof (but not including
indebtedness under any revolving credit arrangement with banks except for any
indebtedness converted pursuant to any such arrangement into a term loan
which meets the requirements of this clause (a)), (b) Capital Lease
Obligations payable on a date more than one year from the date of the
determination thereof, (c) guarantees, direct or indirect, and other
contingent obligations of the Company and its Subsidiaries in respect of, or
to purchase or otherwise acquire or be responsible or liable for (through the
investment of funds or otherwise), any obligations of the type described in
the foregoing clauses (a) or (b) of others (but not including contingent
liabilities on customers' receivables sold with recourse), and (d)
amendments, renewals, extensions and refundings of any obligations of the
type described in the foregoing clauses (a), (b) or (c).
"Lien" means any mortgage, pledge, 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 of the foregoing).
"Nonrecourse Obligation" means indebtedness or lease payment obligations
substantially related to (i) the acquisition of assets not previously owned
by the Company or any Subsidiary or (ii) the financing of a project involving
the development or expansion of properties of the Company or any Subsidiary,
as to which the obligee with respect to such indebtedness or obligation has
no recourse to the Company or any Subsidiary or any assets of the Company or
any Subsidiary other than the assets which were acquired with the proceeds of
such transaction or the project financed with the proceeds of such
transaction (and the proceeds thereof).
"Principal Property" means (a) any real property (including, without
limitation, leasehold interests) together with the improvements thereon and
the equipment, if any, constituting a part of the facility located thereon
(including, without limitation, any warehouse, service center, shopping
center or distribution center, wherever located) and (b) other equipment, in
each case, of the Company or any Subsidiary and having a book value on the
<PAGE> 13
date as of which the determination is being made of more than 1% of
Consolidated Net Tangible Assets as most recently determined prior to such
date; provided, however, that for purposes of clause (a) above, separate
parcels of real property which are operated generally as part of a single
facility (such as a single warehouse, service center, shopping center or
distribution center) shall be deemed to be a single property, and for
purposes of clause (b) above, separate items of equipment that are secured by
Liens shall be deemed to be a single property to the extent they are secured
by such Liens pursuant to the same financing transaction or a series of
related financing transactions.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
Events of Default
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series (unless such
event is specifically inapplicable to a particular series as described in the
Prospectus Supplement relating thereto): (a) failure to pay any interest on
any Debt Security of that series when due, continued for 30 days; (b) failure
to pay principal of or any premium on any Debt Security of that series when
due; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of that series; (d) failure to perform any other covenant
of the Company in the Indenture (other than a covenant included in the
Indenture solely for the benefit of a series of Debt Securities other than
that series), continued for 60 days after written notice as provided in the
Indenture; (e) default under indebtedness for money borrowed of the Company
or any Significant Subsidiary (as defined) having an aggregate outstanding
principal amount of at least $25,000,000 or under any mortgage, indenture or
other instrument under which there may be issued or by which there may be
secured or evidenced any such indebtedness of the Company or any Significant
Subsidiary, which default either (i) shall constitute a failure to make a
principal payment of at least $25,000,000 when due and payable after the
expiration of any applicable grace period with respect thereto or (ii) shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without, in either case, such indebtedness having been discharged or such
default rescinded or annulled within 10 days after notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 10%
in aggregate principal amount of the Outstanding Debt Securities of that
series specifying such default and requiring the Company or such Significant
Subsidiary to cause such indebtedness to be discharged or such acceleration
to be rescinded or annulled; (f) certain events of bankruptcy, insolvency or
reorganization involving the Company or a Significant Subsidiary; and (g) any
other Event of Default provided with respect to Debt Securities of that
series. (Section 501) No Event of Default described above with respect to a
particular series of Debt Securities necessarily constitutes an Event of
Default with respect to any other series of Debt Securities.
<PAGE> 14
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default (as defined) shall occur and be
continuing, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of
the Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity. (Sections 601 and 603) Subject to certain provisions,
including those requiring security and indemnification of the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. (Section 512)
The Indenture provides that the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, an Officers' Certificate,
stating as to each signer thereof that he is familiar with the affairs of the
Company and whether or not to the best of his knowledge the Company is in
default in the performance and observance of any of the Company's obligations
under the Indenture and if the Company shall be in default, specifying all
such defaults of which he has knowledge and the nature and status thereof.
(Section 1004)
If an Event of Default shall occur and be continuing with respect to Debt
Securities of any series, either the Trustee or the Holders of at least 25%
in aggregate principal amount of all Outstanding Debt Securities of that
series may accelerate the maturity of all Debt Securities of that series;
provided, however, that after such acceleration, but before a judgment or
decree based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal, have been cured
or waived as provided in the Indenture. (Section 502) For information as to
waiver of defaults, see "Meetings, Modifications and Waiver" below.
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless also the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
a direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days. (Section 507) However, such limitations
generally do not apply to a suit instituted by a Holder of a Debt Security
for the enforcement of payment of the principal or interest on such Security
on or after the respective due dates expressed in such Debt Security.
(Section 508)
Meetings, Modifications and Waiver
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than 66 2/3% in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on any Debt
Security, (b) reduce the principal amount of, rate of interest on or any
premium payable upon the redemption of any Debt Security, (c) reduce the
amount of principal of an Original Issue Discount Security payable upon
acceleration of the Maturity thereof, (d) change the Place of Payment where,
or the coin or currency in which, principal, premium, if any, or interest on
any Debt Security is payable, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
Stated Maturity or Redemption Date, (f) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver
<PAGE> 15
of certain defaults, or (g) modify any of the provisions set forth in this
paragraph except to increase any such percentage or to provide that certain
other provisions of the Indenture may not be modified or waived without the
consent of the Holder of each Outstanding Debt Security affected thereby.
(Section 902)
The Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of
all the Debt Securities of that series, waive, insofar as that series is
concerned, compliance by the Company with certain restrictive provisions of
the Indenture. (Section 1010) The Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
may, on behalf of all Holders of Securities of that series, waive any past
default under the Indenture with respect to Securities of that series, except
a default (a) in the payment of principal of, any premium on or any interest
on any Debt Security of such series or (b) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected thereby. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof. (Section 101)
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under the Indenture, may consolidate with or merge into, or
transfer or lease its assets substantially as an entirety to, any Person
which is a corporation, partnership or trust organized and validly existing
under the laws of any domestic jurisdiction, or may permit any such Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, provided
that any successor Person assumes the Company's obligations on the Debt
Securities and under the Indenture, that after giving effect to the
transaction (treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction)
no Event of Default, and no event which, after notice or lapse of time, would
become an Event of Default, shall have occurred and be continuing, and that
certain other conditions are met. (Section 801)
Defeasance and Covenant Defeasance
The Indenture provides that, if such provision is made applicable to the
Debt Securities of any series pursuant to the provisions of the Indenture,
the Company may elect (i) to defease and be discharged from any and all
obligations in respect of such Debt Securities except for certain obligations
to register the transfer or exchange of such Debt Securities, to replace
temporary, destroyed, stolen, lost or mutilated Debt Securities, to maintain
paying agencies and to hold moneys for payment in trust ("defeasance") or
(ii) (A) to omit to comply with certain restrictive covenants in Sections
1005 through 1009 (including the covenants referred to above under "Certain
Covenants of the Company") and (B) to deem the occurrence of any event
referred to in clauses (d) (with respect to Sections 1005 through 1009
inclusive), (e) and (g) under "Events of Default" above not to be or result
in an Event of Default if, in each case with respect to the Outstanding Debt
Securities of such series as provided in Section 1303 on or after the date
<PAGE> 16
the conditions set forth in Section 1304 are satisfied ("covenant
defeasance"), in either case upon the deposit with the Trustee (or other
qualifying trustee), in trust, of money and/or U.S. Government Obligations,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of and any premium and interest on the Debt Securities of such
series on the respective Stated Maturities and any mandatory sinking fund
payments or analogous payments on the days payable, in accordance with the
terms of the Indenture and the Debt Securities of such series. Such a trust
may only be established if, among other things, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Debt Securities of such series will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance or
covenant defeasance and will be subject to Federal income tax on the same
amount, and in the same manner and at the same times as would have been the
case if such deposit, defeasance or covenant defeasance had not occurred.
Such opinion, in the case of defeasance under clause (i) above, must refer to
and be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of the Indenture.
The Prospectus Supplement relating to a series may further describe the
provisions, if any, permitting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series. (Article Thirteen)
In the event the Company omits to comply with certain covenants of the
Indenture with respect to the Debt Securities of any series as described
above, and the Debt Securities of such series are declared due and payable
because of the occurrence of an Event of Default, the amount of money and
U.S. Government Obligations on deposit with the Trustee will be sufficient to
pay amounts due on the Debt Securities of such series at the time of their
Stated Maturity but may not be sufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
Event of Default. The Company shall, however, remain liable for such
payments.
Notices
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they appear in the Debt Security Register.
(Sections 101 and 106)
Replacement of Securities
Any mutilated Debt Security will be replaced by the Company at the expense
of the Holder upon surrender of such Debt Security to the Trustee. Debt
Securities that become destroyed, stolen or lost will be replaced by the
Company at the expense of the Holder upon delivery to the Trustee of the Debt
Security or evidence of the destruction, loss or theft thereof satisfactory
to the Company and the Trustee. In the case of a destroyed, lost or stolen
Debt Security an indemnity satisfactory to the Trustee and the Company may be
required at the expense of the Holder of such Debt Security before a
replacement Debt Security will be issued. (Section 306)
Governing Law
The Indenture and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 112)
Regarding the Trustee
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
<PAGE> 17
certain cases or to realize for its own account on certain property received
in respect of any such claim as security or otherwise. (Section 613) The
Trustee will be permitted to engage in certain other transactions; however,
if it acquires any conflicting interest and there is a default under the Debt
Securities of any series for which the Trustee serves as trustee, the Trustee
must eliminate such conflict or resign. (Section 608) The Trustee currently
provides certain banking and financial services to the Company in the
ordinary course of business and may provide such services in the future.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, and also
may sell Debt Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters
or agents involved in the sale of the Debt Securities in respect of which
this Prospectus is being delivered, the principal amounts, if any, to be
purchased by underwriters, and the compensation, if any, of such underwriters
or agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of Debt Securities may be deemed to be
underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of Debt Securities by them may be deemed
to be underwriting discounts and commissions under the Securities Act. Any
such underwriter or agent will be identified, and any such compensation
received from the Company will be described, in the applicable Prospectus
Supplement.
Under agreements which may be entered into by the Company, underwriters
and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Debt Securities from the
Company pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Certain of the underwriters who participate in the distribution of Debt
Securities and their affiliates may perform various commercial banking and
investment banking services for the Company from time to time in the ordinary
course of business.
<PAGE> 18
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the applicable Prospectus
Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be a new issue of securities, will not have an
established trading market when issued and will not be listed on any
securities exchange. Any underwriters or agents to or through whom Debt
Securities are sold by the Company for public offering and sale may make a
market in such Debt Securities, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market
for any Debt Securities.
LEGAL MATTERS
Certain legal matters relating to the validity of the Debt Securities
offered hereby will be passed upon for the Company by Thomas R. Saldin, Esq.,
Executive Vice President, Administration and General Counsel of the Company.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in its Annual Report on Form 10-K for the year ended January 30,
1997, which is incorporated by reference herein, have been audited by
Deloitte & Touche LLP, independent auditors, as indicated in their report
with respect thereto, and have been so incorporated by reference herein in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
<PAGE> II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth expenses in connection with the issuance
and distribution of the securities registered, other than the underwriting
discount and commissions. All of the amounts shown are estimates, except the
registration fee.
Registration fee $118,000
Accounting fees and expenses 30,000
Legal fees and expenses 30,000
Printing expenses 20,000
Blue Sky fees and expenses 20,000
Trustee's fees and expenses 25,000
Rating agency fees 50,000
Miscellaneous expenses 7,000
-------
$300,000
Item 15. Indemnification of Directors and Officers.
The Registrant's By-Laws provide that each person who was or is made a
party to, or is involved in, any action, suit or proceeding by reason of the
fact that he or she was a director or officer of the Registrant (or was serving
at the request of the Registrant as a director, officer, employee or agent for
another entity) will be indemnified and held harmless by the Registrant, to the
fullest extent authorized by the Delaware General Corporation Law.
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended ("GCL"), which provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation), by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at its request in such capacity of another corporation or business
organization against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of a corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify the officer or director
against the expenses that such officer or director actually and reasonably
incurred.
The Registrant's Restated Certificate of Incorporation provides that, to
the fullest extent permitted by the GCL as the same exists or may hereafter be
amended, a director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director. The GCL permits Delaware corporations to include in their certificates
<PAGE> II-2
of incorporation a provision eliminating or limiting personal liability of
directors of a corporation for monetary damages arising from breaches of
fiduciary duty. The only limitations imposed under the statute are that the
provision may not eliminate or limit such personal liability (i) for breaches of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law, (iii) for the payment of unlawful dividends or
unlawful stock purchases or redemptions or (iv) for transactions in which the
director received an improper personal benefit.
The Registrant is insured against liabilities that it may incur by reason
of its indemnification of officers and directors in accordance with its By-Laws.
In addition, directors and officers are insured, at the Registrant's expense,
against certain liabilities which might arise out of their directorship or
employment, respectively, and not subject to indemnification under the By-Laws.
The foregoing summaries are necessarily subject to the complete text of
the statute, Restated Certificate of Incorporation, By-Laws and agreements
referred to above and are qualified in their entirety by reference thereto.
Reference is made to the Underwriting Agreement and the Distribution
Agreement included herein as exhibits to the Registration Statement for
provisions regarding indemnification of the Company's officers, directors and
controlling persons against certain liabilities, including liabilities under the
Securities Act of 1933.
Item 16. Exhibits.
Exhibit No. Description
1.1 Form of Debt Securities Underwriting Agreement.
1.2 Form of Medium-Term Distribution Agreement.
4.1 Indenture between the Company and First Trust of
New York, N.A. as Trustee as successor in
interest to the corporate trust business of
Morgan Guaranty Trust Company of New York
4.2 Form of Fixed Rate Note.
4.3 Form of Fixed Rate Medium-Term Note.
4.4 Form of Floating Rate Note.
4.5 Form of Floating Rate Medium-Term Note.
5.1 Opinion of Thomas R. Saldin, Esq.
12.1 Statement of Computation of Ratio of Earnings to
Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Thomas R. Saldin, Esq. (included in
Exhibit 5.1).
24.1 Powers of Attorney (See Page II-5).
25.1 Form T-l Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of First Trust of New York, N.A.
Item 17. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
<PAGE> II-3
(i) to include any prospectus required by Section l0(a)(3) of
the Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification of liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4. The undersigned Registrant hereby undertakes that:
(a) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(l) or (4) or
<PAGE> II-4
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
<PAGE> II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Boise, State of Idaho, on January 20, 1998.
ALBERTSON'S, INC.
By: /s/ A. Craig Olson
A. Craig Olson
Senior Vice President, Finance
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* Chairman of the Board, Chief January 20, 1998
------------------- Executive Officer and Director
Gary G. Michael (Principal Executive Officer)
* President and Chief Operating January 20, 1998
------------------- Officer
Richard L. King
* Chairman of the Executive January 20, 1998
------------------- Committee of the Board and
John B. Carley Director
/s/ A. Craig Olson Senior Vice President, Finance January 20, 1998
------------------- and Chief Financial Officer
A. Craig Olson (Principal Financial Officer)
* Group Vice President and Controller January 20, 1998
-------------------- (Principal Accounting Officer)
Richard J. Navarro
</TABLE>
<PAGE> II-6
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* Director January 20, 1998
--------------------
Kathryn Albertson
* Director January 20, 1998
--------------------
A. Gary Ames
* Director January 20, 1998
--------------------
Cecil D. Andrus
* Director January 20, 1998
--------------------
Paul I. Corddry
* Director January 20, 1998
--------------------
John B. Fery
* Director January 20, 1998
--------------------
Clark A. Johnson
* Director January 20, 1998
--------------------
Charles D. Lein
* Director January 20, 1998
--------------------
Warren E. McCain
* Director January 20, 1998
--------------------
Beatriz Rivera
* Director January 20, 1998
--------------------
J. B. Scott
* Director January 20, 1998
--------------------
Thomas L. Stevens, Jr.
* Director January 20, 1998
-------------------
Will M. Storey
* Director January 20, 1998
-------------------
Steven D. Symms
*BY: /s/ A. Craig Olson
------------------
A. Craig Olson, Attorney-in-Fact
</TABLE>
<PAGE>
EXHIBIT 1.1
ALBERTSON'S, INC.
DEBT SECURITIES
-------------
UNDERWRITING AGREEMENT
___________, 199_
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
From time to time Albertson's, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
<PAGE>
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission;
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto (except the Form T-1 (as
hereinafter defined)), the information contained in the form of prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
<PAGE>
under the Act to be part of the registration statement at the time it
became effective and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of
the registration statement became effective, each as amended at the time
such part of the registration statement became effective, being hereinafter
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) 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 Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; 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 Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
<PAGE>
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities or the information contained in the Statement of
Eligibility and Qualification of the Trustee under the Trust Indenture Act
filed as an exhibit to the Registration Statement (the "Form T-1");
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood, windstorm,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus;
<PAGE>
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in the
Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) None of the Company's subsidiaries is required pursuant to Item 601
of Regulation S-K to be listed in Exhibit 21 to the Registration Statement
or to the Company's Annual Report on Form 10-K for the most recent fiscal
year.
