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EXHIBIT 4(i).6
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SAFEWAY INC.,
ISSUER
AND
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
_________________
SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 4, 1997
_________________
Supplemental to the Indenture
dated as of February 1, 1992
relating to the Issuer's
9.30% Senior Secured Debentures due 2007
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SUPPLEMENTAL INDENTURE, dated as of September 4, 1997, between
SAFEWAY INC., a Delaware corporation (hereinafter called the "Company"), as
issuer, and THE FIRST NATIONAL BANK OF CHICAGO, as trustee (hereinafter called
the "Trustee"), under the Indenture, dated as of February 1, 1992, between the
Company and the Trustee, as amended and supplemented to the date hereof (the
"Indenture").
RECITALS OF THE COMPANY
The Company has implemented a refinancing plan designed to
reduce its interest expense, extend the maturities of the Company's outstanding
long-term debt and enhance its operating and financial flexibility.
As part of the refinancing plan, the Company is making cash
tender offers (each of the offers is referred to herein individually, as an
"Offer" and, collectively, as the "Offers") to purchase certain debt securities
of the Company (the "Debt Securities"), including the Company's 9.30% Senior
Secured Debentures due 2007 (the "Securities"), which were issued under the
Indenture.
The Company also is soliciting consents from Holders of the
Securities to amendments to the Indenture (the "Amendments") and to each
indenture under which each other series of Debt Securities was issued (all as
described in the Company's Offer to Purchase and Consent Solicitation Statement
dated August 4, 1997 (the "Statement")).
In accordance with Section 9.2 of the Indenture, the Holders
of not less than a majority of the principal amount of the outstanding
Securities have consented to such Amendments.
The Board of Directors of the Company has duly authorized the
execution and delivery of this Supplemental Indenture. In addition, the Company
has delivered an Opinion of Counsel to the Trustee pursuant to Section 9.5 of
the Indenture and has done all other things necessary to make this Supplemental
Indenture a valid agreement of the Company in accordance with the terms hereof
and of the Indenture.
This Supplemental Indenture is effective as of the date upon
which the conditions set forth in Section 1.9 hereof are satisfied and the
Amendments effected by this Supplemental Indenture will become operative on the
date the Securities are accepted for payment by the Company pursuant to the
Offer therefor.
WHEREFORE, each party agrees as follows for the benefit of the
other party and for the equal or ratable benefit of the Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS.
For all purposes of the Indenture and this Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to the Indenture and this Supplemental
Indenture as a whole and not to any particular Article, Section or subdivision;
and
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(b) capitalized terms used but not defined herein shall
have the meanings assigned to them in the Indenture.
1.2 GOVERNING LAW.
This Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York.
1.3 SUCCESSORS.
All agreements of the Company in this Supplemental Indenture
shall bind its successors. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
1.4 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
1.5 SEPARABILITY.
In case any provision in this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
1.6 HEADINGS, ETC.
The Article and Section headings of this Supplemental
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms and provisions hereof. Except as expressly provided herein and
notwithstanding the elimination of certain Sections of the Indenture as set
forth in Article Two hereof, all references to Sections in the Indenture shall
remain unchanged.
1.7 BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture.
1.8 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
accuracy of this Supplemental Indenture.
1.9 EFFECTIVENESS.
This Supplemental Indenture shall take effect on the date (the
"Effective Date") that each of the following conditions shall have been
satisfied or waived:
(a) each of the parties hereto shall have executed and
delivered this Supplemental Indenture; and
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(b) the Trustee shall have received an opinion of Xxxxxx
& Xxxxxxx, Counsel to the Company, dated the Effective Date, pursuant to
Section 9.5 of the Indenture;
provided, however, that the Amendments set forth in Article Two hereof shall
take effect only upon and simultaneously with, and shall have no force and
effect prior to, the acceptance for purchase and payment of the Securities
tendered pursuant to the Offer therefor.
ARTICLE II
THE AMENDMENTS
2.1 AMENDMENTS.
The Indenture is hereby amended as follows:
(1) Section 3.9 of the Indenture is hereby eliminated in
its entirety and replaced with the words: "SECTION 3.9 [Intentionally
omitted]."
(2) Section 3.10 of the Indenture is hereby eliminated in
its entirety and replaced with the words: "SECTION 3.10 [Intentionally
omitted]."
(3) Section 3.11 of the Indenture is hereby eliminated in
its entirety and replaced with the words: "SECTION 3.11 [Intentionally
omitted]."
(4) Section 3.13 of the Indenture is hereby eliminated in
its entirety and replaced with the words: "SECTION 3.13 [Intentionally
omitted]."
(5) Section 5.1 of the Indenture is hereby amended to
state, in its entirety, the following:
SECTION 5.1. Events of Default. The following events are
hereby defined for all purposes of this Indenture (except where the term is
otherwise defined for specific purposes) as "defaults":
(a) Failure to pay the principal of any Security, when
and as the same shall become due and payable, whether at Stated Maturity
thereof, by call for redemption, offer to repurchase or otherwise; or
(b) Failure to pay any installment of interest on any
Security, when and as the same shall become payable as therein expressed, and
such failure shall continue for a period of 30 days (it being understood that
if the entire amount of such payment of interest is deposited by the Company
with the Trustee, or with another Paying Agent duly appointed hereunder, before
the expiration of such period of 30 days, such default shall no longer be
considered to be continuing under this Indenture); or
(c) Failure to perform or observe any other of the
covenants, conditions or agreements on the part of the Company in this
Indenture, the Securities or the Deed of Trust (in each case other than a
covenant, condition or agreement a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with), or in the Environmental
Indemnity Agreement, and such failure shall continue for a period of 60 days
after written notice to the Company from the Trustee or to the Company and to
the Trustee from the Holders of not less than a majority of the principal
amount of the Securities then outstanding; or
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(d) [Intentionally omitted].
