EXHIBIT 4.3
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SUPERVALU INC.,
Issuer,
AND
BANKERS TRUST COMPANY,
Trustee
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FIFTH SUPPLEMENTAL INDENTURE
TO
Indenture dated as of July 1, 1987,
as amended 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
and the Fourth Supplemental Indenture dated as of August 4, 1999.
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Dated as of September 17, 1999
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FIFTH SUPPLEMENTAL INDENTURE, dated as of September 17, 1999 between
SUPERVALU INC. (formerly Super Valu Stores, Inc.), a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 11840 Valley View Road, Eden Prairie,
Minnesota 55344, and BANKERS TRUST COMPANY, a banking corporation duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee that
certain Indenture, dated as of July 1, 1987, as amended by that certain First
Supplemental Indenture (the "First Supplemental Indenture"), dated as of August
1, 1990, that certain Second Supplemental Indenture (the "Second Supplemental
Indenture"), dated as of October 1, 1992, that certain Third Supplemental
Indenture, dated as of September 1, 1995 (the "Third Supplemental Indenture"),
and that certain Fourth Supplemental Indenture, dated as of August 4, 1999 (the
"Fourth Supplemental Indenture") (said Indenture, as amended by such prior
supplemental indentures, being herein called the "Original Indenture", and the
Original Indenture, as amended by this Fifth Supplemental Indenture, being
herein called the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time.
Section 901(7) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(7) of the Indenture, the Company
desires to provide for the establishment of the form and terms of a new series
of its Securities to be known as its 7 5/8% Notes due 2004 (herein called the
"Notes").
Section 9.01(9) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Fifth Supplemental Indenture is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Fifth Supplemental
Indenture has been authorized.
All things necessary to make this Fifth Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to the Indenture have been done.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, and for other consideration the adequacy and sufficiency of
which are hereby acknowledged, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINED TERMS
Section 101. Defined Terms. Except as otherwise expressly provided in this
Fifth Supplemental Indenture or in the form of Note attached as Exhibit A hereto
or otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Fifth Supplemental Indenture that are defined
in the Original Indenture shall have the meanings assigned to them in the
Original Indenture. For all purposes of this Fifth Supplemental Indenture:
"Additional Interest" has the meaning set forth in Exhibit A hereto.
"Certificated Note" has the meaning set forth in Section 204 hereof.
"Closing Date" means September 17, 1999.
"Commission", as used in this Fifth Supplemental Indenture and the
certificates evidencing the Notes (other than the certificates evidencing the
Exchange Notes), means the Securities and Exchange Commission or any successor
thereto. The term "Commission", as used elsewhere in the Indenture, except to
the extent otherwise expressly provided in the Fourth Supplemental Indenture
with respect to the Prior Notes and unless and to the extent otherwise expressly
provided pursuant to Section 301 of the Original Indenture with respect to any
series of Securities (other than the Notes) originally issued after the date
hereof, has the meaning set forth in the Original Indenture.
"Exchange Notes" means any of the Exchange Securities (as defined in the
Registration Rights Agreement).
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Global Note" has the meaning set forth in Section 204 hereof.
"Global Securities Legend" has the meaning set forth in Exhibit A hereto.
"Initial Purchaser" means any one of the Initial Purchasers (as defined in
the Registration Rights Agreement).
"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Notes" means any of the Securities of the series designated in the second
paragraph of the recitals hereof and Section 201 hereof that are authenticated
and delivered under the Indenture. For all purposes of the Indenture, the term
"Notes" shall include the Notes initially issued on the Closing Date, any
Exchange Notes issued in exchange for Notes pursuant to the Exchange Offer, any
Private Exchange Notes issued in exchange for Notes pursuant to the Registration
Rights Agreement, and any other Notes issued after the Closing Date under the
Indenture. For purposes of the Indenture, all Notes (including, without
limitation, the Exchange Notes and the Private Exchange Notes) shall vote
together and otherwise constitute a single series of Securities under the
Indenture.
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"Prior Notes" means the "Notes" as defined in the Fourth Supplemental
Indenture, being the Company's 7 7/8% Notes due 2009.
"Private Exchange Notes" means any of the Private Exchange Securities (as
defined in the Registration Rights Agreement).
"Prospectus" has the meaning set forth in the Registration Rights
Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrable Securities" has the meaning set forth in the Registration
Rights Agreement.
"Registration Default" has the meaning set forth in Exhibit A hereto.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the Closing Date, between the Company and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney
Inc., U.S. Bancorp Piper Jaffray Inc. and the other parties thereto.
"Registration Statement" has the meaning set forth in the Registration
Rights Agreement.
"Resale Restriction Termination Date" has the meaning set forth in Exhibit
A hereto.
"Restricted Note" means any Note except for (i) an Exchange Note issued
pursuant to the Exchange Offer, (ii) a Note which has been sold or transferred
pursuant to an effective Registration Statement pursuant to the Registration
Rights Agreement, (iii) a Note from which the Securities Act Legend has been
removed in accordance with the provisions of this Fifth Supplemental Indenture,
and (iv) a Note issued upon registration of transfer of, or in exchange for,
Notes which are not Restricted Notes.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Act Legend" has the meaning set forth in Exhibit A hereto.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Transfer Certificate" has the meaning set forth in Section 503(a)(i)
hereof.