(h) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating
to or affecting creditors' rights generally and to general principles of
equity; and the Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a 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 material agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation,
<PAGE>
as amended, or By-laws, as amended, of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; and
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending 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 which are required to be disclosed in the
Prospectus, or which could reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company or (if so
specified in the Pricing Agreement) by wire transfer to an account designated by
the Company by written notice to the Representatives provided at least two
business days prior to the Time of Delivery for such Designated Securities, in
the funds specified in such Pricing Agreement, all at the place and time and
<PAGE>
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to
the applicable Designated Securities in a form reasonably approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b) or, if applicable, such
earlier time as may be required under Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the Registration Statement
or Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for
such Securities which shall be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
<PAGE>
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
ecessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
<PAGE>
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
Among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky Survey, any Legal Investment Survey and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities and Blue Sky laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee in
connection with any Indenture and the Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising and marketing expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
<PAGE>
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Wilson, Sonsini, Goodrich & Rosati, Professional Corporation,
counsel for the Underwriters, shall have furnished to the Representatives
such opinion or opinions, dated the Time of Delivery for such Designated
Securities, with respect to the incorporation of the Company, the validity
of the Indenture, the Designated Securities, the Registration Statement,
the Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Skadden, Arps, Slate, Meagher & Flom, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the the State of
Delaware, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in
the Prospectus as amended or supplemented; and 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 other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification and where the failure to be so qualified or in good
standing would have a material adverse effect on the operations or
financial condition of the Company and its subsidiaries, taken as a
whole;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
<PAGE>
pending 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 which are required to be disclosed in the Prospectus, or which
could reasonably be expected, individually or in the aggregate, to have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities are in the form contemplated by the
Indenture, have been duly authorized by the Company and, when executed
by the Company and authenticated by the Trustee in the manner provided
for in the Indenture and delivered against the purchase price therefor
specified herein and in the Pricing Agreement, will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery
by the Trustee) constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, moratorium
and other similar laws relating to or affecting creditors' rights
generally and to general principles of equity; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a 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 material agreement or instrument known to such
counsel to which the Company is a
<PAGE>
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, which conflict, breach or default
would singularly or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders'equity or results of
operations of the Company and its subsidiaries, nor will such actions
result in any violation of the provisions of the Restated Certificate
of Incorporation, as amended, or By-laws, as amended, of the Company
or any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties;
(viii) No consent, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by the
Underwriters;
(ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(x) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules therein, as
<PAGE>
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and Trust Indenture
Act and the rules and regulations thereunder; they have no reason to
believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) 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, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented
or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference as described as required;
(d) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to the Representatives
a letter,dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to
<PAGE>
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood, windstorm, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the respective dates
as of which information is given in the Prospectus as amended or
supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented, the effect of
which, in any such case described in clause (i) or (ii), is in the
reasonable judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in your reasonable judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
<PAGE>
Securities being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company reasonably
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any reasonable legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;and, provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of
<PAGE>
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference) in any case where such delivery is required under the Act if the
Company has previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement of a material fact contained in the Preliminary Prospectus which was
corrected in such Prospectus as then amended or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
<PAGE>
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits, but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether 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 on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) 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 which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
<PAGE>
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties
reasonably satisfactory to the Company to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
<PAGE>
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangement for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one- eleventh of the aggregate principal amount of Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
<PAGE>
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Corporate Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
<PAGE>
D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
ALBERTSON'S, INC.
By:
----------------------------
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: GOLDMAN, SACHS & CO.
---------------------------------
<PAGE>
ANNEX I
PRICING AGREEMENT
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
--------------, ----
Dear Sirs:
Albertson's, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ___________, 19__ (the "Underwriting Agreement"), between the
Company on the one hand and Goldman, Sachs & Co., J.P. Morgan Securities Inc.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representative designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers hereof.
Very truly yours,
ALBERTSON'S, INC.
By:
----------------------------
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BY: GOLDMAN, SACHS & CO.
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
<S> <C>
Goldman, Sachs & Co. ................... $
J.P. Morgan Securities Inc..............
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................
---------
Total ...... $
=========
</TABLE>
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any, from
to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any, from
to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
INDENTURE:
Indenture dated May 1, 1992, between the Company and First Trust of New
York, N.A., as Trustee and as successor in interest to the corporate trust
business of Morgan Guaranty Trust Company of New York
<PAGE>
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof.]
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
, % and if] redeemed during the 12-month period
beginning :
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling in or after , at the election of the
Company, at a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
<PAGE>
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued interest] [,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$] principal amount of Designated
Securities in the years through at 100% of their principal amount plus
accrued interest.
[If Securities are extendable debt Securities, insert--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the option
of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate will
be adjusted on , and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities as of
[insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If Securities are Floating Rate Debt Securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each , , and ] [to an annual rate of % above the
average rate for -year [month] [securities] [certificates of deposit]
issued by and [insert names of banks].] [and the annual interest rate
[thereafter] [ from through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of (i) then current
weekly average per annum secondary market yield for -month certificates of
deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
<PAGE>
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Address for Notices, etc.:
Designated Representative: Goldman, Sachs & Co.
[OTHER TERMS]*
- --------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk language) of the Securities should be set forth, or
referenced to an attached and accompanying description, if necessary to ensure
agreement as to the terms of the Securities to be purchased and sold. Such a
description might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective
financial statements and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, prospective financial
statements and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives").;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
<PAGE>
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form
10-Q and the related published rules and regulations thereunder or
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis for the
audited consolidated statements of earnings, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;
<PAGE>
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
net assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(v) In addition to the examination referred to in their
report(s) or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
<PAGE>
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
<PAGE>
Exhibit 1.2
ALBERTSON'S, INC.
$
MEDIUM-TERM NOTES
-------------
DISTRIBUTION AGREEMENT
, 199
-------------- --
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
J.P. MORGAN SECURITIES INC.
60 WALL STREET
NEW YORK, NEW YORK 10260
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1310
Dear Sirs:
Albertson's, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to the amount of debt securities registered under the
Registration Statement (as defined in Section 1(a) hereof) reduced by the
aggregate amount of debt securities so registered to be or that have been sold
otherwise than pursuant to this Agreement or any Terms Agreement (as defined
below) and agrees with each of you (individually, an "Agent", and collectively,
the "Agents") as set forth in this Agreement.
<PAGE>
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement,
which may take the form of an oral agreement confirmed in writing to the Company
by such Agent or a written agreement substantially in the form of Annex I hereto
(each a "Terms Agreement"), relating to such sale in accordance with Section
2(b) hereof.
The Securities will be issued under an indenture, dated as of May 1, 1992
(the "Indenture"), between the Company and First Trust of New York, N. A., as
successor in interest to the corporate trust business of Morgan Guaranty Trust
Company of New York, and Trustee (the "Trustee") under the Indenture. The
Securities shall have the maturity ranges, interest rates, if any, redemption
provisions and other terms set forth in the Prospectus referred to below as
it may be amended or supplemented from time to time. The Securities will be
issued, and the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 in respect of $500,000,000
aggregate principal amount of debt securities of the Company, including the
Securities, has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such
Agents, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, has
been declared effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
<PAGE>
effective but excluding the Form T-1 (as hereinafter defined) and, if
applicable, including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act,
each as amended at the time such part of the registration statement became
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus
that sets forth only the terms of a particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold pursuant to this
Agreement, in the form filed with the Commission pursuant to Rule 424(b)
under the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such filing).
(b) 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 Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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, 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
<PAGE>
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to state
a material fact required to be state therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendment or supplement to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Prospectus as amended or supplemented to relate to a particular
issuance of Securities or the information contained in the Statement of
Eligibility and Qualification of the Trustee under the Trust Indenture Act
filed as an exhibit to the Registration Statement (the "Form T-1");
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood, windstorm, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
<PAGE>
incorporation, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in the
Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) None of the Company's subsidiaries is required pursuant to Item 601
of Regulation S-K to be listed in Exhibit 21 to the Registration Statement
or to the Company's Annual Report on Form 10-K for the most recent fiscal
year.
(h) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and constitutes
a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating
to or affecting creditors' rights generally and to general principles of
equity; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained
in the Prospectus as amended or supplemented to relate to such issuance of
Securities;
(i) The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement
and any Terms Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a 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
material agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended, or the
By-Laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
<PAGE>
Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any court or governmental
agency or body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been
prior to the Commencement Date (as defined in Section 3 hereof), obtained
under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the solicitation by
such Agent of offers to purchase Securities from the Company and with
purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is the subject, which are required to be disclosed in the
Prospectus, or which could reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and
(k) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. (a) On the basis of the representations and warranties, and subject to
the terms and conditions herein set forth, each of the Agents hereby severally
and not jointly agrees, as agent of the Company, to use its reasonable efforts
to solicit and receive offers to purchase the Securities from the Company upon
the terms and conditions set forth in the Prospectus as amended or supplemented
from time to time. So long as this Agreement shall remain in effect with respect
to any Agent, the Company shall not, without the consent of such Agent, solicit
or accept offers to purchase, or sell, any debt securities with a maturity at
the time of original issuance of 9 months to 30 years except pursuant to this
Agreement, any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
<PAGE>
provide for a continuous offering of medium-term debt securities. However, the
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf and, in the case of any such
sale not resulting from a solicitation made by any Agent, no commission will be
payable with respect to such sale. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation offers to purchase
Securities from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed. During such period, the Company
shall not be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agent that such solicitation may be resumed,
however, the Company shall simultaneously provide the documents required to be
delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the Agent shall have no
obligation to solicit offers to purchase the Securities until such documents
have been received by the Agent. In addition, any failure by the Company to
comply with its obligations hereunder, including without limitation its
obligations to deliver the documents required by Sections 4(h), 4(i), 4(j) and
4(k), shall automatically terminate the Agent's obligations hereunder, including
without limitation its obligations to solicit offers to purchase the Securities
hereunder as agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of settlement
of any sale of a Security by the Company as a result of a solicitation made by
such Agent, in an amount equal to the following applicable percentage of the
principal amount of such Security sold:
<TABLE>
<CAPTION>
COMMISSION
(PERCENTAGE OF
AGGREGATE
PRINCIPAL AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
<S> <C>
From 9 months to less than 1 year . . . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . . . .150%
From 18 months to less than 2 years . . . . . . . . . . . . . . . . .200%
From 2 years to less than 3 years . . . . . . . . . . . . . . . . . .250%
From 3 years to less than 4 years . . . . . . . . . . . . . . . . . .350%
From 4 years to less than 5 years . . . . . . . . . . . . . . . . . .450%
From 5 years to less than 6 years . . . . . . . . . . . . . . . . . .500%
From 6 years to less than 7 years . . . . . . . . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . . . . . . . . .600%
From 10 years to less than 15 years . . . . . . . . . . . . . . . . .625%
</TABLE>
<TABLE>
<S> <C>
From 15 years to less than 20 years . . . . . . . . . . . . . . . . .675%
20 years and more . . . . . . . . . . . . . . . . . . . . . . . . . .750%
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
<PAGE>
Securities and the time and date and place of delivery of and payment for such
Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be purchased
by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation, 650
Page Mill Road, Palo Alto, California, at 8:00 a.m., California time, on the
date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall
be disapproved by any Agent promptly after reasonable notice thereof or (B)
after the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such Terms Agreement or so
purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b)(3) under the Act not later than
the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or the Prospectus,
other than any Pricing Supplement, at any time prior to having afforded each
<PAGE>
Agent a reasonable opportunity to review and comment thereon; (iv) to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of
the qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of the
Registration Statement or the Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein
for as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement and
each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in
the Administrative Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, and with copies of the
documents incorporated by reference therein, all in such quantities as such
Agent may reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities (including Securities purchased from the Company by such
Agent as principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include
<PAGE>
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify such Agent and request such Agent, in its capacity as agent of the
Company, to suspend solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such solicitations as
soon as practicable, but in any event not later than one business day
later); and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to
so advise such Agent promptly by telephone (with confirmation in writing)
and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus as
then amended or supplemented that will correct such statement or omission or
effect such compliance; provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by such
Agent as principal or such Agent is otherwise required to deliver a
prospectus in respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an amendment or
supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other) furnished
to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
public information concerning the business and financial condition of the
Company as such Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
<PAGE>
(f) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing
to and including the earlier of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the
Company by such Agent and (ii) the related Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which both mature more than 9 months after such Time of Delivery and
are substantially similar to the Securities, without the prior written
consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance or of such Terms Agreement, as the case
may be, as though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made at and as
of such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act
is incorporated by reference into the Prospectus, and each time the Company
sells Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of an opinion or opinions by
Wilson, Sonsini, Goodrich & Rosati, Professional Corporation, counsel to the
Agents, as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to furnish to such
Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms Agreement,
<PAGE>
the Company shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Thomas R. Saldin, Esq., Executive Vice President,
Administration and General Counsel to the Company, or other counsel for the
Company reasonably satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in form reasonably satisfactory to such Agent,
to the effect that such Agent may rely on the opinion of such counsel
referred to in Section 6(c) hereof which was last furnished to such Agent to
the same extent as though it were dated the date of such letter authorizing
reliance (except that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion of such counsel referred to in Section 6(c)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus, in
either case to set forth financial information included in or derived from
the Company's consolidated financial statements or accounting records, and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of a
letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(d) hereof
but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as of a
date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to
such financial information or other matter made in the letter referred to in
<PAGE>
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company sells Securities to
such Agent as principal and the applicable Terms Agreement specifies the
delivery of a certificate under this Section 4(k) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment, incorporation or Time of
Delivery relating to such sale, as the case may be, in such form and
executed by such officers of the Company as shall be satisfactory to such
Agent, to the effect that the statements contained in the certificate
referred to in Section 6(g) hereof which was last furnished to such Agent
are true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or,
in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(g) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and
(l) To offer to any person who has agreed to purchase Securities as the
result of an offer to purchase solicited by such Agent the right to refuse
to purchase and pay for such Securities if, on the related settlement date
fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(e) or 6(f) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the satisfaction
of the condition shall be substituted, for purposes of this Section 4(l),
for the respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(f), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted
under such Sections 6(a), 6(e) and 6(f) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
<PAGE>
Agent; (ii) the reasonable fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the program contemplated hereby,
any opinions to be rendered by such counsel hereunder and the transactions
contemplated hereunder; (iii) the cost of printing, producing or reproducing
this Agreement, any Terms Agreement, any indenture, any Blue Sky Survey, any
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iv) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities and Blue Sky laws as provided in Section 4(b) hereof, including
the reasonable fees and disbursements of counsel for the Agents in connection
with such qualification and in connection with the Blue Sky Survey and the Legal
Investment Memoranda; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
by the Company; and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. Except as provided in Sections 7 and 8 hereof, each Agent shall
pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein, (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
<PAGE>
filing by the rules and regulations under the Act and in accordance with
Section 4(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Wilson, Sonsini, Goodrich & Rosati, Professional Corporation,
counsel to the Agents, shall have furnished to such Agent (i) such opinion
or opinions, dated the Commencement Date, with respect to the incorporation
of the Company, the validity of the Indenture, the Securities, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as such Agent may reasonably request, and (ii) if and to the
extent requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, an opinion or opinions, dated
such applicable date, to the effect that such Agent may rely on the opinion
or opinions which were last furnished to such Agent pursuant to this Section
6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same
tenor as the opinion or opinions referred to in clause (i) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date, and in each case such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Skadden, Arps, Slate, Meagher & Flom, counsel for the Company, or
other counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinion, dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance reasonably satisfactory to such Agent, to the effect
that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in
<PAGE>
the Prospectus as amended or supplemented; and 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 other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification and where the failure to be so qualified or
in good standing would have a material adverse effect on the operations
or financial condition of the Company and its subsidiaries, taken as a
whole;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
to which any property of the Company or any of its subsidiaries is the
subject which are required to be disclosed in the Prospectus, or which
could reasonably be expected, individually or in the aggregate, to have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(v) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in the manner provided for in
the Indenture and delivered against the purchase price therefor
specified herein, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture; and
the Indenture conforms and the Securities will conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery
by the Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, moratorium
<PAGE>
and other similar laws relating to or affecting creditors' rights
generally and to general principles of equity; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Terms Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a 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 material agreement or instrument
known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, which conflict, breach or default would singly or
in the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws, as amended, of the Company
or any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by an Agent of offers to purchase Securities from the
Company and with purchases of Securities by an Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and they have no reason to
believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration
<PAGE>
statement which became effective under the Act, 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, and, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading;
and
(x) The Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements thereto made by
the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust indenture Act and the rules and
regulations thereunder; they have no reason to believe that, as of its
effective date the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) 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, as of the date of such opinion, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Not later than 10:00 a.m., New York time, on the Commencement Date
and on each applicable date referred to in Section 4(j) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the financial
<PAGE>
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the case may
be, in form and substance reasonably satisfactory to such Agent, to the
effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or supplemented
any loss or interference with its business from fire, explosion, flood,
windstorm, accident or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented and (ii) since the respective dates as of which information is
given in the Prospectus as amended or supplemented there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented, the effect of which, in any such case described
in clause (i) or (ii) is, in the reasonable judgment of such Agent, so
material and adverse as to make it impracticable or inadvisable to proceed
with the solicitation by such Agent of offers to purchase Securities from
the Company or the purchase by such Agent of Securities from the Company as
principal, as the case may be, on the terms and in the manner contemplated
in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York state
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in your reasonable judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; (iv) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2)under the Act; or
(v) a public announcement by any such organization that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities; and
<PAGE>
(g) The Company shall have furnished or cause to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
such form and executed by such officers of the Company as shall be
reasonably satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at and as of the
Commencement Date or such applicable date, as the case may be, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsections (a) and (e) of
this Section 6, and as to such other matters as such Agent may reasonably
request.
