As filed with the Securities and Exchange Commission on June 9, 1999
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
<TABLE>
<S> <C>
A&P Finance
The Great Atlantic & Pacific A&P Finance II
Tea Company, Inc. A&P Finance III
(Exact name of registrant as (Exact name of registrant as specified in its
specified in its charter) Trust Agreement)
Maryland Delaware
(State or other jurisdiction of incorporation or (State or other jurisdiction of incorporation
organization of each registrant) or organization of each registrant)
5411 5411
(Primary Standard Industrial Classification Code (Primary Standard Industrial Classification
Number) Code Number)
13-1890974 Each to be applied for
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification No.)
c/o The Great Atlantic & Pacific
2 Paragon Drive Tea Company, Inc.
Montvale, New Jersey 07645 2 Paragon Drive
(201) 573-9700 Montvale, New Jersey 07645
(Address, including Zip Code, and Telephone (201) 573-9700
Number, including Area Code, of Registrant's (Address, including Zip Code, and Telephone
Principal Executive Offices) Number, including Area Code, of Registrant's
Principal Executive Offices)
Robert G. Ulrich, Esquire
Senior Vice President, General Counsel and Secretary
The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
(201) 573-9700
(Name, Address, including Zip Code, and Telephone Number, including
Area Code, of Agent for Service)
with a copy to:
Kenneth W. Orce, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
</TABLE>
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes affective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective resignation statement for the same offering. [ ] _____________
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
============================================================== ==================== =================== =================
Proposed maximum
Title of each class Amount to aggregate offering Amount of
of securities to be registered be registered(1) price(1) registration
fee(2)
-------------------------------------------------------------- --------------------- ------------------- -----------------
-------------------------------------------------------------- --------------------- ------------------- -----------------
<S> <C> <C> <C>
Securities of The Great Atlantic & Pacific Tea Company, Inc.
Common Stock............................................
Common Stock Warrants(3)................................
Preferred Stock.........................................
Depositary Shares.......................................
Debt Securities.........................................
Debt Warrants...........................................
Preferred Trust Securities Guaranties(4)(5).............
Preferred Trust Securities of A&P Finance I (5)............
Preferred Trust Securities of A&P Finance II (5)...........
Preferred Trust Securities of A&P Finance III (5)..........
Total...................................................... $50,000,000 100% $13,900
============================================================== ===================== ------------------- =================
</TABLE>
(1) In U.S. dollars or the equivalent in foreign currency or foreign currency
units. If any Debt Securities are issued at a discount, such greater
amount as shall result in an aggregate initial offering price of
$50,000,000.
(2) Pursuant to Rule 457(o), the registration fee has been calculated on the
basis of the maximum aggregate offering price of the securities listed.
(3) There are being registered hereunder an indeterminate number of shares of
Common Stock for which Common Stock Warrants may be exercised.
(4) The Great Atlantic & Pacific Tea Company, Inc. is also registering under
this Registration Statement all other obligations that it may have with
respect to the Preferred Trust Securities issued by A&P Finance I, II and
III. No separate consideration will be received for any Guaranty or any
other such obligations.
(5) Includes Preferred Trust Securities which may be offered as part of Units
of Preferred Trust Securities and other Securities registered hereunder.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
===============================================================================
<PAGE>
===============================================================================
SUBJECT TO COMPLETION, DATED JUNE 9, 1999
$50,000,000
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Securities Warrants
and
Preferred Trust Securities Guaranties
A&P FINANCE I
A&P FINANCE II
A&P FINANCE III
Preferred Trust Securities
The Great Atlantic & Pacific Tea Company, Inc. may offer, from time to
time,
o shares of its common stock,
o shares of its preferred stock,
o shares of its preferred stock represented by depositary shares,
o unsecured senior debt securities, o unsecured subordinated debt
securities,
o warrants to purchase shares of its common stock, and
o warrants to purchase debt securities.
A&P Finance I, A&P Finance II and A&P Finance III may offer, from time to
time, preferred trust securities. A&P will own all of the common securities of
each of the trusts. The trusts exist solely for the purpose of issuing preferred
trust securities and investing the proceeds therefrom in junior subordinated
debt securities of A&P. A&P expects to guarantee distributions and liquidation
payments on the preferred trust securities. However, any preferred trust
securities guaranty will only apply to the extent that the trust issuing the
preferred trust securities has funds available to make payments with respect to
the preferred trust securities.
The securities
o will have a maximum aggregate offering price of $50,000,000,
o will be offered at prices and on terms to be set forth in an
accompanying prospectus supplement,
o may be denominated in U.S. dollars or in other currencies or
currency units,
o may be offered separately or together, or in separate series, and
o may be listed on a national securities exchange, if specified in an
accompanying prospectus supplement.
The senior debt securities, if issued, will rank equally with all other
unsecured and unsubordinated indebtedness of A&P. The subordinated debt
securities, if issued, will be unsecured and subordinated to all present and
future senior indebtedness specified in an accompanying prospectus supplement.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-----------
The securities may be sold directly, through agents from time to time or
through underwriters and/or dealers. If any agent of the issuers or any
underwriter is involved in the sale of the securities, the name of such agent or
underwriter and any applicable commission or discount will be set forth in the
accompanying prospectus supplement.
-----------
This prospectus may not be used unless accompanied by a prospectus supplement.
-----------
The date of this prospectus is , 1999.
<PAGE>
#############################################################################
#The information in this prospectus is not complete and may be changed. We #
#may not sell these securities until the registration statement filed with #
#the Securities and Exchange Commission is effective. This prospectus is not#
#an offer to sell these securities and it is not soliciting an offer to buy #
#these securities in any state where the offer or sale is not permitted. #
#############################################################################
<PAGE>
TABLE OF CONTENTS
Page
Where You Can Find More Information..........................................1
Incorporation of Certain Documents by Reference..............................1
The Company..................................................................3
The Trusts...................................................................3
Use of Proceeds..............................................................4
Ratio of Earnings to Fixed Charges...........................................4
Description of Common Stock..................................................4
Description of Preferred Stock...............................................6
Description of Depositary Shares............................................11
Description of Debt Securities..............................................14
Description of Securities Warrants..........................................23
Description of Preferred Trust Securities...................................26
Description of Preferred Trust Securities Guaranties........................27
Description of Junior Subordinated Debt Securities..........................29
Relationship among the Preferred Trust Securities, the Junior
Subordinated Debt Securities and the Preferred Trust
Securities Guaranties..................................................32
Maryland Anti-Takeover Provisions...........................................33
Plan of Distribution........................................................34
Legal Matters...............................................................35
Experts.....................................................................35
<PAGE>
Where You Can Find More Information
A&P and the trusts filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933 with respect
to the securities to be offered. This prospectus, which forms a part of the
registration statement, does not contain all of the information set forth in the
registration statement and the exhibits and schedules thereto, parts of which
are omitted in accordance with the rules and regulations of the Commission. For
more information about A&P, the trusts and the securities, you should see the
registration statement and its exhibits and schedules. Any statement made in
this prospectus concerning the provisions of documents may be incomplete and you
should refer to the copy of such document filed as an exhibit to the
registration statement with the Commission.
A&P files annual, quarterly and special reports, proxy statements and other
information with the Commission. The registration statement, its exhibits and
such reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60601.
Copies of such material can be obtained from the Public Reference Section of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains an Internet Web Site at
http://www.sec.gov that contains reports and other information. A&P's common
stock is traded on the New York Stock Exchange under the symbol "GAP" and
reports, proxy statements and other information concerning A&P can be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The issuers have not filed separate financial statements of the trusts. All
of the common securities of the trusts are owned by A&P and the trusts have no
operating history or independent operations. In addition, following the issuance
of preferred trust securities, the issuing trusts will not engage in any
activity other than holding as trust assets junior subordinated debt securities
of A&P. In connection with any issuance of preferred trust securities, A&P will,
through one or more preferred trust securities guaranties or other agreements,
irrevocably and unconditionally guarantee payments on the preferred trust
securities. For these reasons, the issuers do not think that the financial
-1-
<PAGE>
statements of any of the trusts would be material to prospective purchasers of
the preferred trust securities.
Incorporation of Certain Documents by Reference
A&P is incorporating by reference into this registration statement its
Annual Report on Form 10-K for the fiscal year ended February 27, 1999.
All documents filed by A&P pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act: (1) subsequent to the initial filing of this prospectus and
prior to the date it is declared effective; and (2) subsequent to the date of
this prospectus and prior to the termination of this offering are incorporated
by reference and become a part of this prospectus from their date of filing. Any
statement contained in this prospectus or in a document incorporated by
reference is modified or superseded for purposes of this prospectus to the
extent that a statement contained in any such subsequent document modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
On request, the issuers will provide anyone who receives a copy of this
prospectus with a copy of any or all of the documents incorporated in this
prospectus by reference. Written or telephone requests for such copies should be
directed to Robert G. Ulrich, Esq., Senior Vice President, General Counsel and
Secretary, at A&P's principal office: The Great Atlantic & Pacific Tea Company,
Inc., 2 Paragon Drive, Montvale, New Jersey 07645, telephone (201) 573-9700.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
-2-
<PAGE>
THE COMPANY
A&P has been engaged in the retail food business since 1859. Based on
reported sales for fiscal 1998, A&P believes that as of the end of its 1998
fiscal year it was one of the ten largest retail food chains in the United
States and that it had the largest market share in metropolitan New York and
Detroit and the second largest in the Province of Ontario. As of the end of its
1998 fiscal year, A&P operated 839 stores averaging approximately 35,200 square
feet per store. In addition, in fiscal 1995 A&P began franchising certain stores
in Canada under its Food Basics format, which focuses its appeal toward the more
price conscious consumer. As of the end of its 1998 fiscal year, A&P had
franchised 55 Food Basics stores in Canada.
A&P sells groceries, meats, fresh produce and other items commonly offered
in supermarkets, operating under the following trade names:
o........Super Fresh o........Sav-A-Center
o........Farmer Jack o........Kohl's
o........Food Emporium o........Waldbaum's
o........Super Food Mart o........Ultra Mart
o........Dominion o........Food Basics
In addition, many stores have bakery, delicatessen, pharmacy, floral, fresh fish
and cheese departments, and on-site banking. National, regional and local brands
are sold as well as private label merchandise under brands which include
America's Choice, Master Choice, Health Pride, Savings Plus and The Farm. In
support of its retail operations, A&P also operates one coffee roasting plant in
the United States. Through its Compass Foods Division, A&P manufactures and
distributes a line of whole bean coffees under the Eight O'Clock, Bokar and
Royale labels, for sale through its own stores as well as other food and
convenience retailers.
Building upon a broad base of A&P supermarkets, A&P has expanded and
diversified within the retail food business through the acquisition of other
supermarket chains and the development of several alternative store types. A&P
now operates its stores with merchandise, pricing and identities tailored to
appeal to different segments of the market, including buyers seeking gourmet and
ethnic foods, unusual produce, a wide variety of premium quality private label
goods and health and beauty aids along with the array of traditional grocery
products.
A&P is engaged in a continuing program of modernizing its operations and
retail stores. During fiscal 1998, A&P expended approximately $438 million for
capital projects which included 46 new supermarkets, 3 new Food Basics
franchised stores and 69 remodels or enlargements. A&P's plans for fiscal 1999
anticipate capital expenditures of approximately $500 million, which include the
opening of 55 new supermarkets and the remodeling or expansion of 75 stores. In
addition, A&P is developing plans to open approximately 65 new supermarkets in
fiscal 2000 and approximately 70 to 80 new supermarkets per year thereafter for
several years. Further, A&P expects to remodel or enlarge an average of 75
stores per year for the next several years.
As of May 1, 1999, A&P was 54.92% owned by Tengelmann
Warenhandelsgesellschaft, a general retailer headquartered in Germany which is
one of the largest food retailers in Europe. The principal executive offices of
A&P are located at 2 Paragon Drive, Montvale, New Jersey 07645, telephone (201)
573-9700.
THE TRUSTS
Each trust is a statutory business trust created under Delaware law for the
exclusive purpose of issuing and selling its preferred trust securities and
using the proceeds to acquire corresponding junior subordinated debt securities
-3-
<PAGE>
issued by A&P. Each trust will be governed by an amended and restated trust
agreement substantially in the form filed as an exhibit to the registration
statement of which this prospectus forms a part. Each trust agreement will be
qualified as an indenture under the Trust Indenture Act of 1939. All of the
common securities of each trust will be owned by A&P.
Each trust's business and affairs will be conducted by its trustees, which
shall be appointed by A&P as the holder of the trust's common securities. The
trustees will include two officers of A&P as administrative trustees, Bankers
Trust Company as property trustee, and Bankers Trust (Delaware) as Delaware
trustee. The property trustee of each trust will act as the indenture trustee
with respect to such trust for purposes of compliance with the provisions of the
Trust Indenture Act.
A&P will pay all fees and expenses related to each trust and the offering
of preferred trust securities and will pay, directly or indirectly all ongoing
costs, expenses and liabilities of each trust.
