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AMENDED AND RESTATED TERM LOAN AGREEMENT
Dated as of May 17, 1995
FRED MEYER, INC. a Delaware corporation (the "Borrower"), and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch (the "Bank") agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE ADVANCE
SECTION 1.01. The Advances. The Bank had made available to the
Borrower, on the terms and conditions set forth herein, an advance (the
"Tranche A Advance") from November 4, 1991 to and including November 30,
1991 (the "Tranche A Termination Date") in an amount not exceeding
$10,000,000 (the "Trance A Commitment"). The Bank agrees, on the terms and
conditions hereinafter set forth, to make an advance (the "Tranche B
Advance") to the Borrower from time to time during the period from the date
hereof to and including May 31, 1996 (the "Tranche B Termination Date") in
an amount not to exceed $20,000,000 (the "Tranche B Commitment" and
together with the Tranche A Commitment, the "Commitment").
SECTION 1.02. Making the Advance. (a) The Tranche B Advance shall be
made on notice from the Borrower to the Bank delivered before 11:00 A.M.
(New York City time) on a Business Day (as hereinafter defined) specifying
the amount of such Advance and the Interest Period (as hereinafter defined)
therefor pursuant to Section 1.03. Not later than 2:00 P.M. (New York City
time) on such Business Day and upon fulfillment of the applicable
conditions set forth in Article II, the Bank will make the Tranche B
Advance available to the Borrower in same day funds at the Bank's address
referred to in Section 6.02.
SECTION 1.03. Repayment, Interest and Fees. (a) The Borrower shall
repay the aggregate unpaid principal amount of (i) the Tranche A Advance on
November 13, 1996 (the "Tranche A Maturity Date") and (ii) the Tranche B
Advance on May 17, 2000 (the "Tranche B Maturity Date") in accordance with
the terms of a promissory note of the Borrower, in substantially the form
of Exhibit A-I hereto in respect of the Tranche A Advance and Exhibit A-2
hereto in respect of the Tranche B Advance (each, a "Note"), evidencing the
indebtedness resulting from each Advance and delivered to the Bank pursuant
to Article II.
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(b) The Borrower shall pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal is paid
in full at the applicable rate set forth below.
(c) The period between the date of each Advance and the date of
payment in full of each Advance shall be divided into successive
three-month periods, each such period being an "Interest Period" for such
Advance. The initial Interest Period for each Advance shall begin on the
date of such Advance and end on the three month anniversary of such date,
and thereafter, each subsequent Interest Period for such Advance shall
begin on the last day of the immediately preceding Interest Period for such
Advance and end on the next three month anniversary of the date of such
Advance.
(d) The Borrower shall pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount
is due, payable on the last day of each Interest Period for such Advance,
at an interest rate per annum equal at all times during such Interest
Period for such Advance to the rate per annum set forth in the Note
evidencing such Advances.
(e) On any overdue principal amount of any Advance the Borrower
shall pay interest on demand at the Default Rate from the date such amount
becomes due to the date such amount is paid in full. The "Default Rate" is
a fluctuating rate equal to 2 percent per annum above the rate of interest
announced by the Bank from time to time in New York, New York as the Bank's
base rate (the "Base Rate"), each change in such fluctuating interest rate
to take effect simultaneously with the corresponding change in the Base
Rate.
(f) The Borrower agrees to pay to the Bank on the date hereof a
facility fee in an amount equal to five (5) basis points on the aggregate
amount of the Tranche B Commitment.
SECTION 1.04. Optional Prepayments. The Borrower may, upon at least
five Business Day's notice to the Bank, prepay the outstanding amount of
any Advance in whole or in part with accrued interest to the date of such
prepayment on the amount prepaid, provided, however, that any prepayment of
such Advance shall be accompanied by the compensation provided for by
Section 6.05 hereof.