7. (a) The Company will indemnify and hold harmless each Agent against any
losses, claims, damages or liabilities, joint or several, to which such Agent
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any reasonable legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and, provided, further, that the Company shall not be
liable to any Agent under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such Agent results from the fact that such Agent sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
<PAGE>
such delivery is required under the Act if the Company has previously furnished
copies thereof to such Agent and the loss, claim, damage or liability of such
Agent results from an untrue statement of a material fact contained in the
Preliminary Prospectus which was corrected in such Prospectus as then amended or
supplemented.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
<PAGE>
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the offering of
the Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and each Agent on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent on the
other shall be deemed to be in the same proportion as the total net proceeds
from the sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by per capita allocation (even
if all Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
<PAGE>
any such action or claim. Notwithstanding the provisions of this subsection (d),
an Agent shall not be required to contribute any amount in excess of the amount
by which the total public offering price at which the Securities purchased by or
through it were sold exceeds the amount of any damages which such Agent 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this subsection
(d) to contribute are several in proportion to the respective purchases made by
or through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Agent within
the meaning of the Act; and the obligations of each Agent under this Section 7
shall be in addition to any liability which such Agent may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
<PAGE>
10. The provisions of this Agreement relating to the solicitation of offers
to purchase Securities from the Company may be suspended or terminated at any
time by the Company as to any Agent or by any Agent as to such Agent upon the
giving of written notice of such suspension or termination to such Agent or the
Company, as the case may be. In the event of such suspension or termination with
respect to any Agent, (x) this Agreement shall remain in full force and effect
with respect to any Agent as to which such suspension or termination has not
occurred, (y) this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such suspension or termination and (z)
in any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing;
and if to Goldman, Sachs & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 902-4103,
Attention: Registration Department; and if to J.P. Morgan Securities Inc. shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to 60 Wall Street, New York, New York 10260, Facsimile
Transmission No. (212) 648-5939, Attention: Maria Sramek; and if to Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to World Financial Center, North Tower, New York, New York
10281-1310, Facsimile Transmission No. (212) 449-2234, Attention: MTN Product
Management; and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 250 Parkcenter
Boulevard, P.0. Box 20, Boise, Idaho 83726, Facsimile Transmission No.
208) 385-6539, Attention: Chief Financial Officer.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company, and to the extent provided
in Section 7, Section 8 and Section 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
<PAGE>
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
ALBERTSON'S, INC.
By:
----------------------------------------
Name:
Title:
Accepted in New York, New York, as of the date hereof:
GOLDMAN, SACHS & CO.
- ------------------------------------
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By:
---------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By:
---------------------------------
Name:
Title:
<PAGE>
ANNEX I
ALBERTSON'S, INC.
$
[TITLE OF SECURITY]
-------------
TERMS AGREEMENT
, 19
-------------- ----
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, New York 10281-1310
Dear Sirs:
Albertson's, Inc. (the "Company") proposes, subject to the terms and
conditions stated herein and in the Distribution Agreement dated ___________,
199__ (the "Distribution Agreement"), between the Company on the one hand and
Goldman, Sachs & Co., J.P. Morgan Securities Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Agents") on the other, to issue and sell to
[Goldman, Sachs & Co.] [J.P. Morgan Securities Inc.] [Merrill Lynch, Pierce,
Fenner & Smith Incorporated] the securities specified in the Schedule hereto
(the "Purchased Securities"). Each of the provisions of the Distribution
Agreement not specifically related to the solicitation by the Agents, as agents
of the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of its execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
I-1
<PAGE>
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Distribution
Agreement incorporated herein by reference, the Company agrees to issue and sell
to [Goldman, Sachs & Co.] [J.P. Morgan Securities Inc.] [Merrill Lynch, Pierce,
Fenner & Smith Incorporated] and [Goldman, Sachs & Co.] [J.P. Morgan Securities
Inc.] [Merrill Lynch, Pierce, Fenner & Smith Incorporated] agree(s) to purchase
from the Company the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
I-2
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
ALBERTSON'S, INC.
By:
-------------------------------
Name:
Title:
Accepted:
[GOLDMAN, SACHS & CO.
- -------------------------------
(Goldman, Sachs & Co.)]
[J.P. MORGAN SECURITIES INC.
By:
----------------------------
Name:
Title: ]
[MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By:
----------------------------
Name:
Title: ]
I-3
<PAGE>
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes
Aggregate Principal Amount:
[$ or units of other Specified Currency]
Purchase Price by [Goldman, Sachs & Co.] [J.P. Morgan Securities Inc.] [Merrill
Lynch, Pierce, Fenner & Smith Incorporated] :
% of the principal amount of the Purchased Securities [, plus accrued
interest from to ] [and accrued amortization, if any, from
to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of May 1, 1992, between the Company and First Trust of
New York, N.A., as Trustee and successor in interest to the corporate trust
business of Morgan Guaranty Trust Company of New York.
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
Interest Payment Dates:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
I-4
<PAGE>
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-5
<PAGE>
ANNEX II
ALBERTSON'S, INC.
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated __________, 199___(the "Distribution Agreement"),
between Albertson's, Inc. (the "Company") and Goldman, Sachs & Co. , J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(together, the "Agents"), to which this Administrative Procedure is attached as
Annex II. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
<PAGE>
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Book-Entry Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
II-1
<PAGE>
Acceptance of Offers by Company
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Selling Agent:
<PAGE>
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the Interest Rate and the
initial Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Certificated Security, such of the following as
are applicable;
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
II-2
<PAGE>
(11) If a Floating Rate Certificated Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement; and
(14) Book-Entry Security or Certificated Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement. The Company will supply at least ten copies
of such Pricing Supplement to the Selling Agent or Purchasing Agent, as the case
may be, not later than 5:00 p.m., New York City time, on the business day
following the date of acceptance of such offer, or if the Company and the
Purchaser agree to settlement on the date of such acceptance, not later than
noon, New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day following the date on which
such Pricing Supplement is first used.
<PAGE>
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated
II-3
<PAGE>
Security prior to or together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent and
accepted by the Company will be settled on a date (the "Settlement Date") which
is the fifth business day after the date of acceptance of such offer, unless the
Company and the purchaser agree to settlement (a) on any other business day
after the acceptance of such offer or (b) with respect to an offer accepted by
the Company prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee. All instructions regarding the completion and delivery of
Certificated Securities shall be given by the Company by means of the electronic
timesharing facility known as the Morgan Paper Issue System (the "MPI System");
or such instructions may be given by telephone or by facsimile transmission
(confirmed in writing or by tested telex), tested telex or by other acceptable
written means by the Company if the MPI System is inoperative. The Company will
instruct the Trustee by facsimile transmission or other acceptable written means
to authenticate and deliver the Certificated Securities no later than 2:15 p.m.,
New York City time, on the Settlement Date. Such instruction will be given by
the Company prior to 3:00 p.m., New York City time, on the business day prior to
the Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
<PAGE>
In the case of a sale of Certificated Securities to a purchaser solicited
by an Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided, however,
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
II-4
<PAGE>
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-5
<PAGE>
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of April 18, 1989 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Book-Entry Securities as a Purchasing
Agent. The Company will have the sole right to accept offers to purchase
Book-Entry Securities and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
<PAGE>
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the Interest Rate and initial
Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary accepts
deposits of Global Securities denominated in U.S. dollars only);
II-6
<PAGE>
(5) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount or
commission, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the following as are
applicable;
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(11) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
<PAGE>
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the registered
owner(s);
II-7
<PAGE>
(13) Denomination of certificates to be delivered at settlement; and
(14) Book-Entry Security or Certificated Security.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee. All instructions regarding the completion and delivery of Book-Entry
Securities shall be given by the Company by means of the MPI System; or such
instructions may be given by telephone or by facsimile transmission (confirmed
in writing or by tested telex), tested telex or by other acceptable written
means by the Company if the MPI System is inoperative. The Trustee will assign a
CUSIP number to the Global Security from a list of CUSIP numbers previously
delivered to the Trustee by the Company representing such Book-Entry Security
and then advise the Company and the Selling Agent or Purchasing Agent, as the
case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
<PAGE>
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security, number
of days by which such date succeeds the record date for the
Depositary's purposes (which, in the case of Floating Rate
Securities which reset weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment Date and in
the case of all other Book-Entry Securities shall be the Regular
Record Date, as defined in the Security) and, if calculable at that
time, the amount of interest payable on such Interest Payment Date;
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the
II-8
<PAGE>
Trustee to the Depositary that (a) the Global Security representing such
Book-Entry Security has been issued and authenticated and (b) the Trustee is
holding such Global Security pursuant to the Certificate Agreement.
<PAGE>
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at Morgan Guaranty Trust Company of New York,
in New York, New York, or such other accounts as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the receipt of the Sale
Information, or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
<PAGE>
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
II-9
<PAGE>
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders accepted by the Company will be settled
on the fifth Business Day pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day.
II-10
<PAGE>
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent as agent, and
accepted by the Company for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
---------- ----
<S> <C> <C>
A 5:00 p.m. On the Business Day following
the acceptance of a offer by the Company
or 10:00 a.m. on the Business Day prior
to the Settlement Date, whichever is
earlier
B 12:00 noon On the Sale Date
C 2:00 p.m. On the Sale Date
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------- ----
<S> <C> <C>
D 9:00 a.m. On the Settlement Date
E 10:00 a.m. On the Settlement Date
F-G 2:00 p.m. On the Settlement Date
H 4:45 p.m. On the Settlement Date
I 5:00 p.m. On the Settlement Date
</TABLE>
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "B" and "C" shall be completed as soon as practicable but
not later than 2:00 p.m. on the first Business Day after the sale date. If the
initial interest rate for a Floating Rate Book-Entry Security has not been
determined at the time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rate has been
determined but no later than 2:00 p.m. on the second Business Day before the
settlement date. Settlement Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make
II-11
<PAGE>
appropriate entries in the Trustee's records and send such canceled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or Securities
and shall be canceled immediately after issuance and the other of which shall
represent the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. The Company will reimburse
such Agent on an equitable basis for the loss of its use of funds during the
period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D" for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
II-12
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Section 4(j) and Section 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived form audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the Agents;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
<PAGE>
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of earnings,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with the basis for the audited
consolidated statements of earnings, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
III-1
<PAGE>
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
<PAGE>
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
net assets or other items specified by the Agents, or any increases in
any items specified by the Agents, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the Agents, in
each case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Agents, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents that
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Agents or in documents
incorporated by reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
III-2
<PAGE>
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(d) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
III-3
<PAGE>
================================================================================
ALBERTSON'S, INC.
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Trustee
------------------
INDENTURE
Dated as of May 1, 1992
------------------
Debt Securities
================================================================================
<PAGE> 2
ALBERTSON'S, INC.
Reconciliation and tie showing the location in the Indenture dated as of
May 1, 1992 of the provisions inserted pursuant to Sections 310 to 318(a),
inclusive, of the Trust Indenture Act of 1939.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section310 (a)(1)...................................... 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(b)............................................... 608
........................................ 610
Section311 (a)......................................... 613
(b)............................................... 613
Section312 (a)......................................... 701
........................................ 702(a)
(b)............................................... 702(b)
(c)............................................... 702(c)
Section313 (a)......................................... 703(a)
(b)............................................... 703(a)
(c)............................................... 703(a)
(d)............................................... 703(b)
Section314 (a)......................................... 704
(a)(4)............................................ 101
........................................ 1004
(b)............................................... Not Applicable
(c)(1)............................................ 102
(c)(2)............................................ 102
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)............................................... 102
Section315 (a)......................................... 601
(b)............................................... 602
(c)............................................... 601
(d)............................................... 601
(e)............................................... 514
Section316 (a)......................................... 101
(a)(1)(A)......................................... 502
........................................ 512
(a)(1)(B)......................................... 513
(a)(2)............................................ Not Applicable
(b)............................................... 508
(c)............................................... 104(c)
Section317 (a)(1)...................................... 503
(a)(2)............................................ 504
(b)............................................... 1003
Section318 (a)......................................... 107
</TABLE>
NOTE: This reconciliation and its tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<S> <C> <C>
Section 101. Definitions....................................................... 1
Section 102. Compliance Certificates and Opinions.............................. 9
Section 103. Form of Documents Delivered to Trustee............................ 9
Section 104. Acts of Holders; Record Dates..................................... 10
Section 105. Notices, Etc., to Trustee and Company............................. 11
Section 106. Notice to Holders; Waiver......................................... 12
Section 107. Conflict with Trust Indenture Act................................. 12
Section 108. Effect of Headings and Table of Contents.......................... 12
Section 109. Successors and Assigns............................................ 12
Section 110. Separability Clause............................................... 13
Section 111. Benefits of Indenture............................................. 13
Section 112. Governing Law..................................................... 13
Section 113. Legal Holidays.................................................... 13
ARTICLE TWO
SECURITY FORMS
<S> <C> <C>
Section 201. Forms Generally................................................... 13
Section 202. Form of Legend for Global Securities.............................. 14
Section 203. Form of Trustee's Certificate of Authentication................... 14
ARTICLE THREE
THE SECURITIES
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series.............................. 15
Section 302. Denominations..................................................... 17
</TABLE>
<PAGE> 4
ii
<TABLE>
<S> <C> <C>
Section 303. Execution, Authentication, Delivery and Dating.................... 17
Section 304. Temporary Securities.............................................. 18
Section 305. Registration, Registration of Transfer and Exchange............... 19
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................. 20
Section 307. Payment of Interest; Interest Rights Preserved.................... 21
Section 308. Persons Deemed Owners............................................. 23
Section 309. Cancellation...................................................... 23
Section 310. Computation of Interest........................................... 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture........................... 24
Section 402. Application of Trust Money........................................ 25
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................................. 26
Section 502. Acceleration of Maturity; Rescission and Annulment................ 28
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.......................................................... 30
Section 504. Trustee May File Proofs of Claim.................................. 31
Section 505. Trustee May Enforce Claims Without Possession of Securities....... 31
Section 506. Application of Money Collected.................................... 31
Section 507. Limitation on Suits............................................... 32
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................. 33
Section 509. Restoration of Rights and Remedies................................ 33
Section 510. Rights and Remedies Cumulative.................................... 33
Section 511. Delay or Omission Not Waiver...................................... 33
Section 512. Control by Holders................................................ 34
</TABLE>
<PAGE> 5
iii
<TABLE>
<S> <C> <C>
Section 513. Waiver of Past Defaults........................................... 34
Section 514. Undertaking for Costs............................................. 35
Section 515. Waiver of Stay or Extension Laws.................................. 35
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............................... 35
Section 602. Notice of Defaults................................................ 36
Section 603. Certain Rights of Trustee......................................... 36
Section 604. Not Responsible for Recitals or Issuance of Securities............ 37
Section 605. May Hold Securities............................................... 37
Section 606. Money Held in Trust............................................... 37
Section 607. Compensation and Reimbursement.................................... 38
Section 608. Disqualification; Conflicting Interests........................... 38
Section 609. Corporate Trustee Required; Eligibility........................... 38
Section 610. Resignation and Removal; Appointment of Successor................. 39
Section 611. Acceptance of Appointment by Successor............................ 40
Section 612. Merger, Conversion, Consolidation or Succession to Business....... 41
Section 613. Preferential Collection of Claims Against Company................. 42
Section 614. Appointment of Authenticating Agent............................... 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......... 44
Section 702. Preservation of Information; Communications to Holders............ 44
Section 703. Reports by Trustee................................................ 44
Section 704. Reports by Company................................................ 45
</TABLE>
<PAGE> 6
iv
<TABLE>
<S> <C> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.............. 45
Section 802. Successor Substituted............................................. 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders................ 46
Section 902. Supplemental Indentures with Consent of Holders................... 47
Section 903. Execution of Supplemental Indentures.............................. 48
Section 904. Effect of Supplemental Indentures................................. 49
Section 905. Conformity with Trust Indenture Act............................... 49
Section 906. Reference in Securities to Supplemental Indentures................ 49
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................... 49
Section 1002. Maintenance of Office or Agency.................................. 49
Section 1003. Money for Securities Payments to Be Held in Trust................ 50
Section 1004. Statement by Officers as to Default.............................. 51
Section 1005. Existence........................................................ 51
Section 1006. Maintenance of Properties........................................ 52
Section 1007. Payment of Taxes and Other Claims................................ 52
Section 1008. Limitations on Liens............................................. 52
Section 1009. Limitations on Sale and Leaseback Transactions................... 54
Section 1010. Waiver of Certain Covenants...................................... 55
</TABLE>
<PAGE> 7
v
<TABLE>
<S> <C> <C>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article......................................... 56
Section 1102. Election to Redeem; Notice to Trustee............................ 56
Section 1103. Selection by Trustee of Securities to Be Redeemed................ 56
Section 1104. Notice of Redemption............................................. 57
Section 1105. Deposit of Redemption Price...................................... 58
Section 1106. Securities Payable on Redemption Date............................ 58
Section 1107. Securities Redeemed in Part...................................... 58
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article......................................... 59
Section 1202. Satisfaction of Sinking Fund Payments with Securities............ 59
Section 1203. Redemption of Securities for Sinking Fund........................ 59
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................... 60
Section 1302. Defeasance and Discharge.......................................... 60
Section 1303. Covenant Defeasance............................................... 60
Section 1304. Conditions to Defeasance or Covenant Defeasance................... 61
</TABLE>
<PAGE> 8
vi
<TABLE>
<S> <C> <C>
Section 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions................... 63
Section 1306. Reinstatement..................................................... 63
TESTIMONIUM.......................................................................... 63
SIGNATURES AND SEALS................................................................. 64
ACKNOWLEDGEMENTS..................................................................... 65
</TABLE>
<PAGE> 9
INDENTURE, dated as of May 1, 1992, between ALBERTSON'S, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 250 Parkcenter
Boulevard, Boise, Idaho 83726 and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a
corporation duly organized and existing under the laws of the State of New York,
as Trustee hereunder (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of senior indebtedness
(herein called the "Securities"), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
<PAGE> 10
2
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which the
Company or any Subsidiary is at the time liable and at any date as of which the
amount thereof is to be determined, the total net amount of rent required to be
paid under such lease during the remaining term thereof (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended), discounted from the respective due dates thereof to such date at a
rate per annum equal to the weighted average interest rate per annum borne by
the Securities of each series outstanding hereunder compounded semi-annually.
