EXHIBIT 1.1
EXECUTION COPY
SUPERVALU INC.
(a Delaware corporation)
8.000% Senior Notes due 2016
UNDERWRITING AGREEMENT
Dated: April 30, 2009
SUPERVALU INC.
(a Delaware corporation)
$1,000,000,000
8.000% Senior Notes due 2016
UNDERWRITING AGREEMENT
April 30, 2009
Credit Suisse Securities (USA) LLC
Banc of America Securities LLC
Citigroup Global Markets Inc.
RBS Securities Inc.
as Representatives of the several Underwriters
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
SUPERVALU INC., a Delaware corporation (the Company), confirms its agreement with Credit
Suisse Securities (USA) LLC (Credit Suisse), Banc of America Securities LLC (Banc of America),
Citigroup Global Markets Inc. (Citi) and RBS Securities Inc. (RBS) (each, a Representative
and together, the Representatives), as representatives of the several underwriters named in
Schedule A hereto (collectively, the Underwriters, which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof) with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly, of the respective
principal amounts set forth in said Schedule A of $1,000,000,000 aggregate principal amount of the
Companys 8.000% Senior Notes due 2016 (the Securities). The Securities are to be issued
pursuant to an indenture dated as of July 1, 1987, as supplemented by the First Supplemental
Indenture dated as of August 1, 1990, the Second Supplemental Indenture dated as of October 1,
1992, the Third Supplemental Indenture dated as of September 1, 1995, the Fourth Supplemental
Indenture dated as of August 4, 1999 and the Fifth Supplemental Indenture dated as of September 17,
1999 (as so supplemented, the Indenture) between the Company and Deutsche Bank Trust Company,
formerly known as Bankers Trust Company, as trustee (the Trustee). Certain terms of the
Securities will be established pursuant to a Board Resolution (as defined in the Indenture) adopted
by the Company pursuant to Section 301 of the Indenture and set forth in an Officers Certificate
(as defined in the Indenture).
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the Commission) an
automatic shelf registration statement on Form S-3 (No. 333-158902), including the related
preliminary prospectus, which registration statement became effective upon filing under Rule 462(e)
of the rules and regulations of the Commission (the 1933 Act Regulations) under the Securities
Act of 1933, as amended (the 1933 Act). Such registration statement covers the registration of
the Securities under the
1933 Act. Promptly after execution and delivery of this Agreement, the Company will prepare
and file a prospectus in accordance with the provisions of Rule 430B (Rule 430B) of the 1933 Act
Regulations and paragraph (b) of Rule 424 (Rule 424(b)) of the 1933 Act Regulations. Any
information included in such prospectus that was omitted from such registration statement at the
time it became effective but that is deemed to be part of and included in such registration
statement pursuant to Rule 430B is referred to as Rule 430B Information. Each prospectus used in
connection with the offering of the Securities that omitted Rule 430B Information is herein called
a preliminary prospectus. Such registration statement, at any given time, including the
amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the Registration Statement. The Registration Statement at the time
it originally became effective is herein called the Original Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at the time of the execution of this Agreement and any preliminary
prospectuses that form a part thereof, is herein called the Prospectus. For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(EDGAR).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the 1934 Act) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company
. The Company represents and warrants to
each Underwriter as of the date hereof, the Applicable Time referred to in Section 1(a)(i) hereof
and as of the Closing Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i)
Status as a Well-Known Seasoned Issuer
. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations and (D) at the date hereof, the Company was and is a
well-known seasoned issuer as defined in Rule 405 of the 1933 Act Regulations (Rule
405), including not having been and not being an ineligible issuer as defined in Rule
405. The Registration Statement is an automatic shelf registration statement, as defined
in Rule 405, and the Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a Rule 405 automatic shelf
registration statement. The Company has not received from the Commission
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any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use
of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a
bona fide
offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an ineligible issuer, as defined in Rule 405.
(ii)
Registration Statement, Prospectus and Disclosure at Time of Sale
. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (Rule 462(e)) on April 30, 2009. No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided by
Rule 163 of the 1933 Act Regulations (Rule 163) and otherwise complied with the
requirements of Rule 163, including without limitation the legending requirement, to qualify
such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
At the time the Original Registration Statement became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations and at the Closing Time, the Registration Statement complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939 (the 1939 Act) and the rules and regulations of the
Commission under the 1939 Act (the 1939 Act Regulations), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or any amendment thereto) complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined
below), the Statutory Prospectus (as defined below) and the Final Term Sheet (as defined
below), all considered together (collectively, the General Disclosure Package), nor (y)
any individual Issuer Limited Use Free Writing Prospectus, when considered together with the
General
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Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
As of the time of the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet (as defined in Section 3(b)), will not
include any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
Applicable Time means 3:45 p.m. (Eastern time) on April 30, 2009 or such other time
as agreed by the Company and the Representatives.
Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined
in Rule 433 of the 1933 Act Regulations (Rule 433), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a road show that is a
written communication within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Companys records pursuant to
Rule 433(g).
Issuer General Use Free Writing Prospectus means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule B hereto.
Issuer Limited Use Free Writing Prospectus means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
Statutory Prospectus as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to (i) that part
of the Registration Statement which constitutes the Statement of Eligibility on Form T-1 of
the Trustee under the 1939 Act (the Form T-1) or (ii) statements in or omissions from the
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
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(iii)
Incorporated Documents
. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the 1934 Act Regulations), and, when read together with the other
information in the Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earlier of time the Prospectus was first used and the date and time of
the first contract of sale of Securities in this offering and (c) at the Closing Time, did
not and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading.
(iv)
Independent Accountants
. KPMG LLP, who certified the financial statements
and supporting schedule of the Company included in the Registration Statement, are
independent public accountants with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the rules and regulations thereunder (the 1933 Act
Regulations) and is a registered public accounting firm within the meaning of the
Sarbanes-Oxley Act of 2002.
(v)
Financial Statements
. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedule and notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the statement of
earnings, stockholders equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified in conformity with United States generally accepted
accounting principles (GAAP); said financial statements have been prepared in conformity
with GAAP applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial information included
in the Prospectus present fairly, in conformity with GAAP, the information shown therein and
have been compiled on a basis consistent in all material respects with that of the audited
financial statements included in the Registration Statement.
(vi)
No Material Adverse Change in Business
. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change or, to the knowledge of the Company, any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a Material Adverse Effect) and (B) except for
quarterly dividends on the common stock, par value $1.00 per share, of the Company (the
Common Stock) and the 4.50% preferred stock of the Company, in amounts per share that are
consistent with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vii)
Good Standing of the Company
. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware,
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under this Agreement, the Indenture and the
Securities; and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing
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of property or the conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(viii)
Good Standing of Subsidiaries
. Each significant subsidiary of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a Significant
Subsidiary and collectively, the Significant Subsidiaries) has been duly organized and is
validly existing as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the General Disclosure Package and the
Prospectus and is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens,
encumbrances or claims arising under the credit agreement, dated June 1, 2006, among the
Company and the lenders named therein, and except in each case where the Company purports to
own less than all of such stock or where the breach of this representation would not result
in a Material Adverse Effect; none of the outstanding shares of capital stock of the
Companys Significant Subsidiaries was issued in violation of preemptive or similar rights
of any securityholder of such Significant Subsidiaries.
(ix)
Capitalization
. The authorized, issued and outstanding capital stock of
the Company is as set forth in the General Disclosure Package and the Prospectus in the
column entitled Actual under the caption Capitalization (except for subsequent
issuances, if any, pursuant to reservations, agreements, employee benefit plans referred to
in the General Disclosure Package and the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the General Disclosure Package and the
Prospectus). The shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(x)
Corporate Power
. The Company has full right, power and authority to
execute and deliver this Agreement, the Securities and the Indenture and to perform its
obligations hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of this Agreement, the Securities and
the Indenture and the consummation of the transactions contemplated thereby has been duly
and validly taken.
(xi)
Authorization of Agreement
. This Agreement has been duly authorized,
executed and delivered by the Company.
(xii)
Authorization of the Indenture
. The Indenture has been duly qualified
under the 1939 Act, and has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting enforcement of
creditors rights
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generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law).
(xiii)
Authorization of the Securities
. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting enforcement of
creditors rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and entitled to the benefits of,
the Indenture.
(xiv)
Description of Securities and Indenture
. The Securities and the
Indenture will conform in all material respects to the respective statements relating
thereto contained in the General Disclosure Package and the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as the case may be,
as exhibits to the Registration Statement.
(xv)
Absence of Defaults and Conflicts
. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which or any
of them may be bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, Agreements and Instruments) except for such
defaults that would not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and in the Registration Statement and any other agreement
or instrument entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the Registration
Statement and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the General Disclosure Package and
the Prospectus under the caption Use of Proceeds) and compliance by the Company with its
obligations hereunder and thereunder, have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or a Repayment Event (as
defined below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant
to, the Agreements and Instruments except for such conflicts, breaches or defaults or
Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a Repayment Event means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holders behalf) the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any of its subsidiaries.