SECTION 1.05. Increased Costs. If, after the date hereof either (i)
the introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or in
the interpretation of any law or regulation or (ii) the compliance by the
Bank with any new guideline or request from any central bank or other
governmental authority (whether or not having the force of law), shall
result in any increase in the cost to the Bank of making, funding or
maintaining any Advance, then the Borrower shall from time to time, upon
demand by the Bank, pay to the Bank additional amounts sufficient to
indemnify the Bank against such increased cost. A certificate as to the
amount of such increased cost, submitted to the Borrower by the Bank,
shall, in the absence of manifest error, be conclusive and binding for all
purposes.
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SECTION 1.06. Payments and Computations. The Borrower shall make
each payment hereunder and under the Note evidencing an Advance not later
than 12:00 noon (New York City time) on the day when due in lawful money of
the United States of America to the Bank at its address referred to in
Section 6.02 in same day funds. The Borrower hereby authorizes the Bank, if
and to the extent payment of any amount is not made when due under this
Agreement and any Note, to charge from time to time against any account of
the Borrower with the Bank any amount so due. All computations of interest
hereunder (unless calculated by reference to the Base Rate) and under any
Note and commitment fee hereunder shall be made by the Bank on the basis of
a year of 360 days, for the actual number of days (including the first day
but excluding the last day) elapsed and all calculations of interest
determined by reference to the Base Rate shall be made on the basis of a
year of 365 or 366 days, as the case may be, for the actual number of days
(including the first day but excluding the last day) elapsed.
SECTION 1.07. Payment on Non-Business Days. Whenever any payment to
be made hereunder or under any Note shall be stated to be due, or whenever
the last day of any Interest Period would otherwise occur, on a Saturday,
Sunday or a public or bank holiday in New York City (any other day being a
"Business Day"), such payment may be made, and the last day of such
Interest Period shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
payment of interest.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.01. Condition Precedent to each Advance. The obligation of
the Bank to make an Advance is subject to the condition precedent that the
Bank shall have received on or prior to such Advance the following, each
dated the day of such Advance, in form and substance satisfactory to the
Bank:
(a) A Note evidencing each of the Tranche A Advance and the Tranche
B Advance.
(b) Satisfactory evidence of authority of the Borrower to undertake
the transactions contemplated hereby.
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and each Note and the other
documents to be delivered by it hereunder.
SECTION 2.02. Additional Conditions Precedent to each Advance. The
obligation of the Bank to make an Advance shall be subject to the further
conditions precedent that on the date of such Advance (a) the following
statements shall be true (and the receipt by the Borrower of the proceeds
of such Advance shall be deemed to constitute a representation and warranty
by the Borrower that such statements are true on such date):
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(i) The representations and warranties contained in Section 3.01 of
this Agreement, are correct in all material respects on and as of the
date of such Advance as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
each Advance, which constitutes an Event of Default (as defined in
Section 5.01 hereof) or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both;
and (b) the Bank shall have received such other approvals, opinions or
documents as the Bank may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Agreement.
(b) The execution, delivery and performance by the Borrower of this
Agreement and each Note are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower, and do not
result in or require the creation of any lien, security interest or
other charge or encumbrance upon or with respect to any of its
properties.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of this Agreement and each Note.
(d) This Agreement and each Note are the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally.
(e) The balance sheets of the Borrower and its subsidiaries as at
January 28, 1995, 1995, and the related statements of income and
retained earnings of the Borrower and its subsidiaries for the fiscal
period then ended, copies of which have been furnished to the Bank,
fairly present the financial condition of the Borrower and its
subsidiaries as at such
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date and the results of the operations of the Borrower and its
subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and since
January 28, 1995 there has been no change in such condition or
operations which would materially and adversely affect the ability of
the Borrower to perform any of its obligations hereunder or under any
Note.
(f) There is no pending, or threatened action or proceeding
affecting the Borrower or any of its subsidiaries before any court,
governmental agency or arbitrator, which may materially adversely affect
the financial condition or operations of the Borrower or any subsidiary.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.