The net amount of rent required to be paid under any such lease for any such
period shall be the aggregate amount of the rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the Board of Directors of the Company
or any committee of that board duly authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Capital Lease Obligations" mean any rental obligation which, under
generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this
<PAGE> 11
3
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the net book value of all
assets of the Company and its consolidated Subsidiaries, excluding any amounts
carried as assets for shares of capital stock held in treasury, debt discount
and expense, goodwill, patents, trademarks and other intangible assets, less all
liabilities of the Company and its consolidated Subsidiaries (except Funded
Debt, minority interests in consolidated Subsidiaries, deferred taxes and
general contingency reserves of the Company and its consolidated Subsidiaries),
which in each case would be included on a consolidated balance sheet of the
Company and its consolidated Subsidiaries as of the date of determination, all
as determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be conducted,
which office, at the date of execution of this Indenture, is located at 60 Wall
Street, 36th Floor, New York, New York 10260.
"corporation" means any corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means any indebtedness for money borrowed or evidenced by a bond,
debenture, note or other similar instrument, whether or not for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1301.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
<PAGE> 12
4
"Funded Debt" means (a) all indebtedness of the Company and its
Subsidiaries for money borrowed, or evidenced by a bond, debenture, note or
other similar instrument, whether or not for money borrowed, maturing on, or
renewable or extendible at the option of the obligor to, a date more than one
year from the date of the determination thereof (but not including indebtedness
under any revolving credit arrangement with banks except for any indebtedness
converted pursuant to any such arrangement into a term loan which meets the
requirements of this Clause (a)), (b) Capital Lease Obligations payable on a
date more than one year from the date of the determination thereof, (c)
guarantees, direct or indirect, and other contingent obligations of the Company
and its Subsidiaries in respect of, or to purchase or otherwise acquire or be
responsible or liable for (through the investment of funds or otherwise), any
obligations of the type described in the foregoing Clause (a) or (b) of others
(but not including contingent liabilities on customer's receivables sold with
recourse), and (d) amendments, renewals, extensions and refundings of any
obligations of the type described in the foregoing Clauses (a), (b) or (c).
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, 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 of the
foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Nonrecourse Obligation" means indebtedness or lease payment obligations
substantially related to (i) the acquisition of assets not previously owned by
the Company or any Subsidiary or (ii) the financing of a project involving the
development or expansion of properties of the Company or any Subsidiary, as to
which the obligee with respect to such indebtedness or obligation has no
recourse to the Company or any Subsidiary or any assets of the Company or any
Subsidiary other than the assets which were acquired with the proceeds of such
transaction or the project financed with the proceeds of such transaction (and
the proceeds thereof).
<PAGE> 13
5
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, acceptable to the Trustee.
"Original Issue Discount Security" means any Security that provides for
declaration of an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
(4) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (A) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502 and (B) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum, only Securities that the
Trustee knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may
<PAGE> 14
6
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means (a) any real property (including, without
limitation, leasehold interests) together with the improvements thereon and the
equipment, if any, constituting a part of the facility located thereon
(including, without limitation, any warehouse, service center, shopping center
or distribution center, wherever located) and (b) other equipment, in each case,
of the Company or any Subsidiary and having a book value on the date as of which
the determination is being made of more than 1% of Consolidated Net Tangible
Assets as most recently determined prior to such date; provided, however, that
for purposes of Clause (a) above, separate parcels of real property which are
operated generally as part of a single facility (such as a single warehouse,
service center, shopping center or distribution center) shall be deemed to be a
single property, and for purposes of Clause (b) above, separate items of
equipment that are secured by Liens shall be deemed to be a single property to
the extent they are secured by such Liens pursuant to the same financing
transaction or a series of related financing transactions.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters. In the absence of bad faith on the part of the Company or a Holder, the
Company or the Holder, as the case may be, may conclusively rely upon the
statement of an officer of the Trustee as to whether an officer
<PAGE> 15
7
(including the officer making the statement) is assigned by the Trustee to
administer the Trustee's corporate trust matters.
"Sale and Leaseback Transaction" has the meaning set forth in Section
1009.
"Security" or "Securities" has the meaning set forth in the first
recital of the Indenture and more particularly means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" has the meaning set forth in Rule 1-02(v) of
Article 1 of Regulation S-X (or any successor provision) of the Commission.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case under clauses (i) or (ii) are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided
<PAGE> 16
8
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company, means any Vice
President, whether or not designated by a number or a word or words added before
or after the title "Vice President."
"Wholly-owned", when used with reference to a Subsidiary, means a
Subsidiary of which all of the outstanding capital stock (except for qualifying
shares) is owned by the Company or by one or more Wholly-owned Subsidiaries, or
both.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
<PAGE> 17
9
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
<PAGE> 18
10
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
principal amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder shall be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration date
set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph shall
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any time, contrary to
or different from, any action given or taken, or purported to have been given or
taken, hereunder by a Holder on or prior to such date, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be given or taken by Holders pursuant to Sections 501,
502 or 512.
(f) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
<PAGE> 19
11
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein or in such Security expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture or any Security
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
of Securities shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
<PAGE> 20
12
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, and their successors
hereunder, any Authenticating Agent, or Paying Agent, any Security Registrar and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision of the Securities of any series that specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to such next succeeding Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form as
shall established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security. If the form of Securities of any
series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
<PAGE> 21
13
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidence by their execution of such
Securities.
SECTION 202. Form of Legend for Global Securities
Any Global Security authenticated and delivered hereunder may bear any
legend required to comply with the requirements of any Depositary.
SECTION 203. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
As Trustee
By
-------------------------
Authorized Officer
<PAGE> 22
14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered and Outstanding under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities of
the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on any Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which such Securities shall bear
interest, if any, or the method by which such rate or rates are
determined, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable,
the Regular Record Date for any interest payable on any Securities on
any Interest Payment Date, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
such Securities pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased,
<PAGE> 23
15
in whole or in part, pursuant to such obligation, and any provisions for
the remarketing of such Securities;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if the amount of payments of principal of or any premium or
interest on such Securities may be determined with reference to an
index, formula or other method based on a coin or currency other than
U.S. dollars, or otherwise, the manner in which such amounts shall be
determined;
(11) if other than the principal amount thereof, the portion of
the principal amount of any Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) the applicability, or non-applicability, or variation, of
Sections 1008 and 1009 with respect to the Securities of such series:
(13) if applicable, that the Securities of the series shall be
defeasible as provided in Article Thirteen;
(14) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 305 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered
in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be
registered; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such specified denomination with respect to
the Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
<PAGE> 24
16
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President or Vice President
serving as Chief Financial Officer or its Treasurer, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order (which may provide that Securities that are the subject
thereof will be authenticated and delivered by the Trustee upon the telephonic
or written order of Persons designated in said Company Order and that such
Persons are authorized to determine such terms and conditions of said Securities
as are specified in the Company's Order) shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted in
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to general
equity principles and to such other matters as counsel may specify.
If the form or terms have been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to
<PAGE> 25
17
deliver the Officers' Certificate otherwise required pursuant to Section 301 or
the Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued and
contemplate issuance of all Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 1002 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of the Securities of each
<PAGE> 26
18
series and of transfers of the Securities of each series. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed.
Notwithstanding any other provision in this Indenture, any Global
Security shall be exchangeable pursuant to this Section 305 for Securities
registered in the names of Persons other than the Depositary for such Global
Security or its nominee only when (i) such Depositary notifies the Company and
the Trustee in writing that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a
clearing agency registered under the Exchange Act, and a successor Depositary is
not appointed by the Company within 90 days, (ii) the Company in its sole
discretion determines that Securities shall no longer be represented by a Global
Security and executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable, (iii) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Securities represented by such Global Security or (iv) there shall exist such
other circumstances, if any,
<PAGE> 27
19
as shall be specified for this purpose as contemplated by Section 301. Any
Global Security that is exchangeable pursuant to clause (i), (ii), (iii) or (iv)
above, shall be surrendered by the Depositary, or such other depositary as shall
be specified in the Company Order with respect thereto to, the Trustee, as the
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such permanent Global Security, an equal aggregate
principal amount of definitive Securities, executed by the Company, of the same
series of authorized denominations and of like tenor as the portion of such
Global Security to be exchanged, which shall be in the form of registered
Securities as provided in the Company Order.
Every Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security other than pursuant to
clauses (i), (ii), (iii) or (iv) in the preceding paragraph, whether pursuant to
this Section, Sections 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
<PAGE> 28
20
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
In the case of Securities represented by a Global Security registered in
the name of or held by a Depositary or its nominee, unless otherwise specified
by Section 301, payment of principal, premium, if any, and interest, if any,
will be made to the Depositary or its nominee, as the case may be, as the
registered owner or Holder of such Global Security. None of the Company, the
Trustee, any Paying Agent, any Authenticating Agent nor the Security Registrar
for such Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interest in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the
<PAGE> 29
21
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
At the option of the Company, interest on Securities of any series that
bear interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and (except
as otherwise specified as contemplated by Section 301(3) and subject to Section
307) any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
In the case of a Global Security, so long as the Depositary for such
Global Security, or its nominee, is the registered owner of such Global
Security, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Securities represented by such Global
Security for all purposes under this Indenture. Except as provided in Section
305, owners of beneficial interests in a Global Security will not be entitled to
have Securities that are represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such
Securities in definitive form and will not be considered the owners or Holders
thereof under this Indenture.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall (i) prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or (ii) impair, as between a
Depositary and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depositary as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities surrendered directly to the Trustee for any such purpose
shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously
<PAGE> 30
22
authenticated hereunder that the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver a certificate of such destruction to
the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
<PAGE> 31
23
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose, lawful money of the United States
or U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide lawful money not later than one day
before the due dates of principal (and premium, if any) or
interest, or any combination thereof, in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to the
Securities of all series to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required
by law.
<PAGE> 32
24
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company or any Significant
Subsidiary (including a default with respect to Securities of any series
other than that series) having an aggregate outstanding principal amount
of at least $25,000,000 or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company
or any Significant Subsidiary (including this Indenture) having an
aggregate outstanding principal amount of at least $25,000,000, whether
such indebtedness now exists or shall hereafter be created, which
default (A) shall constitute a failure to make any principal payment of
at least $25,000,000 with respect to such indebtedness when due and
payable after the expiration of any applicable grace period with respect
thereto or (B) shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without in the case of Clause (A)
or (B), as the case may be, such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period
<PAGE> 33
25
of 10 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Company or such Significant Subsidiary, as the
case may be, to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is
a "Notice of Default" hereunder; provided, however, that, subject to the
provisions of Sections 601 and 602, the Trustee shall not be deemed to
have knowledge of such default unless either (i) a Responsible Officer
of the Trustee shall have actual knowledge of such default or (ii) the
Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Significant Subsidiary or
of any substantial part of their respective properties, or ordering the
winding up or liquidation of their respective affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of their respective properties, or
the making by the Company or any Significant Subsidiary of an assignment
for the benefit of creditors, or the admission by the Company or any
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action;
or
(8) any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of such series entitled to
join in such Notice of Default, which record date shall be the close of
<PAGE> 34
26
business on the day the Trustee receives such Notice of Default. Promptly after
the establishment of a record date pursuant to the provisions of this Section
501, the Trustee shall notify the Company and the Holders of Outstanding
Securities of such series of the establishment of such record date. The Holders
of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided that, unless such Notice of Default shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such Notice
of Default shall automatically and without any action by any Person be cancelled
and of no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a Notice of Default contrary to or different from, or, after
the expiration of such period, identical to, a Notice of Default that has been
cancelled pursuant to the proviso to the preceding sentence, in which event a
new record date in respect thereof shall be set pursuant to this paragraph.
SECTION 502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series and all accrued interest
thereon to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration the same
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities, to the
extent that payment of such interest is lawful,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
<PAGE> 35
27
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502
with respect to Securities of any series, a record date shall automatically and
without any other action by any Person be set for the purpose of determining the
Holders of Outstanding Securities of such series entitled to join in such
declaration, or rescission or annulment, as the case may be, which record date
shall be the close of business on the day the Trustee receives such declaration,
or rescission and annulment, as the case may be. Promptly after the
establishment of a record date pursuant to the provisions of this Section 502,
the Trustee shall notify the Company and the Holders of Outstanding Securities
of such series of the establishment of such record date. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
declaration, or rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date; provided that, unless such
declaration, or rescission and annulment, as the case may be, shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
declaration, or rescission and annulment, as the case may be, shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a declaration of acceleration, or a rescission and annulment of
any such declaration, contrary to or different from, or, after the expiration of
such period, identical to, a declaration, or rescission and annulment, as the
case may be, that has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the Securities of
any series, and any such default continues for any period of grace provided with
respect to the Securities of such series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security (or the Holders of any such series in the case of
Clause (3) above), the whole
<PAGE> 36
28
amount then due and payable on any such Security (or on the Securities of any
such series in the case of Clause (3) above) for principal (and premium, if any)
and interest, with interest, to the extent that payment of such interest shall
be legally enforceable, upon the overdue principal (and premium, if any) and
upon overdue installments of interest, at such rate or rates as may be
prescribed therefor by the terms of any such Security (or of Securities of any
such series in the case of Clause (3) above); and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
<PAGE> 37
29
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursement
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium
and interest, respectively; and
THIRD: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
<PAGE> 38
30
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (except as specified as
contemplated by Section 301(3) and subject to Section 307) any interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or
<PAGE> 39
31
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to Holders of Securities of that series,
or any other series, not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall automatically and without any
other action by any Person be set for determining the Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be the close of business on the day the Trustee receives such direction.
Promptly after the establishment of a record date pursuant to the provisions of
this Section 512, the Trustee shall notify the Holders of Outstanding Securities
of such series of the establishment of such record date. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
direction, whether or not such Holders remain Holders after such record date;
provided that, unless such direction shall have become effective by virtue of
Holders of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a direction contrary to or different from, or, after the
expiration of such period, identical to, a direction that has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this paragraph.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
<PAGE> 40
32
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing (but subject to Section
107), no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
<PAGE> 41
33
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act and in the
manner provided in Section 106; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
<PAGE> 42
34
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(8) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be attributable to
its negligence or bad faith; and
<PAGE> 43
35
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to negligence or bad faith on
its part.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest, if
any, on particular Securities.
"Trustee," for purposes of this Section 607, includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not
affect the rights under this Section 607 of any other Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture and the Company
shall take prompt action to have a successor Trustee appointed in the manner
provided herein.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series that shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, be subject to supervision or examination by Federal or
State authority and have its Corporate Trust Office located in the Borough of
Manhattan, The City of New York. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any
<PAGE> 44
36
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the
<PAGE> 45
37
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
<PAGE> 46
38
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In the
event any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such
Securities, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion
<PAGE> 47
39
or consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, As Trustee
By
--------------------------,
As Authenticating Agent
By
--------------------------,
Authorized Officer
<PAGE> 48
40
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the Regular
Record Date for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution
or indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee for each series as provided in
Section 701 and (ii) received by the Trustee for each series in the capacity of
Security Registrar if the Trustee is then acting in such capacity. The Trustee
may destroy any list furnished to it as provided in Section 701 upon receipt of
a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders of Securities, as their names
and addresses appear in the Security Register, such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
<PAGE> 49
41
(b) A copy of each such report shall, at the time of such transmission
to such Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trustee Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be
<PAGE> 50
42
permitted by this Indenture, the Company or such successor Person, as
the case may be, shall take such steps as shall be necessary effectively
to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
<PAGE> 51
43
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause
(9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance
<PAGE> 52
44
with certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and of Section 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
<PAGE> 53
45
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
<PAGE> 54
46
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request (including interest income accrued on
such funds to which the Company is otherwise entitled), or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
<PAGE> 55
47
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Limitations on Liens.
