SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 11, 1999
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
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(Exact name of registrant as specified in its charter)
Maryland 1-4141 13-1890974
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
2 Paragon Drive, Montvale, New Jersey 07645
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (201) 573-9700
None
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(Former name or former address, if changed since last report.)
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits. The following exhibits are filed with this report and
incorporated by reference in this report:
Number Description
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1 Underwriting Agreement dated August 6, 1999 among The Great Atlantic &
Pacific Tea Company, Inc. and Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc., Dain Rauscher Wessels, a division of Dain
Rauscher Incorporated, and EVEREN Securities, Inc., relating to the
issuance of $200,000,000 aggregate principal amount of 9 3/8% Senior
Quarterly Interest Bonds Due 2039
4.2 Authorizing Resolutions relating to $200,000,000 aggregate principal
amount of 9 3/8% Senior Quarterly Interest Bonds Due 2039
5.1 Opinion of Cahill Gordon & Reindel
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5.1)
25.1 Statement of Eligibility of The Chase Manhattan Bank on Form T-1
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
Date: August 11, 1999 By: /s/ Robert G. Ulrich
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Name: Robert G. Ulrich
Title: Senior Vice President
General Counsel & Secretary
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EXHIBIT INDEX
Number Description
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1 Underwriting Agreement dated August 6, 1999 among The Great
Atlantic & Pacific Tea Company, Inc. and Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated, and EVEREN Securities,
Inc., relating to the issuance of $200,000,000 aggregate
principal amount of 9 3/8% Senior Quarterly Interest Bonds Due
2039
4.2 Authorizing Resolutions relating to $200,000,000 aggregate
principal amount of 9 3/8% Senior Quarterly Interest Bonds Due
2039
5.1 Opinion of Cahill Gordon & Reindel
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5.1)
25.1 Statement of Eligibility of The Chase Manhattan Bank on Form T-1
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
$175,000,000
9 3/8% Senior Quarterly Interest Bonds ("QUIBS")
UNDERWRITING AGREEMENT
August 4, 1999
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated
EVEREN Securities, Inc.
Ladies and Gentlemen:
The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation
(the "Company"), proposes, upon the terms and conditions set forth herein to
issue and sell 9 3/8% Senior Quarterly Interest Bonds due August 1, 2039 with an
aggregate principal amount equal to $175,000,000 (the "Firm Securities") to
Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., Dain Rauscher
Wessels, a division of Dain Rauscher Incorporated, EVEREN Securities, Inc. and
the other Underwriters set forth on Schedule I attached hereto (collectively,
the "Underwriters"), for whom you (the "Representatives") are acting as
representatives. The Company has also agreed to grant to you and the other
Underwriters an option (the "Option") to purchase up to an additional
$25,000,000 aggregate principal amount of the Company's 9 3/8% Senior Quarterly
Interest Bonds due August 1, 2039 (the "Option Securities") upon the terms and
conditions set forth herein. The Firm Securities and the Option Securities are
together referred to as the "Debt Securities."
The Debt Securities will be issued pursuant to an indenture, dated as
of January 1, 1991, as supplemented (the "Indenture"), between the Company and
The Chase Manhattan Bank, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-36225, 333-80347 and
333-80347-01) and a related preliminary prospectus for the registration of the
Debt Securities under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations
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thereunder (the "Securities Act Regulations"). The Company has prepared and
filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including the Prospectus and the
documents incorporated by reference therein pursuant to the section therein
entitled "Incorporation of Certain Documents by Reference" and all information
deemed to be a part of the registration statement at the time it became
effective pursuant to Rule 430A of the Securities Act Regulations) is
hereinafter called the "Registration Statement," except that, if the Company
files a post-effective amendment to such registration statement which becomes
effective prior to the Closing Date or the Option Closing Date, if later,
"Registration Statement" shall refer to such registration statement as so
amended. Each prospectus included in the Registration Statement, or amendments
thereof, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations (including any
supplement thereto and the documents incorporated by reference therein) is
hereinafter called the "Preliminary Prospectus." The term "Prospectus" means the
final prospectus (including any supplement thereto and the documents
incorporated by reference therein), as first filed with the Commission pursuant
to Rule 415 and Rule 424(b)(2) or (5) of the Securities Act Regulations. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included", "set forth", "described"
or "stated" in the Registration Statement, any Preliminary Prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Registration Statement, any Preliminary
Prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which is incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be.
Section 1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that as of the date hereof and on the
Closing Date and the Option Closing Date, if applicable:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; to the Company's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted
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or threatened by the Commission; and the Registration Statement at the time it
became effective and the Prospectus as of its date and as of the Closing Date
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto, but excluding the documents incorporated or deemed to be
incorporated by reference therein), in each case other than the Statement of
Eligibility on Form T-1 of the Trustee (the "Form T-1"), comply, or will comply,
as the case may be, as to form in all material respects with the Securities Act
and the Securities Act Regulations and do not and will not as of the applicable
effective date of the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date and the Option
Closing Date, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, 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, in the light of the
circumstances under which they were made, 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 comply as to form in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, 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, in the light of the circumstances under which they were
made, not misleading;
(c) the consolidated financial statements, together with the related
schedules and notes thereto, included in the Registration Statement and the
Prospectus present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as indicated
therein; and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly in all material respects the
information required to be stated therein;
(d) Except as disclosed in the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Preliminary Prospectus, there has not
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been any material adverse change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial properties
or in which the conduct of its business requires such qualification and in which
the failure to be so qualified would have a material adverse effect on the
business or financial condition of the Company and its subsidiaries taken as a
whole;
(f) each Subsidiary of the Company listed in Exhibit No. 21 to the Form
10-K annual report of the Company filed with the Commission under section 13 of
the Exchange Act for the most recent fiscal year ended which is a "significant
subsidiary" as defined in Rule 405 of Regulation C of the Regulations (a
"Significant Subsidiary") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification in which the
failure to be so qualified would have a material adverse effect on the business
or financial condition of the Company and its subsidiaries taken as a whole; all
of the issued and outstanding capital stock of each such Significant Subsidiary
has been duly authorized and validly issued and is fully-paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity;
(g) this Agreement has been duly authorized, executed and delivered by
the Company;
(h) the Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended, and the rules and regulations thereunder (collectively, the
"Trust Indenture Act") and, on the Closing Date, will have been duly authorized,
executed and delivered by the Company and will constitute a valid and binding
agreement of the Company, enforceable in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) and the availability of
equitable remedies (collectively, the "Enforceability Exceptions"); and the
Indenture (including any amendments and supplements thereto) complies in all
material respects with all requirements of the Trust Indenture Act and the
applicable rules and regulations promulgated thereunder by the Commission;
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(i) the Debt Securities have been duly authorized and, when executed
and authenticated in accordance with the Indenture and delivered to and duly
paid for by the Underwriters in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions;
(j) the Debt Securities and the Indenture conform in all material
respects to the summary descriptions thereof contained in the Prospectus;
(k) The execution, delivery and performance by the Company of its
obligations under this Agreement, the Indenture and the Debt Securities will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any Significant Subsidiary that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
Significant Subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture and the Debt Securities except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Debt Securities;
(l) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its
subsidiaries is subject other than proceedings accurately described in all
material respects in the Preliminary Prospectus or the Prospectus and
proceedings that could not reasonably be expected to have a material adverse
effect on the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, or will materially and adversely affect the properties or assets
thereof or the consummation of this Agreement, the Indenture or the Debt
Securities or the transactions contemplated thereby or by the Prospectus;
(m) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Securities Act to be described in
the Registration Statement and the Prospectus which is not so described;
(n) the Company is not and, after giving effect to the offering and
sale of the Debt Securities, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(o) no labor disturbance by the employees of the Company or any
subsidiary exists or, to the knowledge of the Company is imminent which will
have a material adverse effect upon
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the conduct of the business, or the earnings, operations or condition, financial
or otherwise, of the Company and its subsidiaries taken as a whole;
(p) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Debt
Securities;
(q) the Company meets the requirements for the use of Form S-3 under
the Securities Act; and
(r) the Company and its Significant Subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, service marks and trade names
necessary to conduct the principal businesses now operated by them, and neither
the Company nor any of its subsidiaries has received any written notice of
infringement of or conflict with asserted rights of others with respect to any
trade names which, singly or in the aggregate, will materially adversely affect
the conduct of the business, operations, financial condition or income of the
Company and its subsidiaries considered as one enterprise.