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(xvi)
Absence of Proceedings
. Except as disclosed in the Registration
Statement, there is no action, suit, proceeding, inquiry or investigation before or brought
by any court or governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against the Company or any of its subsidiaries which
is required to be disclosed in the Registration Statement (other than as disclosed therein),
or which would reasonably be expected to result in a Material Adverse Effect, or which would
reasonably be expected to materially and adversely affect the properties or assets of the
Company or any of its subsidiaries or the consummation of the transactions contemplated by
this Agreement or the performance by the Company of its obligations hereunder or thereunder.
(xvii)
Accuracy of Exhibits
. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xviii)
Absence of Manipulation
. Neither the Company nor any Affiliate has
taken, nor will the Company or any Affiliate take, directly or indirectly, any action which
is designed to or which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(xix)
Absence of Further Requirements
. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement
or for the due execution, delivery or performance of the Indenture by the Company, except
(A) such as have been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws and except for the qualification of the Indenture
under the 1939 Act, and the Rules and Regulations thereunder (the 1939 Act Regulations).
(xx)
Accounting Controls and Disclosure Controls
. The Company and each of its
subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with managements
general or specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with managements general
or specific authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company and its subsidiaries maintain effective internal control over
financial reporting, as defined in Rule 13a-15(f) under the 1934 Act Regulations, and except
as described in the General Disclosure Package and the Prospectus, since the end of the
Companys most recent audited fiscal year, there has been (1) no material weakness in the
Companys internal control over financial reporting (as defined in Rules 13a-15 and 15d-15
under the 1934 Act Regulations) (whether or not remediated) and (2) no change in the
Companys internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Companys internal control over financial
reporting. The Company and each of its subsidiaries employ disclosure controls and
procedures (as defined in Rules 13a-15 and 15d-15 under the 1934 Act Regulations) that are
designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized and reported,
within the time periods specified in the Commissions rules and forms, and is
8
accumulated and communicated to the Companys management, including its principal
executive officer or officers and principal financial officer or officers, as appropriate,
to allow timely decisions regarding disclosure.
(xxi)
Compliance with the Sarbanes-Oxley Act
. There is and has been no failure
on the part of the Company or any of the Companys directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith
(the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906
related to certifications.
(xxii)
Investment Company Act
. The Company is not required, and after giving
effect to the issuance and sale of the Securities and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an investment
company under the Investment Company Act of 1940, as amended (the 1940 Act).
(xxiii)
Pending Proceedings and Examinations
. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities.
(b)
Officers Certificates
. Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Securities
. On the basis of the representations, warranties and agreements herein
contained and subject to the terms and conditions herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at the price set forth in Schedule C, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Payment
. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York,
New York 10022 or at such other place as shall be agreed upon by the Representatives and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth if the pricing occurs after 4:30 p.m.
(Eastern time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10) or such other time not later than ten business days after such
date as shall be agreed upon by the Representatives and the Company (such time and date of payment
and delivery being herein called the Closing Time).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of, receipt for, and make payment of
the purchase price for, the Securities which it has agreed to purchase. Credit Suisse,
individually and not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to
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be purchased by any Underwriter whose funds have not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(c)
Denominations; Registration
. Certificates for the Securities shall be in such
denominations ($1,000 or integral multiples thereof) and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time. The
certificates representing the Securities shall be made available for examination and packaging by
the Representatives in The City of New York not later than 10:00 a.m. (Eastern time) on the last
business day prior to the Closing Time.
SECTION 3.
Covenants of the Company
. The Company covenants with each Underwriter as
follows:
(a)
Compliance with Securities Regulations and Commission Requests; Payment of Filing Fees
.
The Company, subject to Section 3(b), will comply with the requirements of Rule 430B and will
notify the Representatives immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement or new registration statement relating to
the Securities shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or the filing of a
new registration statement or any amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or such new registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding
under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company
will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment. The Company shall pay the required Commission filing fees relating to
the Securities within the time required by Rule 456(b)(1) (i) of the 1933 Act Regulations without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933
Act Regulations (including, if applicable, by updating the Calculation of Registration Fee table
in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b)
Filing of Amendments and Exchange Act Documents; Preparation of Final Term Sheet.
The
Company will give the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement or new registration statement relating to the Securities or any
amendment, supplement or revision to either any preliminary prospectus (including any prospectus
included in the Original Registration Statement or amendment thereto at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and
the Company will furnish the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall object. The Company has
given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act
Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives
notice of its intention to make any such
10
filing from the Applicable Time to the Closing Time and will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed filing and will not
file or use any such document to which the Representatives or counsel for the Underwriters shall
object. The Company will prepare a final term sheet (the Final Term Sheet) reflecting the final
terms of the Securities as set forth in Schedule C hereto, in form and substance satisfactory to
the Representatives, and shall file such Final Term Sheet as an issuer free writing prospectus
pursuant to Rule 433 prior to the close of business two business days after the date hereof;
provided that the Company shall furnish the Representatives with copies of any such Final Term
Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such
document to which the Representatives or counsel to the Underwriters shall object.
(c)
Delivery of Registration Statements
. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Original
Registration Statement and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives, without charge, a conformed
copy of the Original Registration Statement and of each amendment thereto (without exhibits) for
each of the Underwriters. The copies of the Original Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d)
Delivery of Prospectuses
. The Company has delivered to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e)
Continued Compliance with Securities Laws
. The Company will comply with the 1933 Act and
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939
Act Regulations so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend the Registration
Statement or to file a new registration statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such amendment, supplement or new
registration statement as may be necessary to correct such statement or omission or to comply with
such requirements, the Company will use its best efforts to have such amendment or new registration
statement declared effective as soon as practicable (if it is not an automatic shelf registration
statement with respect to the Securities) and the Company will furnish to the Underwriters such
number of copies of such amendment, supplement or new registration statement as the Underwriters
may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or
11
would conflict with the information contained in the Registration Statement (or any other
registration statement relating to the Securities) or the Statutory Prospectus or any preliminary
prospectus or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f)
Blue Sky Qualifications
. The Company will use its reasonable efforts, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Representatives may designate and to maintain
such qualifications in effect for a period of not less than one year from the date hereof;
provided, however, that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or so subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will also supply the
Underwriters with such information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the Underwriters may request.
(g)
Rule 158
. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h)
Use of Proceeds
. The Company will use the net proceeds received by it from the sale of
the Securities in the manner indicated in the Prospectus under Use of Proceeds.
(i)
Restriction on Sale of Securities
. Between the date of this Agreement and the Closing
Date, the Company will not, without the prior written consent of the Representatives, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise
transfer or dispose of, any debt securities of the Company that mature more than one year after the
date of the Prospectus and which are substantially similar to the Securities.
(j)
Reporting Requirements
. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k)
Issuer Free Writing Prospectuses
. The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Securities that would constitute an issuer free writing
prospectus, as defined in Rule 433, or that would otherwise constitute a free writing
prospectus, as defined in Rule 405, required to be filed with the Commission;
provided
,
however
, that prior to the preparation of the Final Term Sheet in accordance with Section
3(b), the Underwriters are authorized to use the information with respect to the final terms of the
Securities in communications conveying information relating to the offering to investors. Any such
free writing prospectus consented to by the Company and the Representatives is hereinafter referred
to as a Permitted Free Writing Prospectus. The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus,
as defined in Rule 433, and has complied and will comply with the requirements of
12
Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as originally filed and of
each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Companys counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and of the
Prospectus and any amendments or supplements thereto and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors, (vii) the preparation, printing
and delivery to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities, and (ix) any fees payable in
connection with the rating of the Securities.
(b)
Termination of Agreement
. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5.
Conditions of Underwriters Obligations
. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or its
subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further conditions:
(a)
Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing Fee
. The
Registration Statement has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time period required by Rule 424(b) without
reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have
been filed and become effective in accordance with the requirements of Rule 430B). The Company
shall have paid the required Commission filing fees relating to the Securities within the time
period required by Rule 456(1)(i) of the 1933 Act Regulations without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if
applicable, shall have updated the Calculation of Registration Fee table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover
page of a prospectus filed pursuant to Rule 424(b).
(b)
Opinion of Outside Counsel for the Company
. At the Closing Time, the Underwriters shall
have received the favorable opinion, dated as of the Closing Time, of Dorsey & Whitney LLP,
13
counsel for the Company, in form and substance satisfactory to counsel for the Underwriters,
to the effect set forth in Exhibit A hereto. Except as otherwise mutually agreed upon by the
parties, in giving such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to
the Underwriters. Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of the officers of the
Company and its subsidiaries and certificates of public officials.
(c)
Opinion of In-House Counsel for the Company
. At the Closing Time, the Underwriters shall
have received the favorable opinion, dated as of the Closing Time, of Burt M. Fealing, Vice
President, Corporate Secretary and Chief Securities Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit B hereto. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of Minnesota, the federal laws of the United States and the General
Corporation Law of the State of Delaware, upon opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates and representations of the
officers of the Company and its subsidiaries and certificates of public officials.