(e) If the Company shall file a petition commencing a
voluntary case under any chapter of the Federal bankruptcy laws or any similar
state law for the relief of debtors; or the Company shall file a petition or
answer or consent seeking reorganization, arrangement, adjustment, or
composition under any other similar applicable law, or shall consent to the
filing of any such petition, answer, or consent; or the Company shall appoint,
or consent to the appointment of, a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or insolvency of
it or of any substantial part of its property; or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
(f) If any order for relief against the Company shall
have been entered by a court having jurisdiction in the premises under any
chapter of the Federal bankruptcy laws or any similar state law for the relief
of debtors, and such order shall have continued undischarged or unstayed for a
period of 120 days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of the Company under
any other similar applicable law, and such decree or order shall have continued
undischarged or unstayed for a period of 120 days; or a decree or order of a
court having jurisdiction in the premises for the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator, or other similar
official in bankruptcy or insolvency of the Company or of any substantial part
of its property, or for the winding up or liquidation of its affairs, shall
have been entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 120 days.
If one or more defaults shall happen and be continuing, then,
and in each and every such case, either the Trustee, by notice in writing to
the Company and to the agent under the Bank Credit Agreement (the "Credit
Agent"), or the Holders of not less than a majority of the principal amount of
the Securities then outstanding, by notice in writing to the Company, the
Trustee and the Credit Agent, may declare due and payable, if not already due
and payable, the principal of plus any accrued interest on the Securities; and
upon any such declaration all such amounts upon the Securities shall become and
be immediately due and payable upon the first to occur of an acceleration under
the Bank Credit Agreement or five Business Days after receipt by the Company
and the Credit Agent of such written notice given hereunder (if upon such first
occurrence such default or defaults shall be continuing), anything in this
Indenture, the Deed of Trust or the Securities contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of and accrued interest on the Securities shall
have been declared due and payable, and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, all arrears of interest upon all such Securities and the
expenses of the Trustee, the Deed of Trust Trustee and their respective agents
or attorneys shall be paid by or for the account of the Company, and all
defaults as aforesaid (other than the payment of principal which has been so
declared due and payable) shall have been made good or secured to the
satisfaction of the Trustee and provision deemed by the Trustee to be adequate
shall be made therefor, then and in every such case the Trustee shall, upon the
written request of the Holders of a majority in principal amount of the
Securities then outstanding, delivered to the Company and to the Trustee, waive
such default and its consequences and rescind or annul such declaration; but no
such waiver shall extend to or affect any subsequent default, or impair any
right consequent thereon.
Notwithstanding the foregoing, to the extent the Company shall
have been relieved of any of its obligations under this Indenture pursuant to
Section 11.4 hereof, the failure of the Company to perform any such obligations
as to which it has been relieved shall not constitute a default as contemplated
by this Indenture.
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(6) Section 7.1 of the Indenture is hereby amended to
state, in its entirety, the following:
SECTION 7.1. Company May Merge, Etc. Only on Certain Terms.
The Company may not consolidate with or merge with or into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the "Surviving Person") shall (i) be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, (ii) expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the principal
of and interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed and (iii)
expressly assume, by written instruments executed and delivered to the Trustee,
in form satisfactory to the Trustee, all covenants, agreements and obligations
of the Company under the Deed of Trust and the Environmental Indemnity
Agreement;
(2) immediately after giving effect to such transaction
and treating any Indebtedness which becomes an obligation of the Surviving
Person, the Company or any Subsidiary as a result of such transaction as having
been incurred by the Surviving Person, the Company, or such Subsidiary at the
time of such transaction, no default or event which, with giving of notice or
lapse of time or both, would be a default shall have occurred and be
continuing;
(3) [Intentionally omitted].
(4) the Company has previously given the Trustee not less
than 10 days' prior written notice of such transaction and has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture and written instruments are required in connection with
such transaction, such supplemental indenture and written instruments shall
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
ARTICLE III
ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
3.1 NOTICE TO SECURITYHOLDERS.
After the Amendments become effective, the Company shall mail
to Holders a notice briefly describing such Amendments.
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3.2 NOTATION ON SECURITIES.
(a) Securities authenticated and delivered after the
effectiveness of this Supplemental Indenture shall bear the following notation:
"The Company and the Trustee have entered into a
Supplemental Indenture, dated as of September 4, 1997, which
(i) eliminated certain restrictive covenants contained in
Article III of the Indenture; (ii) amended certain provisions
with respect to defaults and remedies contained in Article V
of the Indenture and (iii) amended certain provisions
contained in Article VII of the Indenture. Reference is hereby
made to such Supplemental Indenture, copies of which are on
file with The First National Bank of Chicago, Trustee."
The Trustee may require holders of Securities authenticated
and delivered prior to the effectiveness of this Supplemental Indenture to
deliver such Securities to the Trustee so that the Trustee may place the
aforementioned notation on such Securities.
(b) If the Company or the Trustee so determines, the
Company, in exchange for the Securities, shall issue and the Trustee shall
authenticate new securities that reflect the changed terms.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first written
above.
SAFEWAY INC.,
Issuer
By:_______________________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President - Finance and
Public Affairs
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By:_______________________________________________
Name:
Title:
