[CONFORMED COPY]
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CREDIT AGREEMENT
dated as of
November 19, 1999
among
DELHAIZE AMERICA, INC.,
The LENDERS Party Hereto,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
$500,000,000 364-DAY REVOLVING CREDIT FACILITY
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J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Bookrunner
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BANK OF AMERICA, N.A.,
CITIBANK, N.A.
and
WACHOVIA SECURITIES, INC.,
as Co-Arrangers
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Classification of Loans and Borrowing.........................21
SECTION 1.03. Terms Generally...............................................21
SECTION 1.04. Accounting Terms; GAAP........................................22
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments...................................................23
SECTION 2.02. Loans and Borrowings..........................................23
SECTION 2.03. Requests for Revolving Borrowings.............................24
SECTION 2.04. Reserved.....................................................24
SECTION 2.05. Funding of Borrowings.........................................24
SECTION 2.06. Interest Elections............................................25
SECTION 2.07. Termination and Reduction of Commitments......................26
SECTION 2.08. Repayment of Loans; Evidence of Debt..........................27
SECTION 2.09. Prepayment of Loans...........................................28
SECTION 2.10. Fees..........................................................28
SECTION 2.11. Interest......................................................29
SECTION 2.12. Alternate Rate of Interest....................................30
SECTION 2.13. Increased Costs...............................................30
SECTION 2.14. Break Funding Payments........................................31
SECTION 2.15. Taxes.........................................................32
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs........................................................34
SECTION 2.17. Mitigation Obligations; Replacement of Lenders................36
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers...........................................37
SECTION 3.02. Authorization; Enforceability..................................37
SECTION 3.03. Governmental Approvals; No Conflicts...........................37
SECTION 3.04. Financial Condition; No Material Adverse Change................38
SECTION 3.05. Properties.....................................................38
SECTION 3.06. Litigation and Environmental Matters...........................38
SECTION 3.07. Compliance with Laws and Agreements............................39
SECTION 3.08. Investment and Holding Company Status..........................39
SECTION 3.09. Taxes..........................................................39
SECTION 3.10. ERISA..........................................................40
SECTION 3.11. Disclosure.....................................................40
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SECTION 3.12. Margin Stock...................................................40
SECTION 3.13. No Burdensome Restrictions.....................................40
SECTION 3.14. Subsidiaries...................................................40
SECTION 3.15. Solvency.......................................................41
SECTION 3.16. Year 2000 Matters..............................................41
SECTION 3.17. Acquisition Documents..........................................41
ARTICLE 4
CONDITIONS TO FUNDING
SECTION 4.01. Effective Date.................................................41
SECTION 4.02. Each Credit Event..............................................43
ARTICLE 5
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................43
SECTION 5.02. Notices of Material Events.....................................45
SECTION 5.03. Existence; Conduct of Business.................................45
SECTION 5.04. Payment of Obligations.........................................45
SECTION 5.05. Maintenance of Properties; Insurance...........................46
SECTION 5.06. Books and Records; Inspection Rights...........................46
SECTION 5.07. Compliance with Laws and Material Contractual
Obligations..................................................46
SECTION 5.08. Use of Proceeds................................................46
SECTION 5.09. Change in Ratings..............................................46
SECTION 5.10. Copies of Other Bank Agreements................................47
ARTICLE 6
NEGATIVE COVENANTS
SECTION 6.01. Liens..........................................................47
SECTION 6.02. Indebtedness of Subsidiaries...................................48
SECTION 6.03. Fundamental Changes............................................49
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements.............................49
SECTION 6.05. Transactions with Affiliates...................................51
SECTION 6.06. Reserved.......................................................51
SECTION 6.07. Fixed Charges Coverage.........................................51
SECTION 6.08. Ratio of Consolidated Adjusted Debt to Consolidated
EBITDAR......................................................52
SECTION 6.09. Limitation on Sales of Assets..................................52
SECTION 6.10. Modifications to Acquisition Documents.........................53
SECTION 6.11. Restrictions Affecting Subsidiaries............................53
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ARTICLE 7
EVENTS OF DEFAULT
SECTION 7.01. Events of Default..............................................54
ARTICLE 8
THE ADMINISTRATIVE AGENT
SECTION 8.01. The Administrative Agent.......................................57
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices........................................................59
SECTION 9.02. Waivers; Amendments............................................59
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................60
SECTION 9.04. Successors and Assigns.........................................62
SECTION 9.05. Survival.......................................................64
SECTION 9.06. Counterparts; Integration; Effectiveness.......................65
SECTION 9.07. Severability...................................................65
SECTION 9.08. Right of Setoff................................................65
SECTION 9.09. Governing Law; Jurisdiction; Consent of Service of
Process..............................................................65
SECTION 9.10. WAIVER OF JURY TRIAL...........................................66
SECTION 9.11. Headings.......................................................66
SECTION 9.12. Confidentiality................................................67
SECTION 9.13. Interest Rate Limitation.......................................67
ARTICLE 10
PROVISIONS RELATING TO THE REORGANIZATION
SECTION 10.01. Consent to Reorganization.....................................68
SCHEDULES:
Schedule 2.01 Commitments
Schedule 3.06 Disclosed Matters
Schedule 3.14 Subsidiaries of Borrower
Schedule 6.01 Existing Liens
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Opinion of Counsel of Borrower
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CREDIT AGREEMENT dated as of November 19, 1999, among DELHAIZE
AMERICA, INC., the LENDERS party hereto and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means the Merger and all other transactions contemplated
by the Acquisition Documents.
"Acquisition Date" means the date of consummation of the Acquisition.
"Acquisition Documents" means the Merger Agreement, including the
exhibits and schedules thereto, and all agreements, documents and instruments
executed and delivered pursuant thereto or in connection therewith.
"Acquisition Sub" means FL Acquisition Sub, Inc., a Maine corporation.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Morgan, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Amortization" means for any period the sum of all amortization
expenses of the Borrower and its Consolidated Subsidiaries for such period, as
determined in accordance with GAAP.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurodollar Spread" or "Commitment Fee Rate",
as the case may be, based upon the ratings by Moody's and S&P, respectively,
applicable on such date to the Index Debt:
S&P/Moody's ABR Eurodollar Commitment
Index Debt Ratings Eurodollar Spread Fee Rate
- -------------------------------------------------------------
Category 1
A-/A3 or higher........ .0% .50% .09%
Category 2
BBB+/Baa1.............. .0% .625% .10%
Category 3
BBB/Baa2............... .0% .75% .125%
Category 4
BBB-/Baa3.............. .25% 1.25% .175%
Category 5
BB+/Ba1................ .75% 1.75% .30%
- -------------------------------------------------------------
Category 6
Below.................. 1.25% 2.25% .50%
=============================================================
In addition,
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(x) if (i) the sum of (1) the aggregate principal amount of loans
outstanding under the 5-Year Agreement (if the 5-Year Agreement is in effect on
such date) plus (2) the aggregate principal amount of loans outstanding under
the Bridge Agreement (if the Bridge Agreement is in effect on such date) plus
(3) the aggregate principal amount of Revolving Loans outstanding hereunder, in
each case on such date, exceeds 33% of the sum of (1) the aggregate amount of
the commitments under the 5-Year Agreement (or, if the commitments under the 5-
Year Agreement (if the 5-Year Agreement is in effect on such date) shall have
terminated, the aggregate principal amount of loans outstanding thereunder)
plus (2) the aggregate amount of the commitments under the Bridge Agreement (if
the Bridge Agreement is in effect on such date) (or, if the commitments under
the Bridge Agreement shall have terminated, the aggregate principal amount of
loans outstanding thereunder) plus (3) the aggregate Commitments hereunder (or,
if the Commitments hereunder shall have terminated, the aggregate principal
amount of Revolving Loans outstanding hereunder), in each case on such date and
(ii) Category 1 ratings, Category 2 ratings or Category 3 ratings are
applicable on such date
or
(y) if any Loans are outstanding under the Bridge Agreement (if the
Bridge Agreement is in effect on such date) (regardless of which Category
ratings are applicable on such date),
the "ABR Spread" and the "Eurodollar Spread" will each be increased
by .125%; provided that on any date on which the events in clause (x) and
clause (y) are both in effect, the "ABR Spread" and the "Eurodollar Spread"
will each be increased by .125%.