ARTICLE IV
COVENANTS OF THE BORROWER
SECTION 4.01. Incorporation of Covenants. Reference is made to that
certain Credit Agreement dated as of June 30, 1994 (the "1994 Credit
Agreement") among the Borrower, Continental Bank, as Agent, and other
financial institutions party thereto. Further reference is made to the
covenants contained in Section 10 of the 1994 Credit Agreement (hereinafter
referred to as the "Incorporated Covenants"). The Borrower agrees with the
Bank that the Incorporated covenants (and the related definitions and all
other relevant provisions of the 1994 Credit Agreement related thereto) are
hereby incorporated by reference into this Agreement to the same extent and
with the same effect as if set forth fully herein, without giving effect to
any waiver, amendment, modification, termination or replacement of the 1994
Credit Agreement or any term or provision of the Incorporated Covenants
occurring subsequent to the date of this Agreement, except to the extent
such waiver, amendment, modification, termination or replacement has been
approved in writing by the Bank; provided that any reference in the
Incorporated Covenants to "Lender" shall be deemed to be a reference to the
Bank.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay principal when due or shall fail
to pay interest or any other amount payable hereunder or under any Note
within 5 days of when due; or
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(b) Any representation or warranty made by the Borrower hereunder or
in connection with this Agreement shall prove to have been incorrect in
any material respect when made; or
(c) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement and any such failure
shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Bank; or
(d) The Borrower or any of its Material Subsidiaries shall fail to
pay any indebtedness in excess of $5,000,000 (excluding indebtedness
evidenced by any Note) of the Borrower or such subsidiary (as the case
may be), or any interest or premium thereon, when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such indebtedness; or any other default under any agreement or
instrument relating to any such indebtedness, or any other event, shall
occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default
or event is to accelerate, or to permit the acceleration of, the
maturity of such indebtedness; or any such indebtedness shall be
declared to be due and payable, or required to be prepaid (other than by
a regularly scheduled required prepayment), prior to the stated maturity
thereof; or
(e) The Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief; or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or
for any substantial part of its property, and, in the case of any such
proceeding instituted against it (but not instituted by it) either such
proceeding shall remain undismissed or unstayed for a period of 60 days
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property) shall occur; or any
Borrower or any of its Material Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any of its Material
Subsidiaries and shall remain
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unsatisfied, undischarged, unvacated, unbonded or unstayed for a
period of 60 days or in any event later than five days prior to the date
of any proposed sale thereunder.
then, and in any such event, the Bank (i) may, by notice to the Borrower,
declare its obligation to make the Tranche B Advance to be terminated,
whereupon the same shall forthwith terminate, and (ii) may, by notice to
the Borrower, declare each Note, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon
each Note, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Borrower or any subsidiary under
the Federal Bankruptcy Code, (x) the obligation of the Bank to make the
Tranche B Advance shall automatically be terminated and (y) each Note, all
such interest and all such amounts shall automatically become due and
payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Bank and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
SECTION 6.02. Notices, Etc. All notices and other communications
provided for under this Agreement shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, cabled or delivered, if to the Borrower, at its
address at 3800 S.E. 22nd Avenue, Portland, Oregon 97202, Attention:
Treasurer; telecopier no. (503) 797-5299 and if to the Bank, at its address
at 245 Park Avenue, New York, New York 10167, Attention: Corporate Services
Department; telecopier no. (212) 916- 7930 or, as to each party, at such
other address as shall be designated by such party in a written notice to
the other party. All such notices and communications shall, when mailed,
telegraphed, telexed or cabled, be effective, if by mail, three business
days after depositing in the mails, if by telex, when confirmed by telex
answerback received, if by telecopier, when receipt is either confirmed by
confirming transmission equipment or acknowledged by the addressee or its
office, and, if by any other means, upon receipt, except that notices to
the Bank pursuant to the provisions of Article I shall not be effective
until received by the Bank. Notwithstanding the other provisions of this
Section 6.02, the Bank may accept oral borrowing notice pursuant to Section
1.02 hereof, provided that the Bank shall incur no liability to the
Borrower in acting on any such communication that the Bank believes in good
faith to have been given by a person authorized to give such notice on
behalf of the Borrower. Any confirmation sent by the Bank to the Borrower
of any borrowing under this Agreement shall, in the absence of manifest
error, be conclusive and binding for all purposes.error, be conclusive and
binding for all purposes.
