Exhibit 4.2
SAFEWAY INC.
OFFICERS’ CERTIFICATE PURSUANT
TO
SECTIONS 2.2 AND 10.4 OF THE
INDENTURE
August 7, 2009
Steven A. Burd and Bradley S. Fox do
hereby certify that they are the President and Chief Executive
Officer, and the Vice President and Treasurer, respectively, of
Safeway Inc., a Delaware corporation (the “ Company
”), and do further certify, pursuant to resolutions of the
Board of Directors of the Company adopted on December 5, 2008
(the “ Resolutions ”), and in accordance with
Sections 2.2 and 10.4 of the Indenture (the “
Indenture ”) dated as of September 10, 1997
between the Company and The Bank of New York Mellon Trust Company,
N.A., formerly known as The Bank of New York Trust Company, N.A.,
as successor to The Bank of New York, as trustee (the “
Trustee ”), as follows:
1. Attached hereto as Annex A
is a true and correct copy of a specimen note (the “ Form
of Note ”) representing the Company’s 5.000% Notes
Due 2019 (the “ Notes ”). The Notes are a
separate series of Securities under the Indenture.
The Company is issuing initially
$500 million aggregate principal amount of the Notes. The Company
may issue additional Notes from time to time after the date hereof,
and such additional Notes will be treated as a single class with
the previously issued Notes for all purposes under the Indenture.
No additional Notes may be issued if an Event of Default has
occurred with respect to such Notes.
2. The Form of Note sets forth
certain of the terms required to be set forth in this certificate
pursuant to Section 2.2 of the Indenture, and said terms are
incorporated herein by reference. The Notes were offered at the
initial public offering price of 99.175% of principal
amount.
3. In addition to the covenants set
forth in Article IV of the Indenture, the Notes shall include the
following additional covenants, and such additional covenants shall
be subject to covenant defeasance pursuant to Section 8.4 of
the Indenture:
“Section 4.7 Limitation on
Liens .
The Company shall not, nor shall it
permit any of its Subsidiaries to, create, incur, or permit to
exist, any Lien on any of their respective properties or assets,
whether now owned or hereafter acquired, or upon any income or
profits therefrom, in order to secure any Indebtedness of the
Company, without effectively providing that the Notes shall be
equally and ratably secured until such time as such Indebtedness is
no longer secured by such Lien, except: (i) Liens existing as
of August 7, 2009 (the “ Closing Date ”);
(ii) Liens granted after the Closing Date on any assets or
properties of the Company or any of its Subsidiaries securing
Indebtedness of the Company created in favor of the Holders of the
Notes; (iii) Liens securing Indebtedness of the Company which
is incurred to extend, renew or refinance Indebtedness which is
secured by Liens permitted to be incurred under the Indenture;
provided that such Liens do not extend to or cover any property or
assets of the Company or any of its Subsidiaries other than the
property or assets securing the Indebtedness being refinanced and
that the principal amount of such Indebtedness does not exceed the
principal amount of the Indebtedness being refinanced;
(iv) Permitted Liens; and (v) Liens created in
substitution of or as replacements for any Liens permitted by
the
preceding clauses (i) through
(iv), provided that, based on a good faith determination of an
officer of the Company, the property or asset encumbered under any
such substitute or replacement Lien is substantially similar in
nature to the property or asset encumbered by the otherwise
permitted Lien which is being replaced.
Notwithstanding the foregoing, the
Company and any Subsidiary of the Company may, without securing the
Notes, create, incur or permit to exist Liens which would otherwise
be subject to the restrictions set forth in the preceding
paragraph, if after giving effect thereto and at the time of
determination, Exempted Debt does not exceed the greater of
(i) 10% of Consolidated Net Tangible Assets or
(ii) $350,000,000.
Section 4.8 Limitation on
Sale and Lease-Back Transactions .