For purposes of the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been established by Moody's and
S&P for the Index Debt shall fall within different Categories, the Applicable
Rate shall be based on the lower of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in which case the
Applicable Rate shall be determined by reference to the Category next below
that of the higher of the two ratings; and (iii) if the ratings established or
deemed to have been established by Moody's and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of Moody's or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of
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such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody's or S&P shall change, or
if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date
of termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate. As used
in this definition, "Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Delhaize America, Inc., a North Carolina corporation.
"Borrowing" means Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
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"Bridge Agreement" means the $2,500,000,000 364-Day Term Loan
Agreement to be entered into by the Borrower, the lenders party thereto, and
Morgan, as administrative agent, substantially on the terms described by the
Borrower to the Lenders prior to the Effective Date, as amended from time to
time.
"Bridge Payout Date" means the first date on which the commitments
under the Bridge Agreement have terminated and all loans outstanding
thereunder, together with accrued and unpaid interest thereon, and all fees and
expenses payable with respect thereto, have been repaid in full.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in Dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any capital stock of the Borrower or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Capitalized Lease" means any lease which is required to be
capitalized on a consolidated balance sheet of the lessee and its subsidiaries
in accordance with GAAP.
"Cash Equivalents" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
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(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, a
rating of at least P-1 by Moody's or A-1 by S & P;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $250,000,000;
(d) investments consisting of cash deposits in operating accounts
maintained by the Borrower or any Subsidiary; and
(e) repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above.
"Change in Control" means (a) the failure of Delhaize Belgium or any
wholly-owned subsidiary of Delhaize Belgium to own, directly or indirectly,
beneficially or of record, shares representing more than a majority of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Borrower; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower by Persons who
were neither (i) nominated by the board of directors of the Borrower nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group other than Delhaize
Belgium or any wholly-owned subsidiary of Delhaize Belgium.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Charges" has the meaning set forth in Section 9.13.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
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"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Commitment, as applicable.
"Consolidated" means, when used in connection with any defined term,
and not otherwise defined, such term as it applies to the Borrower and its
Subsidiaries on a consolidated basis, after eliminating all intercompany items.
"Consolidated Adjusted Debt" means at any date (i) the Debt of the
Borrower and its Consolidated Subsidiaries plus (ii) 8 times Rentals (but
excluding any payments with respect to a Capital Lease to the extent such
Capital Lease is included in clause (i)) payable by the Borrower and its
Consolidated Subsidiaries for the period of four consecutive Fiscal Quarters
ended on or most recently prior to such date, determined on a consolidated
basis as of such date.
"Consolidated EBITDAR" for any period means the sum of (i)
Consolidated Net Income for such period plus, in each case to the extent
deducted in determining such Consolidated Net Income and without duplication,
(ii) Consolidated Depreciation expenses of the Borrower and its Consolidated
Subsidiaries, (iii) Consolidated Amortization expenses of the Borrower and its
Consolidated Subsidiaries, (iv) all federal, state, local and foreign income
taxes of the Borrower and its Consolidated Subsidiaries, and (v) Consolidated
Fixed Charges.
"Consolidated Fixed Charges" for any period means, without
duplication, on a consolidated basis the sum of (i) all Rentals payable during
such period by the Borrower and its Consolidated Subsidiaries, and (ii)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" for any period means the gross revenues of
the Borrower and its Consolidated Subsidiaries for such period less all
expenses and other proper charges (including taxes on income), determined on a
consolidated basis after eliminating earnings or losses attributable to
outstanding Minority Interests, but excluding in any event:
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(a) any unusual or extraordinary gains or losses on the sale or other
disposition of investments (excluding Cash Equivalents) or fixed or
capital assets, and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Consolidated Subsidiary accrued
prior to the date it became a Consolidated Subsidiary;
(d) net earnings and losses of any corporation (other than a
Consolidated Subsidiary and subject to Section 1.04) substantially all the
assets of which have been acquired in any manner by the Borrower or any
Consolidated Subsidiary, realized by such corporation prior to the date of
such acquisition;
(e) net earnings and losses of any corporation (other than a
Consolidated Subsidiary and subject to Section 1.04(b)) with which the
Borrower or a Consolidated Subsidiary shall have consolidated or which
shall have merged into or with the Borrower or a Consolidated Subsidiary
prior to the date of such consolidation or merger;
(f) net earnings and losses of any business entity (other than a
Consolidated Subsidiary) in which the Borrower or any Consolidated
Subsidiary has an ownership interest unless such net earnings shall have
actually been received by the Borrower or such Consolidated Subsidiary in
the form of cash distributions;
(g) any portion of the net earnings and losses of any Consolidated
Subsidiary which for any reason is unavailable for payment of dividends to
the Borrower or any other Consolidated Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the
amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any Capital Stock;
(k) any reversal of any contingency reserve except to the extent that
provision for such contingency reserve shall have been made from
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income arising during such period; provided, however, that any reversal of
a contingency reserve from a prior period shall only be excluded from
Consolidated Net Income to the extent that the aggregate amount of such
reversals exceeds $10,000,000 during the immediately preceding four Fiscal
Quarters; and
(l) any other unusual or extraordinary gain or loss.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Consolidated Total Assets" means at any time the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable and accrued expenses
arising in the ordinary course of business, (iv) all Capital Lease Obligations,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid under a letter of credit or similar instrument, (viii)
all Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, and (ix) all Debt of others Guaranteed
by such Person.
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Delhaize Belgium" means Etablissements Delhaize Freres et Cie "Le
Lion" S.A., a Belgian corporation.
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such period, as
determined in accordance with GAAP.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed on Schedule 3.06.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of
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ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article 7.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.15(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of
11
assignment, to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.15(a).
"Existing Public Debt" means the Borrower's $150,000,000 aggregate
principal amount of 7.55% Notes due 2007 and its $150,000,000 aggregate
principal amount of 8.05% Notes due 2027.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"5-YearAgreement" means the $500,000,000 5-Year Revolving Credit
Agreement to be entered into by the Borrower, the lenders party thereto and
Morgan, as administrative agent, substantially on the terms described by the
Borrower to the Lenders prior to the Effective Date, as amended from time to
time.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
12
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid
(excluding current accounts payable incurred in the ordinary course of
business), (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person, (e)
all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person
13
in respect of bankers' acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other Person
(other than Subsidiaries) or subject to any other credit enhancement.
"Information" has the meaning set forth in Section 9.12.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period and
(iii) any Interest Period that would otherwise end after the Maturity Date
shall end on the Maturity Date. For purposes hereof, the date of a Borrowing
initially shall be the date on which
14
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent
in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Majority Lenders" means, at any time, Lenders having Commitments
representing more than 50% of the aggregate amount of the Commitments at such
time (or, if the Commitments shall have terminated, Lenders holding Revolving
Credit Exposures representing more than 50% of the total Revolving Credit
Exposures at such time).
15
"Material Adverse Change" means any event, development or circumstance
that has had or could reasonably be expected to have a Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise,
of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness, or obligations in respect
of one or more Hedging Agreements, of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount exceeding $20,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means November 17, 2000.
"Maximum Rate" has the meaning set forth in Section 9.13.
"Medium Term Notes" means the medium term notes of the Borrower having
interest rates ranging from 8.32% to 8.73% with due dates ranging from 1999 to
2006 and having an aggregate principal balance of $153,300,000.
"Merger" means the merger of Acquisition Sub with and into the Target
(with the Target as the surviving Person) pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
August 17, 1999 among the Borrower, Acquisition Sub and the Target.
"Minority Interests" means any shares of stock of any class of a
Consolidated Subsidiary (other than directors' qualifying shares as required by
law) that are not owned by the Borrower and/or one or more of its Consolidated
Subsidiaries.
