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EXHIBIT 4.4
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SAFEWAY INC.
6.50% Note Due 2011
No. S-[___] $[---------]
CUSIP No. 786514 BC 2
SAFEWAY INC., a Delaware corporation (the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of [_____________________] DOLLARS
on March 1, 2011, and to pay interest thereon from March 5, 2001, or the most
recent interest payment date to which interest has been paid or provided for, as
the case may be, payable on March 1 and September 1 of each year, commencing
September 1, 2001, at the rate of 6.50% per annum, until the principal hereof is
paid or made available for payment, and (to the extent that the payment of such
interest is permitted by law) to pay interest at the rate per annum borne by
this Security on any overdue principal and on any overdue installment of
interest until paid. The interest so payable, and punctually paid or duly
provided for, on any interest payment date will be paid to the person in whose
name this Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest, which shall be
the February 15 or August 15 (whether or not a Business Day), as the case may
be, next
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preceding such interest payment date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
regular record date and may either be paid to the person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on a special record date for the payment of such defaulted interest to
be fixed by the Company, notice whereof shall be given to the Trustee and the
Holders not less than 10 days prior to such special record date, or be paid at
any time in any other lawful manner. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
Principal of and interest on the Securities will be payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, the transfer of the Securities
will be registrable, the Securities may be presented for exchange, and notices
and demands to or upon the Company in respect of this Security and the Indenture
may be served, at the office or agency of the Company maintained for such
purpose (which initially will be the Corporate Trust Office of the Trustee
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration); provided that, unless all of the outstanding
Securities are Global Securities, the Company will at all times maintain an
office or agency for such purposes in the Borough of Manhattan, The City of New
York; and provided, further, that, except as provided in the next sentence,
payment of interest may, at the option of the Company, be made by check mailed
to the address of the person entitled thereto. If this Security is a Global
Security, the interest payable on this Security will be paid to Cede & Co., the
nominee of the Depositary, or its registered assigns as the registered owner of
this Security, by wire transfer of immediately available funds on each of the
applicable interest payment dates.
Reference is hereby made to the further provisions of this Security which
further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Date:
SAFEWAY INC.
BY BY
SENIOR VICE PRESIDENT SENIOR VICE PRESIDENT
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the 6.50% Notes due
March 1, 2011 described in the
within-mentioned Indenture.
THE BANK OF NEW YORK
BY
AUTHORIZED SIGNATORY
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SAFEWAY INC.
6.50% Note Due 2011
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of September 10,
1997, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The Bank of New York, as Trustee (the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, originally issued
in $500,000,000 aggregate principal amount, subject to increase in accordance
with the Indenture, (herein called the "Securities"). All terms used but not
defined in this Security shall have the meanings assigned to them in the
Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by the Officers' Certificate dated March 5, 2001
delivered pursuant thereto and the TIA. The Securities are subject to all such
terms, and the Securityholders are referred to the Indenture and said Act for a
statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
4. Redemption.
The Securities are redeemable, in whole or in part, at the option of the
Company at any time at a redemption price equal to the greater of (i) 100% of
the principal amount of the Securities to be redeemed; or (ii) as determined by
an Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus 20 basis points, plus,
in each case, accrued and unpaid interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date: (i)
the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life of the Securities, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest
month); or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price
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for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption date.
The Adjusted Treasury Rate shall be calculated on the third Business Day
preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Securities ("Remaining Life").
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for the applicable redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and their respective
successors; provided, however, that if either of the foregoing shall cease to be
a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date for the Securities, the average, as
determined by the Independent Investment Banker, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of the Securities to be
redeemed.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Securityholders. Subject to certain limitations described in the
Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on any of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding, judicial
or otherwise, with respect to the Indenture or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities and unless also the Holders of at least a
majority in principal amount of the Securities at the time outstanding shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceedings as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute such proceeding, within 60 days. The foregoing shall not apply
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to any suit instituted by the Holder of this Security for the enforcement of any
payment of the principal hereof or any interest hereon on or after the
respective due dates expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian ______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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| |
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(Please print or typewrite name and address including postal zip code
of assignee)
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this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
_____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Security in every
particular, without alteration or enlargement
or any change whatsoever.
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