EXHIBIT 10.1
COPY AS EXECUTED
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of May 26, 1995
Among
SUPERVALU INC.,
as Borrower,
-- --------
and
THE BANKS NAMED HEREIN,
as Banks,
-- -----
and
CITIBANK, N.A.,
as Agent,
-- -----
and
FIRST BANK NATIONAL ASSOCIATION,
NATIONSBANK, N.A. (CAROLINAS),
PNC BANK, NATIONAL ASSOCIATION
and THE FUJI BANK, LIMITED, CHICAGO BRANCH,
as Co-Agents,
-- ---------
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
ROYAL BANK OF CANADA
and SHAWMUT BANK, N.A.,
as Lead Managers
-- ---- --------
T A B L E O F C O N T E N T S
- - - - - - - - - - - - - - -
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section Page
1.01. Certain Defined Terms................................... 1
1.02. Computation of Time Periods............................. 13
1.03. Accounting Terms........................................ 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The A Advances.......................................... 13
2.02. Making the A Advances................................... 13
2.03. The B Advances.......................................... 15
2.04. Fees.................................................... 19
2.05. Termination or Reduction of the Commitments............. 19
2.06. Repayment of A Advances................................. 19
2.07. Interest on Advances.................................... 19
2.08. Additional Interest on Eurodollar Rate Advances......... 20
2.09. Interest Rate Determination............................. 20
2.10. Voluntary Conversion of A Advances...................... 22
2.11. Prepayments of A Advances............................... 22
2.12. Increased Costs......................................... 22
2.13. Illegality.............................................. 24
2.14. Payments and Computations............................... 24
2.15. Sharing of Payments, Etc................................ 25
2.16. Taxes................................................... 26
2.17. Use of Proceeds......................................... 28
ii
Section Page
- ------- ----
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to the Effectiveness of Sections 2.01 and 2.03... 29
3.02. Conditions Precedent to Each A Borrowing.............................. 31
3.03. Conditions Precedent to Each B Borrowing.............................. 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower........................ 32
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants................................................. 36
5.02. Negative Covenants.................................................... 39
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default..................................................... 44
ARTICLE VII
THE AGENT
iii
Section Page
- ------- ----
7.01. Authorization and Action.................... 47
7.02. Agent's Reliance, Etc....................... 47
7.03. Citibank and Affiliates..................... 48
7.04. Lender Credit Decision...................... 48
7.05. Indemnification............................. 48
7.06. Successor Agent............................. 49
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc............................. 49
8.02. Notices, Etc................................ 50
8.03. No Waiver; Remedies......................... 50
8.04. Costs and Expenses.......................... 50
8.05. Right of Setoff............................. 51
8.06. Binding Effect.............................. 52
8.07. Assignments and Participations.............. 52
8.08. Indemnification............................. 55
8.09. Governing Law; Submission to Jurisdiction... 55
8.10. Execution in Counterparts................... 56
8.11. Confidentiality............................. 56
8.12. WAIVER OF JURY TRIAL, ETC................... 56
iv
Schedule I - List of Applicable Lending Offices
Schedule II - Litigation
Schedule III - Existing Subsidiary Debt
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Dorsey & Whitney, Special Counsel for the
Borrower
Exhibit E - Form of Opinion of John Breedlove, Region Counsel of the Borrower
Exhibit F - Form of Opinion of Shearman & Sterling, Special New York Counsel
to the Agent
CREDIT AGREEMENT
Dated as of May 26, 1995
SUPERVALU INC., a Delaware corporation (the "Borrower"), the banks
(the "Banks") listed on the signature pages hereof, CITIBANK, N.A. ("Citibank"),
as agent (the "Agent"), FIRST BANK NATIONAL ASSOCIATION, NATIONSBANK, N.A.
(CAROLINAS), PNC BANK, NATIONAL ASSOCIATION and THE FUJI BANK, LIMITED, CHICAGO
BRANCH, as co-agents (the "Co-Agents"), and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, ROYAL BANK OF CANADA and SHAWMUT BANK, N.A., as Lead Managers (the "Lead
Managers"), for the Lenders hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For the purposes
of this definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control with") as
used with respect to any Person or group of Persons, shall mean possession,
directly or indirectly, of the power to
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direct or cause the direction of management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise.
"Applicable Facility Fee Rate" means, for any period, a percentage per
annum equal to the percentage set forth below determined by reference to
the higher of (x) the rating of the Borrower's long-term, senior unsecured
Debt from S&P or (y) the rating of the Borrower's long-term, senior
unsecured Debt from Moody's, in each case as in effect from time to time
during such period:
- --------------------------------- ---------------------------------
Borrower's Applicable
Long-Term Senior Facility Fee Rate
Unsecured Debt Rating
S&P or Moody's
- --------------------------------- ---------------------------------
Level 1
-------
A+ or A1 .090%
- --------------------------------- ---------------------------------
Level 2
-------
Lower than A+ or A1
but at least A- or A3 .100%
- --------------------------------- ---------------------------------
Level 3
-------
Lower than A- or A3
but at least BBB or Baa2 .125%
- --------------------------------- ---------------------------------
Level 4
-------
Below BBB or Baa2 .200%
- --------------------------------- ---------------------------------
provided that if, at any time, no rating is available from S&P, Moody's or
any other nationally recognized statistical rating organization designated
by the Borrower and approved in writing by the Majority Lenders, the
Applicable Facility Fee Rate shall be .200%.