"Moody's" means Moody's Investors Service, Inc.
"Morgan" means Morgan Guaranty Trust Company of New York.
16
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Operating Lease" means any lease other than a Capitalized Lease.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments and other
governmental charges that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) Liens granted to a landlord pursuant to a lease to secure the
obligations of the lessee under such lease which apply only to property or
assets of the lessee located at the leased premises;
(d) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(e) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds (so long as, with
respect to any such appeal bonds posted with respect to any judgment, no
Event of Default then exists under Section 7(k)), performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
17
(f) judgment liens provided no Event of Default then exists under
Section 7(k); and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Morgan as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Maturity Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise)
or (ii) redeemable at the option of the holder thereof.
"Register" has the meaning set forth in Section 9.04(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Rentals" means and includes as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Borrower or a Consolidated Subsidiary, as lessee or
sublessee under an Operating Lease or Capitalized Lease of real or personal
property, but shall be exclusive of any amounts required to be paid by the
Borrower or a Consolidated Subsidiary (whether or not designated as rents or
additional rents)
18
on account of maintenance, repairs, insurance, taxes and similar charges. Fixed
rents under any so-called "percentage leases" shall be computed solely on the
basis of the minimum rents, if any, required to be paid by the lessee
regardless of sales volume or gross revenues.
"Reorganization" means the collective reference to the following
series of related transactions: The Borrower will create a new direct,
wholly-owned subsidiary, to be named Food Lion, Inc. ("New Food Lion"). The
Borrower will contribute to New Food Lion substantially all of the assets of
the Borrower other than the capital stock of (i) the Target, (ii) FLI Holding
Corp., a Delaware corporation ("FLI Holding"), (iii) Risk Management Services,
Inc., a North Carolina corporation ("RMS"), (iv) FL Food Lion, Inc., a Florida
corporation ("FL Food Lion") and (v) Barnwell, Inc., a Delaware corporation
("Barnwell"). After giving effect to such contribution, New Food Lion, FLI
Holding, RMS, FL Food Lion and Barnwell will each be direct wholly-owned
subsidiaries of the Borrower. FLI Holding will be merged into the Borrower and
Kash n' Karry Food Stores, Inc. will become a direct wholly-owned Subsidiary of
the Borrower.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Loans at
such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc.
"Solvent", when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person and its subsidiaries, taken as a whole, will, as of
such date, exceed the amount that will be required to pay all "liabilities of
such Person and its subsidiaries, taken as a whole, contingent or otherwise",
as of such date (as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the insolvency of
debtors) as such debts become absolute and matured, (b) such Person and its
subsidiaries, taken as a whole, will not have, as of such date, an unreasonably
small amount of capital with which to
19
conduct their businesses, taking into account the particular capital
requirements of such Person and its projected capital requirements and
availability and (c) such Person and its subsidiaries, taken as a whole, will
be able to pay their debts as they mature, taking into account the timing of
and amounts of cash to be received by such Person and its subsidiaries, taken
as a whole, and the timing of and amounts of cash to be payable on or in
respect of indebtedness of such Person and its subsidiaries, taken as a whole.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal or equitable, secured or unsecured or
(y) right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is subject
(a) with respect to the Base CD Rate, for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held by such Person or one or more
subsidiaries of such Person or by such Person and one or more subsidiaries of
such Person.
20
"Subsidiary" means any subsidiary of the Borrower.
"Stub End Date" has the meaning set forth in Section 1.04(b).
"Target" means Hannaford Bros. Co., a Maine corporation.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowing. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g., a "Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the
21
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Majority Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
(b) For purposes of calculating compliance with Section 6.07 on the
last day of any Fiscal Quarter ended on or after the Acquisition Date and prior
to the first date (the "Stub End Date") on which four full Fiscal Quarters have
begun and ended on or after the Acquisition Date and Section 6.08 on any date
on or after the Acquisition Date and prior to the Stub End Date, Consolidated
EBITDAR (and each component thereof), Consolidated Fixed Charges (and each
component thereof) and Rentals for purposes of determining Consolidated
Adjusted Debt for any relevant period shall be adjusted on a pro forma basis as
if (i) the Acquisition had been consummated on the first day of such period,
(ii) the borrowings to finance the Acquisition (including without limitation
the Loans and any loans
22
under the 5-Year Agreement and the Bridge Agreement) had been made on the first
day of such period and (iii) any Indebtedness of the Target and its
subsidiaries repaid in connection with the consummation of the Acquisition had
been repaid on the first day of such period.
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender with a Commitment agrees to make Revolving Loans to
the Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.12, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$5,000,000 and not less than $25,000,000 (or, if less, the unused portion of
the Commitments). Borrowings of more than one Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of 10
Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
23
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Revolving Borrowing is specified,
then the requested Revolving Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Loan to
be made as part of the requested Borrowing.
SECTION 2.04. Reserved.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by
24
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds,
to an account of the Borrower maintained with the Administrative Agent in New
York City and designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
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(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Revolving Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Revolving Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Majority Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Revolving Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
26
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of any Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce any
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.09, the sum of the total Revolving Credit
Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender with a Commitment the then unpaid principal amount of
such Lender's Revolving Loans on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence
27
and amounts of the obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise
the Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily amount by which such Lender's
Commitment exceeds the aggregate amount of such Lender's outstanding Loans
28
during the period from and including the date hereof to but excluding the date
on which such Commitment terminates. Accrued commitment fees shall be payable
in arrears on the last day of March, June, September and December of each year
and on the date on which the Commitments terminate, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate plus
the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided above or (ii) in the
case of any other amount, 2% plus the rate applicable to ABR Loans as provided
above.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion
29
and (iv) all accrued interest shall be payable upon termination of the
Commitments.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Majority Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender
or any participation therein;
30
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender, to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or such Lender's holding company, as the case may be, such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 15 days
after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right
to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender (or such Lender's holding company) pursuant to this
Section for any increased costs or reductions incurred more than ninety days
prior to the date that such Lender notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the ninety-day period referred to above shall be extended to include the period
of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period
31
applicable thereto, (c) the failure to borrow any Eurodollar Loan, convert any
ABR Loan into a Eurodollar Loan, continue any Eurodollar Loan or prepay any
Eurodollar Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.09(b) and is revoked in accordance herewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.17,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for a deposit equal to
the principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on
such deposit were equal to the Adjusted LIBO Rate for such Interest Period,
over (ii) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for Dollar deposits from other banks in the
eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 15 days after receipt
thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
32
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent or such Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate. The Borrower
shall not be obligated to make any payments to a Foreign Lender pursuant to
Section 2.15(a) to the extent that such Indemnified Taxes or Other Taxes became
payable as a consequence of such Foreign Lender having failed to comply with
this Section 2.15(e).
(f) If any Lender shall become aware that it is entitled to receive a
refund or credit (such credit to include any increase in any foreign tax
credit) as a result of Indemnified Taxes (including any penalties or interest
with respect thereto) as to which it has been indemnified by the Borrower
pursuant to this Section 2.15, it shall promptly notify the Borrower of the
availability of such refund or credit and shall, within 30 days after receipt
of a request by the Borrower, apply for such refund or credit at the Borrower's
expense, and in the case of any application for such refund or credit by the
Borrower, shall, if legally able to do so, deliver to the Borrower such
certificates, forms or other documentation as may be reasonably necessary to
assist the Borrower in such application. If any Lender receives a refund or
credit (such credit to include any
33
increase in any foreign tax credit) in respect to any Indemnified Taxes as to
which it has been indemnified by the Borrower pursuant to this Section 2.15, it
shall promptly notify the Borrower of such refund or credit and shall, within
30 days after receipt of such refund or the benefit of such credit (such
benefit to include any reduction of the taxes for which any Lender would
otherwise be liable due to any increase in any foreign tax credit available to
such Lender), repay the amount of such refund or benefit of such credit (with
respect to the credit, as determined by the Lender in its sole judgment) to the
Borrower (to the extent of amounts that have been paid by the Borrower under
this Section 2.15 with respect to Indemnified Taxes giving rise to such refund
or credit), plus any interest received with respect thereto, net of all
reasonable out-of-pocket expenses of such Lender and without interest (other
than interest actually received from the relevant taxing authority or other
Governmental Authority with respect to such refund or credit); provided,
however, that the Borrower, upon the request of such Lender, agrees to return
the amount of such refund or benefit of such credit (plus interest) to such
Lender in the event such Lender is required to repay the amount of such refund
or benefit of such credit to the relevant taxing authority or other
Governmental Authority.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or under Section 2.13, 2.14 or
2.15, or otherwise) prior to 12:00 noon, New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 60 Wall Street, New
York, New York, except that payments pursuant to Sections 2.13, 2.14, 2.15 and
9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in
Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay
34
principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to
35
satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, or to file any
certificate or document reasonably requested by the Borrower, if, in the
judgment of such Lender, such designation or assignment or filing (i) would
eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply. A Lender shall not be required to pay any fee to
the Administrative Agent in connection with such assignment and delegation (any
such fee to be paid by the Borrower or the assignee).
