AUTHORIZING RESOLUTIONS
Relating to
$200,000,000 Aggregate Principal Amount of
9 3/8% Senior Quarterly Interest Bonds Due 2039
of
The Great Atlantic & Pacific Tea Company, Inc.
---------------
Approved by the
Pricing Committee of the
Board of Directors
---------------
August 4, 1999
Authorizing Resolutions
Resolutions Adopted by the Pricing Committee
of the Board of Directors of
The Great Atlantic & Pacific Tea Company, Inc.
On August 4, 1999
Relating to
$200,000,000 Aggregate Principal Amount of
9 3/8% Senior Quarterly Interest Bonds Due 2039
-------------------------
WHEREAS, pursuant to resolutions adopted by the Board of Directors of
The Great Atlantic & Pacific Tea Company, Inc. (the "Company") on June 2, 1999,
the Company has determined to issue securities covered by the Registration
Statements on Form S-3 (Nos. 333-36255 and 333-80347), as amended, having a
maximum offering price of $500,000,000 (the "Securities"), which may include
Securities issued under and in accordance with an Indenture (as defined below)
related thereto; and
WHEREAS, Christian Haub, Fred Corrado, William Liffers and R.L. "Sam"
Wetzel have been appointed to a Pricing Committee of the Board of Directors of
the Company, pursuant to resolutions adopted by said Board of Directors on June
2, 1999, which resolutions are in full force and effect on this date; and
WHEREAS, pursuant to said resolutions, this Pricing Committee is
authorized to exercise the full powers of the Board of Directors in connection
with the issuance by the Company of the Securities for aggregate gross proceeds
not to exceed $500,000,000.
NOW, THEREFORE, it hereby is:
RESOLVED, that the form of Prospectus Supplement, dated August
4, 1999, relating to the Bonds (as defined below) which has been presented to
this meeting be, and it hereby is, approved, ratified and confirmed in all
respects, and that the Company be, and it hereby is, authorized to use such
Prospectus Supplement in connection with the offering and sale of the Bonds, in
substantially such form or in such other forms as shall be approved by this
Pricing Committee; and
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RESOLVED FURTHER, pursuant to the Indenture dated as of January 1,
1991 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), that the Company shall (i) at this time issue an
aggregate of $175,000,000 of Securities and (ii) if and at the time the
Representatives (as defined below) exercise the Option (as defined in the
Underwriting Agreement (as defined below)), issue up to an additional
$25,000,000 of Securities, in each case under the Indenture, and, pursuant to
Section 301 of the Indenture, it is hereby determined that the Securities so
issued shall have the following terms:
(a) The title of the Bonds shall be 9 3/8% Senior Quarterly Interest
Bonds Due 2039;
(b) The maximum aggregate principal amount of the Bonds which shall be
authenticated and delivered under the Indenture at this time shall be
$175,000,000; and the maximum aggregate principal amount of the Bonds which
shall be authenticated and delivered under the Indenture if and at the time the
Representatives exercise the Option shall be $25,000,000;
(c) The Bonds shall mature and the unpaid principal thereon shall be
payable on August 1, 2039;
(d) The rate per annum at which interest shall be payable on the Bonds
is hereby fixed at 9.375%; interest on the Bonds shall accrue beginning August
11, 1999; interest shall be payable on the Bonds on February 1, May 1, August 1
and November 1 of each year beginning November 1, 1999; and the Regular Record
Date for the payment of such interest shall be the close of business on the date
fifteen days prior to each Interest Payment Date, and otherwise as provided in
the Indenture;
(e) Principal, premium, if any, and interest on the Bonds shall be
payable in accordance with the requirements of the Depository (as defined below)
with respect to any global security representing the Bonds, and otherwise at the
offices of the Paying Agent maintained for such purpose or as provided in
Section 1001 of the Indenture;
(f) The Bonds shall be redeemable as provided in the form of the Bonds
attached hereto as Exhibit I.
(g) The Bonds will be unsecured and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company. The Bonds will
be issued in fully registered book-entry form in minimum denominations of $25
and integral
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multiples of $25 in excess thereof. A global security representing the Bonds
will be registered in the name of a nominee of The Depository Trust Company (the
"Depository") which will act as depository. Beneficial interests in the Bonds
will be shown on, and transfers thereof will be effected only through, records
maintained by the Depository and its participants.