Section 2. Offering. The Representatives have advised the Company that
the Underwriters will make an offering of the Debt Securities purchased by such
Underwriters hereunder on the terms and conditions set forth in the Registration
Statement as soon as practicable after this Agreement is entered into, as in the
Representatives' judgment is advisable.
Section 3. Purchase and Delivery; Commission. The Company hereby agrees
to sell to the Underwriters and each Underwriter, severally and not jointly,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase from the
Company the aggregate principal amount of Firm Securities set forth opposite
such Underwriters name on Schedule I hereto at a price equal to 100% of the
aggregate principal amount thereof less the aggregate amount of Underwriters'
compensation described below.
Subject to the terms and conditions of this Agreement, the Company
grants the Option to the several Underwriters to purchase, severally and not
jointly, up to $25,000,000 aggregate principal amount of the Option Securities
from the Company at the same purchase price per Debt Security as the
Underwriters shall pay for the Firm Securities plus any accrued and unpaid
interest on the Option Securities as of the Option Closing Date (as defined
below). The Option may be exercised only to cover over-allotments in the sale of
the Firm Securities by the Underwriters and may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date
hereof, upon written notice (the "Option Securities Notice") by the
Representatives to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for
closing in the Option Securities Notice (the "Option Closing Date") setting
forth the aggregate principal amount of Option Securities to be purchased and
the time and date for such purchase. On the Option Closing Date, the Company
will issue and sell to the Underwriters the aggregate principal amount of Option
Securities set forth in the Option Securities Notice, and each Underwriter will
purchase such percentage of the Option Securities as is equal to the percentage
of Firm Securities that such
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Underwriter is purchasing, as adjusted by the Representatives in such manner as
they deem advisable to avoid fractional Debt Securities.
As compensation to the Underwriters for their commitments hereunder,
the Company hereby agrees to pay at the Closing Date (as defined below) and the
Option Closing Date (if applicable) to the Representatives, for the accounts of
the several Underwriters, an amount equal to $.7875 per Debt Security for the
Debt Securities to be delivered at the applicable Closing Date.
Except as set forth in the next paragraph, the Debt Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Debt Securities in book-entry form which will be deposited by
or on behalf of the Company with DTC or its designated custodian. The Company
will deliver the Firm Securities to the Representatives, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by certified or official bank check or checks or fedwire, payable
to the order of the Company in federal (same day) funds, by causing DTC to
credit the Firm Securities to the account of the Representatives at DTC. The
Company will cause the certificates representing the Firm Securities to be made
available to the Representatives for checking at least 24 hours prior to the
Closing Date (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The place, time and date of such delivery and payment
shall be at the offices of Cahill Gordon & Reindel, 80 Pine Street, New York,
New York 10005, at 10:00 a.m, New York time, on August 11, 1999 or such other
place, time and date as the Representatives and the Company may agree upon in
writing (the "Closing Date").
Such Debt Securities, if any, as the Representatives may request upon
at least 48 hours' prior notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Company to the Representatives for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by fedwire, payable to the order of the Company in federal (same day)
funds. The Company will cause the certificates representing the Debt Securities
to be made available for checking and packaging at least 24 hours prior to the
Closing Date at the office of The Chase Manhattan Bank, 450 West 33rd Street,
15th Floor, New York, New York 10001.
To the extent the Option is exercised, delivery of the Option
Securities against payment by the Underwriters (in the manner specified above)
will take place at the time and date (which may be the Closing Date) specified
in the Option Securities Notice.
Section 4. Conditions to Closing. The several obligations of the
Underwriters to purchase and pay for the Debt Securities will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained, to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
by the Company of all of its covenants and other obligations hereunder and to
the following further conditions:
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(a) The Prospectus shall have been timely filed with the Commission in
accordance with Rule 430A of the Securities Act Regulations; and, at the Closing
Date and the Option Closing Date, if applicable, the Registration Statement
shall have been declared effective and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued under the Securities Act or proceedings therefor initiated or threatened
by the Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters.
(b) The Underwriters shall have received, on the Closing Date and, with
respect to the Option Securities, on the Option Closing Date, if applicable, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date or the
Option Closing Date, as the case may be, to the effect that the signers of such
certificate have carefully examined the Registration Statement and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date, and
with respect to the Option Securities, as of the Option Closing Date,
if applicable, with the same effect as if made on the Closing Date or
on the Option Closing Date, if applicable, and the Company has complied
in all material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date and, with respect to the
Option Securities, at or prior to the Option Closing Date, if
applicable;
(ii) since the date of the most recent financial statements
included in the Registration Statement (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Registration Statement (exclusive of any
supplement thereto); and
(iii) to each such officer's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(c) Subsequent to the date hereof and prior to the Closing Date, except
as set forth in the Prospectus, there shall not have been any change in the
business or properties of the Company and its subsidiaries, taken as a whole,
from that set forth in the Preliminary Prospectus that, in the Underwriters'
judgment, is so material and adverse as to make it impractical to proceed with
the offering or the delivery of the Debt Securities as contemplated by the
Prospectus.
(d) The Underwriters shall have received opinions, dated the Closing
Date and, with respect to the Option Securities, dated the Option Closing Date,
of Robert G. Ulrich, Esq., General Counsel to the Company, and Cahill, Gordon &
Reindel, counsel to the Company,
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substantially in the form attached hereto as Exhibit A-1 and A-2, respectively.