(d)
Opinion of Counsel for Underwriters
. At the Closing Time, the Underwriters shall have
received the favorable opinion, dated as of the Closing Time, of Shearman & Sterling LLP, counsel
for the Underwriters, in form and substance satisfactory to the Underwriters.
(e)
Officers Certificate
. At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any Material Adverse Effect, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and of the Chief
Financial Officer, chief accounting officer or Senior Vice President, Finance, of the Company,
dated as of the Closing Time, to the effect that (i) there has been no such Material Adverse
Effect, (ii) the representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company
has complied with all of the agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose have been instituted
or are pending or, to their knowledge, contemplated by the Commission.
(f)
Accountants Comfort Letter
. At the time of the execution of this Agreement, the
Representatives shall have received from KPMG LLP, independent accountants for the Company, a
letter dated such date, in form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountants comfort letters to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g)
Bring-down Comfort Letter
. At the Closing Time, the Representatives shall have received
from KPMG LLP, independent accountants for the Company, a letter, dated as of the Closing Time, in
each case in form and substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section,
except that the specified date referred to shall be a date not more than three business days prior
to the Closing Time.
(h)
Maintenance of Rating
. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the Companys other securities or
the
14
Companys financial strength or claims paying ability by any nationally recognized
statistical rating agency, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative implications, its rating
of the Securities or any of the Companys other securities.
(i)
Additional Documents
. At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form
and substance in the reasonable judgment of the Underwriters and counsel for the Underwriters.
(j)
Termination of Agreement
. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6.
Indemnification
.
(a)
Indemnification of Underwriters
. (1) The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each,
an Affiliate), its selling agents and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
15
provided
,
however
, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430B Information
or any preliminary prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto).
(2) Insofar as this indemnity agreement may permit indemnification for liabilities under the
1933 Act of any person who is a partner of an Underwriter or who controls an underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who, at the date of this
Agreement, is a director or officer of the Company or controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, such indemnity agreement is subject to
the undertaking of the Company in the Registration Statement under Item 15 thereof.
(b)
Indemnification of Company, Directors and Officers
. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)(1) of this
Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including
the Rule 430B Information or any preliminary prospectus, the General Disclosure Package, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein.
(c)
Actions Against Parties; Notification
. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a)(i) above, counsel to the indemnified parties shall be selected
by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action;
provided
,
however
, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
16
(d)
Settlement Without Consent if Failure to Reimburse
. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent if such indemnifying party
(x) reimburses such indemnified party in accordance with such request to the extent that the
indemnifying party in its judgment considers such request to be reasonable and (y) provides written
notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in
each case no later than 45 days after receipt by such indemnifying party of the aforesaid request
from the indemnified party.
SECTION 7.
Contribution
. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
17
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriters
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8.
Representations, Warranties and Agreements to Survive
. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company, and (ii) delivery of and payment for
the Securities.
SECTION 9.
Termination of Agreement
.
(a)
Termination; General
. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto) or the General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by such system or by
order of the Commission, the FINRA or any other governmental authority, or a material disruption
has occurred in commercial banking or securities settlement, or (iv) a material disruption has
occurred in commercial banking or securities settlement or clearance services in the United States,
or (v) if a banking moratorium has been declared by either Federal or New York authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and
18
provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10.
Default by One or More of the Underwriters
. If any Underwriter shall fail
at the Closing Time to purchase the Securities which it is obligated to purchase under this
Agreement (the Defaulted Securities), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall
not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount
of the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or the Company shall have the right to postpone the Closing Time for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements. As used herein, the term
Underwriter includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
Tax Disclosure
. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term tax treatment is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term tax structure
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
SECTION 12.
Notices
. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representatives, c/o
Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
LCD-IBD, with a copy to Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022,
attention of Robert Evans III, Esq.; and notices to the Company shall be directed to it at 11840
Valley View Road, Eden Prairie, Minnesota 55344, attention of Senior Vice President, Finance with a
copy to the Corporate Secretary at the same address, with an additional copy to Dorsey & Whitney
LLP, Suite 1500, 50 South Sixth Street, Minneapolis, Minnesota 55402, attention of Gary L. Tygesson
Esq.
19
SECTION 13.
No Advisory or Fiduciary Relationship
. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arms-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its shareholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of each of the Company, and (e)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14.
Integration
. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
SECTION 15.
Parties
. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17.
TIME
. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18.
Counterparts
. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 19.
Effect of Headings
. The Section headings herein are for convenience only
and shall not affect the construction hereof.
20
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
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Very truly yours,
SUPERVALU INC.
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By
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/s/ Sherry M. Smith
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Name:
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Sherry M. Smith
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Title:
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Senior Vice President, Finance
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CONFIRMED AND ACCEPTED,
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as of the date first above written:
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CREDIT SUISSE SECURITIES (USA) LLC
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By
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/s/ David Frank
Name: David Frank
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Title: Managing Director
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BANC OF AMERICA SECURITIES LLC
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By
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/s/ Stephan Jaeger
Name: Stephan Jaeger
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Title: Managing Director
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CITIGROUP GLOBAL MARKETS INC.
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By
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/s/ David Leland
Name: David Leland
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Title: Director
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RBS SECURITIES INC.
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By
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/s/ Thomas Bausano
Name: Thomas Bausano
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Title: Managing Director
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For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
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Principal
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Amount of
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Name of Underwriter
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Securities
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Credit Suisse Securities (USA) LLC
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$
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235,000,000
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Banc of America Securities LLC
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$
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190,000,000
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Citigroup Global Markets Inc.
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$
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130,000,000
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RBS Securities Inc.
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$
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130,000,000
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J.P. Morgan Securities Inc.
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$
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75,000,000
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Morgan Stanley & Co. Incorporated
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$
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75,000,000
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UBS Securities LLC
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$
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75,000,000
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U.S. Bancorp Investments, Inc.
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$
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75,000,000
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The Williams Capital Group, L.P.
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$
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15,000,000
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Total
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$
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1,000,000,000
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Sch A-1
SCHEDULE B
Issuer General Use Free Writing Prospectuses
Final Term Sheet
Sch B-1
SCHEDULE C
SUPERVALU INC. (SUPERVALU)
$1,000,000,000 8.000% Senior Notes due 2016
Pricing Term Sheet
This Supplement is qualified in its entirety by reference to the Preliminary Prospectus. The
information in this Supplement supplements the Preliminary Prospectus.
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Aggregate Principal Amount:
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$1,000,000,000 (upsized from $500,000,000)
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Title of Securities:
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8.000% Senior Notes due 2016
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Final Maturity Date:
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May 1, 2016
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Public Offering Price:
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97.000%
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Gross Proceeds:
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$970,000,000
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Price to Underwriters:
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94.400%
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Net Proceeds to Issuer after
Underwriting Discount and
Estimated Expenses:
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$943,144,200
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Coupon:
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8.000%
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Yield to Maturity:
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8.579%
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Benchmark Treasury:
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2.625% UST due April 30, 2016
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Spread to Benchmark Treasury:
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+ 587 basis points
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Benchmark Treasury Yield:
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2.71%
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Interest Payment Dates:
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May 1 and November 1
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First Interest Payment Date:
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November 1, 2009
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Record Dates:
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April 15 and October 15
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Sch C-1
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Make-Whole Call:
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At any time at a discount rate equal to the
Treasury Rate plus 50 basis points
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Use of Proceeds:
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SUPERVALU intends to use the net proceeds of
the offering to fund all or a portion of the
purchase price of its 7.875% Notes due August
1, 2009, the 6.95% Notes due August 1, 2009
issued by its wholly owned subsidiary, New
Albertsons, Inc., and the 8.35% Senior Notes
due May 1, 2010 issued by New Albertsons,
Inc. (together, the Target Notes) that are
tendered and accepted by SUPERVALU for
purchase in its offer to purchase for cash
the Target Notes (the Offer), which
SUPERVALU commenced on April 30, 3009,
including the payment of accrued interest and
any applicable early tender premium.
To the extent that there are net proceeds
remaining, or if the Offer is not
consummated, SUPERVALU intends to use the net
proceeds for general corporate purposes,
including the repayment of debt, whether at
maturity, through open market purchases,
privately negotiated transactions or
otherwise.
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Underwriters:
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Credit Suisse Securities (USA) LLC, Banc of
America Securities LLC, Citigroup Global
Markets Inc. RBS Securities Inc., J.P. Morgan
Securities Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC, U.S.
Bancorp Investments, Inc. and The Williams
Capital Group, L.P.
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Trade Date:
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April 30, 2009
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Settlement Date:
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May 7, 2009 (T+5)
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CUSIP and ISIN Numbers:
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CUSIP: 868536 AT0
ISIN: US868536AT00
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Original Issue Discount:
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The notes are being issued with more than de
minimis OID for U.S. federal income tax
purposes. Accordingly, holders will be
required to include the OID in income as
ordinary interest income as it accrues. See
Material U.S. Federal Income Tax
Considerations U.S. Holders Original
Issue Discount in the preliminary
prospectus.