All references herein to Rule 144, Rule 144A or Rule 501 under the
Securities Act, and all reference to any subsections or terms defined therein,
shall in each case include all successor provisions thereto.
The parties hereto acknowledge that certain terms (such as the term Closing
Date) are defined in both the Fourth Supplemental Indenture and in this Fifth
Supplemental Indenture. The parties hereto hereby agree that, unless otherwise
expressly stated or the context otherwise requires, any term which is defined in
both the Fourth Supplemental Indenture and in this Fifth Supplemental Indenture,
when used with respect to or in the certificates evidencing the Prior Notes,
shall have the meaning set
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forth in the Fourth Supplemental Indenture and, when used with respect to or in
the certificates evidencing the Notes, shall have the meaning set forth in this
Fifth Supplemental Indenture.
ARTICLE TWO
TERMS OF THE NOTES
Section 201. Establishment of the Notes. There is hereby authorized and
established a series of Securities designated the 7 5/8% Notes due 2004, limited
in aggregate principal amount to $250,000,000 (except as provided in Section
301(2) of the Original Indenture); provided that the Company may, without the
consent of the Holders of the Outstanding Notes, "reopen" this series of
Securities so as to increase the aggregate principal amount of Notes Outstanding
in compliance with the procedures set forth in the Indenture, including Sections
301 and 303 thereof, so long (i) as any such additional Notes are issued prior
to the first date on which any Registration Statement is filed with the
Commission, (ii) any such additional Notes have the same tenor and terms
(including, without limitation, rights to receive accrued and unpaid interest)
as the Notes then Outstanding, and (iii) appropriate provision is made by the
Company so that any such additional Notes may be tendered for Exchange Notes
pursuant to the Exchange Offer and, if applicable, registered pursuant to a
Shelf Registration Statement in the same manner as the Notes originally issued
on the Closing Date.
Section 202. Terms of the Notes. The Stated Maturity on which the principal
of the Notes shall be due and payable shall be September 15, 2004.
The principal of the Notes shall bear interest at the rate of 7 5/8% per
annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A) from September 17, 1999 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on March 15 and September 15 (each, an
"Interest Payment Date") in each year, commencing March 15, 2000, to the Persons
in whose names the Notes (or one or more Predecessor Securities) are registered
at the close of business on the March 1 or September 1 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 Notes and any overdue installment of interest on the
Notes shall, to the extent permitted by law, bear interest at the rate of 7 5/8%
per annum (subject, in the case of Notes which are Registrable Securities, to
increase upon the occurrence of any Registration Default as provided in the form
of Note attached hereto as Exhibit A).
Promptly following any increase in the interest rate on the Registrable
Securities as the result of a Registration Default, the Company shall deliver an
Officers' Certificate to the Trustee, notifying the Trustee of such Registration
Default and setting forth the effective date of such increase in the interest
rate on the Registrable Securities and the interest rate in effect on the
Registrable Securities as a result of such Registration Default, and, in the
event of any further increase in the interest rate on the Registrable Securities
as the result of the continuance of a Registration Default, shall promptly
deliver a similar Officers' Certificate to the Trustee. Any such increase in the
interest rate on the Registrable Securities shall remain in effect until such
time as all Registration Defaults have been cured or ceased to exist and the
Company shall have delivered an Officers' Certificate to the Trustee to the
effect that (i) all Registration Defaults have been cured or have ceased to
exist and (ii) the date of such cessation or cure, whereupon the interest rate
on the Registrable Securities shall be reduced to the original interest rate
thereon effective as of the date of such cessation or cure.
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Interest on the Notes shall be calculated on the basis of a 360-day year of
twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who is
a United States Alien in respect of any tax, assessment or governmental charge
withheld or deducted.
The Borough of Manhattan, The City of New York is hereby designated as a
Place of Payment for the Notes; and the place where the principal of and
premium, if any, and interest on the Notes shall be payable, where Notes 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 Original Indenture,
demands to or upon the Company in respect of the Notes 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.
The Notes are subject to redemption at the option of the Company as
provided in the form of Note attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 403 and 1011 of the Original
Indenture; provided that, without limitation to the provisions of Sections 403
and 1011 of the Original Indenture, the provisions of Sections 1013 and 1014 of
the Indenture (which were added to the Indenture pursuant to the Fourth
Supplemental Indenture and which are applicable to the Notes pursuant to Section
302 of this Fifth Supplemental Indenture) and Article V of this Fifth
Supplemental Indenture shall survive any such defeasance or covenant defeasance
and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth in
the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Fifth Supplemental Indenture as if set
forth in full at this place).
Section 203. Denominations. The Notes shall be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof; provided, however,
that Exchange Notes shall be issued in denominations of $1,000 and integral
multiples thereof.
Section 204. Form. The Notes (including, without limitation, the Exchange
Notes) shall be in substantially the form set forth in Exhibit A hereto, with
such changes therein as may be authorized by any officer of the Company
executing the Notes by manual or facsimile signature, such approval to be
conclusively evidenced by the execution thereof by such officer.
The Notes shall be issued as Registered Securities without coupons.