Insofar as such opinions involve factual matters, such counsel may rely, to the
extent such counsel deems proper, upon certificates of officers of the Company,
its subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing
Date and, with respect to the Option Securities, dated the Option Closing Date,
of Brown & Wood LLP, counsel to the Underwriters as to such matters as the
Underwriters shall reasonably request. In rendering such opinion, counsel may
rely upon an opinion or opinions, each dated the Closing Date and, with respect
to the Option Securities, dated the Option Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States or the State of New York, provided that (A) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters, and (B) counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon. Insofar as such opinions involve factual matters, such counsel
may rely, to the extent such counsel deems proper, upon certificates of officers
of the Company, its subsidiaries and certificates of public officials.
(f) On the Closing Date, the Debt Securities shall be rated at least
"Ba1" by Moody's Investor Service, Inc. ("Moody's") and "BBB-" by Standard &
Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Company
shall have delivered to the Underwriters a letter dated the Closing Date and,
with respect to the Option Securities, dated the Option Closing Date, from each
such rating agency, or other evidence satisfactory to the Underwriters,
confirming that the Debt Securities have such ratings; and on or prior to the
Closing Date and, with respect to the Option Securities, on or prior to the
Option Closing Date, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization" as such term is defined
by the Commission for the purposes of Rule 436(g)(2) under the Securities Act;
shall have occurred, or any public announcement shall have been made that any
such organization has under surveillance or review their ratings of the Debt
Securities or any other debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), and if, in any such
case, the effect thereof in the reasonable judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the purchase of the Debt
Securities.
(g) At the time of the execution of this Agreement, the Underwriters
shall have received a letter, dated such date, in form and substance reasonably
satisfactory to them, from Deloitte & Touche LLP, independent public accountants
of the Company, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information, including the financial
information contained or incorporated by reference in the Registration Statement
as identified by the Representative.
(h) At the Closing Date and, with respect to the Option Securities, at
the Option Closing Date, the Representative shall have received from Deloitte &
Touche LLP a letter, dated
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as of the Closing Date and, with respect to the Option Securities, dated the
Option Closing Date, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this Section.
Section 5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) The Company will prepare the Prospectus in a form approved by the
Underwriters and will file such Prospectus with the Commission pursuant to Rule
424(b) not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement. The Company will
notify the Underwriters immediately, and confirm the notice in writing, (i) of
the effectiveness of the Registration Statement and any amendment thereto
(including any post-effective amendment), and of the filing of the Prospectus
pursuant to Rule 424(b), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Debt Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for such purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) The Company will deliver to the Underwriters, without charge, such
number of conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including documents incorporated by reference into
the Prospectus but without exhibits) as such Underwriters may reasonably request
and copies of each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus.
(c) The Company will furnish to the Underwriters, without charge, from
time to time during the period when the Prospectus is required to be delivered
under the Securities Act and the Securities Act Regulations, such number of
copies of the Prospectus (as amended or supplemented, if applicable) as they may
reasonably request for the purposes contemplated by the Securities Act or the
Securities Act Regulations. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) The Company will deliver to the Underwriters notice of their
intention to prepare or file any amendment to the Registration Statement
relating to the Debt Securities (including any post-effective amendment) or any
amendment or supplement to the Prospectus (other than documents deemed to be
incorporated by reference into the Prospectus) which the Company proposes for
use by the Underwriters in connection with the offering of the Debt Securities
and
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<PAGE>
which differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective (whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the Securities Act
Regulations), will furnish the Underwriters and counsel for the Underwriters
with copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file any
such amendment or supplement or use any such prospectus to which the
Underwriters or counsel for the Underwriters shall reasonably object.
(e) If, during such period ending six months after the Closing Date and
prior to the date on which the distribution of Debt Securities by the
Underwriters is completed, any event shall occur as a result of which it is
necessary, in the opinion of the Company's or Underwriters' counsel, to amend or
supplement the Prospectus (as then amended or supplemented) in order to ensure
that the Prospectus does not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or it is
necessary to amend or supplement the Prospectus to comply with law, the Company
forthwith shall prepare and furnish, at the Company's own expense, to the
Underwriters, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances under which they were made, be misleading or so that
the Prospectus will comply with law, as the case may be.
(f) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act, will file promptly all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act subsequent to the time the Registration Statement becomes effective.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Debt Securities for offer and sale under the applicable securities
or blue sky laws of such states and other jurisdictions of the United States as
the Underwriters may reasonably designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Debt
Securities. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Debt Securities have been
qualified as above provided; provided, however, that the Company will not be
required to file any general consent to the service of process or take any
action which would subject it to taxation in any such jurisdiction.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Company will not offer, sell, contract to
sell or otherwise dispose of (other than in an offering made exclusively outside
the United States) any securities of the Company substantially similar to the
Debt Securities or any securities convertible into or exchangeable for the Debt
Securities without the prior written consent of the Underwriters.
(i) During the period when the Debt Securities are outstanding, the
Company will not be or become an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act.
11
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(j) The Company shall not enter into any contractual agreement with
respect to the distribution of the Debt Securities except for the arrangements
with the Underwriters.
(k) The Company will make generally available to its securityholders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning on the first day of the first full fiscal
quarter after the effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of the Securities Act
and Rule 158 of the Securities Act Regulations and will advise you in writing
when such statement has been so made available. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earnings statement shall
be made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(l) The Company shall take all reasonable action necessary to enable
Moody's and S&P to provide their respective credit ratings of the Debt
Securities.
(m) The Company will cooperate with the Underwriters and use their
reasonable best efforts to permit the Debt Securities to be eligible for
clearance and settlement through the facilities of DTC.
(n) The Company will use their reasonable best efforts to list the Debt
Securities on the New York Stock Exchange within 30 days following the Closing
Date.
(o) The Company will use the proceeds received by it from the sale of
the Debt Securities in the manner specified in the Prospectus under "Use of
Proceeds."
Section 6. Expenses. The Company covenants and agrees with the
Underwriters that the Company will pay all expenses incident to the performance
of its obligations under this Agreement, including: (i) the printing and filing
of the Registration Statement and the Prospectus, and all amendments and
supplements thereto, (ii) all expenses and disbursements of counsel to the
Company, (iii) all costs and expenses incurred in connection with the
preparation, issuance and delivery of the Debt Securities, (iv) the fees and
disbursements of the Company's accountants, (v) all costs and expenses incurred
in the preparation and the printing of the Debt Securities, the Indenture, and
all other documents relating to the issuance, purchase and initial resale of the
Debt Securities, (vi) rating agency fees, (vii) fees and expenses of a trustee
appointed under the Indenture, including reasonable fees and expenses of counsel
for such trustee, (viii) costs and expenses in connection with the listing of
the Debt Securities on the New York Stock Exchange and (ix) all other costs and
expenses incident to the performance by the Company of its obligations hereunder
which are not otherwise specifically provided in this Section. The Underwriters
shall be responsible for all of their own expenses, including the fees of the
Underwriters' counsel.