The principal place of business of each trust shall be c/o The Great
Atlantic & Pacific Tea Company, Inc., 2 Paragon Drive, Montvale, New Jersey
07645, telephone (201) 573-9700.
You should see the prospectus supplement relating to the preferred trust
securities of a trust for further information concerning such trust.
USE OF PROCEEDS
Except as otherwise described in the accompanying prospectus supplement,
the net proceeds to A&P from the sale or sales of the securities will be used
for general corporate purposes, which may include, without limitation, the
reduction of outstanding indebtedness, working capital increases, capital
expenditures and acquisitions. The net proceeds of the sale of preferred trust
securities of each trust will be invested in a related series of A&P's junior
subordinated debt securities.
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
February 27, 1999 February 28, 1998 February 22, 1997 February 24, 1996 February 25, 1995
(52 weeks) (53 weeks) (52 weeks) (52 weeks) (52 weeks)
<S> <C> <C> <C> <C>
* 1.58x 1.77x 1.64x *
</TABLE>
- -----------
* Earnings for the year ended February 27, 1999 and February 25, 1995 were
inadequate to cover fixed charges by $229.3 million and $129.4 million,
respectively.
In the calculation of A&P's ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes and cumulative effect on prior
years of changes in accounting principles, plus fixed charges. Fixed charges
consist of interest expense, plus the portion of rental expense under leases
which has been deemed by A&P to be representative of the interest factor.
DESCRIPTION OF COMMON STOCK
A&P's Articles of Restatement of the Certificate of Incorporation authorize
the issuance of 80 million shares of its common stock with a par value of $1.00
per share. As of May 18, 1999, there were 38,290,716 shares of common stock
outstanding held by approximately 7,500 holders of record, excluding holders
whose shares of record are held by brokers.
-4-
<PAGE>
General
The holders of common stock are entitled to cast one vote for each share on
all matters submitted to a vote of stockholders and are not entitled to cumulate
votes for the election of directors. Except in cases in which it is by statute,
by the Articles or by the bylaws of A&P otherwise provided, a majority of the
shares present in person or by proxy is sufficient to elect and pass any
measure. Amendments to the Articles, mergers, consolidations, share exchanges
and the dissolution of A&P generally require the approval of two-thirds of the
outstanding shares of common stock.
There are no redemption or sinking fund provisions applicable to the common
stock. The holders of the common stock are not subject to further calls or
assessments by A&P. In the event of liquidation, holders of common stock are
entitled to share in the distribution of assets remaining after payment of
debts, liquidation preference of any outstanding preferred stock, and expenses.
The holders of common stock are entitled to receive dividends when and as
declared by the board of directors out of funds legally available therefor. The
outstanding shares of common stock and the shares of common stock to be
distributed in connection with any offerings pursuant to this prospectus will be
fully paid and nonassessable when issued.
Preemptive Rights
The holders of common stock have preemptive rights to subscribe for and to
purchase additional shares of stock of any class or classes of A&P, provided,
however, that no preemptive right shall in any event accrue to any stockholder
with respect to
(1) shares issued for not less than their fair value in exchange for
services or property other than money,
(2) shares remaining unsubscribed after having been offered to
stockholders,
(3) treasury shares sold for not less than their fair value,
(4) shares issued or issuable pursuant to articles of merger,
(5) preferred shares without then present voting power with respect
to the election of directors issued for not less than their fair
value, and
(6) shares issued and sold to A&P's officers or other employees or to
the officers or other employees of any subsidiary of A&P upon
such terms and conditions as are approved by the affirmative vote
of a majority of all of the shares entitled to vote with respect
thereto at a meeting duly called and held for such purpose.
The determination of "fair value" fixed and recorded in a resolution of the
board of directors authorizing the issuance of any such additional shares of
stock, including the price or consideration for which such shares of stock are
to be issued, shall be conclusive in the absence of fraud or gross disparity in
such determination.
Transfer Agent
American Stock Transfer and Trust Company, 40 Wall Street, New York, NY
10005, is the transfer agent and registrar for the common stock.
-5-
<PAGE>
DESCRIPTION OF PREFERRED STOCK
A&P's Articles authorize the issuance of 3 million shares of its preferred
stock without par value. No shares of preferred stock are currently outstanding.
General
The preferred stock may be issued from time to time, in one or more series,
as authorized by the board of directors. Prior to issuance of shares of each
series, the board of directors is required by the Maryland General Corporation
Law and the Articles to fix for each series, the designations, preferences,
rights, voting powers, restrictions, and qualifications of, the dividends on,
the times and prices of redemptions of, and the conversion rights of the shares
of such series as may be permitted by Maryland law. Such rights, powers,
restrictions and limitations could include the right to receive specified
dividend payments and payments on liquidation prior to any such payments to
holders of common stock or other stock of A&P ranking junior to the preferred
stock. Shares of preferred stock to be distributed in connection with any
offerings pursuant to this prospectus will be fully paid and nonassessable when
issued and the holders of shares of any such preferred stock will not have any
preemptive right to subscribe or purchase any new or additional issue of shares
of stock of A&P. The board of directors could authorize the issuance of shares
of preferred stock with terms and conditions that could have the effect of
discouraging a takeover or other transaction that holders of common stock might
believe to be in their best interests or in which holders of some, or a
majority, of the shares of common stock might receive a premium for their shares
over the then market price of such shares of common stock.
Future Series of Preferred Stock
The following description of the preferred stock sets forth material terms
and provisions of the preferred stock which may be specified in a prospectus
supplement. The statements below describing the preferred stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Articles and bylaws and any applicable designating
amendment to the Articles establishing the terms of a series of preferred stock.
You should read the prospectus supplement relating to the preferred stock
offered thereby for specific terms, including:
1. The title and stated capital value of such preferred stock;
2. The number of shares of such preferred stock offered, the
liquidation preference per share and the offering price of such
preferred stock;
3. The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such preferred
stock;
4. The date from which dividends on such preferred stock shall
accumulate, if applicable;
5. The procedures for any auction and remarketing, if any, for such
preferred stock;
6. The provision for a sinking fund, if any, for such preferred
stock;
7. The provision for redemption, if applicable, of such preferred
stock;
8. Any listing of such preferred stock on any securities exchange;
-6-
<PAGE>
9. The terms and conditions, if applicable, upon which such
preferred stock will be convertible into common stock, including
the conversion price or manner of its calculation;
10. Any other specific terms, preferences, rights, limitations or
restrictions of such preferred stock;
11. A discussion of federal income tax considerations applicable to
such preferred stock;
12. The voting rights of such preferred stock and the relative
ranking and preference of such preferred stock as to dividend
rights and rights upon liquidation, dissolution or winding up of
the affairs of A&P; and
13. Any limitations on issuance of any series of preferred stock
ranking senior to or on a parity with such series of preferred
stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of A&P.
Rank
Unless otherwise specified in the prospectus supplement, the preferred
stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of A&P, rank
(1) senior to all classes or series of common stock, and to all
equity securities ranking junior to such preferred stock with
respect to dividend rights or rights upon liquidation,
dissolution or winding up of A&P;
(2) on a parity with all equity securities issued by A&P the terms of
which specifically provide that such equity securities rank on a
parity with the preferred stock with respect to dividend rights
or rights upon liquidation, dissolution or winding up of A&P; and
(3) junior to all equity securities issued by A&P the terms of which
specifically provide that such equity securities rank senior to
the preferred stock with respect to dividend rights or rights
upon liquidation, dissolution or winding up of A&P.
The term "equity securities" does not include convertible debt securities.
Dividends
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by the board of directors, out of assets of A&P legally
available for payment, cash dividends at such rates and on such dates as will be
set forth in the applicable prospectus supplement. Each such dividend shall be
payable to holders of record as they appear on the share transfer books of A&P
on such record dates as shall be fixed by the board of directors.
Dividends on any series of the preferred stock may be cumulative or
non-cumulative, as provided in the applicable prospectus supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable prospectus supplement. If the board of directors fails to declare a
dividend payable on a dividend payment date on any series of the preferred stock
for which dividends are non-cumulative, then the holders of such series of the
preferred stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and A&P will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on such series are declared payable on any future dividend payment date.
-7-
<PAGE>
If preferred stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any stock of A&P of any other
series ranking, as to dividends, on a parity with or junior to the preferred
stock of such series for any period unless
(1) if a series of preferred stock has a cumulative dividend, full
cumulative dividends have been declared and paid or declared and
a sum sufficient for the payment thereof is set apart for payment
for all past dividend periods and the then current dividend
period, or
(2) if a series of preferred stock does not have a cumulative
dividend, full dividends for the then current dividend period
have been declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment for the then
current dividend period.
When dividends upon preferred stock of any series and the shares of any other
series of preferred stock ranking on a parity as to dividends are not paid in
full, or a sum sufficient for such full payment is not set apart, all dividends
declared upon preferred stock of such series and any other series of preferred
stock ranking on a parity as to dividends shall be declared pro rata. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on preferred stock of such series which may be
in arrears.
Except as provided in the immediately preceding paragraph, unless
(1) if a series of preferred stock has a cumulative dividend, full
cumulative dividends have been declared and paid or declared and
a sum sufficient for the payment thereof is set apart for payment
for all past dividend periods and the then current dividend
period, and
(2) if a series of preferred stock does not have a cumulative
dividend, full dividends have been declared and paid or declared
and a sum sufficient for the payment thereof is set apart for
payment for the then current dividend period,
no dividends, other distributions or payments for redemption or purchase, other
than in shares of common stock or other shares of stock ranking junior to the
preferred stock of such series as to dividends and upon liquidation, shall be
declared or paid or set aside for payment with respect to A&P's common stock or
any other stock of A&P ranking junior to or on parity with such series of
preferred stock.
Any dividend payment made on shares of a series of preferred stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
Redemption
If so provided in the applicable prospectus supplement, the preferred stock
will be subject to mandatory redemption or redemption at the option of A&P, as a
whole or in part, in each case upon the terms, at the times and at the
redemption prices set forth in such prospectus supplement.
The prospectus supplement relating to a series of preferred stock that is
subject to mandatory redemption will specify the number of shares of such
preferred stock that shall be redeemed by A&P in each year commencing after a
date to be specified, at a redemption price per share to be specified, together
with an amount equal to all accrued and unpaid dividends thereon to the date of
redemption. If such preferred stock does not have a cumulative dividend, accrued
and unpaid dividends will not include any accumulation in respect of unpaid
dividends for prior dividend periods. The redemption price may be payable in
cash or other property, as specified in the applicable prospectus supplement. If
-8-
<PAGE>
the redemption price for preferred stock of any series is payable only from the
net proceeds of the issuance of shares of stock of A&P, the terms of such
preferred stock may provide that, if no such shares of stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such preferred stock shall
automatically and mandatorily be converted into the applicable shares of stock
of A&P pursuant to conversion provisions specified in the applicable prospectus
supplement.
Notwithstanding the foregoing, unless
(1) if a series of preferred stock has a cumulative dividend, full
cumulative dividends on all shares of such series of preferred
stock shall have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all
past dividend periods and the then current dividend period, and
(2) if a series of preferred stock does not have a cumulative
dividend, full dividends on all shares of preferred stock of such
series have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the
then current dividend period,
no shares of such series of preferred stock shall be redeemed unless all
outstanding shares of preferred stock of a series are simultaneously redeemed.
The foregoing, however, shall not prevent the purchase or acquisition of
preferred stock of a series pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of preferred stock of such
series. In addition, unless
(1) if such series of preferred stock has a cumulative dividend, full
cumulative dividends on all shares of such series of preferred
stock have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all
past dividend periods and the then current dividend period, and
(2) if such series of preferred stock does not have a cumulative
dividend, full dividends on all shares preferred stock of such
series have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the
then current dividend period,
A&P shall not purchase or otherwise acquire directly or indirectly any shares of
preferred stock of such series, except by conversion into or exchange for shares
of stock of A&P ranking junior to the preferred stock of such series as to
dividends and upon liquidation. The foregoing, however, shall not prevent the
purchase or acquisition of shares of preferred stock of a series pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of preferred stock of such series.
If fewer than all of the outstanding shares of preferred stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by A&P and such shares may be redeemed pro rata or by any other
equitable manner determined by A&P.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of preferred stock of
any series to be redeemed at the address shown on the stock transfer books of
A&P. Each notice shall state:
(1) the redemption date;
(2) the number of shares and series of the preferred stock to be
redeemed;
(3) the redemption price;
-9-
<PAGE>
(4) the place or places where certificates for such preferred stock
are to be surrendered for payment of the redemption price;
(5) that dividends on the shares to be redeemed will cease to accrue
on such redemption date; and
(6) the date upon which the holder's conversion rights, if any, as to
such shares shall terminate.