(h) The purchase price for the Bonds to be paid to the Company by the
representatives of the underwriters of the Bonds, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated, and EVEREN Securities, Inc. (together, the
"Representatives"), pursuant to the Underwriting Agreement (the "Underwriting
Agreement"), dated August 4, 1999 among the Company and the Representatives
relating thereto hereinafter referred to, shall be 3.15% of the principal amount
of the Bonds plus accrued interest, from August 11, 1999; and
(i) The initial price to the public of the Bonds shall be 100% of the
principal amount of the Bonds plus accrued interest from August 11, 1999; and
RESOLVED FURTHER, that the proceeds of the sale of the Bonds shall be
applied toward the reduction of indebtedness of the Company or one or more of
its subsidiaries as the proper officers of the Company shall determine,
including, without limitation, indebtedness of The Great Atlantic & Pacific
Company of Canada, Limited or The Great Atlantic & Pacific Tea Company, Limited
(collectively, the "Canadian Subsidiaries"), and in connection with such debt
repayment, to the extent necessary or desirable, such proceeds may be
contributed to such subsidiaries, including the Canadian Subsidiaries, to
effectuate such reduction or repayment of indebtedness; and
RESOLVED FURTHER, that the Bonds shall be distributed pursuant to the
Underwriting Agreement, the form of which Underwriting Agreement has been
presented to this meeting, and a copy of which shall be filed with these
resolutions in the records of the Company; and
RESOLVED FURTHER, that the form of the Bonds, attached hereto as
Exhibit I, and the Underwriting Agreement, in the form referred to above, be,
and they hereby are, approved, ratified and confirmed in all respects, and that
the Chairman of the Board, President, or any Vice President be, and they hereby
are, authorized and directed to execute and deliver the form of the Bonds and
the Underwriting Agreement in such forms, subject to such changes, insertions
and corrections therein as
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shall be approved by the officer executing the same (which approval shall be
conclusively evidenced by his execution and delivery of the Underwriting
Agreement in such form), whereupon the same shall be the valid and binding
obligation of the Company in accordance with its terms; and
RESOLVED FURTHER, that the form of Letter of Representations as issued
by the Company and the Trustee to the Depository Trust Company to effectuate the
issuance of the Bonds, substantially in the form presented to this meeting and
registered in the name of a nominee of Depository (the "Book-Entry System") be,
and it hereby is, approved, ratified, and confirmed in all respects; and
RESOLVED FURTHER, that the form, terms and provisions relating to the
Bonds be established pursuant to Section 301 of the Indenture, and the form of
Bonds relating thereto to be established pursuant to Section 201 of the
Indenture, submitted to this meeting, completed in accordance with the foregoing
resolutions and with such changes therein, additions thereto and deletions
therefrom as the officers executing the same shall approve, the approval of such
officers to be conclusively evidenced by their execution and delivery thereof,
be, and they hereby are, approved; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President, and the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company be, and each of them hereby is, authorized in
the name and on behalf of the Company to execute, seal, acknowledge and deliver,
in such number of counterparts as the officers so acting deem advisable, an
Officers' Certificate pursuant to Section 301 of the Indenture relating to the
Bonds in substantially the form presented to this meeting, completed in
accordance with the foregoing resolutions and with such changes therein,
additions thereto and deletions therefrom as the officers executing the same
shall approve, the approval of such officers to be conclusively evidenced by
their execution and delivery thereof; and
RESOLVED FURTHER, that The Chase Manhattan Bank be, and it hereby is,
designated and appointed Paying Agent with respect to the Bonds at its
Corporation Trust Office in the Borough of Manhattan, The City of New York
pursuant to Section 1002 of the Indenture; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President of the Company be, and each of them hereby is, authorized in the name
and on behalf of the Company to exe-
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cute and deliver under the corporate seal attested to by the Treasurer or
Secretary of this Company or one of its Assistant Treasurers or Assistant
Secretaries the Bonds as authorized above in substantially such form, completed
in accordance with the foregoing resolutions and with such changes therein,
additions thereto and deletions therefrom as the officers executing the same
shall approve, the approval of such officers to be conclusively evidenced by
their execution and delivery thereof; and
RESOLVED FURTHER, that the form of Form 8-K, Form 8-A and New York
Stock Exchange Listing Application, each relating to the Bonds and as presented