36
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Representations and Warranties
The Borrower represents and warrants to the Lenders (including, in the
case of any representation and warranty made or deemed made before the
consummation of the Acquisition, at the time such representation and warranty
is made or deemed made and immediately after giving effect to the consummation
of the Acquisition) that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each of this
Agreement and the other documents executed and delivered in connection with the
Transactions, has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such consents,
approvals, registrations or filings as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under (i) any indenture, agreement or instrument
relating to the Existing Public Debt or the Medium Term Notes or (ii) any other
indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, other than defaults or violations for which
consents or waivers have been obtained or,
37
solely with respect to any indenture, agreement or instrument described in
clause (ii), which defaults or violations, individually or in the aggregate
could not reasonably be expected to result in a Material Adverse Effect, (d)
will not give rise to a right under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or its assets
to require any payment to be made by the Borrower or any of its Subsidiaries
other than any payments contemplated to be made in connection with the
Transactions, and (e) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the Fiscal Year ended January 2, 1999, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the Fiscal Year ended September 11, 1999, certified by its
Financial Officer. Such financial statements present fairly, in all material
respects, the financial condition and results of operations and cash flows of
Borrower and its Consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above.
(b) Since June 19, 1999, there has been no Material Adverse Change in
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes and except
as may be permitted pursuant to Section 6.01.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
38
against or affecting the Borrower or any of its Subsidiaries or that involve
this Agreement or the Transactions as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters).
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books reserves as and to the extent required
by GAAP or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
39
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $8,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$15,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to its
knowledge to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. None of the reports,
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time. Any
forward looking statements contained therein are inherently subject to risk and
uncertainties, many of which cannot be predicted with accuracy, and some of
which might not be anticipated. Future events and actual results, financial and
otherwise, could differ materially from those set forth therein or contemplated
by the forward looking statements contained therein.
SECTION 3.12. Margin Stock. Not more than 25% of the consolidated
assets of the Borrower consists of "margin stock" within the meaning of such
term under Regulation U of the Board of Governors of the Federal Reserve
System.
SECTION 3.13. No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.14. Subsidiaries. Schedule 3.14 sets forth all of the
Subsidiaries of the Borrower at the date hereof.
40
SECTION 3.15. Solvency. As of the date hereof and on the occasion of
any Borrowing, the Borrower is Solvent.
SECTION 3.16. Year 2000 Matters. Any reprogramming required to permit
the proper functioning (but only to the extent that such functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries has been substantially completed. The costs to the Borrower and
its Subsidiaries that have not been incurred as of the date hereof for such
reprogramming and testing and for the other reasonably foreseeable consequences
to them of any improper functioning of other computer systems and equipment
containing embedded microchips due to the occurrence of the year 2000 could not
reasonably be expected to result in a Default or Event of Default or to have a
Material Adverse Effect. The computer systems of the Borrower and its
Subsidiaries are and, with ordinary course of upgrading and maintenance, will
continue for the term of this Agreement to be sufficient for the conduct of
their business as currently conducted.
SECTION 3.17. Acquisition Documents. As of the Acquisition Date, each
of the representations and warranties made in the Acquisition Documents by each
of the parties thereto is true and correct in all material respects, and such
representations and warranties are hereby incorporated herein by reference with
the same effect as though set forth in their entirety herein, as qualified
therein.
ARTICLE 4
CONDITIONS TO FUNDING
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel for the
Borrower, substantially in the form of Exhibit B-1, and covering such other
matters relating to the Borrower, this Agreement or the Transactions as the
41
Majority Lenders shall reasonably request. The Borrower hereby requests such
counsel to deliver such opinion.
(c) The Administrative Agent shall have received evidence
satisfactory to it that the commitments under the Credit Agreement dated as of
December 14, 1998 among Food Lion, Inc., the lenders party thereto, The Chase
Manhattan Bank and Wachovia Bank, N.A shall have terminated and all loans
outstanding thereunder, together with accrued and unpaid interest thereon, and
all fees and expenses payable thereunder, shall have been, or shall
contemporaneously with the occurrence of the Effective Date be, paid in full.
(d) The Administrative Agent shall have received such other legal
opinions, documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower, the authorization of the Transactions and any other
legal matters relating to the Borrower, this Agreement or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its counsel.
(e) All governmental and third party approvals necessary in
connection with the Transactions and the continuing operations of the Borrower
and its Subsidiaries shall have been obtained and be in full force and effect.
(f) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(g) The Lenders and the Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(h) There shall be no actions, suits or proceedings by or before any
arbitrator or Governmental Authority, or any other legal or regulatory
developments pending against or, to the knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries or which involve this Agreement
or the Transactions, which, in the reasonable judgment of the Administrative
Agent, may prohibit or impose burdensome conditions on the Transactions
contemplated hereby.
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not
42
become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time,
on August 17, 2000 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (including without limitation on the
date of the first Borrowing hereunder) is subject to the satisfaction of the
following conditions (or waiver thereof in accordance with Section 9.02):
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing, including, without limitation, the representations and warranties
set forth in Sections 3.04 and 3.06, except to the extent such representations
and warranties expressly relate to an earlier date.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default or Event of Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE 5
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, the Borrower covenants and agrees with the Lenders
that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each Fiscal Year, its audited
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures as of the end of and for the previous
Fiscal Year, all reported on by PricewaterhouseCoopers LLP or other independent
public accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of
43
operations of the Borrower and its Consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each Fiscal Year, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the Fiscal Year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous Fiscal Year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its Consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations
of the financial covenants set forth in Sections 6.02, 6.07 and 6.08 and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section
3.04(a) and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed
(excluding exhibits) by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be;
and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the
44
Administrative Agent or any Lender through the Administrative Agent may
reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $20,000,000 subsequent to the date hereof; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole except to that extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted
under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.
45
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in adequate working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated
by the Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
SECTION 5.07. Compliance with Laws and Material Contractual
Obligations. The Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property and all material Contractual
Obligations, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; provided that the foregoing shall not be construed to prevent the
Borrower or any such Subsidiary from contesting any of the same by appropriate
proceedings.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only (i) to refinance existing Indebtedness of the Borrower and its
Subsidiaries and (ii) for general corporate purposes of the Borrower and its
Subsidiaries, including as credit support for the Borrower's commercial paper
programs. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
SECTION 5.09. Change in Ratings. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of any change in
ratings established or deemed to have been established by Moody's and S&P for
any of its indebtedness for borrowed money, including, without limitation, the
Index Debt or its senior, unsecured, short-term indebtedness for borrowed money
(including, without limitation, commercial paper).
46
SECTION 5.10. Copies of Other Bank Agreements. Promptly upon entering
into the Bridge Agreement or the 5-Year Agreement, the Borrower will deliver to
each Lender (other than a Lender who is a party to such Bridge Agreement or
5-Year Agreement) a true, correct and complete copy thereof.