If fewer than all the shares of preferred stock of any series are to be
redeemed, the notice mailed to each such holder thereof shall also specify the
number of shares of preferred stock to be redeemed from each such holder. If
notice of redemption of any preferred stock has been given and if the funds
necessary for such redemption have been set aside by A&P in trust for the
benefit of the holders of any preferred stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on such
preferred stock, and all rights of the holders of such shares will terminate,
except the right to receive the redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of A&P, before any distribution or payment shall be made to the
holders of any common stock or any other class or series of stock of A&P ranking
junior to the preferred stock in the distribution of assets upon any
liquidation, dissolution or winding up of A&P, the holders of each series of
preferred stock shall be entitled to receive out of assets of A&P legally
available for distribution to stockholders liquidating distributions in the
amount of the liquidation preference per share, if any, set forth in the
applicable prospectus supplement, plus an amount equal to all dividends accrued
and unpaid thereon, which shall not include any accumulation in respect of
unpaid noncumulative dividends for prior dividend periods. After payment of the
full amount of the liquidating distributions to which they are entitled, the
holders of preferred stock will have no right or claim to any of the remaining
assets of A&P. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of A&P are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of preferred stock and the corresponding amounts payable on
all shares of other classes or series of stock of A&P ranking on a parity with
the preferred stock in the distribution of assets, then the holders of the
preferred stock and all other such classes or series of stock shall share
ratably in any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders of
preferred stock, the remaining assets of A&P shall be distributed among the
holders of any other classes or series of stock ranking junior to the preferred
stock upon liquidation, dissolution or winding up, according to their respective
rights and preferences and in each case according to their respective number of
shares. For such purposes, the consolidation or merger of A&P with or into any
other corporation, trust or entity, or the sale, lease or conveyance of all or
substantially all of the property or business of A&P, shall not be deemed to
constitute a liquidation, dissolution or winding up of A&P.
Voting Rights
Holders of the preferred stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable prospectus supplement.
Unless provided otherwise for any series of preferred stock, so long as any
shares of preferred stock of a series remain outstanding, A&P will not, without
the affirmative vote or consent of the holders of at least two-thirds of the
shares of such series of preferred stock outstanding at the time,
-10-
<PAGE>
(1) authorize or create, or increase the authorized or issued amount
of, any class or series of stock ranking prior to such series of
preferred stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding
up, or reclassify any authorized stock of A&P into such shares,
or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such
shares, or
(2) amend, alter or repeal the provisions of the Articles or the
designating amendment for such series of preferred stock, whether
by merger, consolidation or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power
of such series of preferred stock or the holders thereof.
So long as the preferred stock remains outstanding with the terms thereof
materially unchanged, taking into account that A&P may not be the surviving
entity, the occurrence of any merger, consolidation or other similar event will
not be deemed to materially and adversely affect the rights, preferences,
privileges or voting power of holders of preferred stock. Any increase in the
amount of the authorized preferred stock or the creation or issuance of any
other series of preferred stock, or any increase in the amount of authorized
shares of such series or any other series of preferred stock, in each case
ranking on a parity with or junior to the preferred stock of such series with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, also will not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of preferred stock shall have
been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
Conversion Rights
The terms and conditions, if any, upon which any series of preferred stock
is convertible into common stock will be set forth in the applicable prospectus
supplement relating thereto. Such terms will include the number of shares of
common stock into which the shares of preferred stock are convertible, the
conversion price or manner of its calculation, the conversion period, provisions
as to whether conversion will be at the option of the holders of the preferred
stock or A&P, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such series of
preferred stock.
Transfer Agent
The transfer agent and registrar for the preferred stock will be set forth
in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
A&P may, at its option, elect to offer depositary shares rather than full
shares of preferred stock. In the event such option is exercised, each of the
depositary shares will represent ownership of and entitlement to all rights and
preferences of a fraction of a share of preferred stock of a specified series,
including dividend, voting, redemption and liquidation rights. The applicable
fraction will be specified in the prospectus supplement. The shares of preferred
stock represented by the depositary shares will be deposited with a depositary
named in the applicable prospectus supplement, under a deposit agreement among
A&P, the depositary and the holders of depositary receipt certificates
evidencing depositary shares. Depositary receipts will be delivered to those
persons purchasing depositary shares in the offering. The depositary will be the
-11-
<PAGE>
transfer agent, registrar and dividend disbursing agent for the depositary
shares. Holders of depositary receipts agree to be bound by the deposit
agreement, which requires holders to take actions described in an accompanying
prospectus supplement such as filing proof of residence and paying certain
charges.
The summary of terms of the depositary shares contained in this prospectus
does not purport to be complete and is subject to, and qualified in its entirety
by, the provisions of the deposit agreement, the Articles and the form of
designating amendment for the applicable series of preferred stock.
Dividends
The depositary will distribute all cash dividends or other cash
distributions received in respect of the series of preferred stock represented
by the depositary shares to the record holders of depositary receipts in
proportion to the number of depositary shares owned by such holders on the
relevant record date, which will be the same date as the record date fixed by
A&P for the applicable series of preferred stock. The depositary, however, will
distribute only such amount as can be distributed without attributing to any
depositary share a fraction of one cent, and any balance not so distributed will
be added to and treated as part of the next sum received by the depositary for
distribution to record holders of depositary receipts then outstanding.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
entitled thereto, in proportion, as nearly as may be practicable, to the number
of depositary shares owned by such holders on the relevant record date, unless
the depositary determines, after consultation with A&P, that it is not feasible
to make such distribution, in which case the depositary may, with the approval
of A&P, adopt any other method for such distribution as it deems equitable and
appropriate, including the sale of such property and distribution of the net
proceeds from such sale to such holders.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the affairs
of A&P, whether voluntary or involuntary, the holders of each depositary share
will be entitled to the fraction of the liquidation preference accorded each
share of the applicable series of preferred stock, as set forth in the
prospectus supplement.
Redemption
If the series of preferred stock represented by the applicable series of
depositary shares is redeemable, such depositary shares will be redeemed from
the proceeds received by the depositary resulting from the redemption, in whole
or in part, of preferred stock held by the depositary. Whenever A&P redeems any
preferred stock held by the depositary, the depositary will redeem as of the
same redemption date the number of depositary shares representing the preferred
stock so redeemed. The depositary will mail the notice of redemption promptly
upon receipt of such notice from A&P and not less than 30 nor more than 60 days
prior to the date fixed for redemption of the preferred stock and the depositary
shares to the record holders of the depositary receipts.
Voting
Promptly upon receipt of notice of any meeting at which the holders of the
series of preferred stock represented by the applicable series of depositary
shares are entitled to vote, the depositary will mail the information contained
in such notice of meeting to the record holders of the depositary receipts as of
the record date for such meeting. Each such record holder of depositary receipts
will be entitled to instruct the depositary as to the exercise of the voting
rights pertaining to the number of shares of preferred stock represented by such
record holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote such preferred stock represented by such depositary shares
in accordance with such instructions, and A&P will agree to take all action
which may be deemed necessary by the depositary in order to enable the
-12-
<PAGE>
depositary to do so. The depositary will abstain from voting any of the
preferred stock to the extent that it does not receive specific instructions
from the holders of depositary receipts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the
depositary, upon payment of any unpaid amount due the depositary, and subject to
the terms of the deposit agreement, the owner of the depositary shares evidenced
thereby is entitled to delivery of the number of whole shares of preferred stock
and all money and other property, if any, represented by such depositary shares.
Partial shares of preferred stock will not be issued. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of whole shares of preferred
stock to be withdrawn, the depositary will deliver to such holder at the same
time a new depositary receipt evidencing such excess number of depositary
shares. Holders of preferred stock thus withdrawn will not thereafter be
entitled to deposit such shares under the deposit agreement or to receive
depositary receipts evidencing depositary shares therefor.
Amendment and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time and from time to time be
amended by agreement between A&P and the depositary. However, any amendment
which materially and adversely alters the rights of the holders, other than any
change in fees, will not be effective unless such amendment has been approved by
at least a majority of the depositary shares then outstanding. No such amendment
may impair the right, subject to the terms of the deposit agreement, of any
owner of any depositary shares to surrender the depositary receipt evidencing
such depositary shares with instructions to the depositary to deliver to the
holder the preferred stock and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable law.
The deposit agreement may be terminated by A&P or the depositary only if all
outstanding depositary shares have been redeemed or there has been a final
distribution in respect of the preferred stock in connection with any
dissolution of A&P and such distribution has been made to all the holders of
depositary shares.
Charges of Depositary
A&P will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. A&P will pay charges
of the depositary in connection with the initial deposit of the preferred stock
and initial issuance of the depositary shares, and redemption of the preferred
stock and all withdrawals of preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and other taxes and
governmental charges and other charges as are provided in the deposit agreement
to be for their accounts. The depositary may refuse to transfer depositary
shares, may withhold dividends and distributions and may sell the depositary
shares evidenced by such depositary receipt if such charges are not paid.
Miscellaneous
The depositary will forward to the holders of depositary receipts all
reports and communications from A&P which are delivered to the depositary and
which A&P is required to furnish to the holders of the preferred stock. In
addition, the depositary will make available for inspection by holders of
depositary receipts at the principal office of the depositary, and at such other
places as it may from time to time deem advisable, any reports and
communications received from A&P which are received by the depositary as the
holder of preferred stock.
Neither the depositary nor A&P assumes any obligation or will be subject to
any liability under the deposit agreement to holders of depositary receipts
other than for its negligence or willful misconduct. Neither the depositary nor
A&P will be liable if it is prevented or delayed by law or any circumstance
beyond its control in performing its obligations under the deposit agreement.
The obligations of A&P and the depositary under the deposit agreement will be
limited to performance in good faith of their duties thereunder, and they will
-13-
<PAGE>
not be obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
A&P and the depositary may rely on written advice of counsel or accountants, on
information provided by holders of the depositary receipts or other persons
believed in good faith to be competent to give such information and on documents
believed to be genuine and to have been signed or presented by the proper party
or parties.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to A&P notice of its
election to do so, and A&P may at any time remove the depositary, any such
resignation or removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment. Such successor depositary
must be appointed within 60 days after delivery of the notice for resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$100,000,000.
Federal Income Tax Consequences
Owners of depositary shares will be treated for Federal income tax purposes
as if they were owners of the preferred stock represented by such depositary
shares. Accordingly, such owners will be entitled to take into account, for
Federal income tax purposes, income and deductions to which they would be
entitled if they were holders of such preferred stock. In addition,
(1) no gain or loss will be recognized for Federal income tax
purposes upon the withdrawal of preferred stock in exchange for
depositary shares,
(2) the tax basis of each share of preferred stock to an exchanging
owner of depositary shares will, upon such exchange, be the same
as the aggregate tax basis of the depositary shares exchanged
therefor, and
(3) the holding period for preferred stock in the hands of an
exchanging owner of depositary shares will include the period
during which such person owned such depositary shares.
DESCRIPTION OF DEBT SECURITIES
The senior debt securities may be issued from time to time in one or more
series under an indenture, dated as of January 1, 1991, between A&P and The
Chase Manhattan Bank (formerly Chemical Bank as successor by merger to
Manufacturers Hanover Trust Company), as trustee, which is filed as an exhibit
to the registration statement of which this prospectus is a part. The
subordinated debt securities may be issued from time to time in one or more
series under an indenture between A&P and a trustee to be identified in the
related prospectus supplement, a form of which is filed as an exhibit to the
registration statement of which this prospectus is a part. The following summary
of provisions of the indentures and the debt securities does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the provisions of the indentures, including defined terms. The particular terms
of the debt securities offered by any prospectus supplement and the extent, if
any, to which such general provisions may apply to the offered debt securities
will be described in the applicable prospectus supplement.
General
Neither indenture limits the amount of debt securities which may be issued
thereunder and each indenture provides that debt securities may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time. The debt securities may be issued from time to time in one or more
-14-
<PAGE>
series. The senior debt securities will be unsecured and will rank on a parity
with all other unsecured and unsubordinated indebtedness of A&P. Each series of
subordinated debt securities will be unsecured and subordinated to all present
and future senior indebtedness with respect to such series. The senior
indebtedness will be described in an accompanying prospectus supplement.
You should read the prospectus supplement relating to the particular series
of debt securities for the following terms of the offered debt securities:
1. the designation, aggregate principal amount and authorized
denominations;
2. the issue price, expressed as a percentage of the aggregate
principal amount;
3. the maturity date;
4. the interest rate per annum, if any;
5. if the offered debt securities provide for interest payments, the
date from which such interest will accrue, the dates on which
such interest will be payable, the date on which payment of such
interest will commence and the regular record dates for such
interest payment dates;
6. any optional or mandatory sinking fund provisions;
7. the date, if any, after which and the price or prices at which
the offered debt securities may be optionally redeemed or must be
mandatorily redeemed, and any other terms and provisions of such
optional or mandatory redemptions;
8. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which offered debt securities of
the series will be issuable;
9. if other than the full principal amount, the portion of the
principal amount of offered debt securities of the series which
will be payable upon acceleration or provable in bankruptcy;
10. any events of default not set forth in the applicable indenture;
11. the currency or currencies, including composite currencies, in
which principal, premium and interest will be payable, if other
than the currency of the United States of America;
12. if principal, premium or interest is payable, at the election of
A&P or any holder thereof, in a coin or currency other than that
in which the offered debt securities of the series are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
13. if denominated in a currency or currencies other than the
currency of the United States of America, the equivalent price in
the currency of the United States of America for purposes of
determining the voting rights of holders of such debt securities
under the applicable indenture;
14. if the amount of payments of principal, premium or interest may
be determined with reference to an index, formula or other method
based on a coin or currency other than that in which the offered
-15-
<PAGE>
debt securities of the series are stated to be payable, the
manner in which such amounts will be determined; and
15. any additional restrictive covenants or other material terms
relating to the offered debt securities, which may not be
inconsistent with the applicable indenture.
