EXHIBIT 4.5
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.
4.125% Note Due 2008
No. W- $
CUSIP No.
SAFEWAY INC., a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of DOLLARS
on November 1, 2008, and to pay interest thereon from October 29, 2003, or the
most recent interest payment date to which interest has been paid or provided
for, as the case may be, payable on May 1 and November 1 of each year,
commencing May 1, 2004, at the rate of 4.125% 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 April 15 or October 15, as the case may be, next preceding such
interest payment date (whether or not a Business Day). Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such regular record date and may either be paid to the person in whose
name this Security (or one or more predecessor Securities) is registered at the
close
of business on a special record date for the payment of such defaulted interest
to be fixed by the Company, notice whereof shall be given to the Trustee and the
Holders not less than 10 days prior to such special record date, or be paid at
any time in any other lawful manner. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
Principal of and interest on the Securities will be payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. The transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the Corporate Trust Office 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.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date:
SAFEWAY INC.
BY BY
______________________________ _________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President and Senior Vice President- Finance and Investor
Chief Financial Officer Relations
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the 4.125% Notes Due 2008 described in the within-mentioned
Indenture.
THE BANK OF NEW YORK
BY
_______________________________
AUTHORIZED SIGNATORY
SAFEWAY INC.
4.125% Note Due 2008
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 $300,000,000 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 October 29,
2003 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 any time and from
time to time at the option of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of the Securities to be redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities to be redeemed (exclusive of interest
accrued to the date of redemption) discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the then current Treasury Rate plus 15 basis points. In each case the Company
will pay accrued and unpaid interest on the principal amount being redeemed to
the date of redemption.
"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 to be redeemed 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.
"Comparable Treasury Price" means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers that the Company appoints to act as the Independent Investment Banker
from time to time.
"Reference Treasury Dealer" means each of Banc of America Securities
LLC and Banc One Capital Markets, Inc. and their respective successors, and two
other firms that are primary U.S. Government securities dealers (each a "Primary
Treasury Dealer") which the Company specifies from time to time; provided,
however, that if any of them ceases to be a Primary Treasury Dealer, the Company
will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Notice of redemption will be mailed at least 30 but not more than 60
days before the redemption date to each holder of record of the Securities to be
redeemed at its registered address.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer, or the exchange for an equal principal
amount, of this Security is registrable with the Registrar upon surrender of
this Security for registration of transfer at the office or agency of the
Registrar.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may, subject to certain exceptions, require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder in whose name this Security is registered as the owner thereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the
Indenture permits the Company and the Trustee to enter into a supplemental
indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities (including consents obtained in
connection with
a tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Securityholders. Subject to certain limitations described in the
Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on any of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared (or, in certain cases, shall ipso facto become)
due and payable in the manner and with the effect provided in the Indenture.
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding,
judicial or otherwise, with respect to the Indenture or for the appointment of a
receiver or trustee, or for any other remedy under the Indenture, unless such
Holder shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities and unless also the Holders of
at least a majority in principal amount of the Securities at the time
outstanding shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceedings as trustee, and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities at the time outstanding a direction inconsistent with such request,
and shall have failed to institute such proceeding, within 60 days. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of the principal hereof or any interest
hereon on or after the respective due dates expressed herein.
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.
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 under Uniform Gifts to Minors
of survivorship and not as Act__________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:______________ _______________________________________
_____________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Security in every particular,
without alteration or enlargement or
any change whatsoever.