ARTICLE 6
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth on Schedule 6.01 or
resulting from operating leases existing on the date hereof being reclassified
as capital leases in accordance with GAAP; provided that (i) such Lien shall
not apply to any other property or asset (other than accessions, modifications
and proceeds thereof) of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary on or after the date
hereof prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets (other than accessions,
modifications and proceeds thereof) of the Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the case may
be and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
47
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such Liens and
the Indebtedness secured thereby are incurred prior to or within 180 days after
such acquisition or the completion of such construction or improvement, (ii)
the Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iii) such Liens
shall not apply to any other property or assets (other than accessions,
modifications and proceeds thereof) of the Borrower or any Subsidiary; and
(e) Liens not otherwise permitted pursuant to this Section 6.01
securing Indebtedness of the Borrower or any Subsidiary (not otherwise
prohibited hereunder) in an aggregate principal amount at no time exceeding (i)
$30,000,000 minus (ii) the aggregate principal amount of Indebtedness of
Subsidiaries permitted solely by clause (e) of Section 6.02 outstanding at such
time.
SECTION 6.02. Indebtedness of Subsidiaries. The Borrower will not
permit any Subsidiary to create, incur, assume, become liable in respect of or
suffer to exist any Indebtedness, except to the extent otherwise permitted
hereunder:
(a) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted under Section 6.01(b);
(b) (i) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted under Section 6.01(c) in an aggregate
principal amount not to exceed $140,000,000, (ii) Indebtedness (other than
Indebtedness permitted by clause (i)) consisting of Capital Lease Obligations
and (iii) on and after the date on which Bel-Thai Supermarket Company Ltd.
("Bel- Thai") becomes a Subsidiary, Indebtedness of Bel-Thai in an aggregate
principal amount not exceeding $60,000,000;
(c) Indebtedness of any Subsidiary owed to the Borrower or any other
Subsidiary;
(d) Indebtedness of the Target and its subsidiaries outstanding on the
Acquisition Date and not incurred in contemplation of the Acquisition; and
(e) additional Indebtedness of the Subsidiaries in an aggregate
principal amount (for all Subsidiaries) at no time exceeding (i) $30,000,000
minus (ii) the aggregate principal amount of Indebtedness secured by Liens
permitted solely by clause (e) of Section 6.01 outstanding at such time;
48
provided that at any date the aggregate amount of Capital Lease Obligations of
all Subsidiaries (other than any such Capital Lease Obligations incurred in
reliance on clause (i) of subsection (b)) and the aggregate amount of Capital
Lease Obligations of the Borrower will not exceed $1,000,000,000.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of the assets of the Borrower and its
Subsidiaries taken as a whole (whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing
(i) the Borrower may merge into any other Person in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the surviving corporation,
(iii) any Subsidiary may merge into any Subsidiary in a transaction in which
the surviving entity is a Subsidiary, (iv) any Subsidiary may merge into any
other Person in a transaction in which the surviving entity is a Subsidiary or
in a transaction permitted by Section 6.09 and in which the surviving Person is
not a Subsidiary, (v) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to another Subsidiary or in a
transaction not constituting all or substantially all of the assets of the
Borrower and its Subsidiaries taken as a whole and which is permitted by
Section 6.08, (vi) Acquisition Sub may consummate the Merger, (vii) subject to
Section 10.01, the Borrower and its Subsidiaries may consummate the
Reorganization and (viii) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in
the best interests of the Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries and
Hannaford and its subsidiaries on the date of execution of this Agreement and
businesses reasonably related or incidental thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any capital stock, evidences of Indebtedness or other
securities (including
49
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person,
or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit,
except:
(i) Cash Equivalents;
(ii) extensions of trade credit in the ordinary course of business;
(iii) investments arising from the settlement of debts or as a result
of bankruptcy or insolvency proceedings or as a result of enforcement
proceedings;
(iv) investments of the Borrower and the Subsidiaries existing on the
date hereof;
(v) investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries;
(vi) loans, advances and other investments made by the Borrower to or
in any Subsidiary and made by any Subsidiary to or in the Borrower or any
other Subsidiary;
(vii) Guarantees to the extent that the resulting Debt would be
permitted by Section 6.08 and, if applicable, Section 6.02;
(viii) the acquisition of the capital stock of the Target pursuant to
the Acquisition Documents;
(ix) investments of the Target and its subsidiaries (i) existing on
the date hereof or (ii) made after the date hereof and prior to the
Acquisition Date, so long as such investments are permitted to be made by
the terms of the Merger Agreement;
(x) at any time on or after the Bridge Payout Date, acquisitions of a
Person or the assets of a Person constituting a business unit in the same
line of business conducted by the Borrower on the date hereof in an
aggregate amount not to exceed $600,000,000 over the term of this
Agreement; provided that acquisitions of equity interests in a Person
which do not result in such Person constituting a Subsidiary shall not
exceed an aggregate amount of $200,000,000; and
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(xi) investments not otherwise permitted pursuant to this Section
6.04 in an aggregate amount not to exceed $20,000,000 at any time
outstanding.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreement, other than (i) Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities, (ii) any Hedging Agreements to
hedge interest rate risk with respect to the loans outstanding under the Bridge
Agreement and (iii) Hedging Agreements constituting "treasury-locks" or similar
hedging arrangements entered into by the Borrower in anticipation of an
issuance of Debt by the Borrower pursuant to a capital markets transaction.
SECTION 6.05. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties and (b)
transactions between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliate.
SECTION 6.06. Reserved.
SECTION 6.07. Fixed Charges Coverage. At the end of each Fiscal
Quarter set forth below, the ratio of (i) Consolidated EBITDAR for the period
of four Fiscal Quarters then ended to (ii) Consolidated Fixed Charges for such
period, shall not have been less than the ratio set forth below opposite such
Fiscal Quarter (subject to the proviso set forth below):
Period Ratio
------ -----
First Fiscal Quarter ended on or immediately after the 2.25:1
Effective Date - Third Fiscal Quarter 2001
Fourth Fiscal Quarter 2001 - Third Fiscal Quarter 2002 2.50:1
Fourth Fiscal Quarter 2002 - Third Fiscal Quarter 2003 2.75:1
Fourth Fiscal Quarter 2003 and thereafter 3.00:1
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; provided that at the end of any Fiscal Quarter ended prior to the Acquisition
Date, such ratio shall not have been less than 3:00:1.
SECTION 6.08. Ratio of Consolidated Adjusted Debt to Consolidated
EBITDAR. At no date will the ratio of (i) Consolidated Adjusted Debt at such
date to (ii) Consolidated EBITDAR for the period of four consecutive Fiscal
Quarters ended on or most recently prior to such date exceed the ratio set
forth below opposite the period in which such date falls (subject to the
provisio set forth below):
Period Ratio
------ -----
Effective Date - day immediately preceding last day of 4.50:1
Fourth Fiscal Quarter 2001
Last day of Fourth Fiscal Quarter 2001- day immediately 4.00:1
preceding last day of Fourth Fiscal Quarter 2002
Last day of Fourth Fiscal Quarter 2002 - day immediately 3.75:1
preceding last day of Fourth Fiscal Quarter 2003
Last day of Fourth Fiscal Quarter 2003 and thereafter 3.50:1
; provided that at any date prior to the Acquisition Date, such ratio will not
exceed 3:00:1.