Notes initially offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes ("Global Notes") and
the Exchange Notes shall be issued initially in the form of one or more
permanent Global Notes. The initial Depositary for the Global Notes shall be The
Depository Trust Company. The Global Notes shall be registered in the name of
the Depositary or a nominee of the Depositary and deposited with the Trustee, as
custodian for the Depositary.
Notes initially offered and sold to Institutional Accredited Investors that
are not QIBs shall be issued initially in the form of certificated Notes (the
"Certificated Notes").
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Anything herein to the contrary notwithstanding, if any Private Exchange
Notes are issued, then such Private Exchange Notes shall be issued in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
shall provide for the payment of Additional Interest upon a Registration
Default, and shall bear the Securities Act Legend until such time as any such
Private Exchange Note shall cease to be a Restricted Note, in which case the
Company will, at the request of the Holder, issue in exchange therefor or upon
transfer thereof, an Exchange Note. Anything herein to the contrary
notwithstanding, the Private Exchange Notes shall be issued as Global Notes or,
if requested by any Holder thereof, as Certificated Notes.
ARTICLE THREE
APPLICATION OF AMENDMENTS TO INDENTURE
Section 301. Amended Section 801 of the Indenture. The amendment to Section
801 of the Indenture effected by Section 302 of the Fourth Supplemental
Indenture shall be applicable to the Notes, it being understood that the
registration rights agreement referred to in clause (ii) of such amended Section
801 shall include the Registration Rights Agreement.
Section 302. Amended Article Ten of the Indenture. Sections 1013 and 1014
of the Indenture (such Sections having been added by the Fourth Supplemental
Indenture) shall be applicable to the Notes.
ARTICLE FOUR
ORIGINAL ISSUE OF NOTES
Section 401. Notes. Notes in the aggregate principal amount of $250,000,000
may be executed by the Company and delivered to the Trustee for authentication
and the Trustee shall thereupon authenticate and, on the Closing Date, deliver
said Notes upon a Company Order without any further action by the Company.
Section 402. Exchange Notes. Exchange Notes and Private Exchange Notes may
from time to time be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Exchange Notes or Private Exchange Notes, as the case may be, upon cancellation
of an equal amount of Notes tendered for exchange pursuant to the Exchange Offer
(in a case of the Exchange Notes) or pursuant to the Registration Rights
Agreement (in the case of the Private Exchange Notes), upon a Company Order
without any further action by the Company.
ARTICLE FIVE
SPECIAL TRANSFER PROVISIONS
Section 501. Legend on Restricted Notes. (a) Each Note (including Global
Notes) shall bear a Securities Act Legend until such time as such Note is
exchanged for an Exchange Note (it being understood that the Exchange Notes
shall not bear the Securities Act Legend) or sold pursuant to an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement; provided
that upon the request made by the Holder of any Note bearing a Securities Act
Legend from and after the Resale Restriction Termination Date with respect to
such Note, the Company will execute and the Trustee will
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authenticate and deliver, in exchange for such Note, a new Note in like
aggregate principal amount but not bearing the Securities Act Legend.
(b) Any Note issued upon registration of transfer or exchange of a Note
which bears a Securities Act Legend shall, except as otherwise permitted
pursuant to this Fifth Supplemental Indenture, also bear a Securities Act
Legend. Any Note issued upon registration of transfer or exchange of a Note
which does not bear a Securities Legend shall not bear a Securities Act Legend.
The provisions of this paragraph shall also apply to the transfer or exchange of
beneficial interests in Global Notes.
(c) Except as provided in Section 503 of this Fifth Supplemental Indenture,
and except in the case of Exchange Notes issued pursuant to the Exchange Offer,
the Trustee shall not issue any Notes which do not bear the Securities Act
Legend until it has received an Officers' Certificate from the Company directing
it to do so.
Section 502. Book-Entry Provisions for Global Notes.
(a) General. Transfers of a Global Note shall be limited as specified in
Section 204 of the Original Indenture (such Section 204 having been added by
Section 103 of the First Supplemental Indenture). Transfers and exchanges of
beneficial interests in a Global Note may be made in accordance with the rules
and procedures of the Depositary, subject to the provisions of Section 503 of
this Fifth Supplemental Indenture to the extent applicable.
(b) Transfers of Global Notes for Certificated Notes. In connection with
any transfer of a beneficial interest in a Global Note to a Person who will take
delivery thereof in the form of a Certificated Note, the Trustee shall reflect
on its books and records and by endorsement on the grid attached to such Global
Note the date and a decrease in the principal amount of such Global Note equal
to the principal amount of the beneficial interest to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Certificated Notes of like tenor and terms and in the same aggregate
principal amount, registered in the name of the transferee.
(c) Transfers Among Global Notes. In connection with any transfer of a
beneficial interest in a Global Note to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note, the Trustee shall
reflect on its books and records and by endorsement on the grid attached to such
original Global Note the date and a decrease in the principal amount of such
first Global Note equal to the principal amount of the beneficial interest to be
so transferred, and shall also reflect on its books and records and on the grid
attached to such second Global Note the date and an increase in the principal
amount of such Global Note equal to the principal amount of the beneficial
interest to be transferred; provided that any transfer of a beneficial interest
in a Global Note which is a Restricted Note to a Person who will take delivery
thereof in the form of a beneficial interest in a Global Note which is not a
Restricted Note shall be effected only pursuant to the Exchange Offer or as
otherwise permitted by this Fifth Supplemental Indenture.