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We expect that delivery of the notes will be made against payment therefor on or about May 7, 2009,
which will be the 5th business day following the date of pricing of the notes (such settlement
cycle being herein referred to as T+5). Under Rule 15c6-1 under the Securities Exchange Act of
1934, as amended, trades in the secondary market generally are required to settle in three business
Sch C-2
days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who
wish to trade notes on the date of pricing or the next three succeeding business days will be
required, by virtue of the fact that the notes initially will settle T+5, to specify an alternate
settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of notes
who wish to trade notes on the date of pricing or the next three succeeding business days should
consult their own advisor.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus
included in that registration statement and other documents the issuer has filed with the SEC for
more complete information about the issuer and this offering. You may get these documents free of
charge by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you the prospectus if
you request it by calling Credit Suisse Securities (USA) LLC toll-free at 1-800-221-1037; Banc of
America Securities LLC toll-free at 1-800-294-1322; Citigroup Global Markets Inc. toll-free at
1-877-858-5407; and RBS Securities Inc. toll-free at 1-866-884-2071.
Sch C-3
Exhibit A
FORM OF OPINION OF COMPANYS COUNSEL
DORSEY & WHITNEY LLP,
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(a) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(b) The Indenture has been duly authorized, executed and delivered by the Company, and is a
valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement of the indemnification and contribution provisions contained therein
may be limited by the effect of applicable public policy and except as enforcement of the Indenture
may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(c) No consent, approval, authorization or order of any court or governmental agency or body
is required for the consummation of the transactions contemplated by the Underwriting Agreement or
the Indenture, except such as may be required under the securities and blue sky laws, rules and
regulations of any jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriters and such other approvals as have been obtained.
(d) The form and general terms of the Securities have been duly and validly authorized and
established in conformity with the provisions of the Indenture by all necessary corporate action by
the Company, and when such Securities have been duly executed, authenticated and delivered against
payment therefor in accordance with the provisions of the Indenture and the Underwriting Agreement,
will constitute the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and the terms of the Indenture, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and the holders of the
Securities will be entitled to the benefits of the Indenture.
(e) The Indenture has been duly qualified under the 1939 Act.
(f) The Securities and the Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus.
(g) The Registration Statement has been become effective under the 1933 Act; any required
filing of each prospectus relating to the Securities (including the Prospectus) pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule 424(b) (without
reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus known to
us pursuant to Rule 433 has been made in the manner and within the time period required by Rule
433(d). To the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
A-1
(h) The Registration Statement, including without limitation the Rule 430B Information, the
Prospectus, excluding the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (including without limitation
each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)), other
than the financial statements and supporting schedule and other financial data included therein or
omitted therefrom, and the Form T-1, as to which we need express no opinion, complied as to form in
all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(i) The documents incorporated by reference in the Prospectus (except for the financial
statements and supporting schedule and other financial data therein, as to which we express no
opinion), as of the dates they were filed with the Commission, complied as to form in all material
respects with the requirements of the 1933 Act, the 1934 Act, the 1933 Act Regulations and the 1934
Act Regulations.
(j) The information in the Prospectus under Description of the Notes, Description of Other
Indebtedness and Material U.S. Federal Income Tax Considerations and in the Registration
Statement under Item 15, to the extent that it constitutes matters of law, summaries of legal
matters, the Companys charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and fairly presents and summarizes, in all material respects, the matters referred
to therein.
(k) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states and except for the
qualification of the Indenture under the 1939 Act, as to which we need express no opinion) is
necessary or required in connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the Securities by the
Company or for the offering, issuance or sale of the Securities.
(l) Neither the issue and sale of the Securities, the compliance by the Company with all the
provisions of the Underwriting Agreement, the Indenture and the Securities and the consummation of
the transactions therein contemplated nor the fulfillment of the terms thereof will conflict with,
result in a breach of, or constitute a default under the charter or bylaws of the Company or the
terms of any indenture or other agreement or instrument filed with the Commission and to which the
Company or any of the Companys Significant Subsidiaries is a party or is bound, or any order,
decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules
or regulations) known to us to be applicable to the Company or any of the Companys Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the Companys Significant Subsidiaries.
Nothing has come to our attention that would lead us to believe that the Original Registration
Statement or any amendment thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted therefrom and the Form T-1,
as to which we need make no statement), at the time such Original Registration Statement or any
such amendment became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; that the Registration Statement, including the Rule 430B Information (except for
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which we need make no statement), at each
deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), contained an
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto (except for financial
A-2
statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which we need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In addition, nothing has come to our
attention that would lead us to believe that the General Disclosure Package, other than the
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of circumstances under which they were made,
not misleading. With respect to statements contained in the General Disclosure Package, any
statement contained in any of the constituent documents shall be deemed to be modified or
superseded to the extent that any information contained in subsequent constituent documents
modifies or replaces such statement.
The opinions expressed above are limited to the laws of the States of Minnesota and New York,
the Delaware General Corporation Law and the federal laws of the United States and we express no
opinion as to the laws of any other jurisdiction.
The foregoing opinions are being furnished to you solely for your benefit and may not be
relied upon by, nor may copies be delivered to, any other person without our prior written consent.
A-3
Exhibit B
FORM OF OPINION OF
THE VICE PRESIDENT, CORPORATE SECRETARY AND CHIEF SECURITIES COUNSEL OF
THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) The Company is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(iii) The Company has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and, with respect to the Company only,
to enter into and perform its obligations under the Underwriting Agreement.
(iv) To the best of my knowledge, based upon procedures used in the ordinary course of the
Companys business (which I have no reason to believe are not an adequate basis for the following
statement), and in all cases except as would not result in a Material Adverse Effect, (a) each
Significant Subsidiary of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, (b) all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, except for such security interests, mortgages, pledges, liens, encumbrances or claims
arising under that certain Credit Agreement, dated as of June 1, 2006, by and among the Company,
The Royal Bank of Scotland PLC, Bank of America, Citibank, Rabobank International, Cobank, ACB,
U.S. Bank National Association, and various financial institutions and other persons from time to
time parties thereto, and except in each case where the Company purports to own less than all of
such stock, and (c) none of the outstanding shares of capital stock of any such Significant
Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of
such Significant Subsidiary.
(v) To the best of my knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any Significant Subsidiary of the
Company is a party, or to which the property of the Company or any Significant Subsidiary is
subject, before or brought by any court or governmental agency or body, domestic or foreign, which
would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the property or assets of the Company and its
subsidiaries, taken as a whole, or the consummation of the transactions contemplated in the
Underwriting Agreement or the performance by the Company of its obligations thereunder.
Nothing has come to my attention that would lead me to believe that the Original Registration
Statement or any amendment thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted therefrom and the Form T-1,
as to which I need make no statement), at the time such Original Registration Statement or any such
amendment
B-1
became effective, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; that the Registration Statement, including the Rule 430B Information (except for
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which I need make no statement), at each
deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), contained an
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules and other financial
data included or incorporated by reference therein or omitted therefrom and the Form T-1, as to
which I need make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading. In addition, nothing has come to my attention that would lead me to believe that the
General Disclosure Package, other than the financial statements and schedules and other financial
data included or incorporated by reference therein or omitted therefrom, as to which I need make no
statement, as of the Applicable Time, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading. With respect to statements contained in
the General Disclosure Package, any statement contained in any of the constituent documents shall
be deemed to be modified or superseded to the extent that any information contained in subsequent
constituent documents modifies or replaces such statement.
The opinions expressed above are limited to the laws of the State of Minnesota, the Delaware
General Corporation Law and the federal laws of the United States and I express no opinion as to
the laws of any other jurisdiction.
The foregoing opinions are being furnished to you solely for your benefit and may not be
relied upon by, nor may copies be delivered to, any other person without my prior written consent.
B-2
EXHIBIT 4.1
SUPERVALU INC.
Officers Certificate and Authentication Order
For 8.000% Senior Notes due 2016
Pursuant to the Indenture dated as of July 1, 1987 between SUPERVALU INC. (the Company) and
Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the
Trustee), as supplemented by the First Supplemental Indenture dated as of August 1, 1990, the
Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental Indenture dated
as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth
Supplemental Indenture dated as of September 17, 1999 (as so supplemented, the Indenture) and the
resolutions adopted by the Board of Directors of the Company on April 7, 2009, this Officers
Certificate and Authentication Order is being delivered to the Trustee to establish the terms of a
series of Securities in accordance with Section 301 of the Indenture, to establish the form of the
Securities of such series in accordance with Section 201 of the Indenture and to request the
authentication and delivery of the Securities of such series pursuant to Section 303 of the
Indenture.
Capitalized terms used but not defined herein and defined in the Indenture shall have the
respective meanings ascribed to them in the Indenture.
A.
Establishment of Series Pursuant to Section 301 of Indenture
. There is hereby
established pursuant to Section 301 of the Indenture a series of Securities which shall have the
following terms:
1. The series of Securities hereby being authorized shall bear the title 8.000% Senior Notes
due 2016 (referred to herein as the Debt Securities).