"Applicable Interest Rate Margin" means, for any Interest Period, a
percentage per annum equal to the percentage set forth below determined by
reference to the higher of (x) the rating of the Borrower's long-term,
senior unsecured Debt from S&P or (y) the rating of the Borrower's long-
term, senior unsecured Debt from Moody's, in each case as in effect on the
first day of such Interest Period:
- --------------------------------- ---------------------------------
Applicable Interest Rate Margin
3
- --------------------------------- ---------------------------------
(basis points)
Borrower's
Long-Term Senior
Unsecured Debt Rating
S&P or Moody's
---------------------------------
If less than If 50% or
50% of the greater of
Lenders' the Lenders'
Commitments Commitments
are drawn are drawn
- --------------------------------- ---------------------------------
Level 1
-------
A+ or A1 .160% .210%
- -------------------------------- ---------------------------------
Level 2
-------
Lower than A+ or A1 .175% .250%
but at least A- or A3
- -------------------------------- ---------------------------------
Level 3
-------
Lower than A- or A3 .200% .300%
but at least BBB or Baa2
- -------------------------------- ---------------------------------
Level 4 .350% .500%
-------
Below BBB or Baa2
- -------------------------------- ---------------------------------
provided that if, at any time, no rating is available from S&P, Moody's or
any other nationally recognized statistical rating organization designated
by the Borrower and approved in writing by the Majority Lenders, the
Applicable Interest Rate Margin for such Interest Period shall be .350% if
less than 50% of the Lenders' Commitments are drawn and .500% if 50% or
greater of the Lenders' Commitments are drawn.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office with respect to such B
Advance.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
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"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part
of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall
at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) 1/2 of one percent per annum above the latest three-week
moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, in either case
adjusted to the nearest 1/16 of one percent or, if there is no nearest
1/16 of one percent, to the next higher 1/16 of one percent; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
5
"Base Rate Advance" means an A Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capital Lease" shall mean a lease meeting one or more of the criteria
set forth in paragraph 7 of the Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board (as in effect from time
to time or as set forth in a statement of generally accepted accounting
principles superseding such paragraph 7).
"Commitment" has the meaning specified in Section 2.01.
"Consolidated" refers to the consolidation of accounts of the Borrower
and its Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation, consistently applied.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.09
or 2.10.
"Current Supervalu Credit Agreement" means the Credit Agreement dated
as of October 26, 1992, as amended, supplemented or otherwise modified,
among the Borrower, the banks parties thereto, Citibank, as agent, Bankers
Trust Company, PNC Bank, National Association (formerly known as Pittsburgh
National Bank) and Nationsbank, N.A. (Carolinas) (formerly known as
Nationsbank of North Carolina, N.A.), as co-agents, and First Bank National
Association, as lead manager.
"Debt" of any Person means (i) indebtedness 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 that
exceed, on an individual basis, $1,000,000 (for any obligation or group of
related obligations), (iv) the present value of all obligations of such
Person as lessee under leases which
6
shall have been or should be, in accordance with generally accepted
accounting principles, recorded as Capital Leases and (v) all obligations
of such Person under direct or indirect guaranties in respect of, and all
obligations (contingent or otherwise) of such Person to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iv) above.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Effective Date" means the first date on which the conditions set
forth in Section 3.01 applicable to the effectiveness of Sections 2.01 and
2.03 have been satisfied.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (ii) a savings and loan association or savings
bank organized under the laws of the United States, or any State thereof,
and having total assets in excess of $1,000,000,000; (iii) a commercial
bank organized under the laws of any other country which is a member of the
OECD or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having total assets in
excess of $1,000,000,000, provided that such bank is acting through such
bank's branch or agency located in the United States; (iv) the central bank
of any country which is a member of the OECD; (v) a commercial finance
company organized under the laws of the United States, or any State
thereof, and having total assets in excess of $1,000,000,000; (vi) any
Lender; (vii) an Affiliate of any Lender; and (viii) such other bank,
company, financial institution or fund to which the Borrower shall consent;
provided, however, that notwithstanding anything to the contrary set forth
in this Agreement, no Person that is organized under the laws of a
jurisdiction outside the United States shall be an Eligible Assignee if, at
the time of an assignment pursuant to Section 8.07, such Person would be
subject to United States interest withholding tax at a rate greater than
zero; provided further, however, that
7
neither the Borrower nor any Affiliate of the Borrower shall qualify as an
Eligible Assignee.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
noncompliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating to
any Environmental Law, Environmental Permit or Hazardous Material or
arising from alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, clean up, removal, response, remedial
or other actions or damages and (b) by any governmental or regulatory
authority or any third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to the
environment, health, safety or Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Event" with respect to any Person means (a) the occurrence of a
material reportable event, within the meaning of Section 4043 of ERISA,
with respect to any Plan of such Person or any of its ERISA Affiliates,
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC; (b) the application for a minimum funding waiver with
respect to any Plan of such Person or any of its ERISA Affiliates; (c) the
provision by the administrator of any Plan of such Person or any of its
ERISA Affiliates of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of such
8
Person or any of its ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of its
ERISA Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the failure by such Person or any of its ERISA Affiliates to make a
payment to a Plan if the conditions for the imposition of a lien under
Section 302(f)(1) of ERISA are satisfied; (g) the adoption of an amendment
to a Plan of such Person or any of its ERISA Affiliates requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan of such
Person or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA
(other than subsection (a)(4) thereof), or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute grounds
for the termination of, or the appointment of a trustee to administer, such
Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two (2) Business
Days before the first day of such Interest Period in an amount
substantially equal to the greater of (i) $1,000,000 and (ii) such
Reference Bank's Eurodollar Rate Advance comprising part of such A
Borrowing, and for a period equal to such Interest Period. The Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance comprising
part of the same A Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two (2) Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.09.
9
"Eurodollar Rate Advance" means an A Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those
days in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding 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 of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of nationally recognized standing
selected by it.
"Financial Officer" means, for any Person, the chief executive
officer, the chief financial officer, the chief accounting officer, the
treasurer or the controller of such Person.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-
containing materials, radon gas and any other chemicals, materials or
substances designated, classified or regulated as being "hazardous" or
"toxic", or words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance.
10
"Insufficiency" means, with respect to any Plan of the Borrower or any
of its ERISA Affiliates, the amount, if any, of "unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) for such Plan.