Section 7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter, and each person, if any, who
controls each Underwriter within
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<PAGE>
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, each
Underwriter, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by such Underwriter or any such controlling or affiliated
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Underwriters furnished to the Company in writing by the Representatives
expressly for use therein; provided, however, that the Company shall not be
required to indemnify any Underwriter or any such controlling or affiliated
person for any such losses, claims, damages or liabilities alleged by any person
who purchased Debt Securities from such Underwriter if the untrue statement,
omission or allegation thereof upon which such losses, claims, damages or
liabilities are based was made in the Preliminary Prospectus, if a copy of the
Prospectus (as then amended or supplemented), furnished on a timely basis by the
Company, was not sent or given by or on behalf of such Underwriter to such
person at or prior to the written confirmation of the sale of Debt Securities to
such person, and if the Prospectus as so amended or supplemented corrected the
untrue statement or omission giving rise to such loss, claim, damage or
liability.
(a) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, any authorized representative of the Company and
any person controlling the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter, furnished to the Company
in writing by the Representatives expressly for use in the Registration
Statement and Prospectus or any amendments or supplements thereto.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including the impleaded parties) include
both the indemnifying party and the indemnified party, and the representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
13
<PAGE>
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives in the case of parties indemnified
pursuant to paragraph (a) above and by the Company in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there has been a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes and unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of such Debt Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of such
Debt Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Debt Securities (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the Prospectus, bear to the aggregate offering price of such Debt Securities.
The relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(d) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred
14
<PAGE>
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Debt Securities resold by it in the
initial placement of such Debt Securities were offered to investors exceed the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
indemnity and contribution provisions contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of an Underwriter or by
or on behalf of the Company, its directors or officers, any authorized
representative of the Company or any person controlling the Company and (iii)
acceptance of any payment for any of the Debt Securities. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
Section 8. Termination. This Agreement shall be subject to termination
by notice given by the Underwriters to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date, as the case may
be, (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the Representatives' judgment, is
material and adverse; and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the Representatives' judgment, impracticable to market the
Debt Securities on the terms and in the manner contemplated in the Prospectus or
any supplement thereto.
Section 9. Pro Rata Purchase in Certain Events. If on the Closing Date
any one or more of the Underwriters shall fail or refuse to purchase Firm
Securities that it or they have agreed to purchase hereunder and the aggregate
principal amount of Firm Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of Firm Securities to be purchased on such
date, the other Underwriters shall be obligated severally and not jointly in the
proportions which the aggregate principal amount of Firm Securities set forth
opposite their names in Schedule I to this Agreement bears to the aggregate
principal amount of Firm Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Firm Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Firm Securities and the aggregate principal amount of Firm Securities with
respect to which such default occurs is more than one-
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<PAGE>
tenth of the aggregate principal amount of Firm Securities to be purchased on
such date, and arrangements satisfactory to the Representatives and the Company
for the purchase of such Firm Securities are not made within 36 hours after such
default, this Agreement shall thereupon terminate without liability on the part
of any non-defaulting Underwriters or of the Company. In any such case either
the Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement or in any other documents or
arrangements may be effected. An action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Morgan Stanley at 1585
Broadway, New York, New York 10036, Attention: Syndicate Desk, Managing
Director, with a copy to Brown & Wood LLP, One World Trade Center, New York, New
York 10048, Attention: Michael A. King, Esq.; notices to the Company shall be
directed to The Great Atlantic & Pacific Tea Company, Inc, 2 Paragon Drive,
Montvale New Jersey 07645, Attention: Robert G. Ulrich, General Counsel, with a
copy to Cahill, Gordon & Reindel, 80 Pine Street, New York, New York 10005,
Attention: Gary Brooks.
Section 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers, directors and trustees referred to in Section 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers, directors and
trustees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters by having an authorized officer
sign a copy of this Agreement in the space set forth below and by returning the
signed copy to us.
Very truly yours,
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.
By: /s/ R. Terrence Galvin
-------------------------------------------
Name: R. Terrence Galvin
Title: Vice President, Finance
and Treasurer
Accepted by:
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
DAIN RAUSCHER WESSELS,
A DIVISION OF DAIN RAUSCHER INCORPORATED
EVEREN SECURITIES, INC.
as representatives of the several
Underwriters named in Schedule I hereto
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
------------------------------------------
Name: Harold J. Hendershot III
Title: Vice President
17
<PAGE>
SCHEDULE I
Underwriter Amount
- ----------- ------
Morgan Stanley & Co. Incorporated $32,375,000
Salomon Smith Barney Inc. 32,375,000
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated 32,375,000
EVEREN Securities, Inc. 32,375,000
Bear, Stearns & Co. Inc. 1,750,000
CIBC World Markets Corp. 1,750,000
Deutsche Bank Securities Inc. 1,750,000
A.G. Edwards & Sons, Inc. 1,750,000
First Union Capital Markets Corp. 1,750,000
SG Cowen Securities Corporation 1,750,000
Warburg Dillon Read LLC 1,750,000
Advest, Inc. 875,000
Robert W. Baird & Co. Incorporated 875,000
Banc One Capital Markets, Inc. 875,000
Banc of America Securities LLC 875,000
J.C. Bradford & Co. 875,000
BB&T Capital Markets
A Division of Scott & Stringfellow, Inc. 875,000
Crowell, Weedon & Co. 875,000
Davenport & Company LLC 875,000
D.A. Davidson & Co. Incorporated 875,000
Fahnestock & Co. Inc. 875,000
Ferris, Baker Watts, Incorporated 875,000
Fifth Third Securities, Inc. 875,000
First Albany Corporation 875,000
Gibraltar Securities Co. 875,000
Gruntal & Co., L.L.C. 875,000
Janney Montgomery Scott Inc. 875,000
Kirkpatrick, Pettis, Smith, Polian Inc. 875,000
Legg Mason Wood Walker, Incorporated 875,000
McDonald Investments Inc.,
A Keycorp Company 875,000
Mesirow Financial, Inc. 875,000
Miller, Johnson & Kuehn, Inc. 875,000
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<PAGE>
Morgan Keegan & Company, Inc. 875,000
Neuberger & Berman, LLC 875,000
Parker/Hunter Incorporated 875,000
Pershing/Division of
Donaldson, Lufkin & Jenrette Securities Corporation 875,000
Raymond James & Associates, Inc. 875,000
The Robinson-Humphrey Company, LLC 875,000
Roney & Co. 875,000
Schroder & Co. Inc. 875,000
Southwest Securities, Inc. 875,000
Sterne, Agee & Leach, Inc. 875,000
Stifel, Nicolaus & Company, Incorporated 875,000
Sutro & Co. Incorporated 875,000
TD Securities (USA) Inc. 875,000
Tucker Anthony Incorporated 875,000
U.S. Bancorp Piper Jaffray Inc. 875,000
Wachovia Securities, Inc. 875,000
Wedbush Morgan Securities 875,000
Total $175,000,000
===========
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EXHIBIT A-1
The opinion of Robert G. Ulrich, Esq, General Counsel to the Company,
to be delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Maryland, has the corporate power and authority
to own its property and to conduct its business as described
in the Registration Statement.