2. The aggregate principal amount of Debt Securities shall be initially $1,000,000,000 (except
as noted in Sections 303, 304, 305, 306, 906 or 1107 of the Indenture); provided that the Company
may, without the consent of the Holders of the Outstanding Debt Securities, reopen this series of
Debt Securities so as to increase the aggregate principal amount of Debt Securities Outstanding in
compliance with the procedures set forth in the Indenture, including Sections 301 and 303 thereof,
so long as any such additional Debt Securities have the same tenor and terms (including, without
limitation, rights to receive accrued and unpaid interest) as the Debt Securities then Outstanding.
3. Except as provided in the following paragraph, the Debt Securities shall be issued only as
Registered Securities. The Debt Securities shall not be issued in temporary global form. The Debt
Securities shall be issued in the form of one or more Global Securities registered in the name of
the Depositary or its nominee (each Debt Security represented by a Global Security being herein
referred to as a Book-Entry Debt Security). The Depositary with respect to such Global
Securities shall be The Depository Trust Company. The circumstances under which a Global Security
may be exchanged for Debt Securities registered in the name of, and any transfer of such Global
Security may be registered to, a Person other than such Depositary or its nominee shall be as
provided in Section 305 of the Indenture.
Bearer Securities shall be issued to all beneficial owners in exchange for their beneficial
interests in a Global Security only if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as a depositary for such Global Security or if at any time the Depositary
ceases to be a clearing agency registered under the Exchange Act, and a successor depositary is not
appointed by the Company
within 90 days, (ii) there shall have occurred and be continuing an Event of Default with
respect to the Securities represented by such Global Security or (iii) the Company at any time
determines not to have Securities represented by a Global Security.
4. The principal of the Debt Securities shall bear interest at the rate of 8.000% per annum
from the Issue Date or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, payable semi-annually in arrears on May 1 and November 1 (each, an Interest
Payment Date) in each year, commencing November 1, 2009, to the Persons in whose names the Debt
Securities (or one or more Predecessor Debt Securities) are registered at the close of business on
the April 15 or October 15 immediately preceding such Interest Payment Dates (each a Regular
Record Date), regardless of whether such Regular Record Date is a Business Day. Any overdue
principal of and premium, if any, on the Debt Securities and any overdue installment of interest on
the Debt Securities shall, to the extent permitted by law, bear interest at the rate of 2% per
annum. Interest on the Debt Securities shall be calculated on the basis of a 360-day year of
twelve 30-day months.
5. The principal of each Debt Security shall be due and payable on May 1, 2016.
6. The Borough of Manhattan, The City of New York is hereby designated as a Place of Payment
for the Debt Securities, and the place where the principal of and premium, if any, and interest on
the Debt Securities shall be payable, where Debt Securities may be surrendered for registration of
transfer and exchange, and where notices and, if other than in the manner provided in Section 105
of the Indenture, demands to or upon the Company in respect of the Debt Securities may be served,
shall be the office or agency maintained by the Company for that purpose in the Borough of
Manhattan, The City of New York, which initially shall be the office of the Trustee located at Four
Albany Street, New York, New York, 10006, Attention: Corporate Trust Services. Payment of
principal of and interest on each Book-Entry Debt Security represented by a Global Security shall
be made to the Depositary or its nominee, as the case may be, as the sole registered owner and the
sole Holder of the Book-Entry Debt Securities represented thereby for all purposes under the
Indenture.
7. The Debt Securities are subject to redemption at the option of the Company as provided in
the form of Debt Security attached hereto as
Exhibit A
and in the Indenture.
8. The Company shall not have any obligation to redeem or purchase any Debt Securities
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof.
9. The Debt Securities are subject to repurchase at the option of the Holders upon a Change of
Control as provided in the form of Debt Security attached hereto as
Exhibit A
and in the
Indenture.
10. The Debt Securities shall not be guaranteed by any of the Companys Subsidiaries on May 7,
2009. However, the Debt Securities may be guaranteed by any of the Companys Subsidiaries at any
time following the Issue Date under the conditions described in the form of Debt Security attached
hereto as
Exhibit A
and in the Indenture.
11. The Company shall not pay any additional amounts on Debt Securities held by a Person who
is a United States Alien in respect of any tax, assessment or governmental charge withheld or
deducted.
12. The Debt Securities shall have such other terms and provisions as are set forth in the
form of Debt Security attached hereto as
Exhibit A
(all of which incorporated by reference
in and make a part of this Certificate as if set forth in full at this place).
-2-
B.
Establishment of Form of Debt Security Pursuant to Section 201 of Indenture
. It is
hereby established pursuant to Section 201 of the Indenture that the Debt Securities shall be
substantially in the form attached as
Exhibit A
hereto.
C.
Order for the Authentication and Delivery of Debt Securities Pursuant to Section 303 of
Indenture
. It is hereby ordered pursuant to Section 303 of the Indenture that the Trustee
authenticate, in the manner provided by the Indenture, two Debt Securities, each in an aggregate
principal amount of $500,000,000, registered in the name of Cede & Co., which Debt Securities have
been heretofore duly executed by the proper officers of the Company and delivered to you as
provided in the Indenture, and to deliver said authenticated Debt Securities to or upon the order
of Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, Citigroup Global Markets
Inc. and RBS Securities Inc. on May 7, 2009.
Pursuant to Section 102 of the Indenture, the undersigned certify as follows: (i) each of the
undersigned has read Sections 201, 301 and 303 of the Indenture, including the definitions related
thereto, as well as such other instruments, agreements and other documents and records, as the
undersigned has deemed necessary or appropriate to certify as to the matters set forth herein;
(ii) in the opinion of each of the undersigned, each of the undersigned has made such examination
or investigation as is necessary to enable such individual to express an informed opinion as to
whether or not all conditions precedent provided in the Indenture relating to the authentication
and delivery of the Debt Securities have been complied with; and (iii) in the opinion of each of
the undersigned, all conditions precedent referred to in clause (ii) above have been complied with.
[SIGNATURE PAGE FOLLOWS]
-3-
D. IN WITNESS WHEREOF, on behalf of the Company we have hereunto signed our names.
Dated: May 7, 2009
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SUPERVALU INC.
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By
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/s/ Pamela K. Knous
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Pamela K. Knous
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Executive Vice President and
Chief Financial Officer
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By
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/s/ Burt M. Fealing
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Burt M. Fealing
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Vice President, Corporate Secretary
and
Chief Securities Counsel
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Exhibit A
THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ACCRUAL PERIODS, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A REQUEST FOR SUCH
INFORMATION TO THE FOLLOWING ADDRESS: SUPERVALU INC., 11840 VALLEY VIEW ROAD, EDEN PRAIRIE,
MINNESOTA 55344, ATTENTION: CORPORATE SECRETARY.
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REGISTERED NO. ___
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REGISTERED PRINCIPAL
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CUSIP NO. 868536 AT0
ISIN NO. US868536AT00
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AMOUNT: $
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SUPERVALU INC.
8.000% Senior Notes due 2016
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of DTC, as Depositary for this series of Securities (the
Depositary), or a nominee of the Depositary. 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 no transfer of this Security (other than a transfer
of this Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be registered except in such
limited circumstances.
SUPERVALU INC., a corporation duly organized and existing under the laws of Delaware (herein
called the Company, which term includes any successor Person under the Indenture referred to
below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of five hundred million United States Dollars ($500,000,000) on May 1, 2016, and to
pay interest thereon from May 7, 2009, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on May 1 and November 1 in
each year, commencing on November 1, 2009, at the rate of 8.000% per annum, until the principal
hereof is paid or made available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 2% per annum on any overdue principal and on any
overdue installment of interest. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the April 15 and October 15
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on such Regular Record
Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on any Security of this series (that is not a Global
Security) will be made at the office or agency of the Company maintained for that purpose in The
City of New York, Payment of principal of and interest on any Global Security will be made to the
Depositary or its nominee, as the case may be, as the sole registered owner and the sole Holder of
the Global Security for all purposes under the Indenture.
Payment of the principal of and interest on this Security will be made in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public or private debts.
Reference is hereby made to the further provisions of this Security set forth below, which
further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon leas been executed by the Trustee referred to
below, directly or through an Authenticating Agent, by manual signature of an authorized signatory,
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 instrument to be duly executed under its
corporate seal.
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SUPERVALU INC.
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By
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Name:
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Pamela K. Knous
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Title:
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Executive Vice President and
Chief Financial Officer
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Attest:
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Title: Vice President, Corporate Secretary
and
Chief Securities Counsel
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Dated: May 7, 2009
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
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By DEUTSCHE BANK NATIONAL TRUST COMPANY
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By
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Authorized Signature
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SUPERVALU INC.
8.000% Notes due 2016
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
July 1, 1987, as amended and supplemented by the First Supplemental Indenture dated as of August 1,
1990, the Second Supplemental Indenture dated as of October 1, 1992, the Third Supplemental
Indenture dated as of September 1, 1995, the Fourth Supplemental Indenture dated as of August 4,
1999 and the Fifth Supplemental Indenture dated as of September 17, 1999 (the Indenture, as so
amended and supplemented, being herein called the Indenture), between the Company and Deutsche
Bank Trust Company Americas (formerly known as Bankers Trust Company), as Trustee (herein called
the Trustee, which term includes any successor trustee under the Indenture), to which Indenture
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 above, initially in aggregate principal amount to U.S. $1,000,000,000;
provided that the aggregate principal amount of the Securities of this series which may be
Outstanding may be increased by the Company upon the terms and subject to the conditions set forth
in the Indenture.