"Interest Period" means, for each A Advance comprising part of the
same A Borrowing, the period commencing on the date of such A Advance or
the date of the Conversion of any A Advance into such an A Advance and
ending on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period for an A Borrowing shall
be (a) in the case of Base Rate Advances, 30 days and (b) in the case of
Eurodollar Rate Advances, 1, 2, 3 or 6 months and, if available to all
Lenders, 9 or 12 months, in each case as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the duration of any Interest Period which commences before
the Termination Date and would otherwise end after such date shall end
on such date;
(ii) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) whenever the first day of any Interest Period for any
Eurodollar Rate Advance occurs on a day of an initial calendar month
for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
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"Lenders" means the Banks and each Eligible Assignee that shall become
a party hereto pursuant to Section 8.07(a), (b) and (c).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
concerning property, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or
other encumbrance on title to real property.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate unpaid principal amount of the A Notes held by Lenders,
or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Earnings" means the Consolidated net income of the Borrower and
its Subsidiaries before the payment of dividends on the capital stock of
the Borrower determined in accordance with generally accepted accounting
principles, consistently applied.
"Net Worth" means the excess of total assets over total liabilities,
total assets and total liabilities each to be determined in accordance with
generally accepted accounting principles, consistently applied.
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"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section 2.03(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
corporation thereto.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Reference Banks" means Citibank, NationsBank, N.A. (Carolinas) and
Morgan Guaranty Trust Company of New York or any successor Reference Bank
appointed pursuant to Section 2.09(d).
"Register" has the meaning specified in Section 8.07(e).
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill,
Inc.
"Signing Date" means the later of (i) May 26, 1995 and (ii) the date
on which counterparts of this Agreement are executed by the Borrower and,
as notified to the Borrower by the Agent, each of the Banks.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person other
than such Person and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than
13
50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits
of such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Tangible Net Worth" means the excess of total assets over total
liabilities, total assets and total liabilities each to be determined in
accordance with generally accepted accounting principles, consistently
applied, excluding, however, from the determination of total assets (i)
goodwill, organizational expenses, research and development expenses,
trademarks, trade names, copyrights, patents, patent applications, licenses
and rights in any thereof, and other similar intangibles, (ii) all
unamortized debt discount and expense and (iii) any items not included in
clauses (i) and (ii) above which are treated as intangibles in conformity
with generally accepted accounting principles.
"Termination Date" means the earlier of May 26, 2000 and the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
"Total Capital" means, as of any date, the sum of (a) Consolidated
Debt and (b) Consolidated Net Worth.
"Type" of Advance shall mean Base Rate Advance or Eurodollar Rate
Advance.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
14
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to the Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(e), as such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "B Reduction"). Each A Borrowing shall be in
an aggregate amount not less than $20,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if less, an aggregate amount equal to the
difference between the aggregate amount of a proposed B Borrowing requested by
the Borrower and the aggregate amount of B Advances offered to be made by the
Lenders and accepted by the Borrower in respect of such B Borrowing, if such B
Borrowing is made on the same date as such A Borrowing) and shall consist of A
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may from time to time borrow under this Section 2.01, prepay
pursuant to Section 2.11(b) and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) (i) on the
same Business Day as the proposed A Borrowing in the case of an A Borrowing
consisting of Base Rate Advances or (ii) on the third Business Day prior to the
date of the proposed A Borrowing in the case of an A Borrowing consisting of
Eurodollar Rate Advances, by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex or cable. Each such notice of
an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or
cable, confirmed immediately in writing, in
15
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such A Borrowing, (ii) Type of A Advances comprising such A
Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest
Period for each such A Advance. Each Lender shall, before 1:00 P.M. (New York
City time) on the date of such A Borrowing, make available for the account of
its Applicable Lending Office to the Agent at its address referred to in Section
8.02, in same day funds, such Lender's ratable portion of such A Borrowing.
After the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower at the Agent's aforesaid address not later than 2:00 P.M. (New York
City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing if the
aggregate amount of such A Borrowing is less than $20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing that the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of A Borrowing for such A Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the A
Advance to be made by such Lender as part of such A Borrowing when such A
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender (i) by
12:00 Noon on the date of any A Borrowing in the case of any A Borrowing
consisting of Base Rate Advances or (ii) by 12:00 Noon on the Business Day prior
to the date of any A Borrowing consisting of Eurodollar Rate Advances that such
Lender will not make available to the Agent such Lender's ratable portion of
such A Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such A Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to A Advances
comprising
16
such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's A Advance as part of such A Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
the Borrower may make B Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the date hereof until the date occurring
15 days prior to the Termination Date in the manner set forth below; provided
that, following the making of each B Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any B Reduction).
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier, telex or cable, confirmed
immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
therein the date and aggregate amount of the proposed B Borrowing, the
maturity date for repayment of each B Advance to be made as part of such B
Borrowing (which maturity date may be (i) 14 to 180 days after the date of
the B Borrowing in the case of fixed rate B Borrowings and (ii) 30 to 180
days after the date of the B Borrowing in the case of floating rate B
Borrowings, but in either case may not be later than the Termination Date),
the interest payment date or dates relating thereto, and any other terms to
be applicable to such B Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one (1) Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates per
annum and (B) at least four (4) Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Lenders shall be
floating rates per annum. The Agent shall in turn promptly notify by
telecopy each Lender of each request for a B Borrowing received by it from
the Borrower by sending such Lender a copy of the related Notice of B
Borrowing.
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(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as part of
such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion (but conforming to the Borrower's Notice of B
Borrowing in respect thereof), by notifying the Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (New York City
time) (A) on the date of such proposed B Borrowing, in the case of a Notice
of B Borrowing delivered pursuant to clause (A) of paragraph (i) above and
(B) three (3) Business Days before the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of the minimum amount and maximum amount of each B
Advance which such Lender would be willing to make as part of such proposed
B Borrowing (which amounts may exceed such Lender's Commitment), the rate
or rates of interest therefor and such Lender's Applicable Lending Office
with respect to such B Advance; provided that, if the Agent in its capacity
as a Lender shall, in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer before 9:00 A.M. (New York City
time) on the date on which notice of such election is to be given to the
Agent by the other Lenders. Unless the Agent shall have received notice
from a Lender before 10:00 A.M. in accordance with the immediately
preceding sentence, the Agent and the Borrower may assume that such Lender
has elected not to make such an offer pursuant to this Section 2.03(a)(ii).