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SECTION 6.03. No Waiver; Remedies. No failure on the part of the
Bank to exercise, and no delay in exercising, any right under this
Agreement or any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder or under the Note
preclude any other or further exercise thereof or the exercise of any other
right. The remedies provided in this Agreement or any Note are cumulative
and not exclusive of any remedies provided by law.
SECTION 6.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied, except as otherwise
stated herein.
SECTION 6.05. Costs, Expenses and Taxes. (a) Each party shall be
responsible for its own expenses incurred in the preparation, execution and
delivery of this Agreement. The Company agrees to pay on demand all costs
and expenses (including reasonable counsel fees and expenses) in connection
with the enforcement of this Agreement and any Note and the other documents
to be delivered under the Agreement and any Note.
(b) If, due to payments made by the Borrower pursuant to Section
1.04 or the acceleration of the maturity of any Advance pursuant to Section
5.01, the Bank receives payments of principal of such Advance other than on
the maturity date for such Advance, the Borrower shall pay to the Bank on
demand any amounts required to compensate the Bank for any loss or expense
arising from the liquidation and/or redeployment of funds obtained by the
Bank in order to make such Advance (but excluding any loss of anticipated
profits). A certificate of the amounts payable pursuant to this Section
6.05(b) (setting forth in reasonable detail the calculation of such
amounts) submitted by the Bank to the Company shall be conclusive, absent
manifest error.
SECTION 6.06. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Bank 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 the Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and each Note, irrespective of whether or not
the Bank shall have made any demand under this Agreement or each Note and
although such deposits, indebtedness or obligations may be unmatured or
contingent. The Bank agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights
of the Bank under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Bank may
have.
SECTION 6.07. Severability of Provisions. Any provision of this
Agreement or of any Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without
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invalidating the remaining provisions hereof or thereof or affecting the
validity or enforce ability of such provision in any other jurisdiction.
SECTION 6.08. Consent to Jurisdiction. (a) The Borrower hereby
irrevocably submits to the jurisdiction of any New York State or Federal
court sitting in New York City in any action or proceeding arising out of
or relating to this Agreement or any Note, and the Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York State court or in such Federal
court. The Borrower hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. The Borrower irrevocably consents to the
service of copies of the summons and complaint and any other process which
may be served in any such action or proceeding by the mailing of copies of
such process to the Borrower at its address specified in Section 6.02. The
Borrower 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.
(b) Nothing in this Section 6.08 shall affect the right of the Bank
to serve legal process in any other manner permitted by law or affect the
right of the Bank to bring any action or proceeding against the Borrower or
its property in the courts of other jurisdictions.
SECTION 6.09. Binding Effect; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Bank and
their respective successors and assigns, except that neither party hereto
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the other. This Agreement and each
Note shall be governed by, and construed in accordance with, the laws of
the State of New York.
SECTION 6.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together
shall constitute but one and the same agreement.
SECTION 6.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE
BANK HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT
TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
FRED MEYER, INC.
By /s/ MICHAEL DON
---------------------------------------
Vice President/Treasurer
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York
Branch
By /s/
---------------------------------------
Authorized Officer
By
---------------------------------------
Authorized Officer
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EXHIBIT A - 1
TRANCHE A PROMISSORY NOTE
$10,000,000 Dated: May 17, 1995
FOR VALUE RECEIVED, the undersigned, FRED MEYER, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch (the "Bank") the principal sum of Ten Million Dollars
($10,000,000), on November 13, 1996.
The Borrower promises to pay interest on the unpaid principal amount
of the Advance from the date of such Advance until such principal amount is
paid in full (i) for the period from the date of the Advance to and
including the maturity date of the Advance, at 7.74 percent per annum and
(ii) after such maturity date, at the Default Rate set forth in the Credit
Agreement. Interest is payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Bank at 245 Park Avenue, New York, New York
10167, in same day funds.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of the Amended and Restated Term Loan Agreement dated as of
May 17, 1995 (the "Credit Agreement") between the Borrower and the Bank.