SECTION 6.09. Limitation on Sales of Assets. The Borrower will not,
nor will it permit any Subsidiary to, convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets, whether now owned
or hereafter acquired, or discontinue or eliminate any business line or
segment, except:
(a) the sale or other disposition of obsolete, surplus or worn out
property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) as permitted by Section 6.03(a);
(d) (i) sales of assets in a single transaction or in a series of
related transactions the aggregate book value of which is not greater than
$25,000,000 in any one such transaction or series of related transactions and
(ii) sales of assets the consummation of which is an express condition (either
precedent or subsequent) to the approval by the Federal Trade Commission of the
Acquisition; provided that the book value of the assets disposed of in assets
sales consummated in
52
reliance on this clause (ii) does not exceed $258,000,000 and provided, further
that if, within 180 days of any such assets sales, the Borrower or any
Subsidiary acquires similar assets having a use similar to and a fair market
value at least equal to the assets sold, then the value of the assets sold
shall not be included in calculating future assets sales permitted under this
Section 6.09;
(e) dispositions and discontinuances of a business line or segment
not otherwise permitted pursuant to this Section 6.09, provided that the
aggregate assets to be so disposed of or the aggregate assets utilized in a
business line or segment to be so discontinued (in a single transaction or in a
series of related transactions), when combined with all other assets disposed
of (including, without limitation, pursuant to a sale and leaseback
transaction) and all other assets utilized in all other business lines or
segments discontinued, during the period from the date of this Agreement
through and including the date of any such disposition or discontinuation would
not exceed 5% of Consolidated Total Assets as determined by reference to the
Borrower's most recently audited financial statements provided to the
Administrative Agent and the Lenders pursuant to Section 5.01(a) and provided,
further that if, within 180 days of the sale of any assets, the Borrower or any
Subsidiary acquires similar assets having a use similar to and a fair market
value at least equal to the assets so sold, then the value of the assets sold
shall not be included in calculating future assets permitted to be sold under
this Section 6.09; and
(f) conveyances, sales, leases, assignments, transfers or other
dispositions of assets from the Borrower to a wholly owned Subsidiary
(including without limitation pursuant to the Reorganization), from a
Subsidiary to the Borrower or from a Subsidiary to a wholly owned Subsidiary.
SECTION 6.10. Modifications to Acquisition Documents. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into any
amendment, modification or waiver of any material term or condition of any
Acquisition Document without the prior written consent of the Majority Lenders.
SECTION 6.11. Restrictions Affecting Subsidiaries. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into, be bound by or
suffer to exist any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make other distributions or pay any Debt or
Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances
to the Borrower or any Subsidiary, (c) transfer any of its properties or assets
to the Borrower or any Subsidiary, (d) create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, (e) Guarantee any Debt or Indebtedness of the Borrower or
another Subsidiary or (f) suffer to exist any Lien on capital stock or other
equity interests issued by it;
53
except for any such encumbrance or restriction existing under or by reason of
(i) any agreement in effect on the Effective Date as any such agreement is in
effect on such date, (ii) this Agreement, (iii) any agreement with respect to
Indebtedness of any Subsidiary permitted to be incurred under Section 6.02(b)
or secured by a Lien permitted to be incurred under Section 6.01(d) and
provided such encumbrance or restriction shall not apply to any assets of the
Borrower or its Subsidiaries other than the assets of such Subsidiary subject
to such Lien, (iv) any agreement binding upon such Subsidiary prior to the date
on which such Subsidiary was acquired by the Borrower and outstanding on such
date and provided such encumbrance or restriction shall not apply to any assets
of the Borrower or its Subsidiaries other than such Subsidiary, (v) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of any Subsidiary, (vi) applicable law, (vii) licenses or
other agreements, including with respect to property, in the ordinary course of
business consistent with prior practice and (viii) any agreement binding upon
such Subsidiary so long as such encumbrance or restriction is no more
restrictive than those contained in this Agreement.
ARTICLE 7
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of this
Section) payable under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of five
days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof, or in any report,
certificate, financial statement or other document delivered pursuant to this
Agreement or any amendment or modification hereof, shall prove to have been
incorrect in any material way when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article 6;
54
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or their respective debts, or of a
substantial part of their respective assets, under any federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of their respective assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part
of their respective assets, (iv) file an answer admitting the material
allegations of a petition filed against either of them in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
55
(j) the Borrower or any Subsidiary shall become unable, or admit in
writing or fail generally, to pay their respective debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, bonded or vacated, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Majority Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Majority Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
56
ARTICLE 8
THE ADMINISTRATIVE AGENT
SECTION 8.01. The Administrative Agent. Each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is required to exercise in writing by the Majority Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Majority
Lenders or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
57
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right (so long as no Default
has occurred and is continuing with consent of the Borrower which consent shall
not be unreasonably withheld) to appoint a successor. If no successor shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 2110 Executive Drive, Salisbury,
North Carolina 28145-1330, Attention of Richard James, Treasurer/Director of
Finance (Telecopy No. 704-636-5024);
(b) if to the Administrative Agent, J.P. Morgan Services Inc., 500
Stanton Christiana Road, Newark, Delaware 19713, Attention of Jeannie Mattson,
Associate (Telecopy No. 302-634-1092); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
59
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Majority Lenders or by the Borrower and
the Administrative Agent with the consent of the Majority Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.16(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender adversely affected thereby, or (v) change any of the provisions of this
Section or the definition of "Majority Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the
60
Loans made hereunder, including in connection with any workout, restructuring
or negotiations in respect thereof including, without limitation, actions in
connection with this Agreement or the Loans, arising, occurring or continuing
subsequent to the Maturity Date (other than any such expenses directly related
to a court enforcement action in which the Borrower prevails on the merits in a
final and nonappealable judgment).
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance
by the parties hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this
61
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a
Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (iv)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; provided further that any consent of the
Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article 7 has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations
62
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument
63
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to paragraph (f) of
this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement or any promissory note
issued pursuant hereto to such Lender to secure obligations of such Lender,
including any such pledge or assignment to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article 8 shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
64
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent of Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court for the Southern District of New York, and any appellate court
from
65
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
66
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to a written
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section
or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Borrower, its Subsidiaries or their businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
67
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
ARTICLE 10
PROVISIONS RELATING TO THE REORGANIZATION
SECTION 10.01. Consent to Reorganization. Notwithstanding anything to
the contrary contained herein, the Borrower may effect the Reorganization or
any portion thereof so long as no Default shall have occurred and be continuing
or would occur after giving effect to the Reorganization or such portion
thereof. Promptly upon completion of the Reorganization, the Borrower shall
give the Administrative Agent notice thereof.
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
DELHAIZE AMERICA, INC.
By: /s/ Richard James
------------------------------------
Title: Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
individually and as
Administrative Agent
By: /s/ Kathryn Sayko-Yanes
------------------------------------
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Bill Manley
------------------------------------
Title: Managing Director
CITIBANK, N.A.
By: /s/ Marc Merlino
------------------------------------
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Timothy R. Hileman
------------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Howard F. Bascom, Jr.
------------------------------------
Title: Vice President
BANK ONE, NA
By: /s/ Catherine A. Muszynski
------------------------------------
Title: Vice President
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ C.F. Wright / M-C Swinnen
------------------------------------
Title: Authorised Signatory / Authorised
Signatory
CREDIT AGRICOLE INDOSUEZ
By: /s/ Craig Welch
------------------------------------
Title: First Vice President
By: /s/ Rene LeBlanc
------------------------------------
Title: Vice President, Senior Relationship
Manager
DEUTSCHE BANK AG, NEW YORK BRANCH
and/or Cayman Islands Branch
By: /s/ Oliver Schwarz / Stefan Hafke
------------------------------------
Title: Assistant Vice President /
Vice President
FIRST UNION NATIONAL BANK
By: /s/ Thomas M. Harper
------------------------------------
Title: Vice President
FORTIS (USA) FINANCE LLC
By: /s/ David Snyder / Eddie Matthews
------------------------------------
Title: Senior Vice President /
Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Minami Miura
------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ Theodore W. Cox / Edward Peyser
------------------------------------
Title: Vice President / Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Andrew J. Hines
------------------------------------
Title: Vice President
COBANK, ACB
By: /s/ Brian J. Klatt
------------------------------------
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Nicholas A. Fiore
------------------------------------
Title: Assistant Vice President
THE FUJI BANK, LIMITED
By: /s/ Yuji Tanaka
------------------------------------
Title: Vice President and Manager
BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By: /s/ Henry F. Setina
------------------------------------
Title: Vice President
BRANCH BANKING & TRUST COMPANY
By: /s/ Cory Boyte
------------------------------------
Title: Vice President
CIBC INC.