(iii) The Borrower shall (A) before 11:00 A.M. (New York City time)
on the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (A) of paragraph (i) above and (B)
before 1:00 P.M. (New York City time) on the Business Day that is three (3)
Business Days before the date of such proposed B Borrowing, in the case of
a Notice of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either:
(x) cancel such B Borrowing by giving the Agent notice to that
effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each B Advance (which
amount shall be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the Borrower by the
Agent on behalf of such Lender for such B Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such B
Borrowing, and
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reject any remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent notice to that effect.
The acceptance of offers by the Borrower pursuant to this clause
(B) shall be on the basis of ascending rates of interest contained in the
offers made by Lenders pursuant to paragraph (ii) above; provided that, in
the event that two or more of such offers contain the same rate of interest
for a greater aggregate principal amount than the amount specified in such
Notice of B Borrowing (less the aggregate principal amount of all such
offers containing lower rates of interest that have been accepted by the
Borrower pursuant to this clause (B)), the Borrower shall have sole
discretion (subject to any minimum and maximum amount specified in any such
offer) to accept one or more of the offers at such rate of interest and to
reject any remaining offers at such rate of interest.
(iv) If the Borrower notifies the Agent that such B Borrowing is
cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such B Borrowing
and whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the Borrower, (B) each Lender
that is to make a B Advance as part of such B Borrowing, of the amount of
each B Advance to be made by such Lender as part of such B Borrowing and
(C) each Lender that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a B Advance as part of such B Borrowing shall, before 12:00
noon (New York City time) on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice from
the Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to the Borrower at the
Agent's aforesaid address. Promptly after each B Borrowing the Agent will
notify each Lender of the amount of the B Borrowing, the consequent B
Reduction and the dates upon which such B Reduction commenced and will
terminate.
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(vi) If the Borrower notifies the Agent that it accepts one or more of
the offers made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, such notice of acceptance shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in the related Notice of B Borrowing for such
B Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the B Advance to be
made by such Lender as part of such B Borrowing when such B Advance, as a
result of such failure, is not made on such date.
(b) Each B Borrowing shall be in an aggregate amount not less than
$15,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrower shall be in compliance
with the limitation set forth in the proviso to the first sentence of subsection
(a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a B Borrowing shall not be made within three (3) Business
Days of the date of any other B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a B Advance, or each other holder of a B Note, on the
maturity date of each B Advance (such maturity date being that specified by the
Borrower for repayment of such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above and provided in the B Note
evidencing such B Advance), the then unpaid principal amount of such B Advance.
The Borrower shall have no right to prepay any principal amount of any B Advance
unless, and then only on the terms, specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the B Note evidencing such B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing delivered
20
pursuant to subsection (a)(i) above, as provided in the B Note evidencing such B
Advance.
(f) The indebtedness of the Borrower resulting from each B Advance
made to the Borrower as part of a B Borrowing shall be evidenced by a separate B
Note of the Borrower payable to the order of the Lender making such B Advance.
Upon the repayment in full of the indebtedness of Borrower resulting from such B
Advance, the holder of the B Note evidencing such indebtedness shall return such
B Note to the Borrower at its address specified pursuant to Section 8.02.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Agent for the account of each Lender a facility fee on the amount of such
Lender's Commitment (whether used or unused and without giving effect to any B
Reductions) from the Signing Date in the case of each Bank or, in the case of
each other Lender, from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender until the Termination Date,
payable on the first day of each March, June, September and December during the
term of such Lender's Commitment, commencing September 1, 1995, and on the
Termination Date, at a rate per annum equal to the Applicable Facility Fee Rate
in effect from time to time.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees, and at such times, as set forth in the letter dated May 1,
1995 between the Borrower and the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. Voluntary
Reduction. The Borrower shall have the right, upon at least three (3) Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Advances then
outstanding; and provided further that each partial reduction shall be in the
aggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.06. Repayment of A Advances. The Borrower shall repay the
principal amount of each A Advance made by each Lender in accordance with the A
Note to the order of such Lender.
SECTION 2.07. Interest on Advances. (a) Ordinary Interest on A
Advances. The Borrower shall pay interest on the unpaid principal amount of
each A Advance made by each Lender from the date of such A Advance until such
principal amount shall be paid in full, at the following rates per annum:
21
(i) Base Rate Advances. If such A Advance is a Base Rate Advance, a
rate per annum equal at all times to, from the date hereof to the
Termination Date, the Base Rate in effect from time to time, payable
monthly on the last day of each Interest Period and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during each Interest Period
for such A Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such A Advance plus (y) the Applicable Interest Rate Margin,
payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance that is not paid when due and on the unpaid
amount of all interest, fees and other amounts payable hereunder that is not
paid when due, payable on demand, at a rate per annum equal at all times to 2%
per annum above the Base Rate in effect from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such A
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such A Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such A Advance. Such
additional interest shall be determined by such Lender and notified in writing
to the Borrower through the Agent.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate,
22
the Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the applicable rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(a)(ii).
(c) If fewer than two Reference Banks furnish timely information to
the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance) and
(iii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that two or more Reference Banks have
furnished timely information to the Agent for the purpose of determining
the Eurodollar Rate.
(d) If any Reference Bank shall fail to furnish timely information to
the Agent pursuant to this Section 2.09 the Borrower may, with the consent of
the Agent (which consent shall not be unreasonably withheld), appoint another
Lender as a replacement for such Reference Bank.
(e) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance and
(ii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify
23
the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
(f) If the Borrower shall fail to select a new Interest Period for any
outstanding Eurodollar Rate Advances in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.01, the Agent will forthwith
so notify the Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(g) On the date on which the aggregate unpaid principal amount of A
Advances comprising any A Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $20,000,000, such A Advances shall, if they are
Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrower to Convert such A Advances into
Eurodollar Rate Advances shall terminate; provided, however, that, if and so
long as each such A Advance shall be of the same Type and have the same Interest
Period as A Advances comprising another A Borrowing or other A Borrowings, and
the aggregate unpaid principal amount of all such A Advances shall equal or
exceed $20,000,000, the Borrower shall have the right to continue all such A
Advances as, or to Convert all such A Advances into, Advances of such Type
having such Interest Period.