(d) Transfers of Certificated Notes for Global Notes. In connection with
any transfer of a Certificated Note to a Person who will take delivery thereof
in the form of a beneficial interest in a Global Note, the Trustee shall reflect
on its books and records and on the grid attached to such Global Note the date
and an increase in the principal amount of such Global Note equal to the
principal amount of the Certificated Note to be transferred, the Trustee shall
cancel such Certificated Note and, if the entire principal amount of such
Certificated Note is not being transferred, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Notes equal in
principal amount to the principal amount not being transferred, registered in
the name of the transferor.
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(e) Exchange of all Global Notes for Certificated Notes. Notwithstanding
the foregoing provisions of this Section 502, in the event that Global Notes are
exchangeable for Certificated Notes as provided in the last paragraph of Section
305 of the Original Indenture (such paragraph having been added by Section
106(b) of the First Supplemental Indenture), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Notes an equal aggregate principal amount of Certificated Notes,
registered in the names provided by the Depositary.
Section 503. Transfer Restrictions.
(a) Transfers of Restricted Certificated Notes to QIBs. The following
provisions shall apply with respect to any proposed transfer of a Certificated
Note which is a Restricted Note to a QIB:
(i) The Registrar shall register the transfer if (x) the transferor
has executed the transfer certificate attached to such Certificated Note or
another transfer certificate substantially in the form of Exhibit C hereto
(each, a "Transfer Certificate") and has checked the box on such Transfer
Certificate stating, or has otherwise advised the Company and the Trustee
in writing, that such transfer is being made in compliance with the
provisions of Rule 144A, (y) the proposed transferee has executed the
certification on a Transfer Certificate stating, or has otherwise advised
the Company and the Trustee in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB and is
aware that the sale to it is being made in reliance on Rule 144A, and (z)
such Transfer Certificates have been delivered to the Trustee; and
(ii) unless all of the Global Notes have been exchanged for
Certificated Notes as provided in the last paragraph of Section 305 of the
Original Indenture (such paragraph having been added by Section 106(b) of
the First Supplemental Indenture), the transferee shall be required to take
delivery of the Certificated Note being so transferred in the form of a
beneficial interest in a Global Note which bears a Securities Act Legend
and, upon receipt by the Trustee of instructions given in accordance with
the Depositary's and the Trustee's procedures, the Trustee shall effect
such transfer as provided in Section 502(d) hereof.
(b) Transfers of Restricted Certificated Notes to Non-QIB Institutional
Accredited Investors. The following provisions shall apply with respect to any
proposed transfer of a Certificated Note which is a Restricted Note to an
Institutional Accredited Investor which is not a QIB:
(i) The Registrar shall register the transfer if (x) the proposed
transferee has delivered to the Trustee a certificate substantially in the
form of Exhibit B hereto signed by the proposed transferee and (y) the
Company and the Trustee shall have received any other documents which they
may have required pursuant to Section 503(e) below; and
(ii) The Company shall execute and the Trustee shall authenticate and
deliver one or more new Certificated Notes, each bearing the Securities Act
Legend, in an aggregate principal amount equal to the principal amount of
the Certificated Note being transferred and registered in the name of the
transferee, and the Trustee shall cancel the Certificated Note being
transferred and, if the entire principal amount thereof is not being
transferred, the Company shall execute and the Trustee shall authenticate
and deliver one or more new Certificated Notes, each of which shall bear
the Securities Act Legend, equal in principal amount to the principal
amount not being transferred and registered in the name of the transferor.
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(c) Other Transfers of Restricted Certificated Notes. In the case of any
proposed registration of transfer or exchange of a Certificated Note which is a
Restricted Note and which transfer or exchange is not expressly covered in
Section 503(a) or (b) above, the Registrar and the Trustee shall register the
transfer or shall effect such exchange, as the case may be, if (x) the
transferor has executed a Transfer Certificate and checked an appropriate box on
such Transfer Certificate and delivered such Transfer Certificate to the
Trustee, and (y) if applicable, the Company and the Trustee shall have received
any other documents which they may have required pursuant to Section 503(e).
(d) Transfers of Beneficial Interests in Global Notes. Beneficial interests
in Global Notes may be transferred to Persons who will take delivery thereof in
the form of beneficial interests in the same or other Global Notes, and may be
exchanged for interests in other Global Notes, in accordance with the rules and
procedures of the Depository; provided that, except as otherwise provided
pursuant to this Fifth Supplemental Indenture, a beneficial interest in a Global
Note which is a Restricted Note may only be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in a Global Note which
bears the Securities Act Legend and a beneficial interest in a Global Note which
is a Restricted Note may only be exchanged for an interest in a Global Note
which bears the Securities Act Legend.
(e) Provisions Applicable to All Transfers of Restricted Notes. In the case
of any offer, sale or transfer of a Restricted Note to an Institutional
Accredited Investor which is not a QIB or pursuant to clause (e) of the
Securities Act Legend, the Company and the Trustee shall have the right, prior
to such offer, sale or transfer, to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each of them to
confirm that such offer, sale or transfer is being made in a transaction which
is exempt from, or not subject to, the registration requirement of the
Securities Act, it being understood that no such opinions, certifications or
other information shall be required in connection with the offer, sale or
transfer of any Note pursuant to an effective Registration Statement, to a QIB
pursuant to Rule 144A or to the Company.