The Credit Agreement, among other things, (i) provides for the making of
advances (the "Advances") by the Bank to the Borrower from time to time in
the amount first above mentioned, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
This Promissory Note is in substitution of and replacement for the
Note dated as of November 13, 1991 made by the Borrower in favor of the
Bank.
FRED MEYER, INC.
By
---------------------------------
Title:
12
EXHIBIT A - 2
TRANCHE B PROMISSORY NOTE
$20,000,000 Dated: May 17, 1995
FOR VALUE RECEIVED, the undersigned, FRED MEYER, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "Rabobank Nederland",
New York Branch (the "Bank") the principal sum of Twenty Million Dollars
($20,000,000), on May 17, 2000.
The Borrower promises to pay interest on the unpaid principal amount
of the Advance from the date of such Advance until such principal amount is
paid in full (i) for the period from the date of the Advance to and
including the maturity date of the Advance, at __ percent per annum and
(ii) after such maturity date, at the Default Rate set forth in the Credit
Agreement. Interest is payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Bank at 245 Park Avenue, New York, New York
10167, in same day funds.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of the Amended and Restated Term Loan Agreement dated as of
May 17, 1995 (the "Credit Agreement") between the Borrower and the Bank.
The Credit Agreement among other things, (i) provides for the making of
advances (the "Advances") by the Bank to the Borrower from time to time in
the amount first above mentioned, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
FRED MEYER, INC.
By
---------------------------------
Title:
13
TRANCHE A PROMISSORY NOTE
$10,000,000 Dated: May 17, 1995
FOR VALUE RECEIVED, the undersigned, FRED MEYER, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch (the "Bank") the principal sum of Ten Million Dollars
($10,000,000), on November 13, 1996.
The Borrower promises to pay interest on the unpaid principal amount
of the Advance from the date of such Advance until such principal amount is
paid in full (i) for the period from the date of the Advance to and
including the maturity date of the Advance, at 7.74 percent per annum and
(ii) after such maturity date, at the Default Rate set forth in the Credit
Agreement. Interest is payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Bank at 245 Park Avenue, New York, New York
10167, in same day funds.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of the Amended and Restated Term Loan Agreement dated as of
May 17, 1995 (the "Credit Agreement") between the Borrower and the Bank.
The Credit Agreement, among other things, (i) provides for the making of
advances (the "Advances") by the Bank to the Borrower from time to time in
the amount first above mentioned, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
This Promissory Note is in substitution of and replacement for the
Note dated as of November 13, 1991 made by the Borrower in favor of the
Bank.
FRED MEYER, INC.
By /s/ MICHAEL H. DON
---------------------------------
Title: VP/Treasurer
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TRANCHE B PROMISSORY NOTE
$20,000,000 Dated: May 30, 1995
FOR VALUE RECEIVED, the undersigned, FRED MEYER, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland",
New York Branch (the "Bank") the principal sum of Twenty Million Dollars
($20,000,000), on May 30, 2000.
The Borrower promises to pay interest on the unpaid principal amount
of the Advance from the date of such Advance until such principal amount is
paid in full (i) for the period from the date of the Advance to and
including the maturity date of the Advance at 6.775 percent per annum and
(ii) after such maturity date, at the Default Rate set forth in the Credit
Agreement. Interest is payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Bank at 245 Park Avenue, New York, New York
10167, in same day funds.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of the Amended and Restated Term Loan Agreement dated as of
May 17, 1995 (the "Credit Agreement") between the Borrower and the Bank.
The Credit Agreement, among other things, (i) provides for the making of
advances (the "Advances") by the Bank to the Borrower from time to time in
the amount first above mentioned, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
FRED MEYER, INC.
By /s/ MICHAEL H. DON
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Title: VP/Treasurer