Unless otherwise indicated in the prospectus supplement relating thereto,
principal, premium and interest will be payable and the debt securities will be
transferable at the corporate trust office of the applicable trustee. Unless
other arrangements are made, principal, premium and interest will be paid by
checks mailed to the holders at their registered addresses.
Unless otherwise indicated in the prospectus supplement relating thereto,
the debt securities will be issued only in fully registered form without
coupons, in denominations of $1,000 or any integral multiple thereof. No service
charge will be made for any transfer or exchange of the debt securities, but A&P
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Some or all of the debt securities may be issued as discounted debt
securities, bearing no interest or interest at a rate which at the time of
issuance is below market rates, to be sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted debt securities will be
described in the prospectus supplement relating thereto.
Restricted and Unrestricted Subsidiaries
The senior debt securities indenture classified A&P's subsidiaries
restricted subsidiaries and unrestricted subsidiaries. The subordinated debt
securities indenture does not classify A&P's subsidiaries or unrestricted
subsidiaries. Accordingly, the following provisions do not apply to subordinated
debt securities.
The various restrictive provisions of the senior debt securities indenture
apply to A&P and its restricted subsidiaries and do not apply to unrestricted
subsidiaries. The assets and indebtedness of unrestricted subsidiaries are not
consolidated with those of A&P and its restricted subsidiaries in making
financial calculations under the senior debt securities indenture. Investments
by A&P or by its restricted subsidiaries in unrestricted subsidiaries are
excluded from A&P's assets for purposes of the senior debt securities indenture.
Unrestricted subsidiaries are those subsidiaries which are designated as
unrestricted subsidiaries by the board of directors from time to time pursuant
to the senior debt securities indenture. Unrestricted subsidiaries may also be
designated as restricted subsidiaries by the board of directors pursuant to the
senior debt securities indenture. Restricted subsidiaries are all subsidiaries
other than unrestricted subsidiaries. At the date of execution of the senior
debt securities indenture and at the date of this prospectus, all subsidiaries
of A&P were restricted subsidiaries. However, subject to compliance with the
terms of the senior debt securities indenture, A&P has the right to change the
designation of one or more of such subsidiaries to unrestricted subsidiaries. A
wholly-owned restricted subsidiary is a restricted subsidiary, of which at least
99% of the capital stock, except directors' qualifying shares, is owned by A&P
and its other wholly-owned restricted subsidiaries.
A restricted subsidiary may not be designated an unrestricted subsidiary
unless A&P and its restricted subsidiaries would thereafter be permitted to
incur at least $1.00 of secured debt under the senior debt securities indenture.
An unrestricted subsidiary may not be designated a restricted subsidiary if
it has any secured debt or attributable debt unless immediately thereafter A&P
and its restricted subsidiaries would be permitted to incur such secured debt
under the terms of the senior debt securities indenture.
-16-
<PAGE>
Restrictions upon Secured Debt
The senior debt securities indenture restricts the incurrence of secured
debt by A&P. The subordinated debt securities indenture does not restrict the
incurrence of secured debt of any kind by A&P. Accordingly, the following
provisions do not apply to subordinated debt securities.
The restrictions which the senior debt securities indenture places upon
A&P's and its restricted subsidiaries' incurrence of secured debt apply only to
debt secured by principal properties of A&P and its restricted subsidiaries. For
purposes of the senior debt securities indenture, a principal property of A&P
and its restricted subsidiaries refers to all improved real property and related
improvements owned by A&P or a restricted subsidiary having a book value equal
to at least 1% of their consolidated net tangible assets of A&P and its
restricted subsidiaries. At the present time, there are only a few principal
properties of A&P and its restricted subsidiaries.
A&P's and its restricted subsidiaries' consolidated net tangible assets are
(a) the total amount of assets, less applicable reserves and other
properly deductible items, which under generally accepted
accounting principles would be included on a consolidated balance
sheet of A&P and its restricted subsidiaries after deducting,
without duplication, the sum of
(1) all liabilities and liability items which under generally
accepted accounting principals would be included on such
balance sheet, except funded debt, liabilities in respect of
capital leases, other than the current portion thereof,
capital stock and surplus, surplus reserves and provisions
for deferred income taxes, and
(2) all good will, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, which
in each case under generally accepted accounting principles
would be included on such consolidated balance sheet,
less
(b) the amount which would be so included on such consolidated
balance sheet for investments
(1) in unrestricted subsidiaries, or
(2) in corporations while they were unrestricted subsidiaries
but which at the time of computation are not subsidiaries of
A&P.
Consolidated net tangible assets is a financial calculation which excludes
unrestricted subsidiaries.
Neither A&P nor a restricted subsidiary is permitted to incur debt secured
by any of their principal properties without equally and ratably securing the
senior debt securities. This restriction does not apply to customary permitted
encumbrances described in the senior debt securities indenture, including
purchase money mortgages, encumbrances existing on property at the time it is
acquired by A&P or a restricted subsidiary or created within 18 months of the
date of its acquisition, conditional sales and similar agreements. The senior
debt securities indenture also permits other indebtedness secured by
encumbrances not otherwise specifically permitted which, together with
attributable debt respecting existing sale and leaseback transactions entered
into after the date of the senior debt securities indenture, would not at the
time exceed 10% of the consolidated net tangible assets of A&P and its
restricted subsidiaries. Sale and leaseback transactions entered into in respect
of property acquired by A&P or a restricted subsidiary during the 18 months
prior to the date of such sale and leaseback transaction are excluded from the
calculation described in the preceding sentence.
-17-
<PAGE>
Restrictions upon Sales with Leases Back
The senior debt securities indenture restricts sale and leaseback
transactions by A&P. The subordinated debt securities indenture does not
restrict sale and leaseback transactions of any kind by A&P. Accordingly, the
following provisions do not apply to subordinated debt securities.
Under the senior debt securities indenture A&P is not permitted, and may
not permit a restricted subsidiary, to sell any of their principal properties
with the intention that A&P or any restricted subsidiaries take back a lease of
any such principal property, except
1. sale and leaseback transactions among A&P and/or one or more
wholly-owned restricted subsidiaries,
2. where the lease is for a period, including renewals, of not more
than 36 months after which it is intended that the use of such
principal property by the lessee will be discontinued,
3. where A&P would be able to incur additional secured debt not
otherwise specifically permitted by the senior debt securities
indenture in an amount equal to the attributable debt respecting
such sale and leaseback transaction,
4. where the sale and leaseback transaction is entered into in
respect of property acquired by A&P or a restricted subsidiary
within 18 months of such acquisition, or
5. where A&P within 180 days of entering into the sale and leaseback
transaction applies an amount equal to the lesser of
(a) the net proceeds of the sale of the property leased pursuant
to such transaction or
(b) the fair market value of the property so leased
to
1. the retirement of secured debt of A&P or any restricted
subsidiaries, or senior debt securities, or
2. the acquisition of one or more principal properties other than
the principal property involved in such sale.
A bona fide commitment to acquire a principal property entered into within 180
days of a sale and leaseback transaction shall be deemed to satisfy the
requirement to acquire a principal property.
Restrictions upon Merger and Sale of Assets
The senior debt securities indenture provides that no merger of A&P with or
sale of A&P's property substantially as an entirety to any other corporation
shall be made if, as a result, properties or assets of A&P would become subject
to a mortgage or lien which would not be permitted by the senior debt securities
indenture, unless the senior debt securities shall be equally and ratably
secured with such obligations. Each indenture provides that any successor entity
must be a corporation organized in the United States, shall expressly assume the
due and punctual payment of the principal, premium and interest on the debt
securities and, immediately after giving effect to a merger or consolidation, no
event of default, and no event which, after notice or lapse of time or both,
would become an event of default, shall have happened and be continuing.
-18-
<PAGE>
Modification of the Indentures
Each indenture and the rights of the respective holders may be modified by
A&P only with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of all series
under the respective Indenture affected by the modification, taken together as
one class, but no modification altering the terms of payment of principal or
interest, changing the place or medium of payment of principal or interest,
impairing the rights of holders to institute suit for payment or reducing the
percentage required for modification will be effective against any holder
without his consent.
Events of Default
Each indenture defines an event of default with respect to the debt
securities of any series as being any one of the following events:
(a) default for 30 days in any payment of interest when due,
(b) default in any payment of principal when due,
(c) default in the deposit of any sinking fund payment when due,
(d) default for 60 days after appropriate notice in the performance
of any other covenant in the debt securities or the applicable
indenture, or
(e) events of bankruptcy, insolvency or reorganization.
In case an event of default shall occur and be continuing with respect to the
debt securities of any series, the applicable trustee or the holders of not less
than 25% in aggregate principal amount of the debt securities then outstanding
of that series may declare the principal of the debt securities of such series
and the accrued interest thereon to be due and payable. Any event of default
with respect to the debt securities of any series which has been cured may be
waived by the holders of a majority in aggregate principal amount of the debt
securities of that series then outstanding.
Each indenture requires A&P to file annually with the applicable trustee a
written statement signed by two officers of A&P as to the absence of material
defaults under the terms of such indenture. Each indenture provides that the
applicable trustee may withhold notice to the holders of any default if it
considers it in the interest of the holders to do so, except notice of a default
in payment of principal, premium or interest.
Subject to the provisions of each indenture relating to the duties of the
trustee in case an event of default shall occur and be continuing, each
indenture provides that the trustee shall be under no obligation to exercise any
of its rights or powers under such indenture at the request, order or direction
of holders unless such holders shall have offered to the trustee reasonable
indemnity. Subject to such provisions for indemnification and the rights of the
trustee, each indenture provides that the holders of a majority in principal
amount of the debt securities of any series then outstanding shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on
the trustee.
Defeasance and Discharge
The terms of each indenture provide A&P with the option to be discharged
from any and all obligations in respect of the debt securities issued thereunder
upon the deposit with the trustee, in trust, of money or U.S. government
obligations, or both, which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay any installment of principal, premium and interest on and any
mandatory sinking fund payments in respect of the debt securities on the stated
-19-
<PAGE>
maturity of such payments in accordance with the terms of the debt securities
and the indenture governing such debt securities. Such option may only be
exercised if A&P has received from, or there has been published by, the United
States Internal Revenue Service a ruling to the effect that such a discharge
will not be deemed, or result in, a taxable event with respect to holders. Such
discharge would not apply to A&P's obligations to register the transfer or
exchange of debt securities, to replace stolen, lost or mutilated debt
securities, to maintain paying agencies and hold moneys for payment in trust.
Defeasance of Certain Covenants
The terms of the senior debt securities provide A&P with the option to omit
to comply with the covenants described under the headings "Restricted and
Unrestricted Subsidiaries," "Restrictions upon Secured Debt" and "Restrictions
upon Sales with Leases Back" above. A&P, in order to exercise such option, will
be required to deposit with the trustee money or U.S. government obligations, or
both, which through the payment of interest and principal thereof in accordance
with their terms will provide money in an amount sufficient to pay principal,
premium, if any, and interest on any mandatory sinking fund payments in respect
of the senior debt securities on the stated maturity of such payments in
accordance with the terms of the senior debt securities indenture and such
senior debt securities. A&P will also be required to deliver to the trustee an
opinion of counsel to the effect that A&P has received from, or there has been
published by, the IRS a ruling to the effect that the deposit and related
covenant defeasance will not cause the holders of such series to recognize
income, gain or loss for federal income tax purposes.
The prospectus supplement may further describe the provisions, if any, of
any particular series of offered debt securities permitting a discharge or such
an omission to comply with any covenants.
Senior Trustee's Relationship with A&P
The senior debt securities indenture trustee acts as a depositary of funds
of, extends lines of credit to, and performs other services for A&P in the
normal course of its business.
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depository identified in the applicable prospectus supplement and
registered in the name of the depository or a nominee for the depository. In
such a case, one or more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding debt securities of the series to be represented by such global
security or securities. Unless and until it is exchanged in whole or in part for
debt securities in definitive certificated form, a global security may not be
transferred except as a whole by the depository for such global security to a
nominee of such depository or by a nominee of such depository to such depository
or another nominee of such depository or by such depository or any such nominee
to a successor depository for such series or a nominee of such successor
depository and except in the circumstances described in the applicable
prospectus supplement.
A&P expects that the following provisions will apply to depository
arrangements with respect to any portion of a series of debt securities to be
represented by a global security. Any additional specific terms of the
depository arrangement will be described in the applicable prospectus
supplement.