to this meeting, be, and hereby are, approved, ratified, and confirmed in all
respects, and that the appropriate officers of the Company be, and each of them
hereby is, authorized, on behalf of the Company and in its name, to sign as
required and cause to be filed with the Securities and Exchange Commission a
Form 8-K (and any amendments) and Form 8-A (and any amendments) and with the New
York Stock Exchange a Listing Application (and any amendments), in each case
relating to the Bonds and substantially in the form presented to this meeting,
and cause to be paid any filing fees related thereto; and
RESOLVED FURTHER, that the Chairman, the President or any Vice
President of the Company be, and each of them hereby is, authorized, on behalf
of the Company and in its name, to sign as required and cause to be filed with
the Securities and Exchange Commission the Registration Statement and any and
all amendments (including, without limitation, post-effective amendments) to the
Registration Statement, any prospectus supplements, including without limitation
a prospectus supplement describing the terms and provisions of the Bonds and the
offer and sale thereof, and any additional documents which any such officer may
deem necessary or desirable, such amendments and such documents to be in such
forms as the officer executing or filing the same shall approve, such approval
to be conclusively evidenced by his execution or filing thereof; and
RESOLVED FURTHER, that each of the officers and members of this
Pricing Committee of the Company referred to above, and other appropriate
officers of the Company, are authorized and directed to execute and deliver such
further documents, agreements and certificates on behalf of the Company, and to
take such further actions on behalf of the Company, as any such officer or
member of this Pricing Committee shall deem appropriate or advisable in order to
implement the issuance and sale of the Bonds as contemplated by these
resolutions, each of which shall be the valid and binding act and obligation of
the Company.
Exhibit I
[Face of Security]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE (i) BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR (ii)
BY A NOMINEE OF THE DEPOSITORY OR THE DEPOSITORY TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) 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 SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (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.
No. CUSIP: 390064202
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
9 3/8% Senior Quarterly Interest Bonds Due 2039
Principal Amount: Interest Rate: Interest Payment Dates:
$ 9.375% February 1, May 1,
August 1 and November 1,
commencing November 1, 1999
Original Issue Date: Maturity Date: Regular Record Dates:
August 11, 1999 August 1, 2039 Close of business fifteen
days prior to each
Interest Payment Date
Interest Accrual Date: Redeemable: Denominations: $25 and
August 11, 1999 Yes X No multiple integrals of $25
--- ---
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The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation
(herein called the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal amount of
DOLLARS on the Maturity Date specified above, and to pay interest thereon at the
Interest Rate specified on the face hereof, as described herein.
Payment of principal, and premium, if any, and interest on this Bond
at the Maturity Date will be made, upon presentation of this Bond, in next day
funds, at the Corporate Trust Office of the Trustee, or its successors, or at
such other office or agency of the Company as may be maintained for that purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of principal, and premium, if any, and interest may be made
(subject to collection) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or may be made, at
the option of the Company or if otherwise required by any Depository, by wire
transfer of immediately available funds.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Bond shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: , 1999 THE GREAT ATLANTIC & PACIFIC
TEA COMPANY INC.
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
`` [Corporate Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________________
Authorized Officer
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[Reverse of Security]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
9 3/8% Senior Quarterly Interest Bonds Due 2039
This Bond is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture, dated as of
January 1, 1991 (such Indenture as originally executed and delivered and as
thereafter supplemented or amended being herein called the "Indenture"), between
the company and The Chase Manhattan Bank, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights 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. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may be denominated in different currencies, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different sinking
or analogous funds (if any), may be subject to different covenants and Events of
Default and may otherwise vary as provided in the Indenture. This Bond is one of
the series designated on the face hereof (herein called the "Bonds").