SECTION 2.10. Voluntary Conversion of A Advances. The Borrower may
on any Business Day, upon notice given to the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and 2.13, Convert all
A Advances of one Type comprising the same A Borrowing into A Advances of the
other Type; provided, however, that any Conversion of any Eurodollar Rate
Advances into Base Rate Advances shall be made on, and only on, the last day of
an Interest Period for such Eurodollar Rate Advances and any Conversion of Base
Rate Advances into Eurodollar Rate Advances shall be in an amount not less than
$20,000,000; and provided further, however, that the Borrower shall not convert
any Base Rate Advances into Eurodollar Rate Advances if a Default has occurred
and is continuing. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
A Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for each such A Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.11. Prepayments of A Advances. (a) The Borrower shall
have no right to prepay any principal amount of any A Advances other than as
provided in subsection (b) below.
24
(b) The Borrower may, upon at least one (1) Business Day's notice in
the case of Base Rate Advances, and three (3) Business Days' notice in the case
of Eurodollar Rate Advances to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amounts of the A Advances comprising
part of the same A Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $1,000,000 or an integral multiple thereof and
(y) in the case of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(b).
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law, regulation, rule or
guideline promulgated or made after the date this Agreement is executed and
delivered by the Borrower or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law) promulgated or made after the date this Agreement is executed and
delivered by the Borrower, there shall be any increase in the cost to any Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Advances,
then the Borrower shall from time to time, upon written demand by such Lender
(with a copy of such written demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate, made in good faith and in reasonable
detail, as to the amount of such increased cost, submitted to the Borrower and
the Agent by such Lender, shall, except for demonstrable or calculation error,
be conclusive and binding for all purposes.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) promulgated or
made after the date this Agreement is executed and delivered by the Borrower
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
within 30 days after written notice and demand from such Lender (with a copy of
such demand to the Agent), the Borrower shall immediately pay to the Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines
25
such increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder; provided that the Borrower shall not be obligated
to pay any such additional amounts that are attributable to the period (the
"Excluded Period") ending 90 days prior to the Borrower's receipt of such
written notice; provided further, however, that to the extent such additional
amounts accrue during the Excluded Period because of the retroactive effect of
the applicable law, rule, regulation, guideline or request promulgated during
the 90 day period prior to the Borrower's receipt of such written notice, the
limitation set forth in the foregoing proviso shall not apply. A certificate,
made in good faith and in reasonable detail, as to such amounts submitted to the
Borrower and the Agent by such Lender shall, except for demonstrable or
calculation error, be conclusive and binding for all purposes.
(c) Any Lender claiming any additional amounts payable pursuant to
this Section 2.12 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(d) Any Lender claiming any additional amounts payable pursuant to
this Section 2.12 shall, if no Default has occurred and is continuing, upon the
request of the Borrower delivered to such Lender and the Agent, assign, pursuant
to and in accordance with the provisions of Section 8.07, all of its rights and
obligations under this Agreement and under the Notes to an Eligible Assignee
selected by the Borrower in consideration for (i) the payment by such assignee
to the assigning Lender of the principal of, and interest accrued and unpaid to
the date of such assignment on, the Note or Notes of such Lender, (ii) the
payment by the Borrower to the assigning Lender of any and all other amounts
owing to such Lender under any provision of this Agreement accrued and unpaid to
the date of such assignment and (iii) the Borrower's release of the assigning
Lender from any further obligation or liability under this Agreement. The
processing and recordation fee required under Section 8.07(a) for such
assignment shall be paid by the Borrower. Notwithstanding anything to the
contrary in this Section 2.12(d), in no event shall the replacement of any
Lender result in a decrease or reallocation of the aggregate Commitments without
the written consent of the Majority Lenders.
SECTION 2.13. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances
26
or to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
such Lender to make, or to Convert A Advances into, Eurodollar Rate Advances
shall be suspended until such Lender shall notify the Borrower and the Agent
that the circumstances causing such suspension no longer exist and (ii) the
Borrower shall, on the last day of the Interest Period then applicable thereto
or, if it is unlawful for such Lender to maintain such Eurodollar Advances for
the balance of any such Interest Period, on the last day on which the Borrower
has been notified by such Lender that such Eurodollar Advances may be lawfully
maintained, Convert all Eurodollar Rate Advances of such Lender then outstanding
into Base Rate Advances in accordance with Section 2.10.
SECTION 2.14. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes not later than 12:00 Noon (New
York City time) on the day when due in U.S. dollars to the Agent at its address
referred to in Section 8.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.08, 2.12, 2.16 or 8.04(b)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations of interest based on the Eurodollar Rate or the Federal Funds
Rate (for all purposes other than the calculation of the Base Rate) and of
facility fees shall be made by the Agent, and all computations of interest
pursuant to Section 2.08 shall be made by a Lender, on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
facility fees are payable. Each determination by the Agent (or, in the case of
Section 2.08, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent calculation or demonstrable error.
27
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the A Advances owing to it (other than
pursuant to Section 2.08, 2.12, 2.16 or 8.04(b)) in excess of its ratable share
of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them, provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
28
SECTION 2.16. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.14,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes that are imposed by the United States and franchise taxes and net income
taxes that are imposed on such Lender or the Agent by the state or foreign
jurisdiction under the laws of which such Lender or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender, franchise taxes and net income taxes that are imposed on such Lender by
the state or foreign jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16) such Lender or the Agent (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 taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.16) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Each Lender shall, at the time of any written demand for
indemnification as set forth in subsection (c) above, provide to the Borrower a
receipt for, or other evidence of the payment of, Taxes or Other Taxes to be
indemnified under this Section 2.16.