Upon the issuance of any global security, and the deposit of such global
security with or on behalf of the depository for such global security, the
depository will credit, on its book-entry registration and transfer system, the
respective principal amounts of the debt securities represented by such global
security to the accounts of institutions that have accounts with the depository
or its nominee. The accounts to be credited will be designated by the
underwriters or agents engaging in the distribution of such debt securities or
by A&P, if such debt securities are offered and sold directly by A&P. Ownership
of beneficial interests in a global security will be limited to participating
-20-
<PAGE>
institutions or persons that may hold interest through such participating
institutions. Ownership of beneficial interests by participating institutions in
such global security will be shown on, and the transfer of such beneficial
interests will be effected only through, records maintained by the depository
for such global security or by its nominee. Ownership of beneficial interests in
such global security by persons that hold through participating institutions
will be shown on, and the transfer of such beneficial interests within such
participating institutions will be effected only through, records maintained by
such participating institutions. The laws of some jurisdictions may require that
purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such global securities.
So long as the depository for a global security, or its nominee, is the
registered owner of such global security, such depository or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by such global security for all purposes under the
applicable indenture. Unless otherwise specified in the applicable prospectus
supplement and except as specified below, owners of beneficial interests in such
global security will not be entitled to have debt securities of the series
represented by such global security registered in their names, will not receive
or be entitled to receive physical delivery of debt securities of such series in
certificated form and will not be considered the holders thereof for any
purposes under the indenture. Accordingly, each person owning a beneficial
interest in such global security must rely on the procedures of the depository
and, if such person is not a participating institution, on the procedures of the
participating institution through which such person owns its interest, to
exercise any rights of a holder under the indenture.
The depository may grant proxies and otherwise authorize participating
institutions to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a holder is entitled to give or
take under the applicable indenture. A&P understands that, under existing
industry practices, if A&P requests any action of holders or any owner of a
beneficial interest in such global security desires to give any notice or take
any action a holder is entitled to give or take under the applicable indenture,
the depository would authorize the participating institutions to give such
notice or take such action, and participating institutions would authorize
beneficial owners owning through such participating institutions to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Unless otherwise specified in the applicable prospectus supplement,
payments with respect to principal, premium and interest on debt securities
represented by a global security registered in the name of a depository or its
nominee will be made by A&P to such depository or its nominee, as the case may
be, as the registered owner of such global security.
A&P expects that the depository for any debt securities represented by a
global security, upon receipt of any payment of principal, premium or interest,
will credit participating institutions' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such global security as shown on the records of such depository. A&P also
expects that payments by participating institutions to owners of beneficial
interests in such global security held through such participating institutions
will be governed by standing instructions and customary practices, as is now the
case with the securities held for the accounts of customers registered in street
names, and will be the responsibility of such participating institutions. None
of A&P, the trustees or any agent of A&P or the trustees shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in a global security, or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
Unless otherwise specified in the applicable prospectus supplement, a
global security of any series will be exchangeable for certificated debt
securities of the same series only if
(1) the depository for such global securities notifies A&P that it is
unwilling or unable to continue as depository or such depository
ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depository is not appointed by
-21-
<PAGE>
A&P within 90 days after A&P receives such notice or becomes
aware of such ineligibility,
(2) A&P in its sole discretion determines that such global securities
shall be exchangeable for certificated debt securities, or
(3) there shall have occurred and be continuing an event of default
under the applicable indenture with respect to the debt
securities of such series.
Upon any such exchange, owners of beneficial interests in such global security
or securities will be entitled to physical delivery of individual debt
securities in certificated form of like tenor and terms equal in principal
amount to such beneficial interests, and to have such debt securities in
certificated form registered in the names of the beneficial owners, which names
are expected to be provided by such depository's relevant participating
institutions to the applicable trustee.
The following is based on information furnished to A&P:
In the event that the Depository Trust Company acts as depository for the
global securities of any series, such global securities will be issued as fully
registered securities registered in the name of Cede & Co., DTC's partnership
nominee.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participating institutions deposit with DTC. DTC also
facilitates the settlement among participating institutions of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participating institutions'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct participating institutions include securities brokers and
dealers, banks, trust companies, clearing corporations and other organizations.
DTC is owned by a number of its direct participating institutions and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others, such as securities brokers and dealers and banks and trust
companies that clear through or maintain a custodial relationship with a direct
participating institution, either directly or indirectly. The rules applicable
to DTC and its participating institutions are on file with the Commission.
To facilitate subsequent transfers, the debt securities are registered in
the name of DTC's nominee, Cede & Co. The deposit of the debt securities with
DTC and their registration in the name of Cede & Co. will effect no change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners of
the debt securities, DTC's records reflect only the identity of the direct
participating institutions to whose accounts debt securities are credited, which
may or may not be the beneficial owners. The participating institutions remain
responsible for keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to direct participating
institutions, by direct participating institutions to indirect participating
institutions, and by direct participating institutions and indirect
participating institutions to beneficial owners of debt securities are governed
by arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the debt
securities. Under its usual procedures, DTC mails a proxy to the issuer as soon
as possible after the record date. The proxy assigns Cede & Co.'s consenting or
voting rights to those direct participating institution to whose accounts the
debt securities are credited on the record date.
-22-
<PAGE>
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the debt securities of a series represented by global securities are
being redeemed, DTC's practice is to determine by lot the amount of the interest
of each direct participating institutions in such issue to be redeemed.
To the extent that any debt securities provide for repayment or repurchase
at the option of the holders thereof, a beneficial owner shall give notice of
any option to elect to have its interest in the global security repaid by A&P,
through its participating institution, to the applicable trustee, and shall
effect delivery of such interest in a global security by causing the direct
participating institution to transfer the direct participating institution's
interest in the global security or securities representing such interest, on
DTC's records, to the applicable trustee. The requirement for physical delivery
of debt securities in connection with a demand for repayment or repurchase will
be deemed satisfied when the ownership rights in the global security or
securities representing such debt securities are transferred by direct
participating institutions on DTC's records.
DTC may discontinue providing its services as securities depository with
respect to the debt securities at any time. Under such circumstances, in the
event that a successor securities depository is not appointed, debt security
certificates are required to be printed and delivered as described above.
A&P may decide to discontinue use of the system of book-entry transfers
through the securities depository. In that event, debt security certificates
will be printed and delivered as described above.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that A&P believes to be reliable, but A&P takes
no responsibility for the accuracy thereof.
DESCRIPTION OF SECURITIES WARRANTS
A&P may issue securities warrants for the purchase of debt securities or
common stock. Securities warrants may be issued independently or together with
debt securities or common stock offered by any prospectus supplement and may be
attached to or separate from such debt securities or common stock. Each series
of securities warrants will be issued under a separate warrant agreement to be
entered into between A&P and a bank or trust company, as warrant agent, all as
set forth in the prospectus supplement relating to the particular issue of
offered securities warrants. The warrant agent will act solely as an agent of
A&P in connection with the securities warrant certificates relating to the
securities warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of securities warrant certificates or
beneficial owners of securities warrants. The following summaries of provisions
of the warrant agreements and securities warrants do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the warrant agreement and the securities warrant certificates
relating to each series of securities warrants which will be filed with the
Commission and incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part at or prior to the time of the
issuance of such series of securities warrants.
General
If securities warrants are offered, the applicable prospectus supplement
will describe the terms of such securities warrants, including, in the case of
securities warrants for the purchase of debt securities, the following where
applicable:
1. the offering price;
2. the denominations and terms of the series of debt securities
purchasable upon exercise of such securities warrants and whether
such debt securities are senior debt securities or subordinated
debt securities;
-23-
<PAGE>
3. the designation and terms of any series of debt securities with
which such securities warrants are being offered and the number
of such securities warrants being offered with each such debt
security;
4. the date, if any, on and after which such securities warrants and
any related series of debt securities will be transferable
separately;
5. the principal amount of the series of debt securities purchasable
upon exercise of each such securities warrant and the price at
which such principal amount of debt securities of such series may
be purchased upon such exercise;
6. the date on which the right to exercise such securities warrants
shall commence and the date on which such right shall expire;
7. whether the securities warrants will be issued in registered or
bearer form;
8. any special United States Federal income tax consequences;
9. the terms, if any, on which A&P may accelerate the date by which
the securities warrants must be exercised; and
10. any other terms of such securities warrants.
In the case of securities warrants for the purchase of common stock, the
applicable prospectus supplement will describe the terms of such securities
warrants, including the following where applicable:
1. the offering price;
2. the aggregate number of shares purchasable upon exercise and the
exercise price;
3. the designation and terms of the series of debt securities with
which such securities warrants are being offered, if any, and the
number of such securities warrants being offered with each such
debt security;
4. the date, if any, on and after which such securities warrants and
any related series of debt securities or common stock will be
transferable separately;
5. the date on which the right to exercise such securities warrants
shall commence and the expiration date;
6. any special United States Federal income tax consequences;
7. the terms, if any, on which A&P may accelerate the date by which
the securities warrants must be exercised; and
8. any other terms of such securities warrants.
Securities warrant certificates may be exchanged for new securities warrant
certificates of different denominations, may be presented for registration of
transfer, and may be exercised at the corporate trust office of the applicable
warrant agent or any other office indicated in the applicable prospectus
supplement. Prior to the exercise of any securities warrant to purchase debt
securities, holders of such securities warrants will not have any of the rights
of holders of the debt securities purchasable upon such exercise, including the
-24-
<PAGE>
right to receive payments of principal, premium or interest on such debt
securities or to enforce covenants in the applicable indenture. Prior to the
exercise of any securities warrants to purchase common stock, holders of such
securities warrants will not have any rights of holders of such common stock,
including the right to receive payments of dividends on such common stock, or to
exercise any applicable right to vote.
Exercise of Securities Warrants
Each securities warrant will entitle the holder thereof to purchase such
principal amount of debt securities or number of shares of common stock, as the
case may be, at such exercise price as shall in each case be set forth in, or
calculable from, the prospectus supplement relating to the offered securities
warrants. After the close of business on the expiration date, unexercised
securities warrants will become void.
Securities warrants may be exercised by delivering to the applicable
warrant agent payment as provided in the applicable prospectus supplement of the
amount required to purchase the debt securities or common stock, as the case may
be, purchasable upon such exercise together with information set forth on the
reverse side of the securities warrant certificate. Securities warrants will be
deemed to have been exercised upon receipt of payment of the exercise price in
cash or by certified or official bank check, subject to the receipt within five
business days of the securities warrant certificate evidencing such securities
warrants. Upon receipt of such payment and the securities warrant certificate
properly completed and duly executed at the corporate trust office of the
applicable warrant agent or any other office indicated in the applicable
prospectus supplement, A&P will, as soon as practicable, issue and deliver the
debt securities or common stock, as the case may be, purchasable upon such
exercise. If fewer than all of the securities warrants represented by such
securities warrant certificate are exercised, a new securities warrant
certificate will be issued for the remaining amount of securities warrants.
Amendments and Supplements to Warrant Agreements
The warrant agreements may be amended or supplemented without the consent
of the holders of the securities warrants issued thereunder to effect changes
that are not inconsistent with the provisions of the securities warrants and
that do not adversely affect the interests of the holders of the applicable
securities warrants.
Warrant Adjustments
The applicable prospectus supplement will specify the manner, if any, in
which the exercise price of, and the number or amount of securities covered by,
a common stock warrant are subject to adjustment.
DESCRIPTION OF PREFERRED TRUST SECURITIES
Each trust may issue only one series of preferred trust securities having
terms described in the prospectus supplement relating thereto. The trust
agreement of each trust will authorize the administrative trustees, on behalf of
the trust, to issue the preferred trust securities and common trust securities
of such trust each representing undivided beneficial interests in the assets of
such trust. You should read the prospectus supplement relating to the particular
preferred trust securities of a trust for specific terms, including
1. the distinctive designation of such preferred trust securities;
2. the number of preferred trust securities;
3. the annual distribution rate or method of its calculation, the
date or dates on which such distributions shall be payable and
the record date with respect to any such distributions;
-25-
<PAGE>
4. whether distributions on such preferred trust securities shall be
cumulative and, in the case of preferred trust securities having
cumulative distribution rights, the date from which distributions
on such preferred trust securities shall be cumulative;
5. the amount or amounts that shall be paid out of the assets of
such trust to the holders of the preferred trust securities of
such trust upon voluntary or involuntary dissolution of such
trust;
6. the obligation, if any, of such trust to purchase or redeem such
preferred trust securities and the price or prices at which, the
period or periods within which, and the terms and conditions upon
which such preferred trust securities shall be purchased or
redeemed, in whole or in part, pursuant to such obligation;
7. the voting rights of such preferred trust securities including
the approval, if any, required to amend such trust;
8. the trust's rights to defer distributions on the preferred trust
securities in conjunction with A&P's extending the interest
payment period on the related junior subordinated debt
securities; and
9. any other relative rights, preferences, privileges, limitations
or restrictions of such preferred trust securities not
inconsistent with the trust agreement of such trust or applicable
law.