This Bond will bear interest from and including the date of issue or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for at the fixed rate per annum specified on the face
hereof. Interest will be payable to the Person in whose name this Bond is
registered at the close of business on the record date next preceding each
Interest Payment Date; provided, however, that interest payable at the Maturity
Date will be payable to the Person whom principal shall be payable. The record
dates with respect to this Bond shall be the dates fifteen days prior to each
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Bonds are not subject to repayment at the option of the Holder
prior to the Maturity Date. The Bonds are sub-
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ject to redemption upon not less than 30 nor more than 60 days' notice at any
time on or after August 11, 2004, as a whole or from time to time in part, at
the election of the Company, at a redemption price equal to 100% of the
principal amount redeemed plus accrued and unpaid interest to the date of
redemption.
If as a result of: (A) any actual or proposed change in or amendment
to the laws (or any regulations or rulings promulgated thereunder) of the United
States, or any change in the application, official interpretation or enforcement
of such laws, regulations or rulings; (B) any action taken by a taxing
authority, which action is generally applied or is taken with respect to the
Company; (C) a decision rendered by a court of competent jurisdiction in the
United States, whether or not such decision was rendered with respect to the
Company; or (D) a technical advice memorandum or letter ruling or other
administrative pronouncement issued by the National Office of the United States
Internal Revenue Service, on substantially the same facts as those pertaining to
the Company; which change, amendment, action, decision, memorandum, letter
ruling or pronouncement becomes effective or is issued on or after the issue
date of the Bonds, there is a substantial likelihood that the Company will not
be entitled to deduct currently for United States federal income tax purposes
the full amount of interest accrued in respect of the Bonds, the Company at its
option may redeem the Bonds in whole, but not in part, at any time at a
redemption price equal to 100% of the principal amount of the Bonds, together
with interest accrued and unpaid to the date fixed for redemption. Notice of
such redemption of the Bonds will be given to the Holders thereof not more than
60 nor fewer than 30 days prior to the date fixed for redemption.
In the event of redemption of this Bond in part only, a new Bond or
Bonds of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture permits, in accordance with its terms including certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities of each series under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected
by such amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding, on be-
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half of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Bond shall be conclusive and binding upon such Holder and upon all
future Holders of this Bond and of any Bond issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Bond.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security of a series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to such series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute such proceeding in respect
of such Event of Default in its own name as Trustee under the Indenture, and
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and the Trustee shall
not have received from the Holders of a majority in principal amount of the
Outstanding Securities of such series a direction inconsistent with such request
and shall have failed to institute such proceeding within 60 days of receipt of
such notice and offer of indemnity; provided, however, that such limitations do
not apply to a suit instituted by the Holder for the enforcement of payment of
the principal of, premium, if any, or interest on any Security on or after the
respective due dates expressed therein.
If an Event of Default with respect to the Bonds shall occur and be
continuing, the principal amount hereof may be declared due and payable in the
manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Bond at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Bond is registrable in the Security
Register, upon surrender of this
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Bond for registration of transfer at the office or agency of the Company in any
Place of Payment duly endorsed, or accompanied by a written instrument of
transfer in the form satisfactory to the Company and the Security Registrar duly
executed, by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Bonds, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Bonds are issuable only in registered form without coupons in
minimum denominations of $25 and integral multiples of $25 in excess thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds of
different authorized denominations as requested by the Holder surrendering the
same.
No service charge shall be made for any 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.
The Company, the Trustee and any agent of the Company or Trustee may
treat the Person in whose name this Bond is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this Bond is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
All terms used in this Bond, and not defined herein, which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
This Bond shall be governed by, and construed in accordance with, the
laws of the State of New York.
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The following abbreviations, when used in the inscription on the face
of the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by entireties ____________ Custodian____________ under
JT TEN - as tenants with right of (Cust) (Minor)
survivorship and not as tenants in Uniform Gifts to Minor Act ____________
common (State)
Additional abbreviations may also be used though not in the above list.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
Please insert Social Security or other
identifying number of assignee
------------------------------
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(Name and Address of Assignee, including
zip code, must be printed or typewritten)
- --------------------------------------------------------------------------------
the within Bond, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------- Attorney to transfer said Bond on the Security
Register of the Company, with full power of substitution in the premises.
Dated:
-------------------------------------
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.