29
(e) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
appropriate evidence of payment thereof.
(f) For purposes of this Section 2.16, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code of 1986, as amended from time to time.
(g) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank, and on the date of the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long thereafter as such Lender remains lawfully able
to do so), provide the Agent and the Borrower with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments of interest
pursuant to this Agreement or the Notes. If the form provided by a Lender at
the time such Lender first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to the extent such tax results in liability
for such payments, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable in
Taxes) United States interest withholding tax, if any, applicable with respect
to the Lender assignee on such date.
(h) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in subsection (g)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (g)), such Lender shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States; provided, however, that, should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
30
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.16 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(j) In the event the Borrower is required pursuant to this Section
2.16 to pay any amount to any Lender or the Agent or on the behalf of any of
them to any taxing authority, such Lender shall, if no Default has occurred and
is continuing, upon the request of the Borrower delivered to such Lender and the
Agent, assign, pursuant to and in accordance with the provisions of Section
8.07, all of its rights and obligations under this Agreement and under the Notes
to an Eligible Assignee selected by the Borrower in consideration for (i) the
payment by such assignee to the assigning Lender of the principal of, and
interest accrued and unpaid to the date of such assignment on, the Note or Notes
of such Lender, (ii) the payment by the Borrower to the assigning Lender of any
and all other amounts owing to such Lender under any provision of this Agreement
accrued and unpaid to the date of such assignment and (iii) the Borrower's
release of the assigning Lender from any further obligation or liability under
this Agreement. The processing and recordation fee required under Section
8.07(a) for such assignment shall be paid by the Borrower. Notwithstanding
anything to the contrary in this Section 2.16(j), in no event shall the
replacement of any Lender result in a decrease or reallocation of the aggregate
Commitments without the written consent of the Majority Lenders.
Section 2.17. Use of Proceeds. The proceeds of the Advances shall be
available, and the Borrower agrees that it will use such proceeds, solely for
the general corporate purposes of the Borrower and its Subsidiaries.
31
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Effectiveness of Sections
2.01 and 2.03. The effectiveness of Sections 2.01 and 2.03 is subject to the
following conditions precedent:
(a) This Agreement (including all schedules, exhibits, certificates
and opinions delivered pursuant hereto) shall be in full force and effect
and shall not have been terminated.
(b) There shall have occurred no material adverse change in the
condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries, taken as a whole, since February 26, 1994, provided,
however, that without limiting the generality of the foregoing, the
restructuring charge of $244,000,000 taken in the third quarter of the
Borrower's 1995 fiscal year shall not be deemed to constitute a material
adverse change for purposes of this Section 3.01(b).
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to result in a material adverse change in the
condition (financial or otherwise) or results of operations or prospects of
the Borrower and its Subsidiaries, taken as a whole, other than the
matters described on Schedule II hereto (the "Disclosed Litigation") or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby, and there shall have been no adverse change in the status, or
financial effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule II hereto.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
32
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the
Agent that have been billed (including the accrued fees and expenses of
counsel to the Agent).
(g) The Agent shall have received on or before the Effective Date the
following, each dated such date, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) the A Notes payable to the order of the Lenders,
respectively,
(ii) certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
government approvals, if any, with respect to this Agreement and the
Notes,
(iii) 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 the
Notes and the other documents to be delivered hereunder,
(iv) a copy of a certificate of the Secretary of State of the
State of Delaware (as of a date reasonably near the Effective Date)
that (a) attached thereto is a true and correct copy of the Borrower's
charter and each amendment thereto, (b) such amendments are the only
amendments to the Borrower's charter on file in his office, (c) the
Borrower has paid all franchise taxes to the date of such certificate
and (d) the Borrower is duly incorporated and in good standing under
the laws of Delaware,
(v) a certificate of the Borrower, signed by its President or a
Vice President and its Secretary or any Assistant Secretary, dated the
Effective Date, certifying (a) as to the absence of any amendments to
the charter of the Borrower since the date of the Secretary of State's
certificate from the State of Delaware, (b) that attached is a true
and correct copy of the by-laws of the Borrower as in effect on the
Effective Date, (c) as to the due incorporation and good standing of
the Borrower as a corporation organized under the laws of the state of
Delaware, and
33
the absence of any proceeding for the dissolution or liquidation of
the Borrower, (d) as to the truth and correctness of the
representations and warranties contained in Section 4.01 of this
Agreement as though made on and as of the Effective Date and (e) as to
the absence of any event occurring and continuing, or resulting from
the effectiveness of Sections 2.01 and 2.03, if any, that constitutes
a Default,
(vi) a favorable opinion of Dorsey & Whitney, special counsel for
the Borrower, substantially in the form of Exhibit D hereto and as to
such other matters as any Lender through the Agent may reasonably
request,
(vii) a favorable opinion of John Breedlove, Region Counsel of
the Borrower, substantially in the form of Exhibit E hereto and as to
such other matters as any Lender through the Agent may reasonably
request,
(viii) a favorable opinion of Shearman & Sterling, special New
York counsel to the Agent, substantially in the form of Exhibit F
hereto,
(ix) evidence of the termination of the commitments under the
Current Supervalu Credit Agreement, and payment of all amounts owing
thereunder, and
(x) such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial A Borrowing) resulting in an increase in the
aggregate amount of outstanding A Advances shall be subject to the further
conditions precedent that on the date of such A Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower of the proceeds of such A Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such A Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(excluding that contained in the last sentence of subsection (e) thereof)
are correct on and as of the date of such A Borrowing, before and after
giving effect to such A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
34
(ii) no event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, which
constitutes a Default.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender that is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) the Agent shall
have received the written confirmatory Notice of B Borrowing with respect
thereto, (ii) (x) in the case of any B Borrowing (except as otherwise set forth
in subclause (y) below), on or before the date of such B Borrowing, but prior to
such B Borrowing, and (y) in the case of same day, fixed rate B Borrowings,
promptly after any such B Borrowing, the Agent shall have received a B Note
payable to the order of such Lender for each of the one or more B Advances to be
made by such Lender as part of such B Borrowing, in a principal amount equal to
the principal amount of the B Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such B Advance in accordance with Section 2.03
and (iii) on the date of such B Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of B Borrowing and the
acceptance by the Borrower of the proceeds of such B Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such B
Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
(excluding that contained in the last sentence of subsection (e) thereof)
are correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such
B Borrowing or from the application of the proceeds therefrom, which
constitutes a Default and
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the Borrower that has been provided to the
Agent and each Lender by the Borrower in connection herewith would include
an untrue statement of a material fact or omit to state any material fact
or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading.