If the terms of a particular series of Securities so provide as
contemplated by Section 301(12), so long as any Securities of such series remain
Outstanding, the Company will not itself, and will not permit any Subsidiary to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become liable for or suffer to exist any Debt secured by a Lien on (i) any
Principal Property of the Company or of any Subsidiary or (ii) any shares of
capital stock or Debt of any Subsidiary (which Debt is then held by the Company
or any Subsidiary), without making effective provision whereby the Securities of
such series Outstanding hereunder shall be secured equally and ratably with such
secured Debt for so long as such secured Debt shall be so secured, unless
immediately thereafter, after giving effect thereto, the aggregate amount of all
such secured Debt plus all Attributable Debt of the Company and its Subsidiaries
in respect of Sale and Leaseback Transactions (as defined in Section 1009, but
excluding leases exempt from the prohibition of Section 1009 by Clauses (2)
through (6) thereof) would not
<PAGE> 56
48
exceed 10% of Consolidated Net Tangible Assets; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Liens on, and limited to, property of or shares of capital
stock or Debt of any corporation existing at the date hereof or at the
time such corporation becomes a Subsidiary (unless such Liens were
created in contemplation of such corporation becoming a Subsidiary);
(2) Liens in favor of the Company or any Wholly-owned Subsidiary;
(3) Liens in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) (i) if made in the ordinary course of business, any Lien as
security for the performance of any contract or undertaking not directly
or indirectly in connection with the borrowing of money, deferred
purchase price of property or services, an advance of moneys or the
securing of Debt, (ii) any Lien with any governmental agency required or
permitted to qualify the Company or any Subsidiary to conduct business,
to maintain self-insurance or to obtain the benefits of any law
pertaining to workmen's compensation, employment insurance, old age
pensions, social security or similar matters, (iii) any mechanics Liens,
landlord Liens or statutory Liens securing obligations incurred in the
ordinary course of business not overdue or being contested in good faith
by appropriate proceedings and not incurred directly or indirectly in
connection with the borrowing of money, deferred purchase price of
property or services or an advance of moneys, or (iv) easements,
exceptions, reservations or other similar encumbrances on real property
that do not materially interfere with the operation of such property or
impair the value of such property for the purposes for which such
property is or may reasonably be expected to be used by the Company or
its Subsidiaries;
(5) Liens for taxes, assessments or governmental charges or
levies if such taxes, assessments, governmental charges or levies shall
not at the time be due and payable, or if the same thereafter can be
paid without penalty, or if the same are being contested in good faith
by appropriate proceedings;
(6) Liens created by or resulting from any litigation or legal
proceeding which at the time is currently being contested in good faith
by appropriate proceedings; Liens arising out of judgments or awards as
to which the time for prosecuting an appeal or proceeding for review has
not expired, or Liens arising out of individual final judgments or
awards in amounts of less than $100,000, provided that the aggregate
amount of all such individual final judgments or awards in amounts of
less than $100,000 at any one time shall not exceed $1,000,000;
(7) Liens on, and limited to, property (including leasehold
estates) or shares of capital stock or Debt, existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the
purchase price thereof or the cost of construction thereon or to secure
any Debt incurred prior to, at the time of, or within 360 days after the
latest of the acquisition, the completion of construction or the
commencement of full operation of such property for the purpose of
financing all or any part of the purchase price thereof or such
construction thereon;
<PAGE> 57
49
(8) Liens securing obligations issued by a state, territory or
possession of the United States, or any political subdivision of any of
the foregoing or the District of Columbia, to finance the acquisition or
construction or development of property, and on which the interest is
not, in the opinion of tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue Service,
includible (in whole or in part) in gross income of the holder by reason
of Section 103(a)(1) of the Internal Revenue Code of 1986, as amended
(or any successor to such provision) as in effect at the time of the
issuance of such obligations;
(9) Liens created in connection with a project financed with, and
created to secure, a Nonrecourse Obligation; or
(10) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing Clauses (1) through (9), to the extent
the Debt secured by such Lien is not increased from the amount
originally so secured, provided that such extension, renewal or
replacement Lien shall be limited to all or a part of the same property
or shares of capital stock or Debt that secured the Lien extended,
renewed or replaced (plus improvements on such property).
SECTION 1009. Limitations on Sale and Leaseback Transactions.
If the terms of a particular series of Securities so provide as
contemplated by Section 301(12), so long as any Securities of such series remain
Outstanding, except as hereinafter provided, the Company will not, and will not
permit any Subsidiary to, enter into any transaction with any bank, insurance
company or other lender or investor, or to which any such bank, company, lender
or investor is a party, providing for the leasing by the Company or a Subsidiary
of any Principal Property which has been or is to be sold or transferred more
than 180 days after the latest of the acquisition, completion of construction or
commencement of full operation by the Company or a Subsidiary to such bank,
company, lender or investor, or to any Person to whom funds have been or are to
be advanced by such bank, company, lender or investor on the security of such
Principal Property (herein referred to as a "Sale and Leaseback Transaction");
provided, however, that this covenant shall not apply to any Sale and Leaseback
Transaction if:
(1) the Company or such Subsidiary could create Debt secured by a
Lien pursuant to Section 1008, excluding from secured Debt in any
computation under that Section Debt secured by Liens of the type
described in Clauses (1) through (10) thereof, on the Principal Property
to be leased in an amount equal to the Attributable Debt with respect to
such Sale and Leaseback Transaction without equally and ratably securing
the Securities, or
(2) the Company or a Subsidiary, within 180 days after the sale
or transfer shall have been made by the Company or by a Subsidiary,
applies an amount equal to the greater of the net proceeds from the sale
of the Principal Property leased pursuant to such arrangement or the
fair market value of the Principal Property so leased at the time of
entering into such arrangement (as determined in any manner approved by
the Board of Directors) to either (x) the retirement of Funded Debt of
the Company (other than Funded Debt subordinated to the Securities) or a
Subsidiary; provided, however, that notwithstanding the foregoing, no
retirement referred to in this Clause (2) may be effected by payment of
maturity or pursuant to any mandatory sinking fund payment or
<PAGE> 58
50
any mandatory prepayment provision, or (y) purchase of other property
which will constitute Principal Property of the Company or its
Subsidiaries having a fair market value, in the opinion of the Board of
Directors of the Company, at least equal to the fair market value of the
Principal Property leased in such sale and leaseback transaction, or
(3) the lease in such Sale and Leaseback Transaction is for a
period, including renewals, of no more than three years, or
(4) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a state, territory or possession of the
United States, or any political subdivision of any of the foregoing, or
the District of Columbia, to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax
counsel of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includible (in whole or in part) in gross
income of the holder by reason of Section 103(a)(1) of the Internal
Revenue Code of 1986, as amended (or any successor to such provision) as
in effect at the time of the issuance of such obligations, or
(5) the lease payment obligation is created in connection with a
project financed with, and such obligation constitutes, a Nonrecourse
Obligation, or
(6) such arrangement is between the Company and a Wholly- owned
Subsidiary or between Wholly-owned Subsidiaries.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1008 and 1009, with respect to the
Securities of any series if before the time for such compliance the Holders of
at least 66 2/3% in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
<PAGE> 59
51
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series with the same tenor, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series (unless all of the
Securities of such series and of a specified tenor are to be redeemed) are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence. Unless otherwise provided
in the terms of a particular series of Securities, the portions of the principal
of Securities so selected for partial redemption shall be equal to the minimum
authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
<PAGE> 60
52
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed at his address appearing in the
Security Register.
Any notice that is mailed to the Holder of any Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price, and accrued
interest, if any, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and the amount of
accrued interest, if any, to be paid, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and accrued interest on, all
the Securities or portions thereof that are to be redeemed on that date.
<PAGE> 61
53
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the Regular Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, with the same tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
<PAGE> 62
54
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company) and (2) apply as a credit
Securities of such series that have been redeemed either at the election of the
Company pursuant to the terms of such series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities; provided that such series of Securities has not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
that is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time, to
have either Section 1302 or Section 1303 applied to the Outstanding Securities
of any series designated pursuant to Section 301 as being defeasible pursuant to
this Article Thirteen (hereinafter called a "Defeasible Series"), upon
compliance with the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301 to
have this Section 1302 applied to the Outstanding Securities of any Defeasible
Series, the Company shall
<PAGE> 63
55
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all of its
other obligations under the Securities of such series and this Indenture insofar
as the Securities of such series are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(2) the Company's obligations with respect to the Securities of such series
under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option provided in Section 1301 to have this Section 1302 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 1301 to have Section 1303 applied to
the Outstanding Securities of such series.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301 to
have this Section 1303 applied to the Outstanding Securities of any Defeasible
Series, (i) the Company shall be released from its obligations under Sections
1005 through 1009, inclusive, and (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Sections 1005 through 1009, inclusive),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default, in
each case with respect to the Outstanding Securities of such series as provided
in this Section on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day
<PAGE> 64
56
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge each installment of principal
(including mandatory sinking fund payments) of, and premium (not
relating to optional redemption), if any, and interest on, the
Outstanding Securities of such series on the dates such installments of
principal of, and premium (not relating to optional redemption), if any,
or interest are due.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to the Securities of such series and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(5) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and
be continuing at the time of such deposit or, with regard to any Event
of Default or any such event specified in Sections 501(6) and (7), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of the such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
<PAGE> 65
57
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
(10) Such deposit pursuant to such Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen with respect to Securities of such series until such time
as the Trustee or Paying Agent
<PAGE> 66
58
is permitted to apply all money held in trust pursuant to Section 1305 with
respect to Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any Security of such series following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held in
trust.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ALBERTSON'S, INC.
By /s/ A. CRAIG OLSON
----------------------------------------
Senior Vice President, Finance and Chief
Financial Officer
Attest:
/s/ KAYE L. O'RIORDAN
- -----------------------------
Kaye L. O'Riordan
Corporate Secretary
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ M. CULHANE
----------------------------------------
Vice President
Attest:
/s/ M. ELIZABETH PANUCCI
- -----------------------------
Assistant Secretary
<PAGE> 67
59
STATE OF IDAHO )
COUNTY OF ADA ) ss:
On the 11th day of May, 1992, before me personally came A. Craig Olson,
to me known, who, being by me duly sworn, did depose and say that he is the
Senior Vice President, Finance and Chief Financial Officer of ALBERTSON'S, INC.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
/s/ LISA MOTT
-------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the day of May, 1991, before me personally came , to me known, who,
being by me duly sworn, did depose and say that he/she is a Vice President of
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, one of the corporations described in
and which executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he/she signed his/her name thereto by like authority.
/s/ PETER V. MURPHY
----------------------------
Notary Public
[NOTARIAL SEAL]
<PAGE> 1
EXHIBIT 4.2
[FORM OF FACE OF SECURITY]
If this Security is an Original Issue Discount Security the following
legend is applicable:
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ AND THE YIELD TO
MATURITY IS _____% [THE METHOD USED TO DETERMINE THE YIELD IS _______ AND THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
_______ 19__ TO ____________, 19____ IS ___% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY]
If the registered owner of this Security is The Depositary Trust
Company (the "Depositary") or a nominee of the Depositary, this Security is a
Security in global form (a "Global Security") and the following legends are
applicable:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, AND UNLESS ANY PAYMENT MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISED BY ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
R-__
CUSIP
ALBERTSON'S, INC.
Note due
ALBERTSON'S, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company", which term
includes any successors under the Indenture, as hereinafter defined), for value
received, hereby promises to pay to ______________, or registered assigns, the
principal sum of __________________________ ($___________) on _____, ____, and
to pay interest thereon subject to the terms of the Indenture, from _____, 199_,
or from the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, whichever is later, until payment
of the principal hereof has been made or duly provided for. Subject to the terms
of the Indenture, interest shall be payable [semiannually] on _____ and
__________ of each year (each an "Interest Payment Date") commencing on
__________, ____ and ending when payment of the principal hereof has been made
or duly provided for, at a rate of ___________________________ (_____%) per
annum computed on the basis of a 360-day year of twelve 30-day months. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this 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 ________ [or __________] (as the case may be), whether or not a Business
Day, immediately preceding such Interest Payment Date. 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 Trustee, notice whereof shall be given to Holders
not less than ten days prior to such Special Record Date, or be paid as
otherwise provided in the Indenture. Payment of the principal of [(and premium,
if any,] and interest on this Security will be made at [the office or agency of
the Company maintained for that purpose in _______, in
<PAGE> 2
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 option of the
Holder at [the Corporate Trust Office of the Trustee] or such other office or
agency of the Company as may be designated by it for such purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public or private debts[; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
WITNESS THE SEAL OF THE COMPANY AND THE SIGNATURES OF ITS DULY
AUTHORIZED OFFICERS.
ALBERTSON'S, INC.
Dated: By:
---------------------------------
Senior Vice President, Finance
and Chief Financial Officer
[SEAL] By:
---------------------------------
Corporate Secretary
TRUSTEE'S CERTIFICATION OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE SERIES
DESIGNATED THEREIN REFERRED TO IN THE
WITHIN-MENTIONED INDENTURE.
FIRST TRUST OF NEW YORK, N.A.
AS TRUSTEE
By:
------------------------------
Authorized Officer
-2-
<PAGE> 3
[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture, dated as of May 1, 1992 (herein called the
"Indenture"), duly executed and delivered by the Company to Morgan Guaranty
Trust Company of New York, as Trustee (herein called 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 description of
the respective rights, limitations of rights, obligations, 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. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), and may otherwise vary as in the
Indenture provided.
This Security is one of the series designated on the face hereof
[limited in aggregate principal amount to $___________]. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of any authorized denominations, as
requested by the Holder surrendering the same, upon surrender of the Security or
Securities to be exchanged at the office or agency described below where
Securities of this series may be presented for registration of transfer. This
Security is a senior unsecured general obligation of the Company that will rank
on a parity with all other senior unsecured indebtedness of the Company from
time to time outstanding.
[This Global Security represents all of the Company's _____% Notes due
_____, ____ (hereinafter called the "Notes"), which are a duly authorized issue
of Securities under the Indenture limited in aggregate principal amount to
$___________.] So long as this Global Security shall represent all of the Notes,
the principal of, premium, if any, and interest, if any, on this Global Security
shall be paid in immediately available funds to DTC, or to such name or entity
as is requested by an authorized representative of DTC. If at any time the Notes
are no longer represented by this Global Security and are issued in definitive
form ("Certificated Notes"), then the principal of, premium, if any, and
interest, if any, on each Certificated Note at Maturity shall be paid in
immediately available funds to the Holder upon surrender of such Certificated
Note at the Corporate Trust Office of the Trustee in the Borough of Manhattan,
The City of New York, or at such other place or places as may be designated in
the Indenture, provided that such Certificated Note is surrendered to the
Trustee, acting as Paying Agent, in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures. Payments of
interest with respect to Certificated Notes other than at Maturity shall be made
by check mailed to the address of the Person entitled thereto as it appears on
the Security Register on the relevant Regular or Special Record Date or by wire
transfer in immediately available funds to such account as may have been
appropriately designated to the Paying Agent by such Person in writing not later
than such relevant Regular or Special Record Date.] Each payment of principal,
premium, if any, and interest, if any, will be made in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.]
[The Securities of this series are subject to redemption [on __________
in any year commencing with the year _____ and ending with the year _____
through the operation of the sinking fund for this series at a Redemption Price
equal to [insert formula for determining the amount] [and] [at any time [on or
after ______, 19__], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before __________, __%, and if redeemed] during the
12-month period beginning _____ of the years indicated:
<PAGE> 4
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ------------------ ------------------- ---------------- -----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,]
[and (___)] under the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [insert formula for determining the
amount] [,together in the case of any such redemption [(whether through the
operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date: provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture].
[The Securities of this series are subject to redemption (i) on
___________ in any year commencing with the year ________ and ending with the
year ______ through the operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________ 19___], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning _______ of the years indicated:
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE
FOR REDEMPTION FOR REDEMPTION
THROUGH OPERATION OTHERWISE THAN
OF THE THROUGH OPERATION
YEAR SINKING FUND YEAR OF SINKING FUND
- ------------- ----------------- ---------------- -----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount [and
(3) under the circumstances described in the next [two] paragraph[s] at a
Redemption Price equal to [insert formula for determining the amount] [,together
in the case of any such redemption [(whether through the operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date:
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture]. [Notwithstanding the foregoing, the Company may not,
prior to _____, redeem any Securities of this series as contemplated by Clause
[(2)] above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than __% per annum.]
[The sinking fund for this series provides for the redemption on
________ in each year, beginning with the year _____ and ending with the year
______ of [not less than] $_____ ("mandatory sinking fund") and not more than
[$________] aggregate principal amount of Securities of this series. [Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made - in the inverse order in
which they become due]].
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
<PAGE> 5
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion thereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to this Security shall occur and be
continuing, the entire principal amount hereof may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also permits the amendment thereof without the consent of the Holders of any of
the Securities to, among other things, cure any ambiguity or omission or correct
or supplement any provision therein that may be inconsistent with any other
provision therein, or take certain other actions, provided that such actions
will not adversely affect the interests of the Holders of Securities of any
series in any material respect. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of Securities of any series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and the consequences thereof. 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 therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
Each of the defeasance and covenant defeasance provisions of Article
Thirteen of the Indenture shall [not] apply to this series of Securities.
Each of the covenant provisions of Sections 1008 and 1009 of the
Indenture shall [not] apply to this series of Securities.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, [premium, if any,] and
interest, if any, on this Security at the time, place and rate, and in the coin
or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Securities
Register upon surrender of this Security for registration of transfer at the
office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. As provided in the Indenture and subject
to certain limitations therein set forth, this Security is exchangeable for the
same aggregate principal of Securities of authorized denominations, as requested
by the Holder surrendering the same. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security may be overdue, and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
[In the event that (i) DTC, or any successor Depositary, notifies the
Company and the Trustee in writing that it is unwilling or unable to continue as
Depositary for this Global Security or if at any time DTC, or any successor
Depositary, ceases to be a clearing corporation registered under the Exchange
Act, and a successor
<PAGE> 6
Depositary is not appointed by the Company within 90 days, (ii) the Company
in its sole discretion determines that the Notes shall no longer be represented
by this Global Security and executes and delivers to the Trustee a Company Order
that this Global Security shall be exchangeable or (iii) there shall have
occurred and be continuing an Event of Default or an event which, with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default with respect to the Notes represented by this Global Security, then the
Company will issue Notes in definitive form in exchange for this Global
Security. In such event, an owner of a beneficial interest in this Global
Security will be entitled to have Notes equal in aggregate principal amount to
such beneficial interest registered in its name and will be entitled to physical
delivery of such Notes in definitive form. Notes so issued in definitive form
will be issued as registered Notes without coupons in denominations of $1,000
and integral multiples thereof.]