(f) Other Transfers. In the case of any transfer or exchange of a
Restricted Note the procedures and requirements for which are not addressed in
this Section 503, such transfer or exchange will be subject to such procedures
and requirements as may be reasonably prescribed by the Company from time to
time and which shall be consistent with the procedures and requirements set
forth in this Section 503.
(g) Exceptions to Transfer Restrictions. The restrictions on transfer and
other provisions set forth in this Section 503 and in the Securities Act Legend
shall not be applicable with respect to any Note following the Resale
Restriction Termination Date for such Note, and also shall not be applicable in
the case of the exchange of Notes for Exchange Notes pursuant to the Exchange
Offer or for Private Exchange Notes pursuant to the Registration Rights
Agreement.
Section 504. General. By its acceptance of any Note bearing the Securities
Act Legend, each Holder of such a Note acknowledges the restrictions on transfer
of such Note set forth in the Indenture and in such legend and agrees that it
will transfer such Note only as provided in the Indenture.
The Registrar shall retain, in accordance with its customary procedures,
copies of all letters, notices and other written communications received
pursuant to Section 503. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
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ARTICLE SIX
SUNDRY PROVISIONS
Section 601. Ratification. This Fifth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein provided.
Except as expressly amended hereby, the Original Indenture is in all respects
ratified and confirmed and all the terms, conditions and provision thereof shall
remain in full force and effect.
Section 602. Counterparts. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, and all of such counterparts shall together constitute
one and the same instrument.
Section 603. The Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Fifth Supplemental Indenture. The recitals
contained herein shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness.
Section 604. Governing Law. This instrument shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of the State of New
York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SUPERVALU INC.
[SEAL] By /s/
----------------------------------
Name:
Title:
Attest:
By /s/
---------------------------------
Name:
Title:
BANKERS TRUST COMPANY
[SEAL] By /s/
----------------------------------
Name:
Title:
Attest:
By /s/
---------------------------------
Name:
Title:
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ___________________ of SUPERVALU INC., one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____ of __________, 1999, before me personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he or she is ___________________ of Bankers Trust Company, one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
---------------------------------
Notary Public
EXHIBIT A
---------
[FORM OF NOTE]
[Each Global Note shall bear a legend substantially in the form set forth in
this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"): 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 hereon 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 a 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.]
[Unless and until a Note is exchanged for an Exchange Note or sold pursuant to
an effective Registration Statement pursuant to the Registration Rights
Agreement, the Global Notes and Certificated Notes shall bear a legend
substantially to the effect set forth below in this paragraph (the "Securities
Act Legend"), subject to removal of such legend as provided in Section 501 of
the Fifth Supplemental Indenture referred to below: THE NOTES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A ("RULE 144A") UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE
LAST DATE ON WHICH SUPERVALU INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT) OF SUPERVALU INC. WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO
SUPERVALU INC., (B) PURSUANT TO A
A-1
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES OF ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS
BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT SUPERVALU INC. AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A GLOBAL SECURITY (AS DEFINED IN
THE INDENTURE REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO SUPERVALU INC. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A-2
SUPERVALU INC.
7 5/8% NOTES DUE 2004
CUSIP No. _______
No. _______
[For inclusion in Certificated Notes-- Principal Amount $__________]
SUPERVALU INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture referred to below), for value received, hereby promises to
pay to ________________, or registered assigns, the principal sum [For inclusion
in Certificated Notes-- of ____ Dollars ($__________)] [For inclusion in Global
Notes--indicated on Schedule A hereto] on September 15, 2004 and to pay interest
thereon from September 17, 1999, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on March 15 and September 15 in each year, commencing on March 15, 2000, at the
rate of 7 5/8% 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 same rate per annum on any overdue principal and
premium, if any, and on any overdue installment of interest [To be deleted from
Exchange Notes-- ; provided that the interest rate on this Security shall be
subject to increase under the circumstances provided below]. 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 March 1 or
September 1 (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 will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof 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 premium, if any) and interest on this Security
will be made at the office or agency of the Company 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 interest may be made by United States dollar check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the payee with a bank located in the United States.
Payments of interest hereon with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date. Interest
on this Security shall be computed on the basis of a 360-day year of twelve
30-day months.
[For inclusion in Global Notes--This Security is a Global Security within
the meaning of the Indenture and is registered in the name of the Depositary for
this series of Securities or a nominee of the Depositary. Subject to the terms
of the Indenture, beneficial interests in this Security shall be held through
the book-entry facilities of the Depositary, and such beneficial interests shall
be held in minimum
A-3
denominations of [For inclusion in Global Notes other than Exchange Notes--
$100,000 and integral multiples of $1,000 in excess thereof] [For inclusion in
global Exchange Notes-- $1,000 and integral multiples thereof]. As long as this
Security is registered in the name of a Depositary or its nominee, the Company
will make, or will cause the Trustee to make, payments of principal of and
premium, if any, and interest on this Security by wire transfer of immediately
available funds to such Depositary or its nominee. Notwithstanding the above,
the final payment on this Security will be made only upon presentation and
surrender of this Security at an office or agency maintained by the Company for
that purpose in any Place of Payment for the Securities of this series.]