35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated hereunder, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not (a)
contravene the Borrower's charter or by-laws, (b) violate any law, rule,
regulation, order, writ, judgment, determination or award binding on or
affecting the Borrower or (c) conflict with or result in the breach of, or
constitute a default under, any agreement or instrument binding on or
affecting the Borrower.
(c) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and the Notes when delivered hereunder will be, legal,
valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body, or any third
party that is a party to any agreement or instrument binding on the
Borrower is required for the due execution, delivery or performance by the
Borrower of this Agreement or the Notes, or for the consummation of the
transactions contemplated by this Agreement.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at February 26, 1994, and the related statements of income
and retained earnings of the Borrower and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of DeLoitte & Touche, LLP,
independent public accountants, and the Consolidated balance sheet of the
Borrower and its Subsidiaries as at December 3, 1994, and the related
statements of income and retained earnings of the Borrower and its
Subsidiaries for the three fiscal quarters then ended, duly certified by a
Financial Officer of the Borrower, copies
36
of which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at December 3, 1994, and said statements
of income and retained earnings for the three fiscal quarters then ended,
to year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated results
of the operations of the Borrower and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since February 26, 1994, there has been no
material adverse change in such condition or operations, provided, however,
that without limiting the generality of the foregoing, the restructuring
charge of $244,000,000 taken in the third quarter of the Borrower's 1995
fiscal year shall not be deemed to constitute a material adverse change for
purposes of this Section 4.01(e).
(f) Except as set forth on Schedule II, there is no pending or
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator, that (a) is likely to result in a material adverse change in
the condition (financial or otherwise) or results of operations or
prospects of the Borrower and its Subsidiaries, taken as a whole, or (b)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(g) (i) No information, exhibit or report furnished by or on behalf of
the Borrower to the Agent or any Lender in connection with the negotiation
of the Loan Documents or pursuant to the terms of the Loan Documents
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein not misleading
in light of the circumstances under which such statements were made; and
(ii) all financial projections that have been provided by or on behalf of
the Borrower to the Agent or any Lender were prepared in good faith based
on reasonable assumptions (it being understood that such projections are
subject to significant uncertainties and contingencies beyond the
Borrower's control, and that no assurance can be given that the projections
will be realized).
(h) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of the Borrower only or
of the Borrower and its Subsidiaries on a Consolidated basis) subject to
the provisions of Section 5.02(a) or Section 5.02(c) or subject to any
restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Debt and within
the scope of Section 6.01(d) will be
37
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System).
(i) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Borrower or any of its ERISA Affiliates
that has resulted in or is reasonably likely to result in a material
liability of the Borrower or any of its ERISA Affiliates.
(j) Schedule B (Actuarial Information) to the 1994 annual report (Form
5500 Series) for each Plan of the Borrower or any of its ERISA Affiliates,
copies of which have been filed with the Internal Revenue Service and
furnished to the Lenders, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status.
(k) Neither the Borrower nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any material Withdrawal Liability to any
Multiemployer Plan.
(l) Neither the Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA, if as a result thereof
the Borrower or any of its ERISA Affiliates would incur or would reasonably
be expected to incur, any material liability.
(m) The aggregate annualized amount paid (including, without
limitation, the cost of insurance premiums) with respect to post-retirement
benefits under Welfare Plans for which the Borrower and its Subsidiaries
are liable does not exceed $8,000,000.
(n) Each of the Borrower and its Subsidiaries has filed or caused to
be filed all tax returns which are required to be filed, and all taxes
related to such returns and any assessments made against it or any of its
respective properties and all other taxes, fees or other charges imposed on
it or any of its respective properties by any governmental authority (other
than those the amount or validity of which is contested in good faith by
appropriate proceedings and with respect to which reserves in conformity
with generally accepted accounting principles have been provided on the
books of the Borrower or its Subsidiaries as the case
38
may be) have been paid, except to the extent the failure to make such
filings or payments would not have a material adverse effect on the
condition (financial or otherwise) or results of operations or prospects of
the Borrower and its Subsidiaries, taken as a whole.
(o) Neither the Borrower nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promotor" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(p) The operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental Laws,
all necessary Environmental Permits have been obtained and are in effect
for the operations and properties of the Borrower and its Subsidiaries and
the Borrower and its Subsidiaries are in compliance in all material
respects with all such Environmental Permits, except to the extent that any
such non-compliance or failure to obtain any necessary permits could not
reasonably be expected to result in a material adverse change in the
condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries, taken as a whole. No circumstances exist that could
be reasonably likely to (i) form the basis of an Environmental Action
against the Borrower or any of its Subsidiaries or any of their respective
properties that could have a material adverse effect on the condition
(financial or otherwise) or results of operations of the Borrower and its
Subsidiaries, taken as a whole, or (ii) cause any such property to be
subject to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law that could have a material adverse effect on
the condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries, taken as a whole.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Payment of Taxes, Etc. Comply, and cause
each of its Subsidiaries to comply, in all material respects, with all
material applicable laws (including, without limitation, ERISA), rules,
regulations and
39
orders, such compliance to include, without limitation, paying and
discharging before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property except to the
extent contested in good faith and for which appropriate reserves have been
made in accordance with generally accepted accounting principles.
(b) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower may consummate any merger or
consolidation permitted under Section 5.02(b), and provided further that
the Borrower shall not be required to preserve any right or franchise if
the Borrower shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower and that the loss
thereof is not disadvantageous in any material respect to the Borrower.