All preferred trust securities offered hereby will be guaranteed by A&P to the
extent set forth under "Description of the Preferred Trust Securities
Guarantees." Any material United States federal income tax considerations
applicable to an offering of preferred trust securities will be described in the
prospectus supplement relating thereto.
DESCRIPTION OF PREFERRED TRUST SECURITIES GUARANTIES
Set forth below is a summary of information concerning the guaranties that
will be executed and delivered by A&P for the benefit of the holders of
preferred trust securities of the respective trusts. Each guaranty will be
qualified as an indenture under the 1939 Act. Bankers Trust Company will act as
guaranty trustee for each guaranty for purposes of the 1939 Act. Each guaranty
will be held by the guaranty trustee for the benefit of holders of the preferred
trust securities to which it relates.
Pursuant to each guaranty, A&P will irrevocably and unconditionally agree,
to the extent set forth therein, to pay in full, to the holders of the related
preferred trust securities
1. any accrued and unpaid distributions required to be paid on the
preferred trust securities of each trust but if and only if and
to the extent that such trust has funds legally and immediately
available therefor,
2. the redemption price, including all accrued and unpaid
distributions to the date of redemption, with respect to any
preferred trust securities called for redemption by such trust,
but if and only to the extent such trust has funds legally and
immediately available therefor, and
3. upon a dissolution, of such trust, other than in connection with
the distribution of junior subordinated debt securities to the
holders of trust securities of such trust or the redemption of
all of the preferred trust securities of such trust, the lesser
of
-26-
<PAGE>
(a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on the preferred trust securities of
such trust to the date of payment, to the extent such trust
has funds legally and immediately available therefor, and
(b) the amount of assets of such trust remaining legally
available for distribution to holders of preferred trust
securities of such trust upon liquidation of such trust.
A&P's obligation to make a guaranty payment may be satisfied by direct payment
of the required amounts by A&P to the holders of the related preferred trust
securities or by causing the related trust to pay such amounts to such holders.
Each guaranty will be a guarantee of payments with respect to the related
preferred trust securities from the time of issuance of such preferred trust
securities, but will not apply to the payment of distributions and other
payments on such preferred trust securities when the related trust does not have
sufficient funds legally and immediately available to make such distributions or
other payments. If A&P does not make interest payments on the junior
subordinated debt securities held by the property trustee under a trust, such
trust will not make distributions on its preferred trust securities.
Subordination
A&P's obligations under each guaranty will constitute an unsecured
obligation of A&P and will rank
1. subordinate and junior in right of payment to all other
liabilities of A&P, including the junior subordinated debt
securities, except those obligations or liabilities made pari
passu or subordinate by their terms,
2. pari passu with the most senior preferred or preference stock now
or hereafter issued by A&P and with any guarantee now or
hereafter entered into by A&P in respect of any preferred or
preference securities of any affiliate of A&P, and
3. senior to all common stock of A&P.
The terms of the preferred trust securities will provide that each holder of
preferred trust securities by acceptance thereof agrees to the subordination
provisions and other terms of the guaranty related thereto.
Each guaranty will constitute a guarantee of payment and not of collection.
This means that the guaranteed party may institute a legal proceeding directly
against the guarantor to enforce its rights under the guarantee without first
instituting a legal proceeding against any other person or entity.
Amendments and Assignment
Except with respect to any changes that do not materially and adversely
affect the rights of holders of the related preferred trust securities, each
guaranty may be amended only with the prior approval of the holders of a
majority in liquidation amount of such outstanding preferred trust securities.
The manner of obtaining any such approval of holders of the preferred trust
securities will be as set forth in an accompanying prospectus supplement. All
guaranties and agreements contained in each guaranty shall bind the successors,
assigns, receivers, trustees and representatives of A&P and shall inure to the
benefit of the holders of the related preferred trust securities then
outstanding.
-27-
<PAGE>
Termination
Each guaranty will terminate and be of no further force and effect as to
the related preferred trust securities upon full payment of the redemption price
of all such preferred trust securities, upon distribution of the related junior
subordinated debt securities to the holders of such preferred trust securities,
or upon full payment of the amounts payable upon liquidation of the related
trust. Each guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the related preferred trust securities
must restore payment of any sums paid with respect to such preferred trust
securities or under such guaranty.
Events of Default
An event of default under each guaranty will occur upon the failure by A&P
to perform any of its payment obligations thereunder. The holders of a majority
in liquidation amount of the preferred trust securities to which any guaranty
relates have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the guaranty trustee in respect of such
guaranty or to direct the exercise of any trust or power conferred upon the
guaranty trustee under such guaranty. Any holder of the related preferred trust
securities may institute a legal proceeding directly against A&P to enforce such
holder's rights under such guaranty without first instituting a legal proceeding
against the guaranty trustee or any other person or entity. The holders of a
majority in liquidation amount of preferred trust securities of any series may,
by vote, on behalf of the holders of all the preferred trust securities of such
series, waive any past event of default and its consequences.
Information concerning the Guarantee Trustee
The guaranty trustee, prior to the occurrence of any event of default with
respect to any guaranty and after the curing or waiving of all events of default
with respect to such guaranty, undertakes to perform only such duties as are
specifically set forth in such guaranty and, in case an event of default has
occurred, shall exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. Subject to such provisions,
the guaranty trustee is under no obligation to exercise any of the powers vested
in it by any guaranty at the request of any holder of the related preferred
trust securities, unless offered reasonable indemnity against the costs,
expenses and liabilities which might be incurred thereby.
Bankers Trust Company, the guaranty trustee, also serves as property
trustee and as indenture trustee.
Agreements as to Expenses and Liabilities
Pursuant to an agreement as to expenses and liabilities to be entered into
by A&P under each trust agreement, A&P will irrevocably and unconditionally
guarantee to each person or entity to whom each trust becomes indebted or liable
the full payment of any indebtedness, expenses or liabilities of such trust,
other than obligations of such trust to pay to the holders of the related
preferred trust securities or other similar interests in such trust the amounts
due such holders pursuant to the terms of such preferred trust securities or
such other similar interests, as the case may be.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
General
Each series of junior subordinated debt securities will be issued under the
subordinated debt securities indenture. You should read the description of debt
securities for a description of terms applicable to the junior subordinated debt
securities. You should read the prospectus supplement relating to the particular
preferred trust securities for additional terms relating to the junior
subordinated debt securities.
-28-
<PAGE>
Subordination
The junior subordinated debt securities are subordinated and junior in
right of payment to all senior indebtedness of A&P. With respect to the junior
subordinated debt securities, senior indebtedness refers to
1. any payment due in respect of indebtedness of A&P, whether
outstanding at the date of execution of the subordinated debt
securities indenture or thereafter incurred, created or assumed,
(a) in respect of money borrowed, including any financial
derivative, hedging or futures contract or similar
instrument, and
(b) evidenced by securities, debentures, bonds, notes or other
similar instruments issued by A&P that, by their terms, are
senior or senior subordinated debt securities including,
without limitation, all obligations under its indentures
with various trustees;
2. all capital lease obligations;
3. all obligations issued or assumed as the deferred purchase price
of property, all conditional sale obligations and all obligations
of A&P under any title retention agreement, but excluding trade
accounts payable arising in the ordinary course of business and
long-term purchase obligations;
4. all obligations for the reimbursement of any letter of credit,
banker's acceptance, security purchase facility or similar credit
transaction;
5. all obligations of the type referred to in clauses 1 through 4
above of other persons the payment of which A&P is responsible or
liable as obligor, guarantor or otherwise; and
6. all obligations of the type referred to in clauses 1 through 5
above of other persons secured by any lien on any property or
asset of A&P, whether or not such obligation is assumed by A&P,
except for
1. any such indebtedness that is by its terms subordinated to or
pari passu with the junior subordinated debt securities and
2. any unsecured indebtedness between or among A&P and/or its
affiliates.
No payment of principal, premium or interest on the junior
subordinated debt securities may be made if
(a) any senior indebtedness is not paid when due and any
applicable grace period with respect to such default has
ended with such default not being cured or waived or
otherwise ceasing to exist,
(b) the maturity of any senior indebtedness has been accelerated
because of a default, or
(c) notice has been given of the exercise of an option to
require repayment, mandatory payment or prepayment or
otherwise. Upon any payment or distribution of assets of A&P
to creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors,
marshalling of assets or liabilities, or any bankruptcy,
insolvency or similar proceedings of A&P, the holders of
senior indebtedness shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of
all senior indebtedness before the holders of the junior
subordinated debt securities are entitled to receive or
-29-
<PAGE>
retain any payment or distribution. Subject to the prior
payment of all senior indebtedness, the rights of the
holders of the junior subordinated debt securities will be
subrogated to the rights of the holders of senior
indebtedness to receive payments and distributions
applicable to such senior indebtedness until all amounts
owing on the junior subordinated debt securities are paid in
full.
As of February 27, 1999, senior indebtedness of A&P aggregated
approximately $860,692,000.
Additional Covenants
A&P will covenant in the supplemental subordinated debt securities
indenture relating to each series of junior subordinated debt securities, for
the benefit of the holders of each series of junior subordinated debt
securities, that
1. if A&P shall have given notice of its election to extend an
interest payment period for such series of junior subordinated
debt securities and such extension shall be continuing,
2. if A&P shall be in default with respect to its payment or other
obligations under the related preferred trust securities, or
3. if an event of default with respect to such series of junior
subordinated debt securities shall have occurred and be
continuing,
then
(a) A&P shall not declare or pay any dividend or make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, and
(b) A&P shall not make any payment of principal, premium or interest on
or repay, repurchase or redeem any debt securities issued by A&P
which rank pari passu with or junior to the junior subordinated
debt securities.
None of the foregoing, however, shall restrict
1. any of the actions described clause (a) above resulting from any
reclassification of A&P's capital stock or the exchange or
conversion of one class or series of A&P's capital stock for
another class or series of A&P's capital stock, or
2. the purchase of fractional interests in shares of A&P's capital
stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged.
The supplemental subordinated debt securities indenture will further
provide that, for so long as the preferred trust securities of any trust remain
outstanding, A&P covenants
1. to directly or indirectly maintain 100% ownership of the common
securities of such trust; provided that any permitted successor
of A&P under the subordinated debt securities indenture may
succeed to A&P's ownership of such common securities, and
2. to use its reasonable efforts to cause such trust
-31-
<PAGE>
(a) to remain a statutory business trust, except in connection
with the distribution of junior subordinated debt securities
to the holders of trust securities in liquidation of such
trust, the redemption of all of the trust securities of such
trust, or mergers, consolidations or amalgamations permitted
by the related trust agreement, and
(b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes.
Additional Event of Default
The supplemental subordinated debt securities indenture for each series of
junior subordinated debt securities will also provide that the failure of A&P to
pay to a preferred trust securities issuing trust that is a holder of junior
subordinated debt securities, concurrent with each payment of interest and
subject to the 30 day grace period applicable to interest payments, such
additional amounts as may be required so that the net amounts received and
retained by such trust, after paying taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States or any other taxing
authority, other than withholding taxes, will not be less than the amounts such
trust would have received had no such taxes, duties, assessments, or other
governmental charges been imposed.
RELATIONSHIP AMONG THE PREFERRED TRUST SECURITIES,
THE JUNIOR SUBORDINATED DEBT SECURITIES AND
THE PREFERRED TRUST SECURITIES GUARANTIES
As long as payments of interest and other payments are made when due on
each series of junior subordinated debt securities, such payments will be
sufficient to cover distributions and payments due on the related trust
securities because
1. the aggregate principal amount of each series of junior
subordinated debt securities will be equal to the sum of the
aggregate stated liquidation amount of the related trust
securities;
2. the interest rate and interest and other payment dates on each
series of junior subordinated debt securities will match the
distribution rate and distribution and other payment dates for
the related preferred trust securities;
3. A&P shall pay for all costs and expenses of each trust; and
4. each trust agreement provides that the trustees thereunder shall
not cause or permit the trust to, among other things, engage in
any activity that is not consistent with the purposes of the
trust.
Payments of distributions and other payments due on the preferred trust
securities, to the extent funds therefor are legally and immediately available,
will be guaranteed by A&P as and to the extent set forth under "Description of
the Preferred Trust Securities Guaranties." If A&P does not make interest
payments on any series of junior subordinated debt securities, it is not
expected that the related trust will have sufficient funds to pay distributions
on its preferred trust securities. Each guaranty is a guaranty from the time of
its issuance, but does not apply to any payment of distributions unless and
until the related trust has sufficient funds legally and immediately available
for the payment of such distributions.