The Securities of this series are issuable only in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. The Securities of this series may be
issued, in whole or in part, in the form of one or more Global Securities bearing the legend
specified in the Indenture regarding certain restrictions on registration of transfer and exchange
and issued to the Depositary or its nominee and registered in the name of the Depositary or such
nominee. As provided in the Indenture and subject to certain limitations (including, if this
Security is a Global Security, certain additional limitations) therein set forth, Securities of
this series issued in definitive registered form are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
1.
Interest and Method of Payment
. Payments of interest hereon with respect to any
Interest Payment Date will include interest accrued to but excluding such Interest Payment Date.
Interest hereon shall be computed on the basis of a 360-day year of twelve 30-day months.
Any payment on this Security due on any day which is not a Business Day in The City of New
York need not be made on such day, but may be made on the next succeeding Business Day with the
same force and effect as if made on such due date.
2.
Optional Redemption
. The Company may, at its option, redeem the Securities of this
Series in whole at any time or in part from time to time at a Redemption Price equal to the greater
of:
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(i)
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100% of the principal amount; or
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(ii)
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as determined by an Independent Investment Banker, the sum of
the present values of the remaining scheduled payments of principal and thereon
(exclusive of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the then-current Treasury Rate plus 50 basis points.
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In each case, the Company shall pay accrued and unpaid interest on the principal amount of
such Securities being redeemed to the Redemption Date.
Notice of redemption will be given by first-class mail to Holders of Securities of this
Series, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as
provided in the Indenture.
If less than all of the Securities of this Series are to be redeemed at the Companys option,
the Company shall notify the Trustee at least 45 days prior to the Redemption Date, or any shorter
period as may be satisfactory to the Trustee, of the aggregate principal amount of such Securities
to be redeemed and the Redemption Date. The Trustee shall select, in the manner as it deems fair
and appropriate, the Securities to be redeemed. In the event of redemption of this Security in
part only, a new Security or Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation hereof. No Security
of this Series of a principal amount of $1,000 or less shall be redeemed in part.
3.
Repurchase at Holders Option upon a Change of Control
. If a Change of Control
shall occur at any time, then the Company shall be required to make an offer to each Holder of the
Securities of this series to purchase such Holders Securities in whole or in part (equal to
$1,000, or an integral multiple of $1,000 in excess thereof), at a purchase price (the Change of
Control Purchase Price) in cash in an amount equal to 101% of the principal amount of such
Securities, plus accrued and unpaid interest to, but not including, the date of purchase (the
Change of Control Purchase Date) (subject to the rights of holders of record on relevant record
dates to receive interest due on an interest payment date), pursuant to the offer mechanics
described below (the Change of Control Offer) and in accordance with the other procedures set
forth in the Securities of this series; provided, however, that the Company shall not be obliged to
repurchase Securities as described under this Section 3 in the event and to the extent that the
Company has unconditionally exercised the Companys right to redeem all of the Securities of this
series pursuant to the provisions described under Section 2 above.
Within 30 days of any Change of Control, the Company shall notify the Trustee thereof and give
written notice of such Change of Control to each Holder of Securities of this series by first-class
mail, postage prepaid, at such Holders address appearing in the security register, stating, among
other things:
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that a Change of Control has occurred and the date of such event;
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the circumstances and relevant facts regarding such Change of Control;
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the Change of Control Purchase Price and the Change of Control Purchase Date which
shall be fixed by the Company on a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act and any other applicable securities
laws and regulations;
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that any Security not tendered shall continue to accrue interest and, unless the
Company default in payment of the Change of Control Purchase Price, any Securities of
this series accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date;
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that Holders shall be entitled to withdraw their election if the Company or the
Trustee, as the case may be, receives, not later than the Change of Control Purchase
Date, a
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telegram, facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security (or portions thereof) the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have such
Security purchased;
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that Holders whose Securities were purchased in part shall be issued new Securities
equal in principal amount to the unpurchased portion of the Securities surrendered (or
transferred by book-entry transfer); and
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any other procedures the Holders must follow in order to tender their Securities (or
portions thereof) for payment and the procedures that Holders must follow in order to
withdraw an election to tender Securities (or portions thereof) for payment.
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A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon
the occurrence of such Change of Control, if a definitive agreement is in place for the Change of
Control at the time of making of the Change of Control Offer. To the extent that the provisions of
any securities laws or regulations conflict with the Change of Control provisions of the Securities
of this series, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached the Companys obligations under the Change of Control
provisions of such Securities by virtue of such compliance.
The Company shall not be required to make a Change of Control Offer upon a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the Indenture and the Securities of this series
applicable to a Change of Control Offer made by the Company and purchases all such Securities
validly tendered and not withdrawn under such Change of Control Offer.
The Trustee shall promptly authenticate and deliver a new Security or Securities equal in
principal amount to any unpurchased portion of Securities surrendered, if any, to the Holder of
Securities of this series in global form or to each Holder of certificated Securities; provided
that each such new Security shall be in a principal amount of $1,000, or an integral multiple of
$1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Purchase Date.
The Company shall comply, to the extent applicable, with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities laws or
regulations in connection with a Change of Control Offer. To the extent that the provisions of any
applicable securities laws or regulations conflict with the provisions of this covenant (other than
the obligation to make an offer pursuant to this covenant), the Company shall comply with the
securities laws and regulations and shall not be deemed to have breached the Companys obligations
described in this Section 3 by virtue thereof.
4.
Guarantees
. The Company may not permit any of the Companys Subsidiaries to
guarantee, or become a co-obligor on, any of the Companys Debt Securities or the Debt Securities
of any other of the Companys Subsidiaries or issue any Debt Securities, unless such Subsidiaries
fully and unconditionally guarantee the Securities of this series on a senior basis;
provided
that
a Subsidiary shall not be required to guarantee the Securities of this series with respect to Debt
existing on the Issue Date, so long as (1) the existing Debt is not subsequently guaranteed by such
Subsidiary, (2) the existing Debt is not refinanced with Debt that is guaranteed by such
Subsidiary, except for Debt that is refinanced on substantially similar terms as exist on the Issue
Date, including Guarantees of such Debt, or (3) such
Subsidiary does not subsequently become a co-obligor on the existing Debt. Each Subsidiary
delivering a Guarantee of the Debt Securities shall be referred to as a Subsidiary Guarantor.
A Subsidiary Guarantors Notes Guarantee shall be automatically and unconditionally released:
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(1)
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in connection with any sale or other disposition of all or substantially all of
the Capital Stock (or the shares of any holding company of such Subsidiary Guarantor
(other than the Company)) of that Subsidiary Guarantor to a Person that is not (either
before or after giving effect to such transaction) the Company or a Subsidiary, if the
liability with respect to any Debt Securities in connection with which the Notes
Guarantee was executed, or would have been executed pursuant to this Section 4 had a
Notes Guarantee not been executed previously, is also released;
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(2)
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upon defeasance and discharge of the Debt Securities as provided under Section
403 of the Indenture; or
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(3)
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so long as no Event of Default has occurred and is continuing, such Subsidiary
Guarantor is unconditionally released and discharged from its liability with respect to
all such Debt Securities in connection with which such Notes Guarantee was executed, or
would have been executed pursuant to the preceding paragraph if such Subsidiary
Guarantor had not already executed a Notes Guarantee; or
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(4)
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upon the full and final payment and performance of all of the Companys
obligations under the Securities of this series.
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a. Restrictions on Liens
. The Company shall not, and shall not permit any Domestic Subsidiary
to, issue, assume or guarantee any Debt if the Debt is secured by any mortgage, security interest,
pledge, lien or other encumbrance (Lien) upon any Operating Property of the Company or of any
Domestic Subsidiary or upon any shares of stock or indebtedness of any Domestic Subsidiary, whether
owned at the date of the Indenture or thereafter acquired, without effectively securing the Debt
Securities equally and ratably with the Debt. This restriction does not apply to:
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(1)
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Liens on any property acquired, constructed or improved by the Company or any
Domestic Subsidiary after July 1, 1987, which are created or assumed contemporaneously
with, or within 180 days after, that acquisition or completion of that construction or
improvement (or within six months thereafter pursuant to a firm commitment for
financing arrangements entered into within the 180-day period) to secure or provide for
the payment of all or any part of the purchase price or cost thereof incurred after
July 1, 1987, or Liens existing on property at the time of its acquisition (including
acquisition through merger or consolidation);
provided
that such Liens were in
existence prior to the contemplation of such acquisition, merger or consolidation and
do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Domestic Subsidiary;
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(2)
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Liens on property of any corporation existing at the time it becomes a Domestic
Subsidiary;
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(3)
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Liens to secure Debt of a Domestic Subsidiary to the Company or to another
Domestic Subsidiary;
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(4)
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Liens in favor of governmental bodies to secure partial progress, advance or
other payments pursuant to any contract or statute or to secure Debt incurred to
finance the purchase price or cost of constructing or improving the property subject to
the Liens; or
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(5)
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Liens for extending, renewing or replacing Debt secured by any Lien referred to
in clauses (1) to (4), inclusive, above or in this clause (5) or any Lien existing on
the date that Securities of this series were first issued under the Indenture, provided
that the principal amount of the new Debt secured by the relevant Lien does not exceed
the principal amount of the Debt so secured at the time of the extension, renewal or
replacement and that the extension, renewal or replacement is limited to all or a part
of the property which secured the Lien so extended, renewed or replaced and
improvements on that property.