[Delete for Exchange Notes--The Holder of this Security is entitled to the
benefits of a Registration Rights Agreement (as such term is defined in the
Fifth Supplemental Indenture referred to below). In the event that
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 135th day following the Closing Date, or
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 180th day following the
Closing Date, or
(iii) the Exchange Offer is not consummated on or prior to the 45th
day following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required pursuant to the Registration Rights Agreement, a
Shelf Registration Statement is not filed with the Commission on or prior
to (A) the 180th day following the Closing Date or (B) the 60th day after
the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Date (or, if a
Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 30 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the
Commission but such Shelf Registration Statement ceases to be effective or
such Shelf Registration Statement or the Prospectus included therein ceases
to be usable in connection with resales of Registrable Securities for any
reason and either (A) the aggregate number of days in any consecutive
365-day period for which the Shelf Registration Statement or such
Prospectus shall not be effective or usable exceeds 90 days, (B) the Shelf
Registration Statement or such Prospectus shall not be effective or usable
for more than two periods (regardless of duration) in any consecutive
365-day period or (C) the Shelf Registration Statement or such Prospectus
shall not be effective or usable for a period of more than 45 consecutive
days, or
(vii) the Exchange Offer Registration Statement is declared effective
by the Commission but, if the Exchange Offer Registration Statement is
being used in connection with the resale of Exchange Notes as contemplated
by Section 3(f)(B) of the Registration Rights Agreement, the Exchange Offer
Registration Statement ceases to be effective or the Exchange Offer
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Exchange Securities for any reason
during the 180-day period referred to in Section 3(f)(B) of the
Registration Rights Agreement (as such period may be extended pursuant to
the last paragraph of Section 3 of the Registration Rights Agreement) and
either (A) the aggregate number of days in any consecutive 365-day period
for which the Exchange Offer Registration Statement or such Prospectus
shall not be effective or usable exceeds 90 days, (B) the Exchange Offer
Registration Statement or such Prospectus shall not be effective or usable
for more than two periods
A-4
(regardless of duration) in any consecutive 365-day period or (C) the
Exchange Offer Registration Statement or the Prospectus shall not be
effective or usable for a period of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by this Security, so long as this Security is a Registrable Security, shall be
increased ("Additional Interest") by one-quarter of one percent (0.25%) per
annum immediately following such 135-day period in the case of clause (i) above,
immediately following such 180-day period in the case of clause (ii) above,
immediately following such 45-day period in the case of clause (iii) above,
immediately following any such 180-day period or 60-day period, whichever ends
later, in the case of clause (iv) above, immediately following any such 225-day
period or 30-day period, whichever ends first, in the case of clause (v) above,
immediately following the 90th day in any consecutive 365-day period, as of the
first day of the third period in any consecutive 365-day period or immediately
following the 45th consecutive day, whichever occurs first, that a Shelf
Registration Statement shall not be effective or a Shelf Registration Statement
or the Prospectus included therein shall not be usable as contemplated by clause
(vi) above, or immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 45th consecutive day, whichever occurs
first, that the Exchange Offer Registration Statement shall not be effective or
the Exchange Offer Registration Statement or the Prospectus included therein
shall not be usable as contemplated by clause (vii) above, which rate will be
increased by an additional one-quarter of one percent (0.25%) per annum
immediately following each 90-day period that any Additional Interest continues
to accrue under any circumstances; provided that the aggregate increase in such
annual interest rate may in no event exceed one-half of one percent (0.50%) per
annum. Upon the filing of the Exchange Offer Registration Statement after the
135-day period described in clause (i) above, the effectiveness of the Exchange
Offer Registration Statement after the 180-day period described in clause (ii)
above, the consummation of the Exchange Offer after the 45-day period described
in clause (iii) above, the filing of the Shelf Registration Statement after the
180-day period or 60-day period day, as the case may be, described in clause
(iv) above, the effectiveness of a Shelf Registration Statement after the
225-day period or 30-day period, as the case may be, described in clause (v)
above, or the Shelf Registration Statement once again being effective or the
Shelf Registration Statement and the Prospectus included therein becoming usable
in connection with resales of Registrable Securities, as the case may be, in the
case of clause (vi) above, or the Exchange Offer Registration Statement once
again becoming effective or the Exchange Offer Registration Statement and the
Prospectus included therein becoming usable in connection with resales of
Exchange Securities, as the case may be, in the case of clause (vii) thereof,
the interest rate borne by this Security from the date of such filing,
effectiveness, consummation or resumption of effectiveness or usability, as the
case may be, shall be reduced to the original interest rate so long as no other
Registration Default shall have occurred and shall be continuing at such time
and the Company is otherwise in compliance with this paragraph; provided,
however, that, if after any such reduction in interest rate, one or more
Registration Defaults shall again occur, the interest rate shall again be
increased pursuant to the foregoing provisions. Anything herein to the contrary
notwithstanding, any Holder who was, at the time the Exchange Offer was pending
and consummated, eligible to exchange, and did not validly tender, its
Securities for Exchange Notes in the Exchange Offer will not be entitled to
receive any Additional Interest. For purposes of clarity, the Company hereby
acknowledges and agrees that, under current interpretations of law by the
Commission, Initial Purchasers holding unsold allotments of Securities acquired
from the Company are not eligible to participate in the Exchange Offer.]