2. To the best of such counsel's knowledge, the Company has
been duly qualified as a foreign corporation for to transact
business and is in good standing in each jurisdiction in which
it owns or leases substantial properties or in which the
conduct of its business requires such qualification and in
which the failure so to qualify would result in a material
adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole.
3. Each of the Significant Subsidiaries of 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, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus, and to the best
of such counsel's knowledge, is duly qualified as a foreign
corporation to transact business and is in good standing under
the laws of each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification and in which the failure so to
qualify would result in a material adverse effect on the
business or financial condition of the Company and its
subsidiaries taken as a whole; and all of the issued and
outstanding shares of capital stock of each Significant
Subsidiary have been duly authorized and validly issued, are
fully-paid and non-assessable, and the capital stock of each
such subsidiary, to the best of such counsel's knowledge, is
owned by the Company, directly or indirectly, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
4. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, in
each case other than financial statements and the notes
thereto and other financial, accounting or statistical
information contained therein as to which such counsel need
not express an opinion, when such documents became effective
or were filed with the Commission, as the case may be,
complied as to form in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable.
5. The execution, delivery and performance by the Company of
its obligations under the Underwriting Agreement, the
Indenture and the Debt
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<PAGE>
Securities will not contravene (i) the certificate of
incorporation or by-laws of the Company, (ii) to my
knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or (iii)
to my knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary.
6. To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject other than proceedings fairly summarized in all
material respects in the Registration Statement and
proceedings which I believe are not likely to have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company to perform
its obligations under the Underwriting Agreement, the
Indenture and the Debt Securities or to consummate the
transactions contemplated thereby.
8. In addition, such counsel shall state that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent accountants of the Company, and the Underwriters
and their counsel at which the contents of the Registration
Statement and Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus, such counsel advise the Underwriters
that, on the basis of the foregoing (relying as to materiality
to a large extent on the opinions of officers and other
representatives of the Company), no facts have come to such
counsel's attention which lead them to believe that the
Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus, as of its date or as of the Closing Date,
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, in the light of the
circumstances under which they were made, not misleading (it
being understood that such counsel has not been requested to
and does not make any comment with respect to the Form T-1 or
the financial statements and the notes thereto and the other
financial, accounting and statistical information included in
the Registration Statement or the Prospectus).
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<PAGE>
EHIBIT A-2
The opinion of Cahill Gordon & Reindel, counsel to the Company, to be
delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland,
has the corporate power and authority to own its property and conduct
its business as described in the Registration Statement.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company
and will constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity)
and the availability of equitable remedies (collectively, the
"Enforceability Exceptions"); and the Indenture (including any
amendments and supplements thereto) complies in all material respects
with all requirements of the Trust Indenture Act and the applicable
rules and regulations promulgated thereunder by the Commission.
4. The Debt Securities have been duly authorized and, when executed
and authenticated in accordance with the Indenture and delivered to
and duly paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions.
5. The Debt Securities and the Indenture conform in all material
respects to the summary descriptions thereof contained in the
Prospectus.
6. No consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Debt Securities or the
consummation by the Company of the transactions contemplated by the
Underwriting Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
may have been obtained as may be required under state securities
22
<PAGE>
or Blue Sky Laws in connection with the purchase and distribution of
the Debt Securities by the Underwriters.
7. The Registration Statement at the time it became effective and the
Prospectus, as of its date and as of the Closing Date (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), in each case other than the Statement of
Eligibility on Form T-1 of the Trustee (the "Form T-1") and the
financial statements and the notes thereto and the other financial,
accounting or statistical information contained therein as to which
such counsel need not express an opinion, complied as to form in all
material respects with the Securities Act and the Securities Act
Regulations.
8. The statements in the Prospectus under the caption "United States
Tax Considerations" fairly summarize matters referred to therein.
9. The Registration Statement has been declared effective under the
Securities Act; the Prospectus has been filed pursuant to Rule 415 and
Rule 424(b)(2) or (5) of the Securities Act Regulations in the manner
and within the time period prescribed therein; and, to our knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending.
10. In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent accountants of the
Company, and the Underwriters and their counsel at which the contents
of the Registration Statement and Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
Prospectus, such counsel advise the Underwriters that, on the basis of
the foregoing (relying as to materiality to a large extent on the
opinions of officers and other representatives of the Company), no
facts have come to such counsel's attention which lead them to believe
that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its
date or as of the Closing Date, 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, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel has not been requested to and
does not make any comment with respect to the Form T-1 or the
financial statements and the notes thereto and the other financial,
accounting and statistical information included in the Registration
Statement or the Prospectus).
23
AUTHORIZING RESOLUTIONS
Relating to
$200,000,000 Aggregate Principal Amount of
9 3/8% Senior Quarterly Interest Bonds Due 2039
of
The Great Atlantic & Pacific Tea Company, Inc.
---------------
Approved by the
Pricing Committee of the
Board of Directors
---------------
August 4, 1999
<PAGE>
Authorizing Resolutions
Resolutions Adopted by the Pricing Committee
of the Board of Directors of
The Great Atlantic & Pacific Tea Company, Inc.
On August 4, 1999
Relating to
$200,000,000 Aggregate Principal Amount of
9 3/8% Senior Quarterly Interest Bonds Due 2039
-------------------------
WHEREAS, pursuant to resolutions adopted by the Board of Directors of
The Great Atlantic & Pacific Tea Company, Inc. (the "Company") on June 2, 1999,
the Company has determined to issue securities covered by the Registration
Statements on Form S-3 (Nos. 333-36255 and 333-80347), as amended, having a
maximum offering price of $500,000,000 (the "Securities"), which may include
Securities issued under and in accordance with an Indenture (as defined below)
related thereto; and
WHEREAS, Christian Haub, Fred Corrado, William Liffers and R.L. "Sam"
Wetzel have been appointed to a Pricing Committee of the Board of Directors of
the Company, pursuant to resolutions adopted by said Board of Directors on June
2, 1999, which resolutions are in full force and effect on this date; and
WHEREAS, pursuant to said resolutions, this Pricing Committee is
authorized to exercise the full powers of the Board of Directors in connection
with the issuance by the Company of the Securities for aggregate gross proceeds
not to exceed $500,000,000.