-31-
<PAGE>
If A&P fails to make interest or other payments on any series of junior
subordinated debt securities when due, after taking into account any extension
period as described in the applicable prospectus supplement, the trust agreement
provides a mechanism whereby the holders of the related preferred trust
securities may appoint a substitute property trustee. Such holders may also
direct the property trustee to enforce its rights under the junior subordinated
debt securities of such series, including proceeding directly against A&P to
enforce such junior subordinated debt securities. If the property trustee fails
to enforce its rights under any series of junior subordinated debt securities,
to the fullest extent permitted by applicable law, any holder of related
preferred trust securities may institute a legal proceeding directly against A&P
to enforce the property trustee's rights under such series of junior
subordinated debt securities without first instituting any legal proceeding
against the property trustee or any other person or entity. Notwithstanding the
foregoing, a holder of preferred trust securities may institute a legal
proceeding directly against A&P, without first instituting a legal proceeding
against the property trustee or any other person or entity, for enforcement of
payment to such holder of principal of or interest on junior subordinated debt
securities of the related series having a principal amount equal to the
aggregate stated liquidation amount of the preferred trust securities of such
holder on or after the due dates specified in the junior subordinated debt
securities of such series.
If A&P fails to make payments under any guaranty, such guaranty provides a
mechanism whereby the holders of the preferred trust securities to which such
guaranty relates may direct the guaranty trustee to enforce its rights
thereunder. In addition, any holder of preferred trust securities may institute
a legal proceeding directly against A&P to enforce the guaranty trustee's rights
under the related guaranty without first instituting a legal proceeding against
the guaranty trustee or any other person or entity.
Upon any voluntary or involuntary dissolution of any trust, unless junior
subordinated debt securities of the related series are distributed in connection
therewith, the holders of preferred trust securities of such trust will be
entitled to receive, out of assets legally available for distribution to
holders, a liquidation distribution in cash as described in the applicable
prospectus supplement. Upon any voluntary or involuntary liquidation or
bankruptcy of A&P, the property trustee, as holder of the related series of
junior subordinated debt securities, would be a subordinated creditor of A&P,
subordinated in right of payment to all senior indebtedness with respect to the
related series of junior subordinated debt securities, but entitled to receive
payment in full of principal and interest, before any stockholders of A&P
receive payments or distributions. Because A&P is guarantor under each guaranty
and has agreed to pay for all costs, expenses and liabilities of each trust
other than the trust's obligations to holders of the preferred trust securities,
the positions of a holder of preferred trust securities and a holder of junior
subordinated debt securities of the related series relative to other creditors
and to stockholders of A&P in the event of liquidation or bankruptcy of A&P
would be substantially the same.
MARYLAND ANTI-TAKEOVER PROVISIONS
As of May 1, 1999, A&P was 54.92% owned by Tengelmann
Warenhandelsgesellschaft, a general retailer headquartered in Germany.
Tengelmann established its majority ownership position in A&P prior to the
enactment of the following legislation.
Maryland Fair Price Provisions. The Maryland fair price statute may
discourage persons or entities from attempting to gain control of a corporation.
This law imposes statutory requirements with respect to business combinations,
such as mergers and other similar transactions and specified transfers of assets
and securities, when such transactions are between a company and an interested
stockholder or an affiliate of an interested stockholder. An interested
stockholder is a person who owns beneficially, directly or indirectly, 10% or
more of the outstanding voting stock of the corporation or an affiliate or
associate of such person who was a 10% holder at any time in the last two years.
Under the Maryland fair price statute, business combinations, including a
second-stage merger transaction, with an interested stockholder may not be
consummated for a period of five years following the most recent date on which
-32-
<PAGE>
the interested stockholder becomes an interested stockholder. After this
five-year period, unless minimum value standards are met or an exemption is
available, transactions of these types may not be consummated between a Maryland
corporation and an interested stockholder unless recommended by the board of
directors of the corporation, and approved by the affirmative vote of at least
80% of the votes entitled to be cast by the holders of outstanding shares of
voting stock and 662/3% of the votes entitled to be cast by the holders of the
voting stock held by stockholders other than the interested stockholder. A
business combination with an interested stockholder which is approved by the
board of directors of a Maryland corporation at any time before an interested
stockholder first becomes an interested stockholder is not subject to the
special voting requirements. A&P has no special provisions in its Articles or by
laws related to the Maryland fair price statute.
Maryland Control Share Acquisition Provision. Maryland law imposes
limitations on voting rights in a control share acquisition. The Maryland
statute defines control shares as shares representing between
1. 20% to 331/3%,
2. 331/3% to 50%, and
3. 50% or higher
of the outstanding shares. The Maryland statute requires a two-thirds
stockholder vote, excluding shares owned by the acquiring person and members of
management, to accord voting rights to stock acquired in a control share
acquisition. Each acquisition of stock resulting in aggregate holdings within a
new control share level listed above would be a distinct control share
acquisition.
The statute requires Maryland corporations to hold a special meeting at the
request of an actual or proposed control share acquiror generally within 50 days
after a request is made with the submission of an acquiring person statement,
but only if the acquiring person gives a written undertaking to pay the
corporation's expenses of the special meeting. In addition, the statute gives
the Maryland corporation redemption rights if there is a stockholder vote on the
issue and the grant of voting rights is not approved, or if an acquiring person
statement is not delivered to the target within 10 days following a control
share acquisition. Moreover, the statute provides that if, before a control
share acquisition occurs, voting rights are accorded to control shares which
results in the acquiring person having majority voting power, then minority
stockholders have appraisal rights. A&P has no special provisions in its
Articles or by laws related to the Maryland control share acquisition statute.
Reference is made to the full text of the foregoing statutes for their
entire terms, and the partial summary contained herein is not intended to be
complete.
PLAN OF DISTRIBUTION
A&P may sell the Securities
1. through underwriters or dealers;
2. through agents;
3. directly to purchasers; or
4. through a combination of any such methods of sale.
Any such underwriter, dealer or agent may be deemed to be an underwriter within
the meaning of the Securities Act. The prospectus supplement relating to any
offering of securities will set forth their offering terms, including the name
or names of any underwriters, the purchase price of the securities and the
proceeds to A&P from such sale, any underwriting discounts, commissions and
-3--
<PAGE>
other items constituting underwriters' compensation, any initial public offering
price, and any underwriting discounts, commissions and other items allowed or
reallowed or paid to dealers, and any securities exchanges on which the
securities may be listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, or at prices related to such
prevailing market prices, or at negotiated prices. The securities may be offered
to the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more of such firms. Unless otherwise
set forth in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to customary conditions precedent and
the underwriters will be obligated to purchase all the offered securities if any
are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
Any agent involved in the offer or sale of the securities in respect of
which this prospectus is delivered will be named, and any commissions payable by
A&P to such agent will be set forth, in the accompanying prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
Underwriters, dealers and agents may be entitled, under agreements entered
into with A&P, to indemnification by A&P against civil liabilities, including
liabilities under the Securities Act or to contribution by A&P to payments they
may be required to make in respect thereof.
Certain of the underwriters, agents or dealers and their associates may
perform services for A&P in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the securities will be passed upon
for A&P by Cahill Gordon & Reindel (a partnership including a professional
corporation), New York, New York. Certain matters of Delaware law relating to
the validity of the preferred trust securities will be passed upon for A&P and
the trusts by Richards, Layton & Finger, P.A.
EXPERTS
The financial statements incorporated in this prospectus by reference from
The Great Atlantic & Pacific Tea Company, Inc.'s Annual Report on Form 10-K for
the year ended February 27, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
-34-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Registration Fee.................. $13,900
Cost of Printing.....................................................
Independent Auditors' Fees and Expenses..............................
Legal Services and Expenses (including Blue Sky fees and expenses)...
Miscellaneous........................................................
Total............................................................. $
Other than the Securities and Exchange Commission Registration Fee, all
amounts set forth above are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company and the Trusts
Under the Article entitled "Corporations and Associations" of the Annotated
Code of the State of Maryland, Section 2-418, the Company is empowered to
indemnify directors, officers, agents and employees, to purchase and maintain
liability insurance on behalf of such persons and to create other and further
rights of indemnification by by-law or otherwise. The present indemnification
provisions (Article VII, Section 6) of the Company's by-laws expressly provide
indemnification for officers and directors of the Company and its subsidiary
companies which would include the trusts. The indemnification provisions apply
to both civil and criminal actions and permit indemnification against expenses
(including attorneys' fees), judgments, fines, costs and amounts paid in
settlement actually and reasonably incurred if the director or officer acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to criminal proceedings, if he
had no reason to believe his conduct was unlawful.
The Registrants
Reference is made to the Form of Underwriting Agreements, to be filed as
Exhibit 1 hereto, which will contain provisions for indemnification of each of
the registrants, their directors, officers and any controlling persons, by the
Underwriters against certain liabilities for information furnished by the
Underwriters.
For a statement of the registrants' undertakings with respect to
indemnification of directors and officers, see Item 17 below.
ITEM 16. EXHIBITS.
1* - Form of Underwriting Agreement between the Company and the
Underwriter(s)
4.1 - Indenture, dated as of January 1, 1991, between the Company
and The Chase Manhattan Bank (formerly known as Chemical
Bank, as successor by merger to Manufacturers Hanover Trust
Company) (incorporated byreference to Exhibit 4.1 of the
Form 8-K of the Company dated as of January 1, 1991, File
No. 1-4141).
4.2* - Authorizing Resolutions relating to the senior debt
securities.
II-1
<PAGE>
4.3 - Form of subordinated debt securities indenture to be entered
into between the Company and a trustee (incorporated by
reference to Exhibit 4.3 of the Company's Registration
Statement on Form S-3 No. 333-36225).
4.4* - Authorizing Resolutions relating to the subordinated debt
securities.
4.5* - Warrant agreement between the Company and the warrant agent.
4.6* - Deposit agreement among the Company, the depositary and
holders from time to time of the depositary shares.
4.7** - Certificate of Trust of A&P Finance I.
4.8** - Certificate of Trust of A&P Finance II.
4.9** - Certificate of Trust of A&P Finance III.
4.10** - Trust Agreement of A&P Finance I.
4.11** - Trust Agreement of A&P Finance II.
4.12** - Trust Agreement of A&P Finance III.
4.13* - Form of Amended and Restated Trust Agreement of A&P Finance
I.
4.14* - Form of Amended and Restated Trust Agreement of A&P Finance
II.
4.15* - Form of Amended and Restated Trust Agreement of A&P Finance
III.
4.16* - Form of Guarantee relating to A&P Finance I.
4.17* - Form of Guarantee relating to A&P Finance II.
4.18* - Form of Guarantee relating to A&P Finance III.
5.1* - Opinion of Cahill Gordon & Reindel.
5.2* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance I.
5.3* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance II.
5.4* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance III.
12* - Computation of ratio of earnings to fixed charges of the
Company.
23.1** - Consent of Deloitte & Touche LLP.
23.2* - Consent of Cahill Gordon & Reindel (included in Exhibit
5.1).
23.3* - Consent of Richards, Layton & Finger, P.A., relating to
A&P Finance I (included in Exhibit 5.2).
23.4* - Consent of Richards, Layton & Finger, P.A., relating to A&P
Finance II (included in Exhibit 5.3).
23.5* - Consent of Richards, Layton & Finger, P.A., relating to
A&P Finance III (included in Exhibit 5.4).
24 - Power of Attorney (included on the signature pages of the
Registration Statement).
25.1* - Statement of eligibility of senior debt securities trustee
on Form T-1.
25.2* - Statement of eligibility of subordinated debt securities
trustee on Form T-1.
25.3* - Statement of eligibility of property trustee, relating to
A&P Finance I.
25.4* - Statement of eligibility of guarantee trustee, relating to
A&P Finance I.
25.5* - Statement of eligibility of property trustee, relating to
A&P Finance II.
25.6* - Statement of eligibility of guarantee trustee, relating to
A&P Finance II.
25.7* - Statement of eligibility of property trustee, relating to
A&P Finance III.
25.8* - Statement of eligibility of guarantee trustee, relating to
A&P Finance III.
- -----------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
of the Company and incorporated herein by reference.
** Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
II-2
<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
notwithstanding the foregoing, any increase or decrease in volume
of securities being offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in clauses (i) and
(ii) of this paragraph shall not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered herein which remain
unsold at the termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
a Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, the Registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of
expenses incurred or paid by a director, officer or controlling person of
the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy, as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
(d) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
Registration Statement as of the time it was declared effective.
(e) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized in the City of Montvale, State of New Jersey on the 9th day of June,
1999.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.
By: /s/ Fred Corrado
-----------------------------------------
Fred Corrado
Vice Chairman of the Board
and Chief Financial Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized in the City of Montvale, State of New Jersey on the 9th day of June,
1999.
A & P FINANCE I
By: /s/ Fred Corrado
-----------------------------------------
Fred Corrado
Trustee
By: /s/ Robert G. Ulrich
-----------------------------------------
Robert G. Ulrich
Trustee
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized in the City of Montvale, State of New Jersey on the 9th day of June,
1999.
A & P FINANCE II
By: /s/ Fred Corrado
-----------------------------------------
Fred Corrado
Trustee
By: /s/ Robert G. Ulrich
-----------------------------------------
Robert G. Ulrich
Trustee
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized in the City of Montvale, State of New Jersey on the 9th day of June,
1999.