By: /s/ Dominic Sorresso
------------------------------------
Title: Executive Director
CREDIT COMMERCIALE DE FRANCE S.A.
By: /s/ Chantal Peters / Bernard de Bellefroid
-------------------------------------------
Title: Directeur / Directeur General
FLEET NATIONAL BANK
By: /s/ Thomas J. Bullard
-------------------------------------------
Title: Vice President
PARIBAS
By: /s/ A. Boulanger / D. Stroobants
-------------------------------------------
Title: Branch Manager / Structure and
Finance
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Mark O' Connor
------------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. William Bloore
-----------------------------------------
Title: Vice President
BANCA DI ROMA-NEW YORK BRANCH
By: /s/ S.F. Paley
------------------------------------
Title: Vice President
By: /s/ Alessandro Paoli
------------------------------------
Title: Assistant Treasurer
CREDIT COMMUNAL DE BELGIQUE-NEW
YORK BRANCH
By: /s/ Caroline Junius / Jan e. van Panhuys
-----------------------------------------
Title: Vice President / General Manager
Schedule 2.01
Commitment Schedule
Bank Commitment
- ---- ----------
Morgan Guaranty Trust Company of New York $30,000,000
Bank of America, N.A. $27,500,000
Citibank, N.A. $27,500,000
Wachovia Bank, N.A. $27,500,000
The Bank of New York $20,500,000
Bank One, NA $20,500,000
BBL International (U.K.) Limited $20,500,000
Credit Agricole Indosuez $20,500,000
Deutsche Bank AG-New York Branch $20,500,000
First Union National Bank $20,500,000
Fortis (USA) Finance LLC $20,500,000
The Industrial Bank of Japan, Limited $20,500,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank $20,500,000
B.A., "Rabobank International", New York Branch
SunTrust Bank, Atlanta $20,500,000
CoBank, ACB $19,000,000
The Dai-Ichi Kangyo Bank, Ltd. $19,000,000
The Fuji Bank, Limited $19,000,000
Banque Nationale de Paris, Houston Agency $19,000,000
Branch Banking & Trust Company $12,500,000
CIBC Inc. $12,500,000
Credit Commerciale de France S.A. $12,500,000
Fleet National Bank $12,500,000
76
Bank Commitment
- ---- ----------
Paribas $12,500,000
Bank of Tokyo-Mitsubishi Trust Company $ 9,500,000
Union Bank of California, N.A. $ 9,500,000
Banca di Roma-New York Branch $12,500,000
Credit Communal de Belgique-New York Branch $12,500,000
Total: $500,000,000
77
Schedule 3.06
Disclosed Matters
Incorporated by reference are the relevant portions of the following documents
for the Borrower and as of the Acquisition Date, the Target:
Delhaize America, Inc.
1. Annual Report on Form 10-K for the fiscal year ended January 2, 1999 filed
April 1, 1999, as amended by Amendment No. 1 to Annual Report on Form
10-K/A filed August 17, 1999.
2. Quarterly Report on Form 10-Q for the quarter ended September 11, 1999
filed October 26, 1999.
3. Quarterly Report on Form 10-Q for the quarter ended June 19, 1999 filed
July 30, 1999, as amended by Amendment No. 1 to Quarterly Report on Form
10-Q/A filed August 17, 1999.
4. Quarterly Report on Form 10-Q for the quarter ended March 27, 1999 filed
May 5, 1999, as amended by Amendment No. 1 to Quarterly Report on Form
10-Q/A filed August 17, 1999.
5. Current Report on Form 8-K filed September 17, 1999
6. Current Report on Form 8-K filed August 19, 1999.
7. Registration Statement on Form 8-A filed September 2, 1999, as amended by
Amendment No. 1 to Registration Statement on Form 8-A/A filed September 3,
1999.
Hannaford Bros. Co.
1. Annual Report on Form 10-K for the fiscal year ended January 2, 1999 filed
March 11, 1999.
2. Quarterly Report on Form 10-Q for the quarter ended October 2, 1999 filed
November 9, 1999.
3. Quarterly Report on Form 10-Q for the quarter ended July 3, 1999 filed
August 11, 1999.
78
4. Quarterly Report on Form 10-Q for the quarter ended April 3, 1999 filed
May 14, 1999.
5. Current Report on Form 8-K filed September 1, 1999.
6. Current Report on Form 8-K filed August 19, 1999.
7. Current Report on Form 8-K filed June 21, 1999.
8. Current Report on Form 8-K filed June 17, 1999.
79
Schedule 3.14
Subsidiaries of Borrower
FLI Holding Corp., a Delaware corporation ("FLI"), and a wholly-owned
subsidiary of the Borrower.
Risk Management Services, Inc., a North Carolina corporation, and a wholly-
owned subsidiary of the Borrower.
FL Acquisition Sub., Inc., a Maine corporation, and a wholly-owned subsidiary of
the Borrower.
Kash n' Karry Food Stores, Inc., a Delaware corporation, and a wholly-owned
subsidiary of FLI.1
FL Food Lion, Inc., a Florida corporation, and a wholly-owned subsidiary of FLI.
Barnwell, Inc., a Delaware corporation, and a wholly-owned subsidiary of FLI.
- --------
1 KNK 702 Delaware Business Trust, KNK 886 Delaware Business Trust, KNK 891
Delaware Business Trust, all Delaware business trusts, are wholly-owned by Kash
n' Karry Food Stores, Inc.
80
Schedule 6.01
Existing Liens
Liens representing the interest of the lessor under Capitalized Leases in
existence on the date of this Agreement have an aggregate outstanding principal
amount not exceeding $510,000,000.
81
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of _____________
___, 1999 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among DELHAIZE AMERICA, INC., the Lenders party
therein, and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
(in such capacity, the "Administrative Agent"). Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
i. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement, in a principal amount as set forth on Schedule 1 hereto.
ii. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other instrument or
document furnished pursuant thereto or with respect to the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of any
such adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of
its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any promissory
notes held by it evidencing the Assigned Interest and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached
promissory notes for a new promissory note or promissory notes payable to the
Assignee and (ii) if the Assignor has retained any interest under the Credit
Agreement, requests that the
A-1
Administrative Agent exchange the attached promissory notes for a new
promissory note or promissory notes payable to the Assignor, in each case in
amounts which reflect the assignment being made hereby (and after giving effect
to any other assignments which have become effective on the Effective Date).
iii. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 3.4 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it
will be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to Section 2.15(e) of the Credit Agreement.
iv. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
v. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
A-2
vi. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and
shall be bound by the provisions thereof and (b) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
vii. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
A-3
Schedule 1
to Assignment and Acceptance
Name of Assignor:_________________________
Name of Assignee:_________________________
Effective Date of Assignment:_____________
Principal
Amount Assigned Commitment Percentage Assigned2
- --------------------------- -------------------------------------------------
$__________ __._____%
[Name of Assignee] [Name of Assignor]
By:_________________________________ By:___________________________________
Title: Title:
Accepted: Consented To:
MORGAN GUARANTY TRUST DELHAIZE AMERICA, INC.,
COMPANY OF NEW YORK, Borrower
as Administrative Agent
By:_________________________________ By:___________________________________
Title: Title:
- --------
2Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
A-1
EXHIBIT B-1
FORM OF OPINION OF COUNSEL OF BORROWER
November ___, 1999
Morgan Guaranty Trust Company of New York
as Administrative Agent
60 Wall Street
New York, NY 10260
Each of the Lenders named on Annex A
Dear Sirs:
We have acted as counsel for Delhaize America, Inc., a North Carolina
corporation (the "Borrower"), in connection with the Credit Agreement, dated as
of November __, 1999 (the "Credit Agreement"), among the Borrower, the Lenders
party thereto (the "Lenders") and Morgan Guaranty Trust Company of New York
("MGT"), as Administrative Agent.
The opinions expressed here are furnished to you pursuant to
Subsection 4.01(b) of the Credit Agreement. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given in the Credit Agreement.