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 by a First
Supplemental Indenture dated as of August 1, 1990, a Second Supplemental
Indenture dated as of October 1, 1992, a Third Supplemental Indenture dated as
of
A-5
September 1, 1995, a Fourth Supplemental Indenture (the "Fourth Supplemental
Indenture") dated as of August 4, 1999 and a Fifth Supplemental Indenture (the
"Fifth Supplemental Indenture") dated as of September 17, 1999 (as so amended,
the "Indenture")), each between the Company and Bankers Trust Company, 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, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $250,000,000; 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 Fifth Supplemental
Indenture. The Securities of this series are issuable only in registered form,
without coupons, in the denominations specified in the Fifth Supplemental
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series 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.
The Company shall have the right to redeem the Securities of this series,
in whole at any time or from time to time in part, at the option of the Company,
at a Redemption Price equal to the greater of (1) 100% of the principal amount
of the Securities of this series to be redeemed and (2) the sum of the present
values of the Remaining Scheduled Payments on the Securities of this series to
be redeemed discounted to the applicable Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at a rate per annum
equal to the sum of the Treasury Rate plus 25 basis points plus, in either case,
accrued interest on the principal amount being redeemed to such Redemption Date;
provided, however, that installments of interest on Securities of this series
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of those Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of the Indenture.
"Treasury Rate" means, for any Redemption Date with respect to the
Securities of this series, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption Date for
the Securities of this series, the United States Treasury security, selected by
a Reference Treasury Dealer appointed by the Company, as having a maturity
comparable to the remaining term 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 term of those Securities.
"Comparable Treasury Price" means, for any Redemption Date with respect to
the Securities of this series, (1) the average of the four Reference Treasury
Dealer Quotations for such Redemption Date after excluding the highest and
lowest of those Reference Treasury Dealer Quotations or (2) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such quotations actually obtained by the Trustee.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc. and U.S.
Bancorp Piper Jaffray Inc. and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary
A-6
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, for each Reference Treasury
Dealer and any Redemption Date for the Securities of this series, 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 that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding that Redemption Date. As
used in this paragraph, the term "business day" means 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.
"Remaining Scheduled Payments" means, for each Security of this series to
be redeemed, the remaining scheduled payments of principal of and interest on
that Security that would be due after the related Redemption Date but for that
redemption; provided that if that Redemption Date is not an Interest Payment
Date with respect to that Security, the amount of the next succeeding scheduled
interest payment on that Security will be reduced by the amount of interest
accrued on that Security to that Redemption Date.
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.
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.
If an Event of Default with respect to 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.
The Indenture permits, with certain exceptions as therein provided, 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 to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no Holder
of any Security of this 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 this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days;
A-7
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (or
premium, if any) or interest on this Security on or after the respective due
dates expressed herein.
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 premium, if any) and
interest on this Security 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 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 premium, if any)
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 Holder's 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 is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities 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 Fifth Supplemental
Indenture shall have the meanings assigned to them in the Fifth Supplemental
Indenture and all other terms used in this Security and defined elsewhere in the
Indenture shall have the meanings assigned to them therein.
Unless the certificate of authentication hereon has 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.
[SIGNATURE PAGE FOLLOWS]
A-8
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SUPERVALU INC.
By /s/
----------------------------------
[Seal] Name:
Title:
Attest:
/s/
- ----------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
By /s/
----------------------------------
Authorized Signature
A-9
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:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
----------------- --------------
(Cust) (Minor)
under the Uniform Gifts to Minors Act
--------------------------------
(State)
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.
Dated:
------------------------
Signature Guaranteed:
------------------------ ------------------------
A-10
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.
A-11
[For inclusion in Restricted Notes]
TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the Transferor's own
account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance with Rule
144A ("Rule 144A") under the Securities Act to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A) (a "QIB") that is purchasing the Specified Securities
for its own account or for the account of another QIB, in each case to
whom notice has been given that the transfer is being made in reliance
on Rule 144A.
(e)0 The Specified Securities are being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) (an "Institutional Accredited Investor")
purchasing for its own account or for the account of one or more other
Institutional Accredited Investors over which it exercises sole
investment discretion and that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes (the
form of which letter can be obtained from the Trustee).
(f)0 The Specified Securities are being transferred pursuant to another
available exemption from the registration requirements of the
Securities Act.
A-12
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, in the initial
offering of the Notes.