The Company shall not, nor shall it
permit any of its Subsidiaries to, enter into any sale and
lease-back transaction for the sale and leasing back of any
property or asset, whether now owned or hereafter acquired, of the
Company or any of its Subsidiaries (except such transactions
(i) entered into prior to the Closing Date or (ii) for
the sale and leasing back of any property or asset by a Subsidiary
of the Company to the Company or (iii) involving leases for
less than three years or (iv) in which the lease for the
property or asset is entered into within 120 days after the later
of the date of acquisition, completion of construction or
commencement of full operations of such property or asset) unless
(a) the Company or such Subsidiary would be entitled under
Section 4.7 to create, incur or permit to exist a Lien on the
assets to be leased in an amount at least equal to the Attributable
Liens in respect of such transaction without equally and ratably
securing the Notes or (b) the proceeds of the sale of the
assets to be leased are at least equal to their fair market value
and the proceeds are applied to the purchase or acquisition (or in
the case of real property, the construction) of assets or to the
repayment of Indebtedness of the Company or a Subsidiary of the
Company which by its terms matures not earlier than one year after
the date of such repayment.
Section 4.9 Offer to
Purchase Upon Change of Control Triggering Event
If a Change of Control Triggering
Event occurs, unless the Company has exercised its option to redeem
the Notes as described in the Notes, the Company will make an offer
(the “Change of Control Offer”) to each Holder of the
Notes to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes.
In the Change of Control Offer, the Company will offer payment in
cash equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest, if any, on the Notes
repurchased to the date of repurchase (the “Change of Control
Payment”). Within 30 days following any Change of Control
Triggering Event or, at the Company’s option, prior to any
Change of Control, but after public announcement of the transaction
that constitutes or may constitute the Change of Control, the
Company will mail a notice to Holders of the Notes describing the
transaction that constitutes or may constitute the Change of
Control Triggering Event and offering to repurchase the Notes on
the date specified in the notice, which date will be no earlier
than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”). The
notice will, if mailed prior to the date of consummation of the
Change of Control, state that the offer to purchase is conditioned
on the Change of Control Triggering Event occurring on or prior to
the Change of Control Payment Date.
2
On the Change of Control Payment
Date, the Company will, to the extent lawful:
(i) accept for payment all Notes or
portions of Notes properly tendered pursuant to the Change of
Control Offer;
(ii) deposit with the Paying Agent
an amount equal to the Change of Control Payment in respect of all
Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be
delivered to the Trustee the Notes properly accepted together with
an Officers’ Certificate stating the aggregate principal
amount of Notes or portions of Notes being repurchased.
The Company will not be required to
make a Change of Control Offer upon the occurrence of a Change of
Control Triggering Event if a third party makes such an offer in
the manner, at the times and otherwise in compliance with the
requirements for an offer made by the Company and the third party
repurchases all Notes properly tendered and not withdrawn under its
offer. In addition, the Company will not repurchase any Notes if
there has occurred and is continuing on the Change of Control
Payment Date an Event of Default under this Indenture, other than a
default in the payment of the Change of Control Payment upon a
Change of Control Triggering Event.
The Paying Agent will promptly pay
to each Holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new
Note equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; provided that each such new Note will be
in a principal amount of $2,000 or an integral multiple of $1,000
in excess thereof.
The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with the repurchase of
the Notes as a result of a Change of Control Triggering Event. To
the extent that the provisions of any such securities laws or
regulations conflict with the Change of Control Offer provisions of
the Notes, the Company will comply with those securities laws and
regulations and will not be deemed to have breached its obligations
hereunder by virtue of any such conflict.”
4. In addition to the Events of
Default set forth in Section 6.1 of the Indenture, the Notes
shall include the following additional Event of Default, which
shall be deemed an Event of Default under Section 6.1(g) of
the Indenture:
“acceleration of $150,000,000
or more, individually or in the aggregate, in principal amount of
Indebtedness of the Company under the terms of the instrument under
which such Indebtedness is issued or secured, except as a result of
compliance with applicable laws, orders or decrees, if such
Indebtedness shall not have been discharged or such acceleration is
not annulled within 10 days after written notice.”
5. In addition to the definitions
set forth in Article I of the Indenture, the Notes shall include
the following additional definitions, which, in the event of a
conflict with the definition of terms in the Indenture, shall
control:
“Attributable Liens”
means in connection with