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Credit Agreement,
the certificate referred to in Subsection 4.01(f) of the Credit Agreement, and
such corporate documents and records of the Borrower as we have deemed
necessary or appropriate. As to questions of fact relevant to this opinion, we
have, without independent investigation, relied upon representations made to us
by the Borrower including the representations contained in the Loan Documents,
and in various certificates delivered by the Borrower, including, but not
limited to, certificates presented to the Lenders and the Administrative Agent,
and certain representations of public officials, all of which we assume to be
true. In our examination, we have assumed (i) the genuineness of all signatures
of all parties other than signatures of the Borrower, (ii) the authenticity of
all corporate records, agreements, documents, instruments and certificates
submitted to us as originals, the conformity to original agreements, documents
and instruments of all agreements and instruments submitted to us as conformed,
certified or photostatic copies thereof and the authenticity of the originals
of such conformed, certified or
B-1-1
photosttic copies; (iii) the due authorization, execution and delivery of all
agreements, documents and instruments by all parties other than the Borrower;
and (iv) the legal right and power of all such parties other than the Borrower
under all applicable laws and regulations to enter into, execute and deliver
such agreements, documents and instruments. We have further assumed that the
Lenders and the Administrative Agent have the requisite power and authority to
enter into the Loan Documents and to consummate the transactions contemplated
thereby and the absence of any requirement of consent, approval or
authorization by any Person or by any governmental body, agency or official
with respect to the Lenders and the Administrative Agent and that the Loan
Documents are legal, valid and binding obligations of the Lenders and the
Administrative Agent enforceable against such Persons in accordance with their
respective terms.
This law firm is a registered limited liability partnership organized
under the laws of the State of Texas. We express no opinion as to the laws of
any jurisdiction other than the laws of the State of New York, the United
States of America and The North Carolina Business Corporation Act. As to
matters governed by the laws of the State of North Carolina, we are relying
upon an opinion of Linn Evans, Esq. of even date herewith, a copy of which is
attached hereto. The opinions expressed in paragraph 1(b) below are based
solely upon our review of certain certificates of public officials of various
jurisdictions and are not based upon any examination of the laws of any such
jurisdiction.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower (a) is duly incorporated, validly existing and in good
standing under the laws of North Carolina and has all requisite power and
authority, to carry on its business as now conducted and (b) is qualified to do
business in, and is in good standing in, each jurisdiction listed on Schedule I
attached hereto.
2. The Transactions to be effected on the date hereof are each within
the Borrower's corporate powers and have each been duly authorized by all
necessary corporate and, if required, stockholder action. The Credit Agreement
has been duly executed and delivered by the Borrower and constitutes a legal,
valid and binding obligation of the Borrower.
3. To our knowledge, the Transactions to be effected on the date
hereof (a) will not require any consent or approval of, registration or filing
with, or any other action by, any Federal, New York or North Carolina
Governmental Authority, except for consents, approvals, registrations, filings
or other actions as have been obtained, made or waived and are in full force
and effect and which are not required to have been effected prior to the date
hereof, (b) will not violate any
B-1-2
applicable Federal, New York or North Carolina corporate law or regulations or
the charter, bylaws or other organizational documents of the Borrower or any
order of any Federal or New York Governmental Authority, (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon the Borrower or its assets other than defaults or violations for
which consents or waivers have been obtained or which defaults or violations,
individually or in the aggregate, could not have a Material Adverse Effect, or
(d) will not give rise under any indenture, agreement or other instrument
binding upon the Borrower to any requirement for any payments be made by the
Borrower, or (e) will not result in the creation or imposition of any Lien on
any asset of the Borrower.
4. To our knowledge, there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or threatened
against the Borrower (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve the Credit
Agreement or the Transactions to be effected on the date hereof.
5. The Borrower is not (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
The foregoing opinions are subject to the exceptions, limitations and
qualifications contained herein, including the following:
A. The enforceability of the Loan Documents may be (a) limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance or transfer and other similar laws affecting creditors'
rights, (b) subject to general principles of equity (regardless of whether
considered in a proceeding in equity or at law), commercial reasonableness and
good faith, and (c) limited by the power of courts to award damages in lieu of
equitable remedies. In addition, the right to indemnification contained in the
Loan Documents may be limited by Federal or New York state laws or the policies
of such laws.
B. We express no opinions as to enforceability of any provisions (i)
purporting to vest jurisdiction on any property of the Borrower in the Supreme
Court of the State of New York sitting in New York County or the United States
District Court of the Southern District of New York to the extent that such
property is not situated in New York, New York, (ii) purporting to waive or
B-1-3
restrict access to legal or equitable remedies (including venue, forum non
conveniens or the right to assert a setoff) or the right to collect damages
(including special, indirect, consequential or punitive damages), (iii)
prohibiting oral amendments or waivers of provisions of the Loan Documents;
(iv) establishing evidentiary standards or (v) permitting a Lender to set off
against any debtor's accounts any amounts belonging to a third party or
otherwise held in a fiduciary capacity.
C. When used in this opinion, the phrase "to our knowledge" means
known to attorneys in our firm who have rendered services to the Borrower in
connection with the Transactions.
This opinion is as of the date hereof, and we undertake no, and hereby
disclaim any, obligation to advise you of any change in any matter set forth
herein, whether based on a change in the law, a change in any fact relating to
the Borrower or any other Person or any other circumstance. This opinion is
delivered to you in connection with the transactions referenced above and may
be relied upon only by you and any permitted assignee of an assigning Lender or
Participant under the Credit Agreement in connection with such transaction and
may not be relied upon in any manner or for any purpose by any other person
without our prior written consent.
Very truly yours,
B-1-4
SCHEDULE I
Delaware Certificate of the Secretary of State of the State of
Delaware dated October 8, 1999
Florida Certificate of the Secretary of State of the State of
Florida dated October 11, 1999
Georgia Certificate of Existence of the Secretary of State of
the State of Georgia dated October 22, 1999
Kentucky Certificate of Authorization of the Secretary of
State of the Commonwealth of Kentucky dated
October 18, 1999
Maryland Certificate of the State Department of Assessments
and Taxation of the State of North Carolina dated
October 12, 1999
North Carolina Articles of Incorporation of Food Lion, Inc.,
certified by the Secretary of State of the State of
North Carolina dated October 8, 1999
Certificate of Existence of the Secretary of State of
the State of North Carolina dated October 8, 1999
Pennsylvania Certificate of the Secretary of the Department of
State of the Commonwealth of Pennsylvania dated
October 8, 1999
South Carolina Certificate of Authorization of the Secretary of the
State of South Carolina dated October 8, 1999
Tennessee Certificate of Authorization of the Secretary of
State of the State of Tennessee dated October 19, 1999
Virginia Certificate of Authority of the State Corporate
Commission of the Commonwealth of Virginia
dated October 21, 1999
West Virginia Certificate of Authority of the Secretary of the State
of West Virginia dated October 12, 1999
Certificate of Good Standing of the
Secretary of State of the State of West
Virginia dated October 18, 1999
B-1-5
ANNEX A
LENDER
Morgan Guaranty Trust Company of New York
Bank of America, N.A.
Citibank, N.A.
Wachovia Bank, N.A.
The Bank of New York
Bank One, NA
BBL International (U.K.) Limited
Credit Agricole Indosuez
Deutsche Bank AG-New York Branch
First Union National Bank
Fortis (USA) Finance LLC
The Industrial Bank of Japan, Limited
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
International",
New York Branch
SunTrust Bank, Atlanta
CoBank, ACB
The Dai-Ichi Kangyo Bank, Ltd.
The Fuji Bank, Limited
Banque Nationale de Paris, Houston Agency
Branch Banking & Trust Company
CIBC Inc.
Credit Commerciale de France S.A.
Fleet National Bank
Paribas
Bank of Tokyo-Mitsubishi Trust Company
Union Bank of California, N.A.
Banca di Roma-New York Branch
Credit Communal de Belgique-New York Branch
B-1-6