NOW, THEREFORE, it hereby is:
RESOLVED, that the form of Prospectus Supplement, dated August
4, 1999, relating to the Bonds (as defined below) which has been presented to
this meeting be, and it hereby is, approved, ratified and confirmed in all
respects, and that the Company be, and it hereby is, authorized to use such
Prospectus Supplement in connection with the offering and sale of the Bonds, in
substantially such form or in such other forms as shall be approved by this
Pricing Committee; and
<PAGE>
-2-
RESOLVED FURTHER, pursuant to the Indenture dated as of January 1,
1991 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), that the Company shall (i) at this time issue an
aggregate of $175,000,000 of Securities and (ii) if and at the time the
Representatives (as defined below) exercise the Option (as defined in the
Underwriting Agreement (as defined below)), issue up to an additional
$25,000,000 of Securities, in each case under the Indenture, and, pursuant to
Section 301 of the Indenture, it is hereby determined that the Securities so
issued shall have the following terms:
(a) The title of the Bonds shall be 9 3/8% Senior Quarterly Interest
Bonds Due 2039;
(b) The maximum aggregate principal amount of the Bonds which shall be
authenticated and delivered under the Indenture at this time shall be
$175,000,000; and the maximum aggregate principal amount of the Bonds which
shall be authenticated and delivered under the Indenture if and at the time the
Representatives exercise the Option shall be $25,000,000;
(c) The Bonds shall mature and the unpaid principal thereon shall be
payable on August 1, 2039;
(d) The rate per annum at which interest shall be payable on the Bonds
is hereby fixed at 9.375%; interest on the Bonds shall accrue beginning August
11, 1999; interest shall be payable on the Bonds on February 1, May 1, August 1
and November 1 of each year beginning November 1, 1999; and the Regular Record
Date for the payment of such interest shall be the close of business on the date
fifteen days prior to each Interest Payment Date, and otherwise as provided in
the Indenture;
(e) Principal, premium, if any, and interest on the Bonds shall be
payable in accordance with the requirements of the Depository (as defined below)
with respect to any global security representing the Bonds, and otherwise at the
offices of the Paying Agent maintained for such purpose or as provided in
Section 1001 of the Indenture;
(f) The Bonds shall be redeemable as provided in the form of the Bonds
attached hereto as Exhibit I.
(g) The Bonds will be unsecured and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company. The Bonds will
be issued in fully registered book-entry form in minimum denominations of $25
and integral
<PAGE>
-3-
multiples of $25 in excess thereof. A global security representing the Bonds
will be registered in the name of a nominee of The Depository Trust Company (the
"Depository") which will act as depository. Beneficial interests in the Bonds
will be shown on, and transfers thereof will be effected only through, records
maintained by the Depository and its participants.
(h) The purchase price for the Bonds to be paid to the Company by the
representatives of the underwriters of the Bonds, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated, and EVEREN Securities, Inc. (together, the
"Representatives"), pursuant to the Underwriting Agreement (the "Underwriting
Agreement"), dated August 4, 1999 among the Company and the Representatives
relating thereto hereinafter referred to, shall be 3.15% of the principal amount
of the Bonds plus accrued interest, from August 11, 1999; and
(i) The initial price to the public of the Bonds shall be 100% of the
principal amount of the Bonds plus accrued interest from August 11, 1999; and
RESOLVED FURTHER, that the proceeds of the sale of the Bonds shall be
applied toward the reduction of indebtedness of the Company or one or more of
its subsidiaries as the proper officers of the Company shall determine,
including, without limitation, indebtedness of The Great Atlantic & Pacific
Company of Canada, Limited or The Great Atlantic & Pacific Tea Company, Limited
(collectively, the "Canadian Subsidiaries"), and in connection with such debt
repayment, to the extent necessary or desirable, such proceeds may be
contributed to such subsidiaries, including the Canadian Subsidiaries, to
effectuate such reduction or repayment of indebtedness; and
RESOLVED FURTHER, that the Bonds shall be distributed pursuant to the
Underwriting Agreement, the form of which Underwriting Agreement has been
presented to this meeting, and a copy of which shall be filed with these
resolutions in the records of the Company; and
RESOLVED FURTHER, that the form of the Bonds, attached hereto as
Exhibit I, and the Underwriting Agreement, in the form referred to above, be,
and they hereby are, approved, ratified and confirmed in all respects, and that
the Chairman of the Board, President, or any Vice President be, and they hereby
are, authorized and directed to execute and deliver the form of the Bonds and
the Underwriting Agreement in such forms, subject to such changes, insertions
and corrections therein as
<PAGE>
-4-
shall be approved by the officer executing the same (which approval shall be
conclusively evidenced by his execution and delivery of the Underwriting
Agreement in such form), whereupon the same shall be the valid and binding
obligation of the Company in accordance with its terms; and
RESOLVED FURTHER, that the form of Letter of Representations as issued
by the Company and the Trustee to the Depository Trust Company to effectuate the
issuance of the Bonds, substantially in the form presented to this meeting and
registered in the name of a nominee of Depository (the "Book-Entry System") be,
and it hereby is, approved, ratified, and confirmed in all respects; and
RESOLVED FURTHER, that the form, terms and provisions relating to the
Bonds be established pursuant to Section 301 of the Indenture, and the form of
Bonds relating thereto to be established pursuant to Section 201 of the
Indenture, submitted to this meeting, completed in accordance with the foregoing
resolutions and with such changes therein, additions thereto and deletions
therefrom as the officers executing the same shall approve, the approval of such
officers to be conclusively evidenced by their execution and delivery thereof,
be, and they hereby are, approved; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President, and the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company be, and each of them hereby is, authorized in
the name and on behalf of the Company to execute, seal, acknowledge and deliver,
in such number of counterparts as the officers so acting deem advisable, an
Officers' Certificate pursuant to Section 301 of the Indenture relating to the
Bonds in substantially the form presented to this meeting, completed in
accordance with the foregoing resolutions and with such changes therein,
additions thereto and deletions therefrom as the officers executing the same
shall approve, the approval of such officers to be conclusively evidenced by
their execution and delivery thereof; and
RESOLVED FURTHER, that The Chase Manhattan Bank be, and it hereby is,
designated and appointed Paying Agent with respect to the Bonds at its
Corporation Trust Office in the Borough of Manhattan, The City of New York
pursuant to Section 1002 of the Indenture; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President of the Company be, and each of them hereby is, authorized in the name
and on behalf of the Company to exe-
<PAGE>
-5-
cute and deliver under the corporate seal attested to by the Treasurer or
Secretary of this Company or one of its Assistant Treasurers or Assistant
Secretaries the Bonds as authorized above in substantially such form, completed
in accordance with the foregoing resolutions and with such changes therein,
additions thereto and deletions therefrom as the officers executing the same
shall approve, the approval of such officers to be conclusively evidenced by
their execution and delivery thereof; and
RESOLVED FURTHER, that the form of Form 8-K, Form 8-A and New York
Stock Exchange Listing Application, each relating to the Bonds and as presented
to this meeting, be, and hereby are, approved, ratified, and confirmed in all
respects, and that the appropriate officers of the Company be, and each of them
hereby is, authorized, on behalf of the Company and in its name, to sign as
required and cause to be filed with the Securities and Exchange Commission a
Form 8-K (and any amendments) and Form 8-A (and any amendments) and with the New
York Stock Exchange a Listing Application (and any amendments), in each case
relating to the Bonds and substantially in the form presented to this meeting,
and cause to be paid any filing fees related thereto; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President of the Company be, and each of them hereby is, authorized, on behalf
of the Company and in its name, to sign as required and cause to be filed with
the Securities and Exchange Commission the Registration Statement and any and
all amendments (including, without limitation, post-effective amendments) to the
Registration Statement, any prospectus supplements, including without limitation
a prospectus supplement describing the terms and provisions of the Bonds and the
offer and sale thereof, and any additional documents which any such officer may
deem necessary or desirable, such amendments and such documents to be in such
forms as the officer executing or filing the same shall approve, such approval
to be conclusively evidenced by his execution or filing thereof; and
RESOLVED FURTHER, that each of the officers and members of this
Pricing Committee of the Company referred to above, and other appropriate
officers of the Company, are authorized and directed to execute and deliver such
further documents, agreements and certificates on behalf of the Company, and to
take such further actions on behalf of the Company, as any such officer or
member of this Pricing Committee shall deem appropriate or advisable in order to
implement the issuance and sale of the Bonds as contemplated by these
resolutions, each of which shall be the valid and binding act and obligation of
the Company.