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This restriction does not apply to the issuance, assumption or guarantee by the Company or any
Domestic Subsidiary of Debt subject to a Lien which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with all other secured Debt of the Company
and the Companys Domestic Subsidiaries (not including secured Debt permitted under the foregoing
exceptions) and the Value of Sale and Lease-back Transactions existing at that time (other than
Sale and Lease-back Transactions the proceeds of which have been applied to the retirement of debt
securities, including the Debt Securities, or of Funded Debt or to the purchase of other Operating
Property, and other than Sale and Lease-back Transactions in which the property involved would have
been permitted to be secured with a Lien under clause (1) above), does not exceed the greater of
$200,000,000 or 10% of Consolidated Net Tangible Assets.
b. Restrictions on Sale and Lease-back Transactions
. The Company shall not, and shall not
permit any Domestic Subsidiary to, enter into any Sale and Lease-back Transaction unless the net
proceeds of the Sale and Lease-back Transactions are at least equal to the fair value (as
determined by the Board of Directors or the Companys President or any of the Companys Vice
Presidents) of the Operating Property to be leased and either:
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(1)
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the Company or the Domestic Subsidiary would be entitled to incur Debt secured
by a Lien on the property to be leased without securing the Securities of this series
or any other debt securities issued under the Indenture, pursuant to clause (1) of the
first paragraph or pursuant to the second paragraph under Section 5(a) hereof; or
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(2)
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the Value thereof would be an amount permitted under the second paragraph under
Section 5(a) hereof; or
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(3)
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the Company, within 120 days of the effective date of any such arrangement (or
in the case of (c) below, within six months thereafter pursuant to a firm purchase
commitment entered into within such 120 day period), applies an amount equal to the
fair value (as so determined) of the Operating Property:
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a)
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to the redemption or repurchase of debt securities issued under
the Indenture;
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b)
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to the payment or other retirement of the Companys Funded Debt
that ranks
pari passu
with the Securities of this series or of Funded Debt of a
Domestic Subsidiary (other than, in either case, Funded Debt owned by the
Company or a Domestic Subsidiary); or
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c)
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to the purchase of Operating Property (other than that involved
in the Sale and Lease-back Transaction).
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6.
Events of Default
. Event of Default shall mean with respect to the Securities of
this series, any of the following:
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(1)
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default in the payment of principal or premium, if any, on the Securities when
due;
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(2)
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default in the payment of any interest on any Securities when due, continued
for 30 days;
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(3)
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there shall be a default in the performance or breach of the provisions
described in Article Eight of the Indenture or Section 3 hereof;
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(4)
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default in the performance, or breach, of any of the Companys other covenants
in the Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of debt securities other than the Securities of this series),
continued for 60 days after written notice to the Company by the Trustee or the Holders
of at least 10% in principal amount of the Securities;
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(5)
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there shall be a default under any mortgage, indenture or instrument under
which there may be incurred or by which there may be secured or evidenced any Debt by
the Company or any Domestic Subsidiary whether such Debt now exists, or is created
after the Issue Date, if that default:
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is caused by a failure to make any payment when due at the final maturity of
such Debt (a Payment Default); or
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results in the acceleration of such Debt prior to its express maturity, and,
in each case, the amount of any such Debt, together with the amount of any
other such Debt under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $100.0 million or more;
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(6)
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failure by the Company or any of the Companys Domestic Subsidiaries to pay
final judgments (to the extent such judgments are not paid or covered by insurance
provided by a reputable carrier that has the ability to perform and has acknowledged
coverage in writing) aggregating in excess of $100.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days;
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(7)
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any Notes Guarantee shall for any reason cease to be, or shall for any reason
be asserted in writing by any Subsidiary Guarantor not to be, in full force and effect
and enforceable in accordance with its terms, except to the extent contemplated by the
Indenture and any such Notes Guarantee;
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(8)
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a court having jurisdiction in the premises enters a decree or order for:
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relief in respect of the Company, any Guarantor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect;
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appointment of a receiver, liquidator, assignee, custodian, Trustee,
sequestrator or similar official of the Company or any Significant Subsidiary
or for all or
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substantially all of the property and assets of the Company, any Guarantor
or any Significant Subsidiary; or
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the winding up or liquidation of the affairs of the Company, or any of its
Significant Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days;
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(9)
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The Company, any Guarantor or any of its Significant Subsidiary:
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commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law;
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consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, Trustee, sequestrator or similar official of
the Company or any of its Significant Subsidiary or for all or substantially
all of the property and assets of the Company or any of its Significant
Subsidiary; or
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effects any general assignment for the benefit of creditors.
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If an Event of Default described in clauses (1) through (7) of the prior paragraph with
respect to the Securities of this series occurs and is continuing, either the Trustee or the
Holders of at least 25% in principal amount of the Securities of this series, by notice to the
Company, may declare the principal of all of such Securities to be due and payable immediately and
upon such declaration the principal amount shall become immediately due and payable. If an Event
of Default described in clauses (8) or (9) of the prior paragraph occurs and is continuing, then
all the Securities of this series shall ipso facto become and be due and payable immediately in an
amount equal to the principal amount of the Securities, together with accrued and unpaid interest
to the date the Securities of this series become due and payable, without any declaration or other
act on the part of the Trustee or any Holder. However, at any time after a declaration of
acceleration with respect to the Securities of this series has been made, but before a judgment or
decree based on the acceleration has been obtained, the holders of a majority in principal amount
of the Securities of this series may, under certain circumstances, rescind and annul such
acceleration.
If an Event of Default with respect to the Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
7.
Defeasance
. The Indenture contains provisions for defeasance at any time of the
Companys obligations in respect of (i) the entire indebtedness of this Security or (ii) certain
restrictive covenants with respect to this Security, in each case upon compliance with certain
conditions set forth therein.
8.
Amendments
. The Company and the Trustee may modify and amend the Indenture with respect
to the Securities of this series with the consent of the holders of a majority in principal amount
of the Debt Securities. However, without the consent of each affected Holder, no modification or
amendment may:
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change the Stated Maturity of the principal, or any installment of principal or
interest, on the Securities or alter the provisions with respect to the redemption of
the Debt Securities;
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reduce the principal, premium, if any, or any interest rate on the Securities of
this series;
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change the Companys obligation to maintain an office or agency in the places and
for the purposes specified in the Indenture or the currency of payment of principal or
interest on the Securities of this series;
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impair the right to institute suit to enforce any payment after the Stated Maturity
or redemption date;
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reduce the percentage of the principal amount of Securities of this series required
to approve any modification or amendment of the Indenture;
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reduce the percentage of the principal amount of debt securities required to approve
any waiver of compliance with provisions of the Indenture or the Securities of this
series or waiver of defaults;
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impair the right to institute suit for the enforcement of any payment on or with
respect to the Securities of this series;
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amend, change or modify the Companys obligation to make and consummate a Change of
Control Offer in the event of a Change of Control in accordance with Section 3 hereof
including, in each case, amending, changing or modifying any definition relating
thereto;
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except as otherwise permitted under Article Eight of the Indenture consent to the
assignment or transfer by the Company of any of the Companys rights or obligations
under the Indenture;
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modify any of the provisions of this Section 8, Section 513 or Section 1013 of the
Indenture, except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of the
Holders of each Securities affected hereby; provided however that this clause shall not
be deemed to require the consent of any Holder with respect to changes in this Section
8 and Section 1013 of the Indenture, or the deletion of this proviso, in accordance
with the requirements of Sections 611(b) and 901(8) of the Indenture.
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The Company and the Trustee may, without the consent of any Holders of the Securities of this
series, modify the Indenture with respect to such Securities to, among other things:
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evidence the succession of another Person as obligor under the Indenture and the
Securities of this series;
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add to the Companys covenants under the Indenture or add additional Events of
Default;
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change or eliminate any provision of the Indenture, provided that the change or
elimination becomes effective only when there is no outstanding note which is entitled
to the benefit of that provision;
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secure the Debt Securities pursuant to the requirement described above under Section
5(a) hereof;
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establish the form or terms of a series of debt securities; or
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cure any ambiguity, correct or supplement any provision which may be inconsistent,
or make any other provision as to matters or questions under the Indenture, provided
that action does not adversely affect the interests of Holders of the Securities of
this series in any material respect.