[Notwithstanding any provision herein to the contrary, every Note
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Global Security other than pursuant to clauses (i), (ii) or
(iii) of the preceding paragraph, shall be authenticated and delivered in the
form of, and shall be, a Global Security.]
As provided in the Indenture, this Security shall for all purposes be
governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
defined herein.
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------
- -------------------------------
- -------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- ---------------------------------------------------------
the within Global Note of ALBERTSON'S, INC. and all rights hereunder, hereby
irrevocably constituting and appointing
_______________________________ attorney to transfer said Global Note on the
books of the within-named Company, with full power of substitution in the
premises.
Dated:
-------------------------
SIGN HERE
----------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE
OF THE WITHIN INSTRUMENT IN EVERY
PARTICULAR, WITHOUT
<PAGE> 7
ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE GUARANTEED
<PAGE>
EXHIBIT 4.3
[Form of Fixed Rate Medium-Term Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
<TABLE>
<S> <C> <C>
REGISTERED ALBERTSON'S, INC. REGISTERED
NO. $
Medium-Term Note
Due from 9 Months to 30 Years from Date
of Issue
(Fixed Rate)
CUSIP
Original Issue Date: Interest Rate: Stated Maturity:
Interest Payment Date(s): Regular Record Date(s): Regular Redemption
/ / Yes / / No
Initial Redemption Date: Initial Redemption Price: Premium Reduction Amount:
Make-Whole Premium
Redemption / / Yes / / No
</TABLE>
ALBERTSON'S, INC. (the "Company", which term includes any successor
under the Indenture referred to hereinafter), a corporation duly organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to ______ ___________________________________, or registered
assigns, the principal sum of __________________________________________ DOLLARS
on the Stated Maturity, and to pay interest thereon, if any, at the rate per
annum shown above, computed on the basis of a 360-day year of twelve 30-day
months, until the principal hereof has been paid or made available for payment.
Except as provided in the Indenture, the Company will pay interest, if any, on
the Interest Payment Dates specified above, commencing with the first Interest
Payment Date following the Original Issue Date and ending at Maturity; provided,
however, that any payment of principal of, premium, if any, or interest, if any,
on this Global Note to be made on an Interest Payment Date or at Maturity which
is not a Business Day (as hereinafter defined) will be made on the next
succeeding Business Day. Interest on this Global Note, if any, will accrue from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from the
Original Issue Date, to but excluding the next succeeding Interest Payment Date,
until the principal hereof has been paid or made available for payment. The
interest so payable, and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Global Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date designated on the face hereof
(whether or not a Business Day) next preceding such Interest Payment Date;
provided, however, that interest payable at Maturity will be payable to the
Person to whom the principal hereof shall be payable; and provided, further,
that if this Global Note is originally issued between a Regular Record Date and
an Interest Payment Date, then interest will be payable to the Person in whose
name this Global Note (or one or more Predecessor
<PAGE> 2
Securities) is registered on the next succeeding Regular Record Date, and
will be so paid on the next succeeding Interest Payment Date. Any such interest
which is payable, but is not punctually paid or duly provided for on any
Interest Payment Date, shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Global Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Global Note not less than ten days prior to such Special Record Date, or
may be paid at any time in any other lawful manner, all as more fully provided
in the Indenture. So long as this Global Note is a Global Security held by a
Depositary or a nominee of such Depositary, then the principal of, premium, if
any, and interest, if any, on this Global Note on any Interest Payment Date and
at Maturity shall be payable in immediately available funds to such Depositary
or a nominee of such Depositary. If at any time this Global Note is no longer a
Global Security held by a Depositary or its nominee, then the principal of,
premium, if any, and interest, if any, on this Global Note at Maturity shall be
paid in immediately available funds to the Holder upon surrender of this Global
Note at the office or agency maintained by the Company for that purpose in the
Borough of Manhattan, The City of New York, or at such other place or places as
may be designated pursuant to the Indenture, provided that this Global Note is
surrendered at the office or agency described above in time for the Paying Agent
to make such payments in such funds in accordance with its normal procedures. If
at any time this Global Note is no longer a Global Security held by a Depository
or its nominee, then the payment of interest, if any, on this Global Note due on
any Interest Payment Date other than at Maturity shall be made by check mailed
to the address of the Person entitled thereto as it appears in the Security
Register on the relevant Regular or Special Record Date, as the case may be, or
by wire transfer in immediately available funds to such account as may have been
appropriately designated to the Paying Agent by such Person in writing not later
than such relevant Regular or Special Record Date, as the case may be. Each
payment of principal of, premium, if any, and interest, if any, on this Global
Note shall be made in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts.
This Global Note is one of the series of Debt Securities designated
under the Indenture as Medium-Term Notes (the "Notes").
This Global Note is one of a duly authorized issue of unsecured and
unsubordinated debentures, notes or other evidences of senior indebtedness of
the Company (herein referred to as the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of May 1, 1992 (herein referred
to as the "Indenture"), between the Company and Morgan Guaranty Trust Company of
New York (herein referred to as 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 description of the respective rights,
limitations of rights, obligations, 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. The Notes
will be issuable in an aggregate principal amount of $__________________, which
amount may be increased if duly authorized by the Company. The Notes may have
different Original Issue Dates and Interest Payment Dates, mature at different
times and bear interest at different rates and, as provided below, be subject to
different redemption provisions, and may differ in such other respects as is
provided herein or as may be provided pursuant to the terms of the Indenture.
The Notes will rank on a parity with all other senior unsecured indebtedness of
the Company from time to time outstanding.
Each of the defeasance and covenant defeasance provisions of Article
Thirteen of the Indenture shall [not] apply to this Global Note.
Each of the covenant provisions of Sections 1008 and 1009 of the
Indenture shall [not] apply to this Global Note.
This Global Note is [not] subject to payment from a sinking fund.
If so designated on the face of this Global Note, this Global Note may
be redeemed by the Company by Regular Redemption or Make-Whole Premium
Redemption on any date on and after the Initial Redemption Date indicated on the
face hereof. If neither Regular Redemption nor Make-Whole Premium Redemption is
designated on the face hereof, then this Global Note may not be redeemed prior
to its Stated Maturity.
-2-
<PAGE> 3
Regular Redemption. If so designated on the face of this Global Note
that it is subject to Regular Redemption, then on and after the Initial
Redemption Date, this Global Note may be redeemed at the option of the Company
in whole or in part in increments of $1,000 (provided that any remaining
principal amount of this Global Note shall be at least $100,000) at the
Redemption Price, together with accrued interest to the Redemption Date, on
notice given not more than 60 nor less than 30 days prior to the Redemption
Date. The Redemption Price shall be initially equal to the Initial Redemption
Price set forth on the face hereof on the Initial Redemption Date (plus accrued
interest to the Initial Redemption Date), and shall decline (but not below par)
on each anniversary of the Initial Redemption Date by the Premium Reduction
Amount set forth on the face hereof until the Redemption Price is equal to 100%
of such principal amount, plus accrued interest to the date this Global Note is
redeemed (the "Redemption Date"). If less than all of this Global Note is to be
redeemed, the beneficial interests in this Global Note to be redeemed shall be
selected by the Trustee by such method as the Trustee shall deem fair and
appropriate. In the event of redemption of this Global Note in part only, a new
Global Note for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon surrender hereof.
Make-Whole Premium Redemption. If so designated on the face of this
Global Note, this Global Note may be redeemed at the option of the Company, as a
whole or from time to time in part, upon not less than 30 nor more than 60 days'
notice mailed to the Holder at his address as it appears in the Security
Register, on any date prior to its Stated Maturity at a Redemption Price equal
to 100% of the principal amount hereof plus accrued interest to the Redemption
Date (subject to the right of the Holder of record on the relevant Regular
Record Date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date), plus a Make-Whole Premium, if any.
The amount of the "Make-Whole Premium" in respect of the principal
amount of this Global Note will be the excess, if any, of (i) the sum of the
present values, as of the Redemption Date of this Global Note, of (A) the
respective interest payments (exclusive of the amount of accrued interest to the
Redemption Date) on this Global Note that, but for such redemption, would have
been payable on their respective Interest Payment Dates after such Redemption
Date, and (B) the payment of such principal amount that, but for such
redemption, would have been payable on the Stated Maturity of this Global Note
over (ii) the amount of such principal to be redeemed. Such present values will
be determined in accordance with generally accepted principles of financial
analysis by discounting the amounts of such payments of interest and principal
from their respective Stated Maturities to such Redemption Date at a discount
rate equal to the Treasury Yield.
The "Treasury Yield" in respect of this Global Note shall be determined
as of the date on which notice of redemption of this Global Note is sent to the
Holder hereof by reference to the most recent Federal Reserve Statistical
Release H.15 (519) (or successor publication) which has become publicly
available not more than two Business Days prior to such date (or, if such
Statistical Release (or successor publication) is no longer published or no
longer contains the applicable data, to the most recently published issue of The
Wall Street Journal (Eastern Edition) published not more than two Business Days
prior to such date that contains such data or, if The Wall Street Journal
(Eastern Edition) is no longer published or no longer contains such data, to any
publicly available source of similar market data), and shall be the most recent
weekly average yield on actively traded U.S. Treasury securities adjusted to a
constant maturity equal to the Remaining Life of this Global Note and, if
applicable, converted to a bond equivalent yield basis as described below. The
"Remaining Life of this Global Note" shall equal the number of years from the
Redemption Date to the Stated Maturity of this Global Note; provided that if the
Remaining Life of this Global Note is not equal to the constant maturity of a
U.S. Treasury security for which a weekly average yield is specified in the
applicable source, then the Remaining Life of this Global Note shall be rounded
to the nearest one-twelfth of one year and the Treasury Yield shall be obtained
by linear interpolation (computed to the fifth decimal place (one thousandth of
a percentage point) and then rounded to the fourth decimal place (one hundredth
of a percentage point)), after rounding to the nearest one-twelfth of one year,
from the weekly average yields of (a) the actively traded U.S. Treasury security
with a maturity closest to and less than the Remaining Life of this Global Note
and (b) the actively traded U.S. Treasury security with a maturity closest to
and greater than the Remaining Life of this Global Note, except that if the
Remaining Life of this Global Note is less than three months, the weekly average
yield on actively traded U.S. Treasury securities adjusted to a constant
maturity of three months shall be used. The Treasury Yield shall, if expressed
on a yield basis other than that equivalent to a bond equivalent yield basis, be
converted to a bond equivalent yield basis and shall be computed to the fifth
decimal place (one thousandth of a percentage point) and then rounded to the
fourth decimal place (one hundredth of a percentage point).
If an Event of Default with respect to this Global Note shall occur and
be continuing, the entire principal amount of this Global Note may be declared
due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
-3-
<PAGE> 4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also permits the amendment thereof without the consent of the Holders of any of
the Securities to, among other things, cure any ambiguity or omission or correct
or supplement any provision therein that may be inconsistent with any other
provision therein, or take certain other actions, provided that such actions
will not adversely affect the interests of the Holders of Securities of any
series in any material respect. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of Securities of any series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and the consequences thereof. Any such consent or waiver by the Holder
of this Global Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest, if any, on this Global Note at the time, place and rate, and in
the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Global Note is registrable on the Security
Register upon surrender of this Global Note for registration of transfer at the
office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Global Notes of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. As provided in the Indenture and subject
to certain limitations therein set forth, this Global Note is exchangeable for
the same aggregate principal of Global Notes of authorized denominations, as
requested by the Holder surrendering the same. No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note may be overdue, and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
In the event that (i) DTC, or any successor Depositary, notifies the
Company and the Trustee in writing that it is unwilling or unable to continue as
Depositary for this Global Note or if at any time DTC, or any successor
Depositary, ceases to be a clearing corporation registered under the Exchange
Act, and a successor Depositary is not appointed by the Company within 90 days,
(ii) the Company in its sole discretion determines that the Notes shall no
longer be represented by this Global Note and executes and delivers to the
Trustee a Company Order that this Global Note shall be exchangeable or (iii)
there shall have occurred and be continuing an Event of Default or an event
which, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default with respect to the Notes represented by this Global Note,
then the Company will issue Notes in definitive form in exchange for this Global
Note. Notes so issued in definitive form will be issued as registered Notes
without coupons in denominations of $100,000 and integral multiples of $1,000 in
excess thereof.
AS PROVIDED IN THE INDENTURE, THIS GLOBAL NOTE SHALL FOR ALL PURPOSES
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
defined herein.
This Global Note shall not be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
the Trustee under the Indenture.
WITNESS the seal of the Company and the signatures of its duly
authorized officers.
-4-
<PAGE> 5
ALBERTSON'S, INC.
Dated: By:
---------------------------------
Senior Vice President, Finance
and Chief Financial Officer
[SEAL] By:
---------------------------------
Corporate Secretary
Trustee's Certification of Authentication
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
First Trust of New York, N.A.
as Trustee
By:
------------------------------------
Authorized Officer
-5-
<PAGE> 6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
- --------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including
postal zip code of assignee)
the within Global Note of ALBERTSON'S, INC. and all rights hereunder, hereby
irrevocably constituting and appointing _________________________ attorney to
transfer said Global Note on the books of the within-named Company, with full
power of substitution in the premises.
Dated:
---------------------------
SIGN HERE
--------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN INSTRUMENT IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE GUARANTEED
<PAGE> 1
EXHIBIT 4.4
[FORM OF FACE OF SECURITY]
If this Security is an Original Issue Discount Security the following
legend is applicable:
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ AND THE YIELD TO
MATURITY IS _____% [THE METHOD USED TO DETERMINE THE YIELD IS _______ AND THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
_______ 19__ TO ____________, 19____ IS ___% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY]
If the registered owner of this Security is The Depositary Trust
Company (the "Depositary") or a nominee of the Depositary, this Security is a
Security in global form (a "Global Security") and the following legends are
applicable:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, AND UNLESS ANY PAYMENT MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
R-__
CUSIP
ALBERTSON'S, INC.
Note due
ALBERTSON'S, INC. (the "Company", which term includes any successor
under the Indenture referred to hereinafter), a corporation duly organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to ______ ___________________________________, or registered
assigns, the principal sum of __________________________________________ DOLLARS
on the Stated Maturity, and to pay interest thereon, if any, at a rate per annum
equal to the Initial Interest Rate until the first Interest Reset Date following
the Original Issue Date, and thereafter at a rate determined in accordance with
[insert formulas to determine interest rate], until the principal hereof has
been paid or made available for payment. Except as provided in the Indenture,
the Company will pay interest, if any, [monthly, quarterly, semiannually or
annually], commencing with the first Interest Payment Date following the
Original Issue Date and ending at Maturity; provided, however, that any payment
of principal of, premium, if any, or interest, if any, on this Security, to be
made on an Interest Payment Date or at Maturity which is not a Business Day (as
hereinafter defined) will be made on the next succeeding Business Day. Interest
on this Security, if any, will accrue from the most recent Interest Payment Date
to which interest has been paid or duly provided for, or, if no interest has
been paid or duly provided for, from the Original Issue Date until the principal
hereof has been paid or made available for payment. The interest so payable, and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the 15th day (whether or not a Business Day) next preceding such Interest
Payment Date (a "Regular Record Date"); provided, however, that interest payable
at Maturity will be payable to the Person to whom the principal hereof shall be
payable; and provided, further, that if this Security is originally issued
between a Regular Record Date and an Interest Payment Date, then interest will
be payable to the Person in whose name this Security (or one or more Predecessor
Securities) is registered on the next succeeding Regular Record Date, and will
be so paid on the next succeeding Interest Payment Date. Any such interest which
<PAGE> 2
is payable, but is not punctually paid or duly provided for on any Interest
Payment Date, shall forthwith cease to be payable to the registered Holder on
such Regular Record Date, and may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Security not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully provided in the
Indenture. [So long as this Security is a Global Security held by a Depositary
or a nominee of such Depositary, then the principal of, premium, if any, and
interest, if any, on this Security on any Interest Payment Date and at Maturity
shall be paid in immediately available funds to such Depositary or a nominee of
such Depositary. If at any time this Security is no longer a Global Security
held by a Depositary or its nominee, then the principal of, premium, if any, and
interest, if any, on this Security at Maturity shall be paid in immediately
available funds to the Holder upon surrender of this Security at the office or
agency maintained by the Company for that purpose in the Borough of Manhattan,
The City of New York, or at such other place or places as may be designated
pursuant to the Indenture, provided that this Security is surrendered at the
office or agency described above in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures. If at any time
this Security is no longer a Global Security held by a Depository or its
nominee, then the payment of interest, if any, on this Security due on any
Interest Payment Date other than at Maturity shall be made by check mailed to
the address of the Person entitled thereto as it appears on the Security
Register on the relevant Regular or Special Record Date, as the case may be, or
by wire transfer in immediately available funds to such account as may have been
appropriately designated to the Paying Agent by such Person in writing not later
than such relevant Regular or Special Record Date, as the case may be.] Each
payment of principal of, premium, if any, and interest, if any, on this Security
shall be made in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
-2-
<PAGE> 3
WITNESS THE SEAL OF THE COMPANY AND THE SIGNATURES OF ITS DULY
AUTHORIZED OFFICERS.