<PAGE>
Exhibit I
[Face of Security]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE (i) BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR (ii)
BY A NOMINEE OF THE DEPOSITORY OR THE DEPOSITORY TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) 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 THE DEPOSITORY TRUST COMPANY (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.
No. CUSIP: 390064202
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
9 3/8% Senior Quarterly Interest Bonds Due 2039
Principal Amount: Interest Rate: Interest Payment Dates:
$ 9.375% February 1, May 1,
August 1 and November 1,
commencing November 1, 1999
Original Issue Date: Maturity Date: Regular Record Dates:
August 11, 1999 August 1, 2039 Close of business fifteen
days prior to each
Interest Payment Date
Interest Accrual Date: Redeemable: Denominations: $25 and
August 11, 1999 Yes X No multiple integrals of $25
--- ---
<PAGE>
-2-
The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation
(herein called the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal amount of
DOLLARS on the Maturity Date specified above, and to pay interest thereon at the
Interest Rate specified on the face hereof, as described herein.
Payment of principal, and premium, if any, and interest on this Bond
at the Maturity Date will be made, upon presentation of this Bond, in next day
funds, at the Corporate Trust Office of the Trustee, or its successors, or at
such other office or agency of the Company as may be maintained for that 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 is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of principal, and premium, if any, and interest may be made
(subject to collection) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or may be made, at
the option of the Company or if otherwise required by any Depository, by wire
transfer of immediately available funds.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Bond shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
<PAGE>
-3-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: , 1999 THE GREAT ATLANTIC & PACIFIC
TEA COMPANY INC.
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
`` [Corporate Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________________
Authorized Officer
<PAGE>
-4-
[Reverse of Security]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
9 3/8% Senior Quarterly Interest Bonds Due 2039
This Bond is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture, dated as of
January 1, 1991 (such Indenture as originally executed and delivered and as
thereafter supplemented or amended being herein called the "Indenture"), between
the company and The Chase Manhattan Bank, 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 statement of the respective rights 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 be denominated in different currencies, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different sinking
or analogous funds (if any), may be subject to different covenants and Events of
Default and may otherwise vary as provided in the Indenture. This Bond is one of
the series designated on the face hereof (herein called the "Bonds").
This Bond will bear interest from and including the date of issue or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for at the fixed rate per annum specified on the face
hereof. Interest will be payable to the Person in whose name this Bond is
registered at the close of business on the record date next preceding each
Interest Payment Date; provided, however, that interest payable at the Maturity
Date will be payable to the Person whom principal shall be payable. The record
dates with respect to this Bond shall be the dates fifteen days prior to each
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Bonds are not subject to repayment at the option of the Holder
prior to the Maturity Date. The Bonds are sub-
<PAGE>
-5-
ject to redemption upon not less than 30 nor more than 60 days' notice at any
time on or after August 11, 2004, as a whole or from time to time in part, at
the election of the Company, at a redemption price equal to 100% of the
principal amount redeemed plus accrued and unpaid interest to the date of
redemption.
If as a result of: (A) any actual or proposed change in or amendment
to the laws (or any regulations or rulings promulgated thereunder) of the United
States, or any change in the application, official interpretation or enforcement
of such laws, regulations or rulings; (B) any action taken by a taxing
authority, which action is generally applied or is taken with respect to the
Company; (C) a decision rendered by a court of competent jurisdiction in the
United States, whether or not such decision was rendered with respect to the
Company; or (D) a technical advice memorandum or letter ruling or other
administrative pronouncement issued by the National Office of the United States
Internal Revenue Service, on substantially the same facts as those pertaining to
the Company; which change, amendment, action, decision, memorandum, letter
ruling or pronouncement becomes effective or is issued on or after the issue
date of the Bonds, there is a substantial likelihood that the Company will not
be entitled to deduct currently for United States federal income tax purposes
the full amount of interest accrued in respect of the Bonds, the Company at its
option may redeem the Bonds in whole, but not in part, at any time at a
redemption price equal to 100% of the principal amount of the Bonds, together
with interest accrued and unpaid to the date fixed for redemption. Notice of
such redemption of the Bonds will be given to the Holders thereof not more than
60 nor fewer than 30 days prior to the date fixed for redemption.
In the event of redemption of this Bond in part only, a new Bond or
Bonds of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture permits, in accordance with its terms including certain
exceptions as provided therein, 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 under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected
by such amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding, on be-
<PAGE>
-6-
half of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Bond shall be conclusive and binding upon such Holder and upon all
future Holders of this Bond and of any Bond 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 Bond.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security of a 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 with respect to such series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute such proceeding in respect
of such Event of Default in its own name as Trustee under the Indenture, and
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and the Trustee shall
not have received from the Holders of a majority in principal amount of the
Outstanding Securities of such series a direction inconsistent with such request
and shall have failed to institute such proceeding within 60 days of receipt of
such notice and offer of indemnity; provided, however, that such limitations do
not apply to a suit instituted by the Holder for the enforcement of payment of
the principal of, premium, if any, or interest on any Security on or after the
respective due dates expressed therein.
If an Event of Default with respect to the Bonds shall occur and be
continuing, the principal amount hereof may be declared due and payable in the
manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this Bond 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 on this Bond at the times, 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 Bond is registrable in the Security
Register, upon surrender of this
<PAGE>
-7-
Bond for registration of transfer at the office or agency of the Company in any
Place of Payment duly endorsed, or accompanied by a written instrument of
transfer in the form satisfactory to the Company and the Security Registrar duly
executed, by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Bonds, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Bonds are issuable only in registered form without coupons in
minimum denominations of $25 and integral multiples of $25 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds of
different authorized denominations as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or Trustee may
treat the Person in whose name this Bond is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this Bond is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
All terms used in this Bond, and not defined herein, which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
This Bond shall be governed by, and construed in accordance with, the
laws of the State of New York.