----------------------------------
(Insert Name of Transferor)
By:
-------------------------------
Date:
----------------------------------
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB (as
defined above) and is aware that the Specified Securities (as defined above) are
being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated:
----------------------------- -----------------------------
(Insert Name of Transferee)
By:
--------------------------
Executive Officer
A-13
[For inclusion in Global Notes]
SCHEDULE A
The initial principal amount of this Global Security is $____________. The
following increases or decreases in the principal amount of this Global Security
have been made:
========================= ====================== ======================= ====================== ======================
Amount of increase Amount of decrease Principal amount of
in principal amount in principal amount this Global Security Signature of
of this Global of this Global following such authorized signatory
Date made Security Security decrease or increase of Trustee
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A-14
EXHIBIT B
---------
Form of Certificate to Be
Delivered in Connection with
Transfers of Restricted Certificated Notes
to Non-QIB Accredited Investors
-------------------------------
----------, --
SUPERVALU INC.
c/o Bankers Trust Company
Four Albany Street
New York, New York 10006
Re: SUPERVALU INC. (the "Company")
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Dear Sirs:
In connection with our proposed purchase of $_____________ aggregate
principal amount of the 7 5/8% Notes due 2004 (the "Notes") of SUPERVALU INC., a
Delaware corporation ("SUPERVALU"), we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor", and we are
acquiring the Notes for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or other applicable securities law and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities law
and may not be offered, sold or otherwise transferred except in compliance
with the registration requirements of the Securities Act or any other
applicable securities law, or pursuant to an exemption therefrom, or in a
transaction not subject thereto, and in each case in compliance with the
conditions for transfer set forth below. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to (x) the date which is two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the date of original issue of the Notes
and the last date on which SUPERVALU or any "affiliate" (as defined in Rule
144 under the Securities Act) of SUPERVALU was the owner of such Notes (or
any predecessor thereto) or (y) such later date, if any, as may be required
by applicable law (the "Resale Restriction Termination Date") only (a) to
SUPERVALU, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are
eligible for resale pursuant to Rule 144A under the Securities Act, to a
person we reasonably believe is a "Qualified Institutional Buyer" within
the meaning of Rule 144A (a "QIB") that purchases for its own account or
for the account of a QIB, in each case to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
that is acquiring the Notes for its own account or for the account of such
an institutional "accredited investor" for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act or (e) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject
in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and to compliance with
any applicable state or other securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Notes is proposed to be made
pursuant to clause (d) above prior to the Resale Restriction Termination
Date, the transferor shall deliver to the trustee under the Indenture
pursuant to which the Notes are issued (the "Trustee") a letter from the
transferee substantially in the form of this letter, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" as defined in paragraph 1 of this letter and that it is acquiring
such Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that SUPERVALU and the Trustee reserve
the right prior to any offer, sale or other transfer of the Notes pursuant
to clauses (d) or (e) above prior to the Resale Restriction Termination
Date to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to SUPERVALU and the Trustee.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You and the initial purchasers of the Notes are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
------------------------------
Date:
-----------------------------
Upon transfer the Notes would be registered in the name of the new owner as
follows:
Taxpayer ID
Name Address Number
---- ------- ------
B-2
EXHIBIT C
---------
FORM OF TRANSFER CERTIFICATE
Re: SUPERVALU INC.
7 5/8% Notes due 2004 (the "Notes")
-----------------------------------
Reference is hereby made to the Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), between Bankers Trust Company, as trustee (the
"Trustee"), and SUPERVALU INC. (the "Company"). Capitalized terms used but not
defined in this Certificate shall have the meanings given to such terms in the
Indenture.
This Certificate relates to $__________ principal amount of Notes (the
"Specified Securities") represented by a Certificated Note registered in the
name of the undersigned (the "Transferor"). The Transferor has requested a
transfer of the Specified Securities to a Person who will take delivery thereof
in the form of a Certificated Note or to a QIB (as defined below) who will take
delivery thereof in the form of a beneficial interest in a Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (as
indicated by the applicable box checked below), or the transfer does not require
registration under the Securities Act because (as indicated by the applicable
box checked below):
(a)0 The Specified Securities are being transferred pursuant to an
effective registration statement under the Securities Act.
(b)0 The Specified Securities are being acquired for the Transferor's own
account, without transfer.
(c)0 The Specified Securities are being transferred to the Company.
(d)0 The Specified Securities are being transferred in compliance with Rule
144A ("Rule 144A") under the Securities Act to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A) (a "QIB") that is purchasing the Specified Securities
for its own account or for the account of another QIB, in each case to
whom notice has been given that the transfer is being made in reliance
on Rule 144A.
(e)0 The Specified Securities are being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) (an "Institutional Accredited Investor")
purchasing for its own account or for the account of one or more other
Institutional Accredited Investors over which it exercises sole
investment discretion and that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes (the
form of which letter can be obtained from the Trustee).
(f)0 The Specified Securities are being transferred pursuant to another
available exemption from the registration requirements of the
Securities Act.
This Certificate and the statements contained herein are made for the
benefit of the Trustee, the Company and the initial purchasers, if any, in the
initial offering of the Notes.
---------------------------------
(Insert Name of Transferor)
By:
------------------------------
Date:
------------------------
TO BE COMPLETED BY TRANSFEREE
IF (d) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a QIB (as
defined above) and is aware that the Specified Securities (as defined above) are
being transferred in reliance on Rule 144A (as defined above), (ii) the
undersigned is acquiring the Specified Securities for its own account or for the
account of one or more other QIBs over which it exercises sole investment
discretion (in which latter case the undersigned has given notice to each such
account that the Specified Securities are being transferred in reliance on Rule
144A) and (iii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers. The undersigned transferee
acknowledges and agrees that the Specified Securities have not been registered
under the Securities Act (as defined above), and may not be transferred except
in accordance with the resale and other transfer restrictions set forth in the
legend on the face thereof.
Dated:
----------------------- -----------------------------
(Insert Name of Transferee)
By:
--------------------------
Executive Officer
C-2