ALBERTSON'S, INC.
Dated: By:
--------------------------------
Senior Vice President, Finance
and Chief Financial Officer
[SEAL] By:
--------------------------------
Corporate Secretary
TRUSTEE'S CERTIFICATION OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE SERIES
DESIGNATED THEREIN REFERRED TO IN THE
WITHIN-MENTIONED INDENTURE.
FIRST TRUST OF NEW YORK, N.A.,
AS TRUSTEE
By:
---------------------------
Authorized Officer
-3-
<PAGE> 4
[FORM OF REVERSE OF SECURITY]
This Security is one of the series of Debt Securities designated under
the Indenture as Medium-Term Notes (the "Notes").
This Security is one of a duly authorized issue of unsecured and
unsubordinated debentures, notes or other evidences of senior indebtedness of
the Company (herein referred to as the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of May 1, 1992 (herein referred
to as the "Indenture"), between the Company and Morgan Guaranty Trust Company of
New York (herein referred to as 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 description of the respective rights,
limitations of rights, obligations, 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. The Notes
will be issuable in an aggregate principal amount of $_______________ which
amount may be increased if duly authorized by the Company. The Notes may have
different Original Issue Dates and Interest Payment Dates, mature at different
times and bear interest at different rates and, as provided below, be subject to
different redemption provisions, and may differ in such other respects as is
provided herein or as may be provided pursuant to the terms of the Indenture.
The Notes will rank on a parity with all other senior unsecured indebtedness of
the Company from time to time outstanding.
Commencing with the first Interest Reset Date specified on the face
hereof following the Original Issue Date, the rate at which interest, if any, is
payable on this Security shall be adjusted daily, [weekly, monthly, quarterly,
semiannually or annually], provided, however, that the interest rate in effect
for the period from the Original Issue Date to the first Interest Reset Date
shall be [___%], and the interest rate in effect for the ten days immediately
preceding the Stated Maturity or Redemption Date, if any, shall be that in
effect on the tenth day preceding such Stated Maturity or Redemption Date, if
any. Each such adjusted rate shall be applicable on and after the Interest Reset
Date to which it relates, to but not including the next succeeding Interest
Reset Date or until the Stated Maturity, as the case may be. Subject to
applicable provisions of law and except as specified herein, on each Interest
Reset Date, the rate of interest, if any, on this Security shall be the rate
determined in accordance with the provisions of the applicable heading below.
[Insert description of floating rate indices applicable to the Securities.]
[This Global Security represents all of the Company's _____% Notes due
_____, ____ (hereinafter called the "Notes"), which are a duly authorized issue
of Securities under the Indenture limited in aggregate principal amount to
$___________.] So long as this Global Security shall represent all of the Notes,
the principal of, premium, if any, and interest, if any, on this Global Security
shall be paid in immediately available funds to DTC, or to such name or entity
as is requested by an authorized representative of DTC. If at any time the Notes
are no longer represented by this Global Security and are issued in definitive
form ("Certificated Notes"), then the principal of, premium, if any, and
interest, if any, on each Certificated Note at Maturity shall be paid in
immediately available funds to the Holder upon surrender of such Certificated
Note at the Corporate Trust Office of the Trustee in the Borough of Manhattan,
The City of New York, or at such other place or places as may be designated in
the Indenture, provided that such Certificated Note is surrendered to the
Trustee, acting as Paying Agent, in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures. Payments of
interest with respect to Certificated Notes other than at Maturity shall be made
by check mailed to the address of the Person entitled thereto as it appears on
the Security Register on the relevant Regular or Special Record Date or by wire
transfer in immediately available funds to such account as may have been
appropriately designated to the Paying Agent by such Person in writing not later
than such relevant Regular or Special Record Date.] Each payment of principal,
premium, if any, and interest, if any, will be made in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.]
[The Securities of this series are subject to redemption [on __________
in any year commencing with the year _____ and ending with the year _____
through the operation of the sinking fund for this series at a Redemption Price
equal to [insert formula for determining the amount] [and] [at any time [on or
after ______, 19__], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the
<PAGE> 5
principal amount): If redeemed [on or before __________, __%, and if redeemed]
during the 12-month period beginning _____ of the years indicated:
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,]
[and (___)] under the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [insert formula for determining the
amount] [,together in the case of any such redemption [(whether through the
operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date: provided, however, that instalments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture].
[The Securities of this series are subject to redemption (i) on
___________ in any year commencing with the year ________ and ending with the
year ______ through the operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________ 19___], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning _______ of the years indicated:
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE
FOR REDEMPTION FOR REDEMPTION
THROUGH OPERATION OTHERWISE THAN
OF THE THROUGH OPERATION
YEAR SINKING FUND YEAR OF SINKING FUND
- ---- ------------ ---- ---------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount [and
(3) under the circumstances described in the next [two] paragraph[s] at a
Redemption Price equal to [insert formula for determining the amount] [,together
in the case of any such redemption [(whether through the operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date:
provided, however, that instalments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture]. [Notwithstanding the foregoing, the Company may not,
prior to _____, redeem any Securities of this series as contemplated by Clause
[(2)] above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than __% per annum.]
[The sinking fund for this series provides for the redemption on
________ in each year, beginning with the year _____ and ending with the year
______ of [not less than] $_____ ("mandatory sinking fund") and not more than
[$________] aggregate principal amount of Securities of this series. [Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against
<PAGE> 6
subsequent [mandatory] sinking fund payments otherwise required to be made - in
the inverse order in which they become due]].
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion thereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to this Security shall occur and be
continuing, the entire principal amount hereof may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also permits the amendment thereof without the consent of the Holders of any of
the Securities to, among other things, cure any ambiguity or omission or correct
or supplement any provision therein that may be inconsistent with any other
provision therein, or take certain other actions, provided that such actions
will not adversely affect the interests of the Holders of Securities of any
series in any material respect. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of Securities of any series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and the consequences thereof. 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 therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
Each of the defeasance and covenant defeasance provisions of Article
Thirteen of the Indenture shall [not] apply to this series of Securities.
Each of the covenant provisions of Sections 1008 and 1009 of the
Indenture shall [not] apply to this series of Securities.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, [premium, if any,] and
interest, if any, on this Security at the time, place and rate, and in the coin
or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Securities
Register upon surrender of this Security for registration of transfer at the
office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. As provided in the Indenture and subject
to certain limitations therein set forth, this Security is exchangeable for the
same aggregate principal of Securities of authorized denominations, as requested
by the Holder surrendering the same. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security may be overdue,
<PAGE> 7
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
[In the event that (i) DTC, or any successor Depositary, notifies the
Company and the Trustee in writing that it is unwilling or unable to continue as
Depositary for this Global Security or if at any time DTC, or any successor
Depositary, ceases to be a clearing corporation registered under the Exchange
Act, and a successor Depositary is not appointed by the Company within 90 days,
(ii) the Company in its sole discretion determines that the Notes shall no
longer be represented by this Global Security and executes and delivers to the
Trustee a Company Order that this Global Security shall be exchangeable or (iii)
there shall have occurred and be continuing an Event of Default or an event
which, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default with respect to the Notes represented by this Global
Security, then the Company will issue Notes in definitive form in exchange for
this Global Security. In such event, an owner of a beneficial interest in this
Global Security will be entitled to have Notes equal in aggregate principal
amount to such beneficial interest registered in its name and will be entitled
to physical delivery of such Notes in definitive form. Notes so issued in
definitive form will be issued as registered Notes without coupons in
denominations of $1,000 and integral multiples thereof.]
[Notwithstanding any provision herein to the contrary, every Note
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Global Security other than pursuant to clauses (i), (ii) or
(iii) of the preceding paragraph, shall be authenticated and delivered in the
form of, and shall be, a Global Security.]
As provided in the Indenture, this Security shall for all purposes be
governed by and construed in accordance with the laws of the State of New York.
<PAGE> 8
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
defined herein.
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------
the within Security of ALBERTSON'S, INC. and all rights hereunder, hereby
irrevocably constituting and appointing
______________________________________ attorney to transfer said Security on the
books of the within-named Company, with full power of substitution in the
premises.
Dated:
-------------------------
SIGN HERE
------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON
THE FACE OF THE WITHIN
INSTRUMENT IN EVERY
PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
SIGNATURE GUARANTEED
<PAGE>
EXHIBIT 4.5
[Form of Floating Rate Medium-Term Note]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
<TABLE>
<S> <C> <C>
REGISTERED ALBERTSON'S, INC. REGISTERED
NO. $
Medium-Term Note
Due from 9 Months to 30 Years from Date
of Issue
(Floating Rate)
CUSIP
Original Issue Date: Interest Reset Date(s): Minimum Interest Rate:
Initial Interest Rate: Stated Maturity: Maximum Interest Rate:
Interest Rate Basis: Interest Payment Period: Calculation Agent:
Index Maturity: Interest Reset Period: Initial Redemption Date:
Spread: Interest Payment Date(s): Initial Redemption Price:
Spread Multiplier: Regular Record Date(s): Premium Reduction Amount:
</TABLE>
ALBERTSON'S, INC. (the "Company", which term includes any successor
under the Indenture referred to hereinafter), a corporation duly organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to ______ ___________________________________, or registered
assigns, the principal sum of __________________________________________ DOLLARS
on the Stated Maturity, and to pay interest thereon, if any, at a rate per annum
equal to the Initial Interest Rate until the first Interest Reset Date following
the Original Issue Date, and thereafter at a rate determined in accordance with
the provisions below under the heading "Determination of Commercial Paper Rate",
"Determination of Prime Rate", "Determination of LIBOR", "Determination of
Treasury Rate", "Determination of CD Rate" or "Determination of Federal Funds
Rate", depending upon whether the Interest Rate Basis is the Commercial Paper
Rate, Prime Rate, LIBOR, Treasury Rate, CD Rate or Federal Funds Rate, as
designated on the face hereof, until the principal hereof has been paid or made
available for payment. Except as provided in the Indenture, the Company will
<PAGE> 2
pay interest, if any, monthly, quarterly, semiannually or annually as designated
on the face hereof under "Interest Payment Period", commencing with the first
Interest Payment Date following the Original Issue Date and ending at Maturity;
provided, however, that any payment of principal of, premium, if any, or
interest, if any, on this Global Note, to be made on an Interest Payment Date or
at Maturity which is not a Market Day (as hereinafter defined) will be made on
the next succeeding Market Day, except that if the Interest Rate Basis is LIBOR,
if such next succeeding Market Day falls in the next calendar month, such
payment will be made on the immediately preceding Market Day. Interest on this
Global Note, if any, will accrue from the most recent Interest Payment Date to
which interest has been paid or duly provided for, or, if no interest has been
paid or duly provided for, from the Original Issue Date until the principal
hereof has been paid or made available for payment. The interest so payable, and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Global Note
(or one or more Predecessor Securities) is registered at the close of business
on the 15th day (whether or not a Business Day) next preceding such Interest
Payment Date (a "Regular Record Date"); provided, however, that interest payable
at Maturity will be payable to the Person to whom the principal hereof shall be
payable; and provided, further, that if this Global Note is originally issued
between a Regular Record Date and an Interest Payment Date, then interest will
be payable to the Person in whose name this Global Note (or one or more
Predecessor Securities) is registered on the next succeeding Regular Record
Date, and will be so paid on the next succeeding Interest Payment Date. Any such
interest which is payable, but is not punctually paid or duly provided for on
any Interest Payment Date, shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Global Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Global Note not less than ten days prior to such Special Record Date, or
may be paid at any time in any other lawful manner, all as more fully provided
in the Indenture. So long as this Global Note is a Global Security held by a
Depositary or a nominee of such Depositary, then the principal of, premium, if
any, and interest, if any, on this Global Note on any Interest Payment Date and
at Maturity shall be paid in immediately available funds to such Depositary or a
nominee of such Depositary. If at any time this Global Note is no longer a
Global Security held by a Depositary or its nominee, then the principal of,
premium, if any, and interest, if any, on this Global Note at Maturity shall be
paid in immediately available funds to the Holder upon surrender of this Global
Note at the office or agency maintained by the Company for that purpose in the
Borough of Manhattan, The City of New York, or at such other place or places as
may be designated pursuant to the Indenture, provided that this Global Note is
surrendered at the office or agency described above in time for the Paying Agent
to make such payments in such funds in accordance with its normal procedures. If
at any time this Global Note is no longer a Global Security held by a Depository
or its nominee, then the payment of interest, if any, on this Global Note due on
any Interest Payment Date other than at Maturity shall be made by check mailed
to the address of the Person entitled thereto as it appears on the Security
Register on the relevant Regular or Special Record Date, as the case may be, or
by wire transfer in immediately available funds to such account as may have been
appropriately designated to the Paying Agent by such Person in writing not later
than such relevant Regular or Special Record Date, as the case may be. Each
payment of principal of, premium, if any, and interest, if any, on this Global
Note shall be made in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts.
This Global Note is one of the series of Debt Securities designated
under the Indenture as Medium-Term Notes (the "Notes").
This Global Note is one of a duly authorized issue of unsecured and
unsubordinated debentures, notes or other evidences of senior indebtedness of
the Company (herein referred to as the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of May 1, 1992 (herein referred
to as the "Indenture"), between the Company and Morgan Guaranty Trust Company of
New York (herein referred to as 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 description of the respective rights,
limitations of rights, obligations, 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. The Notes
will be issuable in an aggregate principal amount of $________________, which
amount may be increased if duly authorized by the Company. The Notes may have
different Original Issue Dates and Interest Payment Dates, mature at different
times and bear interest at different rates and, as provided below, be subject to
different redemption provisions, and may differ in such other respects as is
provided herein or as may be provided pursuant to the terms of the Indenture.
The Notes will rank on a parity with all other senior unsecured indebtedness of
the Company from time to time outstanding.
Commencing with the first Interest Reset Date specified on the face
hereof following the Original Issue Date, the rate at which interest, if any, is
payable on this Global Note shall be adjusted daily, weekly, monthly, quarterly,
semiannually or annually as shown on the face hereof under "Interest Reset
Period", provided, however, that the
-2-
<PAGE> 3
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date shall be the Initial Interest Rate, and the interest rate in
effect for the ten days immediately preceding the Stated Maturity or Redemption
Date, if any, shall be that in effect on the tenth day preceding such Stated
Maturity or Redemption Date, if any. Each such adjusted rate shall be applicable
on and after the Interest Reset Date to which it relates, to but not including
the next succeeding Interest Reset Date or until the Stated Maturity, as the
case may be. Subject to applicable provisions of law and except as specified
herein, on each Interest Reset Date, the rate of interest, if any, on this
Global Note shall be the rate determined in accordance with the provisions of
the applicable heading below, plus or minus the Spread or multiplied by the
Spread Multiplier, as indicated above.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
designated on the face hereof is the Commercial Paper Rate, then the "Commercial
Paper Rate" for each Interest Reset Date will be determined by the Calculation
Agent as of the second Market Day preceding such Interest Reset Date (a
"Commercial Paper Interest Determination Date"), and will be the Money Market
Yield (as hereinafter defined) of the per annum rate (quoted on a bank discount
basis) on such Commercial Paper Interest Determination Date for commercial paper
having the specified Index Maturity as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)") under the heading "Commercial Paper". In the event
that such rate is not published prior to 9:00 A.M., New York City time, on the
relevant Calculation Date, then the Commercial Paper Rate with respect to such
Interest Reset Date shall be the Money Market Yield of the rate on such
Commercial Paper Interest Determination Date for commercial paper having the
specified Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release, "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication published by the Federal
Reserve Bank of New York ("Composite Quotations") under the heading "Commercial
Paper". If by 3:00 P.M., New York City time, on such Calculation Date such rate
is not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate with respect to such Interest Reset Date shall be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered per annum rates (quoted on a bank discount
basis), as of 11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the
specified Index Maturity placed for an industrial issuer whose bond rating is
"AA", or the equivalent, from a nationally recognized rating agency; provided,
however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as mentioned in this sentence, the Commercial
Paper Rate with respect to such Interest Reset Date will be the Commercial Paper
Rate in effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
360 x D
Money Market Yield = 100 x
---------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period corresponding to the specified Index Maturity.
The "Calculation Date" pertaining to a Commercial Paper Interest
Determination Date shall be the tenth day after such Commercial Paper Interest
Determination Date or, if any such day is not a Market Day, the next succeeding
Market Day.
"Market Day" means (a) with respect to any Note (other than any LIBOR
Note), any Business Day in The City of New York, and (b) with respect to any
LIBOR Note, any Business Day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis designated on
the face hereof is the Prime Rate, then the "Prime Rate" for each Interest Reset
Date will be determined by the Calculation Agent as of the second Market Day
preceding such Interest Reset Date (a "Prime Rate Interest Determination Date"),
and will be the rate set forth for the relevant Prime Rate Interest
Determination Date in H.15(519) under the heading "Bank Prime Loan". In the
event that such rate is not published prior to 9:00 A.M., New York City time, on
the relevant Calculation Date, then the Prime Rate with respect to such Interest
Reset Date will be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
NYMF page on that service for the purpose of displaying prime rates or base
lending
-3-
<PAGE> 4
rates of major United States banks) ("Reuters Screen NYMF Page") as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Prime Rate
Interest Determination Date. If fewer than four such rates appear on the Reuters
Screen NYMF Page on such Prime Rate Interest Determination Date, the Prime Rate
with respect to such Interest Reset Date will be the arithmetic mean of the
prime rates or base lending rates (quoted on the basis of the actual number of
days in the year divided by a 360-day year) as of the close of business on such
Prime Rate Interest Determination Date by three major banks in The City of New
York selected by the Calculation Agent; provided, however, that if fewer than
three banks selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the Prime Rate with respect to such Interest Reset
Date will be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
The "Calculation Date" pertaining to a Prime Rate Interest
Determination Date shall be the tenth day after such Prime Rate Interest
Determination Date or, if any such day is not a Market Day, the next succeeding
Market Day.