-------------------
<PAGE>
-8-
The following abbreviations, when used in the inscription on the face
of the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by entireties ____________ Custodian____________ under
JT TEN - as tenants with right of (Cust) (Minor)
survivorship and not as tenants in Uniform Gifts to Minor Act ____________
common (State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
-9-
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
Please insert Social Security or other
identifying number of assignee
------------------------------
------------------------------------------------------------------------------
(Name and Address of Assignee, including
zip code, must be printed or typewritten)
- --------------------------------------------------------------------------------
the within Bond, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------- Attorney to transfer said Bond on the Security
Register of the Company, with full power of substitution in the premises.
Dated:
-------------------------------------
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
August 11, 1999
The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
Ladies and Gentlemen:
We have examined a copy of the Registration Statement on Form S-3 (No.
333-80347), as amended (the "Registration Statement"), filed by The Great
Atlantic & Pacific Tea Company, Inc. (the "Company") with the Securities and
Exchange Commission (the "Commission") and the Prospectus Supplement of the
Company dated August 4, 1999, relating to the registration pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), of
$200,000,000 aggregate principal amount of the Company's 9 3/8% Senior Quarterly
Interest Bonds Due 2039 (the "Bonds").
The terms of the Bonds have been established pursuant to authorizing
resolutions (the "Authorizing Resolutions") adopted by the Pricing Committee of
the Board of Directors of the Company on August 4, 1999. The Bonds will be
issued pursuant to the Authorizing Resolutions and an Indenture, dated as of
January 1, 1991 (the "Indenture"), between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank, as successor by merger to Manufacturers
Hanover Trust Company). In rendering this opinion, we have reviewed such
documents and made such investigations as we have deemed appropriate.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
The Bonds have been duly authorized for issuance and, when duly
executed, authenticated, registered, issued and delivered in ac
<PAGE>
-2-
cordance with the terms of the Indenture and the Authorizing Resolutions and as
contemplated by the Registration Statement and the Prospectus Supplement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture and the Authorizing Resolutions, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and similar laws
affecting creditors' rights and remedies generally and subject to general
principles of equity.
We are members of the bar of the State of New York and do not purport
to be experts in, or to express any opinion concerning, the laws of any
jurisdiction other than the laws of the State of New York and the federal laws
of the United States of America.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement and to the reference to our firm under
the caption "Legal Matters" in the Registration Statement. Such consent does not
constitute a consent under Section 7 of the Act, and by giving such consent we
have not certified any part of the Registration Statement or the Prospectus
Supplement and do not otherwise admit that we are within the categories of
persons whose consent is required under Section 7 of the Act or under the rules
and regulations of the Commission thereunder.
Yours truly,
/s/ CAHILL GORDON & REINDEL
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
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CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
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THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
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The Great Atlantic & Pacific Tea Company, Inc.
(Exact name of obligor as specified in its charter)
Maryland 13-1890974
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2 Paragon Drive
Montvale, New Jersey 07645
(Address of principal executive offices) (Zip Code)
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Debt Securities
(Title of the indenture securities)
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Item 1. General Information.
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Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110. Board of Governors of the Federal Reserve
System, Washington, D.C. 20551 Federal Reserve Bank of New
York, District No. 2, 33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
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If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
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List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985,
December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and
2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement
No. 333-76439, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Man-
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hattan Bank (National Association), Chemical Bank, the
surviving corporation, was renamed The Chase Manhattan
Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, 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 11th day of August, 1999.
THE CHASE MANHATTAN BANK
By: /s/ Glenn G. McKeever
_____________________________________________
Glenn G. McKeever
Vice President
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EXHIBIT 7 TO FORM T-1
BANK CALL NOTICE
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
THE CHASE MANHATTAN BANK
OF 270 PARK AVENUE, NEW YORK, NEW YORK 10017
AND FOREIGN AND DOMESTIC SUBSIDIARIES,
A MEMBER OF THE FEDERAL RESERVE SYSTEM,
AT THE CLOSE OF BUSINESS MARCH 31, 1999, IN
ACCORDANCE WITH A CALL MADE BY THE FEDERAL RESERVE BANK OF THIS
DISTRICT PURSUANT TO THE PROVISIONS OF THE FEDERAL RESERVE ACT.
Dollar Amounts
in Millions
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..........$ 15,364
Interest-bearing balances................................... 3,811
Securities..........................................................
Held to maturity securities......................................... 1,084
Available for sale 49,894
securities..........................................................
Federal funds sold and securities purchased under agreements
to resell................................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income....................$ 131,839
Less: Allowance for loan and lease losses................... 2,642
Less: Allocated transfer risk reserve....................... 0
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Loans and leases, net of unearned income, allowance,
and reserve............................................... 129,197
Trading Assets...................................................... 45,483
Premises and fixed assets (including capitalized leases)............ 3,124
Other real estate owned ............................................ 242
Investments in unconsolidated subsidiaries and associated companies. 171
Customers' liability to this bank on acceptances outstanding........ 974
Intangible assets .................................................. 2,017
Other assets........................................................ 12,477
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TOTAL ASSETS........................................................$ 291,476
LIABILITIES
Deposits
In domestic offices.........................................$ 102,273
Noninterest-bearing ........................................ 39,135
Interest-bearing ........................................... 63,138
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In foreign offices, Edge and Agreement, subsidiaries
and IBF's ................................................ 74,586
Noninterest-bearing.........................................$ 4,221
Interest-bearing............................................ 70,365
Federal funds purchased and securities sold under agreements to
repurchase.................................................. 41,039
Demand notes issued to the U.S. Treasury............................ 1,000
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Trading liabilities................................................. 32,929
Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
With a remaining maturity of one year or less............. 4,353
With a remaining maturity of more than one year
through three years.................................... 14
With a remaining maturity of more than three years........ 92
Bank's liability on acceptances executed and outstanding........... 974
Subordinated notes and debentures.................................. 5,427
Other liabilities.................................................. 9,684
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LIABILITIES........................................................ 272,371
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EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common stock....................................................... 1,211
Surplus (exclude all surplus related to preferred stock).......... 11,016
Undivided profits and capital reserves............................. 7,040
Net unrealized holding gains (losses) on available-for-sale
securities.................................................... (179)
Accumulated net gains (losses) on cash flow hedges................. 0
Cumulative foreign currency translation adjustments................ 17
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TOTAL EQUITY CAPITAL 19,105
TOTAL LIABILITIES AND EQUITY CAPITAL............................... $ 291,476
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do
hereby declare that this Report of Condition has been prepared in conformance
with the instructions issued by the appropriate Federal regulatory authority and
is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
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