A & P FINANCE III
By: /s/ Fred Corrado
-----------------------------------------
Fred Corrado
Trustee
By: /s/ Robert G. Ulrich
-----------------------------------------
Robert G. Ulrich
Trustee
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Fred Corrado, Robert G. Ulrich and R. Terrence Galvin and each acting alone, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s// Christian W.E. Haub President, Chief Executive June 9, 1999
- ------------------------------------------------------ Officer and Director
Christian W.E. Haub (Principal Executive Officer)
/s/ Fred Corrado Vice Chairman of the Board and June 9, 1999
- ------------------------------------------------------ Chief Financial Officer
Fred Corrado (Principal Financial Officer)
/s/ James Wood Chairman of the Board
- ------------------------------------------------------ June 9, 1999
James Wood
/s/ John D. Barline, Esq. Director June 9, 1999
- ------------------------------------------------------
John D. Barline, Esq.
/s/ Rosemarie Baumeister Director June 9, 1999
- ------------------------------------------------------
Rosemarie Baumeister
/s/ Christopher F. Edley Director June 9, 1999
- ------------------------------------------------------
Christopher F. Edley
/s/ Helga Haub Director June 9, 1999
- ------------------------------------------------------
Helga Haub
/s/ Barbara Barnes Hauptfuhrer Director June 9, 1999
- ------------------------------------------------------
Barbara Barnes Hauptfuhrer
/s/ Willam A. Liffers Director June 9, 1999
- ------------------------------------------------------
William A. Liffers
/s/ Fritz Teelen Director
- ------------------------------------------------------
Fritz Teelen
/s/ Robert L. "Sam" Wetzel Director June 9, 1999
- ------------------------------------------------------
Robert L. "Sam" Wetzel
/s/ Kenneth A. Uhl Vice President - Controller June 9, 1999
- ------------------------------------------------------ (Principal Accounting Officer)
Kenneth A. Uhl
</TABLE>
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Fred Corrado Trustee of A&P Finance I June 9, 1999
- ------------------------------------------------------
Fred Corrado
/s/ Robert G. Ulrich Trustee of A&P Finance I June 9, 1999
- ------------------------------------------------------
Robert G. Ulrich
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Fred Corrado Trustee of A&P Finance II June 9, 1999
- ------------------------------------------------------
Fred Corrado
/s/ Robert G. Ulrich Trustee of A&P Finance II June 9, 1999
- ------------------------------------------------------
Robert G. Ulrich
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Fred Corrado Trustee of A&P Finance III June 9, 1999
- ------------------------------------------------------
Fred Corrado
/s/ Robert G. Ulrich Trustee of A&P Finance III June 9, 1999
- ------------------------------------------------------
Robert G. Ulrich
</TABLE>
<PAGE>
EXHIBIT INDEX
1* - Form of Underwriting Agreement between the Company and the
Underwriter(s)
4.1 - Indenture, dated as of January 1, 1991, between the Company
and The Chase Manhattan Bank (formerly known as Chemical
Bank, as successor by merger to Manufacturers Hanover Trust
Company) (incorporated byreference to Exhibit 4.1 of the
Form 8-K of the Company dated as of January 1, 1991, File
No. 1-4141).
4.2* - Authorizing Resolutions relating to the senior debt
securities.
II-1
<PAGE>
4.3 - Form of subordinated debt securities indenture to be entered
into between the Company and a trustee (incorporated by
reference to Exhibit 4.3 of the Company's Registration
Statement on Form S-3 No. 333-36225).
4.4* - Authorizing Resolutions relating to the subordinated debt
securities.
4.5* - Warrant agreement between the Company and the warrant agent.
4.6* - Deposit agreement among the Company, the depositary and
holders from time to time of the depositary shares.
4.7** - Certificate of Trust of A&P Finance I.
4.8** - Certificate of Trust of A&P Finance II.
4.9** - Certificate of Trust of A&P Finance III.
4.10** - Trust Agreement of A&P Finance I.
4.11** - Trust Agreement of A&P Finance II.
4.12** - Trust Agreement of A&P Finance III.
4.13* - Form of Amended and Restated Trust Agreement of A&P Finance
I.
4.14* - Form of Amended and Restated Trust Agreement of A&P Finance
II.
4.15* - Form of Amended and Restated Trust Agreement of A&P Finance
III.
4.16* - Form of Guarantee relating to A&P Finance I.
4.17* - Form of Guarantee relating to A&P Finance II.
4.18* - Form of Guarantee relating to A&P Finance III.
5.1* - Opinion of Cahill Gordon & Reindel.
5.2* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance I.
5.3* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance II.
5.4* - Opinion of Richards, Layton & Finger, P.A., relating to A&P
Finance III.
12* - Computation of ratio of earnings to fixed charges of the
Company.
23.1** - Consent of Deloitte & Touche LLP.
23.2* - Consent of Cahill Gordon & Reindel (included in Exhibit
5.1).
23.3* - Consent of Richards, Layton & Finger, P.A., relating to
A&P Finance I (included in Exhibit 5.2).
23.4* - Consent of Richards, Layton & Finger, P.A., relating to A&P
Finance II (included in Exhibit 5.3).
23.5* - Consent of Richards, Layton & Finger, P.A., relating to
A&P Finance III (included in Exhibit 5.4).
24 - Power of Attorney (included on the signature pages of the
Registration Statement).
25.1* - Statement of eligibility of senior debt securities trustee
on Form T-1.
25.2* - Statement of eligibility of subordinated debt securities
trustee on Form T-1.
25.3* - Statement of eligibility of property trustee, relating to
A&P Finance I.
25.4* - Statement of eligibility of guarantee trustee, relating to
A&P Finance I.
25.5* - Statement of eligibility of property trustee, relating to
A&P Finance II.
25.6* - Statement of eligibility of guarantee trustee, relating to
A&P Finance II.
25.7* - Statement of eligibility of property trustee, relating to
A&P Finance III.
25.8* - Statement of eligibility of guarantee trustee, relating to
A&P Finance III.
- -----------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
of the Company and incorporated herein by reference.
** Filed herewith.
CERTIFICATE OF TRUST
OF
A&P FINANCE I
THIS Certificate of Trust of A&P Finance I (the "Trust"), dated as of June
9, 1999, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. ss.
3801, et seq.).
1. Name. The name of the business trust formed hereby is A&P Finance I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery Bldg., 1011
Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
--------------------------------------
Name: Jacqueline Bartnick
Title: Vice President
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
--------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
CERTIFICATE OF TRUST
OF
A&P FINANCE II
THIS Certificate of Trust of A&P Finance II (the "Trust"), dated as of June
__, 1999, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. ss.
3801, et seq.).
1. Name. The name of the business trust formed hereby is A&P Finance II.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery Bldg., 1011
Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
--------------------------------------
Name: Jacqueline Bartnick
Title: Vice President
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
--------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
CERTIFICATE OF TRUST
OF
A&P FINANCE III
THIS Certificate of Trust of A&P Finance III (the "Trust"), dated as of
June 9, 1999, is being duly executed and filed by the undersigned, as trustees,
to form a business trust under the Delaware Business Trust Act (12 Del. C. ss.
3801, et seq.).
1. Name. The name of the business trust formed hereby is A&P Finance III.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery Bldg., 1011
Centre Road, Suite 200, Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
--------------------------------------
Name: Jacqueline Bartnick
Title: Vice President
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
--------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
TRUST AGREEMENT
OF
A&P FINANCE I
THIS TRUST AGREEMENT OF A&P FINANCE I is made as of June 9, 1999 (this
"Trust Agreement"), by and among The Great Atlantic & Pacific Tea Company, Inc.,
a Maryland corporation, as sponsor (the "Sponsor"), and Bankers Trust Company, a
New York banking corporation, Bankers Trust (Delaware), a Delaware banking
corporation, Fred Corrado, an individual, and Robert G. Ulrich, an individual,
as trustees (collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "A&P Finance I" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss. 3801, et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the preferred trust
securities and common securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its sole
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the preferred trust securities of the Trust, (b) any preliminary
<PAGE>
-2-
prospectus or prospectus or supplement thereto relating to the preferred trust
securities of the Trust required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the preferred trust
securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Sponsor, to file with the New York
Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the preferred trust
securities of the Trust to be listed on the New York Stock Exchange or such
other exchange, or the NASD's Nasdaq National Market; (iii) to file and execute
on behalf of the Trust, such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents that shall be necessary or desirable to register the preferred trust
securities of the Trust under the securities or "blue sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the preferred trust securities of the
Trust; and (v) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with one or more underwriters relating to the offering of
the preferred trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "blue sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Sponsor.
<PAGE>
-3-
7. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred trust securities of the Trust at the election of the Sponsor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., as Sponsor
By: /s/ Robert G. Ulrich
------------------------------------
Name: Robert G. Ulrich
Title: Senior Vice President and
General Counsel
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
-----------------------------------
Name: Jacqueline Bartnick
Title: Vice President
<PAGE>
-4-
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
TRUST AGREEMENT
OF
A&P FINANCE II
THIS TRUST AGREEMENT OF A&P FINANCE II is made as of June 9, 1999 (this
"Trust Agreement"), by and among The Great Atlantic & Pacific Tea Company, Inc.,
a Maryland corporation, as sponsor (the "Sponsor"), and Bankers Trust Company, a
New York banking corporation, Bankers Trust (Delaware), a Delaware banking
corporation, Fred Corrado, an individual, and Robert G. Ulrich, an individual,
as trustees (collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "A&P Finance II" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss. 3801, et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the preferred trust
securities and common securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its sole
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the preferred trust securities of the Trust, (b) any preliminary prospectus
or prospectus or supplement thereto relating to the preferred trust securities
of the Trust required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the preferred
<PAGE>
trust securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by the Sponsor, to file with the
New York Stock Exchange or other exchange, or the National Association of
Securities Dealers ("NASD"), and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the preferred
trust securities of the Trust to be listed on the New York Stock Exchange or
such other exchange, or the NASD's Nasdaq National Market; (iii) to file and
execute on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents that shall be necessary or desirable to register the
preferred trust securities of the Trust under the securities or "blue sky" laws
of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary
or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the preferred trust
securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the preferred trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "blue sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Sponsor.
7. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the rea-
-2-
<PAGE>
sonable fees and expenses of counsel), taxes and penalties of any kind and
nature whatsoever (collectively, "Expenses"), to the extent that such Expenses
arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Trust Agreement, the
creation, operation or termination of the Trust or the transactions contemplated
hereby; provided, however, that the Sponsor shall not be required to indemnify
any Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred trust securities of the Trust at the election of the Sponsor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., as Sponsor
By: /s/ Robert G. Ulrich
------------------------------------
Name: Robert G. Ulrich
Title: Senior Vice President and
General Counsel
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
-----------------------------------
Name: Jacqueline Bartnick
Title: Vice President
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
-4-
TRUST AGREEMENT
OF
A&P FINANCE III
THIS TRUST AGREEMENT OF A&P FINANCE III is made as of June 9, 1999 (this
"Trust Agreement"), by and among The Great Atlantic & Pacific Tea Company, Inc.,
a Maryland corporation, as sponsor (the "Sponsor"), and Bankers Trust Company, a
New York banking corporation, Bankers Trust (Delaware), a Delaware banking
corporation, Fred Corrado, an individual, and Robert G. Ulrich, an individual,
as trustees (collectively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "A&P Finance III" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss. 3801, et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the preferred trust
securities and common securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its sole
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the preferred trust securities of the Trust, (b) any preliminary
<PAGE>
-2-
prospectus or prospectus or supplement thereto relating to the preferred trust
securities of the Trust required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the preferred trust
securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Sponsor, to file with the New York
Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the preferred trust
securities of the Trust to be listed on the New York Stock Exchange or such
other exchange, or the NASD's Nasdaq National Market; (iii) to file and execute
on behalf of the Trust, such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents that shall be necessary or desirable to register the preferred trust
securities of the Trust under the securities or "blue sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the preferred trust securities of the
Trust; and (v) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with one or more underwriters relating to the offering of
the preferred trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "blue sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Sponsor.
<PAGE>
-3-
7. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred trust securities of the Trust at the election of the Sponsor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., as Sponsor
By: /s/ Robert G. Ulrich
------------------------------------
Name: Robert G. Ulrich
Title: Senior Vice President and
General Counsel
BANKERS TRUST COMPANY, as trustee
By: /s/ Jacqueline Bartnick
-----------------------------------
Name: Jacqueline Bartnick
Title: Vice President
<PAGE>
-4-
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
FRED CORRADO, as trustee
/s/ Fred Corrado
ROBERT G. ULRICH, as trustee
/s/ Robert G. Ulrich
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Great Atlantic & Pacific Tea Company, Inc. on Form S-3 of our report dated
April 29, 1999, appearing in and incorporated by reference in the Annual Report
on Form 10-K of The Great Atlantic & Pacific Tea Company, Inc. for the year
ended February 27, 1999, and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
June 9, 1999