DETERMINATION OF LIBOR. If the Interest Rate Basis designated on the
face hereof is LIBOR, then "LIBOR" for each Interest Reset Date will be
determined by the Calculation Agent as of the second Market Day preceding such
Interest Reset Date (a "LIBOR Interest Determination Date") as follows:
(i) On the relevant LIBOR Interest Determination Date, LIBOR
will be determined on the basis of the offered rates for deposits of
not less than U.S. $1,000,000 having the specified Index Maturity,
commencing on the second Market Day immediately following such LIBOR
Interest Determination Date, which appear on the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such other
page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("Reuters
Screen LIBO Page") as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If at least two such offered rates appear
on the Reuters Screen LIBO Page, LIBOR with respect to such Interest
Reset Date will be the arithmetic mean of such offered rates as
determined by the Calculation Agent. If fewer than two offered rates
appear, LIBOR with respect to such Interest Reset Date will be
determined as described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates for the specified Index Maturity
appear on the Reuters Screen LIBO Page as described in (i) above, LIBOR
will be determined on the basis of the rates at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date at which
deposits in U.S. dollars having the specified Index Maturity are
offered to prime banks in the London interbank market by four major
banks in the London interbank market selected by the Calculation Agent
commencing on the second Market Day immediately following such LIBOR
Interest Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that in the Calculation Agent's
judgment is representative for a single transaction in such market at
such time (a "Representative Amount"). The Calculation Agent will
request the principal London office of each of such banks to provide a
quotation of its rate. If at least two such quotations are provided,
LIBOR with respect to such Interest Reset Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided,
LIBOR with respect to such Interest Reset Date will be the arithmetic
mean of the rates quoted at approximately 11:00 A.M., New York City
time, on such LIBOR Interest Determination Date by three major banks in
The City of New York, selected by the Calculation Agent, for loans in
U.S. dollars to leading European banks having the specified Index
Maturity commencing on the second Market Day immediately following such
LIBOR Interest Determination Date and in a Representative Amount;
provided, however, that if fewer than three banks selected as aforesaid
by the Calculation Agent are quoting as mentioned in this sentence,
LIBOR with respect to such Interest Reset Date will be the LIBOR in
effect on such LIBOR Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis designated
on the face hereof is the Treasury Rate, then the "Treasury Rate" for each
Treasury Rate Interest Determination Date (as hereinafter defined) will be the
rate for the auction on the relevant Treasury Rate Interest Determination Date
of direct obligations of the United States ("Treasury bills") having the
specified Index Maturity as published in H.15(519) under the heading "U.S.
Government Securities/Treasury Bills/Auction Average (Investment)" or, if not so
published by 9:00 A.M., New York City time,
-4-
<PAGE> 5
The "Calculation Date" pertaining to a Federal Funds Rate Interest
Determination Date will be the tenth day after such Federal Funds Rate Interest
Determination Date or, if such day is not a Market Day, the next succeeding
Market Day.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, designated on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date or other date on which an interest rate is to be
calculated. The interest rate on this Global Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent will provide
to such Holder the interest rate hereon then in effect and, if determined, the
interest rate which will become effective on the next Interest Reset Date. The
Calculation Agent's determination of any interest rate will be final and binding
in the absence of manifest error.
Interest payments hereon will include interest accrued to but excluding
the Interest Payment Date; provided, however, that if the Interest Reset Dates
with respect to this Global Note are daily or weekly, interest payable on any
Interest Payment Date, other than interest payable on any date on which
principal hereof is payable, will include only interest accrued to and including
the next preceding Regular Record Date. Accrued interest hereon from the
Original Issue Date or from the last date to which interest hereon has been
paid, as the case may be, shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor shall
be computed by adding the interest factor calculated for each day from the
Original Issue Date, or from the last date to which interest has been paid, as
the case may be, to but excluding the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal, and rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage point) for
each such day shall be computed by dividing the interest rate (expressed as a
decimal, and rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) applicable to such date by 360, if the
Interest Rate Basis is the Commercial Paper Rate, the Prime Rate, LIBOR, the CD
Rate or the Federal Funds Rate, as designated on the face hereof, or by the
actual number of days in the year, if the Interest Rate Basis is the Treasury
Rate, as designated on the face hereof.
Each of the defeasance and covenant defeasance provisions of Article
Thirteen of the Indenture shall [not] apply to this Global Note.
Each of the covenant provisions of Sections 1008 and 1009 of the
Indenture shall [not] apply to this Global Note.
This Global Note is [not] subject to payment from a sinking fund.
If so designated on the face of this Global Note, this Global Note may
be redeemed by the Company on any date on and after the Initial Redemption Date
indicated on the face hereof. If no Initial Redemption Date is set forth on the
face hereof, this Global Note may not be redeemed prior to its Stated Maturity.
On and after the Initial Redemption Date, if any, this Global Note may be
redeemed at the option of the Company in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Global Note shall
be at least $100,000) at the Redemption Price, together with accrued interest to
the Redemption Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. The Redemption Price shall be initially equal to
the Initial Redemption Price set forth on the face hereof on the Initial
Redemption Date (plus accrued interest to the Initial Redemption Date), and
shall decline (but not below par) on each anniversary of the Initial Redemption
Date by the Premium Reduction Amount set forth on the face hereof until the
Redemption Price is equal to 100% of such principal amount, plus accrued
interest to the date this Global Note is redeemed (the "Redemption Date"). If
less than all of this Global Note is to be redeemed, the beneficial interests in
this Global Note to be redeemed shall be selected by the Trustee by such method
as the Trustee shall deem fair and appropriate. In the event of redemption of
this Global Note in part only, a new Global Note for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon surrender hereof.
If an Event of Default with respect to this Global Note shall occur and
be continuing, the entire principal amount of this Global Note may be declared
due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also
-6-
<PAGE> 6
permits the amendment thereof without the consent of the Holders of any of the
Securities to, among other things, cure any ambiguity or omission or correct or
supplement any provision therein that may be inconsistent with any other
provision therein, or take certain other actions, provided that such actions
will not adversely affect the interests of the Holders of Securities of any
series in any material respect. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of Securities of any series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and the consequences thereof. Any such consent or waiver by the Holder
of this Global Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest, if any, on this Global Note at the time, place and rate, and in
the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Global Note is registrable on the Security
Register upon surrender of this Global Note for registration of transfer at the
office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Global Notes of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. As provided in the Indenture and subject
to certain limitations therein set forth, this Global Note is exchangeable for
the same aggregate principal of Global Notes of authorized denominations, as
requested by the Holder surrendering the same. No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note may be overdue, and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
In the event that (i) DTC, or any successor Depositary, notifies the
Company and the Trustee in writing that it is unwilling or unable to continue as
Depositary for this Global Note or if at any time DTC, or any successor
Depositary, ceases to be a clearing corporation registered under the Exchange
Act, and a successor Depositary is not appointed by the Company within 90 days,
(ii) the Company in its sole discretion determines that the Notes shall no
longer be represented by this Global Note and executes and delivers to the
Trustee a Company Order that this Global Note shall be exchangeable or (iii)
there shall have occurred and be continuing an Event of Default or an event
which, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default with respect to the Notes represented by this Global Note,
then the Company will issue Notes in definitive form in exchange for this Global
Note. Notes so issued in definitive form will be issued as registered Notes
without coupons in denominations of $100,000 and integral multiples of $1,000 in
excess thereof.
AS PROVIDED IN THE INDENTURE, THIS GLOBAL NOTE SHALL FOR ALL PURPOSES
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
defined herein.
This Global Note shall not be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
the Trustee under the Indenture.
WITNESS the seal of the Company and the signatures of its duly
authorized officers.
ALBERTSON'S, INC.
Dated: By:
---------------------------------
-7-
<PAGE> 7
Senior Vice President, Finance
and Chief Financial Officer
[SEAL] By:
---------------------------------
Corporate Secretary
Trustee's Certification of Authentication
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
First Trust of New York, N.A.,
as Trustee
By:
-------------------------------------
Authorized Officer
-8-
<PAGE> 8
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
- --------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including
postal zip code of assignee)
the within Global Note of ALBERTSON'S, INC. and all rights hereunder, hereby
irrevocably constituting and appointing ____________________ attorney to
transfer said Global Note on the books of the within-named Company, with full
power of substitution in the premises.
Dated:
-------------------------
SIGN HERE
--------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN INSTRUMENT IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE GUARANTEED
<PAGE>
[ALBERTSON'S LETTERHEAD]
EXHIBIT 5.1
December 8, 1997
Albertson's, Inc.
P. O. Box 20
Boise, ID 83726
RE: Albertson's, Inc. Registration Statement on Form S-3
Ladies and Gentlemen:
I am Executive Vice President, Administration and General Counsel of
Albertson's, Inc., a Delaware corporation (the "Company"). I have assisted in
the preparation of the above-referenced Registration Statement on Form S-3 being
filed by the Company with the Securities and Exchange Commission (the
"Commission") on or about December 8, 1997 (the "Registration Statement") in
connection with the Company's registration under the Securities Act of 1933, as
amended (the "1933 Act"), of $500,000,000 aggregate principal amount of senior
debt securities (the "Debt Securities") of the Company. The Debt Securities are
being registered for offering and sale from time to time on a delayed or
continuous basis pursuant to Rule 415 under the 1933 Act. The Debt Securities
are to be issued pursuant to an indenture dated as of May 1, 1992 (the
"Indenture"), entered into between the Company and First Trust of New York,
N.A., a New York corporation, as trustee (the "Trustee") and successor in
interest to the corporate trust business of Morgan Guaranty Trust Company of New
York.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction of (i)
the Registration Statement on Form S-3 relating to the Debt Securities (together
with the form of Prospectus forming a part thereof); (ii) the Certificate of
Incorporation of the Company, as currently in effect (the "Certificate of
Incorporation"); (iii) the By-Laws of the Company as currently in effect (the
"By-Laws"); (iv) the resolutions of the Company's Board of Directors relating to
(A) the preparation of the Registration Statement and the registration of the
Debt Securities under the 1933 Act and (B) the issuance, offering and sale from
time to time of the Debt Securities; and (v) the Indenture. I have also examined
originals or copies, certified or otherwise identified to my satisfaction of
such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company and
others and such other documents, certificates and records as I have deemed
necessary or appropriate as a basis for the opinions set forth herein.
<PAGE>
Albertson's Inc.
December 8, 1997
Page 2
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making my examination
of documents executed or to be executed by parties other than the Company, I
have assumed that such parties had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof. As to any facts material to the opinions expressed herein which I have
not independently established or verified, I have relied upon statements and
representations of officers and other representatives of the Company and others.
I am admitted to the practice of law in the State of Idaho, and I
express no opinion as to the laws of any other jurisdiction, other than the
General Corporation Law of the State of Delaware and laws of the United States
of America. With respect to my opinion below, to the extent it constitutes an
opinion related to New York law, I have reviewed and relied upon a legal opinion
addressed to the Company of Skadden, Arps, Slate, Meagher & Flom LLP that,
subject to the qualifications and assumptions stated therein, the Debt
Securities will be validly issued and legally binding obligations of the Company
under New York law.
Based upon and subject to the foregoing, I am of the opinion that with
respect to any series of Debt Securities (the "Offered Securities"), when (i)
the Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate Prospectus
Supplement with respect to the Offered Securities has been prepared, delivered
and filed in compliance with the 1933 Act and the applicable rules and
regulations thereunder; (iii) if the Offered Securities are to be sold pursuant
to a firm commitment underwritten offering, the Underwriting Agreement with
respect to the Offered Securities has been duly authorized, executed and
delivered by the Company and the other parties thereto; (iv) the terms of the
Offered Securities and of their issuance and sale have been duly established in
conformity with the applicable Indenture so as not to violate any applicable
law, the Certificate of Incorporation or By-laws of the Company or result in a
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
<PAGE>
Albertson's Inc.
December 8, 1997
Page 3
governmental body having jurisdiction over the Company; (v) the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended; and (vi) the
Offered Securities have been duly executed and authenticated in accordance with
the provisions of the Indenture and duly delivered to the purchasers thereof
upon payment of the agreed upon consideration therefor (assuming due
authorization, execution and delivery of the Indenture by the Trustee), the
Offered Securities, when issued and sold in accordance with the Underwriting
Agreement or any other duly authorized, executed and delivered applicable valid
and binding purchase agreement will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or other similar
laws now or hereafter in effect relating to creditors' rights generally; (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), (c) public policy considerations which may
limit the rights of parties to obtain further remedies, and (d) governmental
authority to limit, delay or prohibit the making of payments outside the United
States.
I hereby consent to your filing of this opinion as an exhibit in the
Registration Statement and to the reference to me in the prospectus incorporated
herein.
Sincerely yours,
ALBERTSON'S, INC.
/s/ Thomas R. Saldin
Thomas R. Saldin
Executive Vice President,
Administration and General Counsel
TRS:dmd
<PAGE>
EXHIBIT 12.1
ALBERTSON'S, INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
52 Weeks 53 Weeks 52 Weeks 52 Weeks 52 Weeks 39 Weeks 39 Weeks
Ended Ended Ended Ended Ended Ended Ended
Jan. 28, Feb. 3, Feb. 2, Feb. 1, Jan. 30, Oct. 31, Oct. 30,
1993 1994 1995 1996 1997 1996 1997
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings from operations:
Earnings before income taxes
and cumulative effects
of accounting changes $443,721 $552,215 $678,652 $758,501 $794,847 $550,264 $551,436
Add:
Portion of rents
representative of interest 45,891 46,774 47,753 49,832 52,439 38,942 40,797
Interest expense, including
amortization of debt
discount 34,390 41,257 53,260 47,916 58,023 40,434 54,913
Amortization of previously
capitalized interest 1,556 1,750 1,964 2,172 2,588 1,910 2,139
-------- -------- -------- -------- -------- -------- --------
Earnings, as adjusted $525,558 $641,996 $781,629 $858,421 $907,897 $631,550 $649,285
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense, including
amortization of
debt discount $34,390 $41,257 $53,260 $47,916 $58,023 $40,434 $54,913
Capitalized interest 4,617 4,219 3,974 7,428 6,378 4,872 5,731
Portion of rents
representative of interest 45,891 46,774 47,753 49,832 52,439 38,942 40,797
--------- --------- -------- -------- -------- --------- -------
Total fixed charges $84,898 $92,250 $104,987 $105,176 $116,840 $84,248 $101,441
========= ========= ======== ======== ======== ========= ========
Ratio of earnings to fixed
charges 6.19 6.96 7.45 8.16 7.77 7.50 6.40
</TABLE>
NOTE: For the purpose of calculating the ratio of earnings to fixed charges, (a)
earnings have been calculated by adding fixed charges (excluding capitalized
interest) to earnings from operations before taxes and cumulative effects of
accounting changes, and (b) fixed charges consist of gross interest costs,
whether expensed or capitalized, amortization of debt discount and expense and
that portion of rental expense that represents interest.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of Albertson's, Inc. (the "Company") of our report dated
March 19, 1997 incorporated by reference in the Company's Annual Report on Form
10-K for the fiscal year ended January 30, 1997 and to the reference to us under
the heading "Experts" in the Prospectus that is a part of this Registration
Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Boise, Idaho
December 8, 1997
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
For information, contact:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
ALBERTSON'S, INC.
(Exact name of obligor as specified in its charter)
Delaware 82-0184434
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
250 Parkcenter Blvd.
Box 20 83726
Boise, Idaho (Zip Code)
(Address of principal executive offices)
DEBT SECURITIES
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of First Trust of New York,
National Association, incorporated herein by reference to
Exhibit 1 of Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association, incorporated
herein by reference to Exhibit 2 of Form T-1, Registration
No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers for First Trust of New York, National Association,
incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association,
incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 333-34113.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of Form T-1,
Registration No. 33-83774.
Exhibit 7. Report of Condition of First Trust of New York,
National Association, as of the close of business on
September 30, 1997, published pursuant to law or the
requirements of its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, First Trust of New York, National Association, a
national banking association organized and existing under the laws of the United
States, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 1st day of December, 1997.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
Catherine F. Donohue
Vice President
<PAGE>
Exhibit 7
First Trust of New York, National Association
Statement of Financial Condition
As of 9/30/97
($000's)
<TABLE>
<CAPTION>
9/30/97
<S> <C>
Assets
Cash and Due From Depository Institutions $36,355
Federal Reserve Stock 3,467
Fixed Assets 753
Intangible Assets 76,047
Other Assets 5,619
Total Assets $122,241
Liabilities
Other Liabilities 7,592
Total Liabilities 7,592
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (7,283)
Total Equity Capital 114,649
Total Liabilities and Equity Capital $122,241
</TABLE>
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, National Association
By: /S/Catherine F. Donohue
Vice President
Date: November 18, 1997