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The Holders of a majority in principal amount of the Securities of this series may, on behalf
of the holders of all such Securities, waive, insofar as that series is concerned, the Companys
compliance with covenants set forth in Section 5 hereof and in Sections 1004 to 1008 of the
Indenture.
The holders of a majority in principal amount of the outstanding Securities of this series
may, on behalf of the Holders of all such Securities, waive any past default under the Indenture
with respect to the Securities of this series. However, they may not waive a default in the
payment of principal, premium, if any, or interest on any note or in respect of a provision which
under the Indenture cannot be modified or amended without the consent of the Holder of each
outstanding Security of this series.
9.
Definitions
.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any particular person (as
that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to have
beneficial ownership of all securities that such person has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition. The terms Beneficially Owns and Beneficially
Owned will have a corresponding meaning.
Board of Directors means, either the Companys board of directors or the Companys duly
authorized executive committee of that board and with respect to any other Person, the board or
committee of such Person serving a similar function.
Business Day means, with respect to the Securities of this series, each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
Capital Stock means:
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(1)
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in the case of a corporation, corporate stock;
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(2)
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in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
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(3)
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in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
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(4)
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any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
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Change of Control means the occurrence of any of the following:
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(1)
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the direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation) substantially as an entirety, in one or a
series of related transactions, of the properties or assets of the Company and the
Companys Subsidiaries, taken as a whole, to any person (as that term is used in
Section 13(d)(3) of the Exchange Act);
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(2)
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the adoption of a plan relating to the Companys liquidation or dissolution;
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(3)
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any person or group (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of 40% or more
of the voting power of the Companys Voting Stock;
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(4)
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the first day on which a majority of the members of the Companys Board of
Directors are not Continuing Directors; or
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(5)
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the Company consolidates with, or merge with or into, any Person, or any Person
consolidates with, or merges with or into the Company, in any such event pursuant to a
transaction in which any of the Companys outstanding Voting Stock or the outstanding
Voting Stock of such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where (A) the Companys Voting Stock
outstanding immediately prior to such transaction is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such issuance) and
(B) immediately after such transaction, no person or group (as such terms are used
in Section 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the
Beneficial Owner of 40% or more of the voting power of the Voting Stock of the
surviving or transferee Person.
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Comparable Treasury Issue means the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term (Remaining Life) of the
Securities of this Series 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 Life.
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.
Consolidated Net Tangible Assets means the total of all the assets appearing on the consolidated
balance sheet of the Company and the Companys Subsidiaries less the following:
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(1)
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current liabilities, including liabilities for indebtedness maturing more than
12 months from the date of original creation thereof but maturing within 12 months from
the date of determination;
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(2)
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reserves for depreciation and other asset valuation reserves;
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(3)
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intangible assets including, without limitation, such items as goodwill,
trademarks, trade names, patents and unamortized debt discount and expense carried as
an asset on the balance sheet; and
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(4)
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appropriate adjustments on account of minority interests of other Persons
holding stock in any Subsidiary.
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Consolidated Net Tangible Assets shall be determined in accordance with generally accepted
accounting principales and practices applicable to the type of business in which the Company
and its Subsidiaries are engaged and which are approved by the independent accountants
regularly retained by the Company, and may be determined as of a date not more than 60 days
prior to the happening of the event for which such determination is being made.
Continuing Directors means, as of any date of determination, any member of the Companys Board of
Directors who:
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(1)
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was a member of the Board of Directors on the Issue Date; or
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(2)
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was nominated for election or elected to the Board of Directors with the
approval of a majority of the Continuing Directors who were members of the Board of
Directors at the time of such nomination or election.
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Debt means all indebtedness for money borrowed.
Debt Securities means any Debt (including any Guarantee) issued in the form of a security in
connection with a public offering, in a private placement pursuant to Rule 144A, Regulation S or
otherwise under the Securities Act or sold on an agency basis by a broker-dealer or one of its
affiliates and traded or able to be traded on a public or private basis; provided that Debt
Securities shall not mean any industrial revenue bonds.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible, or for which it is exchangeable, in each case at the option of the
holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is one year after the date on which the notes
mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the covenant described above under [the caption Certain
CovenantsRestricted Payments.] The term Disqualified Stock will also include any options,
warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the
option of the holder, or required to be redeemed, prior to the date that is one year after the date
on which the notes mature.
Domestic Subsidiary means any Subsidiary which owns an Operating Property.
Funded Debt means any Debt which by its terms matures at or is extendible or renewable at the
sole option of the obligor without requiring the consent of the obligee to a date more than 12
months after the date of the creation of such Debt.
Government Obligations means securities of the government which issued the currency in which the
notes are denominated or in which interest is payable or of government agencies backed by the full
faith and credit of that government.
Guarantee means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Debt of another Person.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Issue Date means the date of original issuance of the Securities of this series under the
Indenture.
Notes Guarantee means the Guarantee of the Securities of this series by a Subsidiary.
Operating Property means any manufacturing or processing plant, office facility, retail store,
warehouse, distribution center or equipment located within the United States of America or its
territories or possessions and owned and operated now or hereafter by the Company or any Domestic
Subsidiary and having a book value on the date as of which the determination is being made of more
than 0.65% of Consolidated Net Tangible Assets.
Person means any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or political subdivision
thereof.
Reference Treasury Dealer means each of Credit Suisse Securities (USA) LLC, Banc of America
Securities Inc., Citigroup Global Markets Inc. and RBS Securities Inc. and their respective
successors and one other nationally recognized investment banking firm that is a primary U.S.
Government securities dealer in the United States (a Primary Treasury Dealer) which the Company
specifies from time to time, except that if any of the foregoing ceases to be a Primary Treasury
Dealer, the Company is required to designate as a substitute another nationally recognized
investment banking firm that is a 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 as of 5:00 p.m., in the City of New
York, on the third business day preceding such Redemption Date.
Sale and Lease-back Transaction means any arrangement with any Person providing for the leasing
to the Company or any Domestic Subsidiary of any Operating Property (except for temporary leases
for a term, including any renewal thereof, of not more than 36 months and except for leases between
the Company and a Domestic Subsidiary or between Domestic Subsidiaries), which Operating Property
has been or is to be sold or transferred by the Company or such Domestic Subsidiary to that Person.
Significant Subsidiary means any Subsidiary that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X of the Securities Act; provided, however, that 5%
will be substituted for 10% in each place that it appears in such definition.
Stated Maturity, when used with respect to the notes and any payment of principal thereof or
interest thereon, means the date specified in such note as the fixed date on which the principal of
such note or interest payment is due and payable.
Subsidiary means a corporation more than 50% of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries.
Treasury Rate means, with respect to any Redemption Date, the rate per year equal to: (1) 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; provided that, if no maturity is within three months before or after the
Remaining Life of the Securities to be redeemed, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate
shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the
nearest month; or (2) 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 year equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using 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. The Treasury Rate shall be calculated on the
third business day preceding the Redemption Date.
Value means, with respect to a Sale and Lease-back Transaction, as of any particular time, the
amount equal to the greater of (1) the net proceeds from the sale or transfer of the property
leased pursuant to that Sale and Lease-back Transaction or (2) the fair value in the opinion of the
Companys Board of Directors or the Companys President or any of the Companys Vice Presidents of
that property at the time of entering into the Sale and Lease-back Transaction, in either case
multiplied by a fraction, the numerator of which shall be equal to the number of full years of the
term of the lease which is part of the Sale and Lease-back Transaction remaining at the time of
determination and the denominator of which shall be equal to the number of full years of such term,
without regard to any renewal or extension options contained in the lease.
Voting Stock means stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power by reason of any
contingency.
10.
Miscellaneous
.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations (including, if this Security
is a Global Security, the limitations set forth on the first page hereof) therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by, the Holder hereof or such
Holders attorney duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
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 Person in whose name this
Security is registered as the owner hereof 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.
This Security shall be governed by and construed in accordance with the laws of the State of
New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall be construed as though
they were written out in full according to applicable laws or regulations:
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TEN COM as tenants in common
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TEN ENT as tenants by the entireties
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JT TEN as joint tenants with right of survivorship and not as tenants in common
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UNIF GIFT MIN ACT
Custodian
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(Cust)
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(Minor)
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under the Uniform Gifts
to Minors Act
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(State)
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Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder(s) 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)
the within Security and all rights thereunder, and hereby irrevocably constitute(s) and appoint(s)
attorney to transfer said Security on the books of the Company, with full power of substitution in
the premises.
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Dated:
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Signature Guaranteed:
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NOTICE: The signature(s) to this assignment must correspond with the name(s) as written upon
the within instrument in every particular, without alteration or enlargement or any change
whatever. The signature(s) must be guaranteed by an eligible guarantor institution with membership
in an approved signature guarantee medallion program pursuant to Commission Rule 17Ad-15.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 3 of
the Security, check the box below:
o
Section 3
If you want to elect to have only part of the Security purchased by the Company pursuant to
Section 3 of the Security, state the amount you elect to have purchased: $
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Date:
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Your Signature:
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(Sign exactly as your name appears on the Security)
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Signature Guarantee:
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Tax Identification No:
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