(c) Keeping of Books. Keep, and cause each Subsidiary to keep, proper
books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the
Borrower and each Subsidiary in order to permit the Borrower to prepare
Consolidated financial statements of the Borrower in accordance with
generally accepted accounting principles in effect from time to time.
(d) Tangible Net Worth. Maintain Consolidated Tangible Net Worth of
the Borrower and its Subsidiaries, during each fiscal year of the Borrower
ending after the fiscal year ended February 26, 1995, of not less than the
sum of (A) $493,262,158 plus (B) an amount equal to sixty percent (60%) of
the positive Consolidated Net Earnings of the Borrower and its Subsidiaries
on a cumulative basis for each of the complete fiscal years of the Borrower
after the fiscal year ended February 26, 1995; provided that the minimum
Consolidated Tangible Net Worth required under this Section 5.01(d) shall
be adjusted in accordance with generally accepted accounting principles to
eliminate any increase or decrease in Tangible Net Worth attributable to
(x) the sale by the Borrower of its remaining interest in ShopKo Stores
Inc. and (y) purchases by the Borrower after February 26, 1995 of up to
5,000,000 shares of its outstanding common stock, $1.00 par value per
share, based on the purchase price thereof in an aggregate amount not to
exceed $150,000,000.
(e) Leverage Ratio. Maintain at all times a ratio of Consolidated
Debt to Total Capital of not more than the amount set forth below during
each period set forth below:
40
Period Ratio
---------------------------------- -----
From the date of
this Agreement - 2/28/97 .65:1
3/1/97 - and thereafter .63:1
(f) Reporting Requirements. Furnish to the Lenders:
(i) (x) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and retained earnings of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified by a Financial
Officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles;
(y) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the
Consolidated annual report for such year for the Borrower and its
Subsidiaries, containing Consolidated financial statements for such
year, certified in a manner acceptable to the Majority Lenders by
Deloitte & Touche or other nationally recognized independent public
accountants; and
(z) together with each delivery of financial statements required
by clauses (x) and (y) above, a certificate of a Financial Officer (A)
stating that the signer has reviewed or caused to be reviewed under
his or her supervision the terms of this Agreement and the Notes and
the transactions and condition of the Borrower and its Subsidiaries
during the accounting period covered by such financial statements and
that such review has not disclosed the existence as at the date of
such certificate of any condition or event that constitutes a Default,
and (B) setting forth (except to the extent specifically set forth in
such financial statements) information in reasonable detail necessary
to demonstrate the Borrower's compliance as at the end of such
accounting period with Sections 5.01(d) and 5.01(e) (including, but
not limited to, in the case of Section 5.01(e), a description of and
amounts comprising the elements of Consolidated Debt, each determined
in accordance with generally accepted accounting principles);
41
(ii) as soon as possible and in any event within five (5) days
after any Financial Officer of the Borrower has knowledge of the
occurrence of each Default continuing on the date of such statement, a
statement of a Financial Officer of the Borrower setting forth the
details of such Default and the action which the Borrower has taken
and proposes to take with respect thereto;
(iii) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to any of its shareholders, and
copies of all reports and registration statements which the Borrower
or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange;
(iv) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan of the Borrower or any of its ERISA Affiliates,
provided that this clause (iv) shall apply only to the extent that the
total "current liability" indicated on any such Schedule B exceeds
$2,000,000;
(v) promptly and in any event within 10 days after the Borrower
or any of its ERISA Affiliates knows or has reason to know that any
ERISA Event has occurred, a statement of a Financial Officer of the
Borrower describing such ERISA Event and the action, if any, which the
Borrower or such ERISA Affiliate proposes to take with respect
thereto;
(vi) promptly and in any event within two Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates, copies
of each notice from the PBGC stating its intention to terminate any
Plan of the Borrower or any of its ERISA Affiliates or to have a
trustee appointed to administer any Plan of the Borrower or any of its
ERISA Affiliates;
(vii) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates from
the sponsor of a Multiemployer Plan of the Borrower or any of its
ERISA Affiliates, a copy of each notice received by the Borrower or
any of its ERISA Affiliates concerning (a) (x) the imposition of
Withdrawal Liability in an amount exceeding $2,000,000 by a
Multiemployer Plan of the Borrower or any of its ERISA Affiliates or
(y) the reorganization or termination, within the meaning of Title IV
of ERISA, of any Multiemployer Plan of the Borrower or any of its
ERISA Affiliates that has resulted or is
42
reasonably expected to result in a liability of the Borrower or any of
its ERISA Affiliates in an amount exceeding $2,000,000 and (b) the
amount of liability incurred, or that may be incurred, by the Borrower
or any of its ERISA Affiliates in connection with any event described
in subclause (x) or (y) above;
(viii) promptly after commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(ix) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(g) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary operates.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted; provided however that
neither the Borrower nor any of its Subsidiaries shall be required to
maintain or preserve any properties if the Borrower determines, in its
reasonable business judgment, that the maintenance and preservation thereof
is no longer desirable in the conduct of the business of the Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower or such Subsidiary.
SECTION 5.02. Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien upon or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any
43
of its Subsidiaries to assign, any right to receive income, in each case to
secure or provide for the payment of any Debt of any Person, other than:
(i) purchase money Liens upon or in any property acquired or held
by the Borrower or any Subsidiary of the Borrower in the ordinary
course of business to secure the purchase price of such property, or
(ii) in the case of the Borrower, purchase money Liens to secure
Debt incurred solely for the purpose of financing the acquisition of
any real property, fixtures or equipment acquired by the Borrower with
the proceeds of such Debt, or
(iii) in the case of any Subsidiary of the Borrower, purchase
money Liens to secure Debt incurred by such Subsidiary solely to
finance the purchase price of real property, fixtures or equipment to
the extent permitted pursuant to clause (ii) of Section 5.02(d),
provided that no such Lien shall secure greater than 75% of the fair
market value of the real property, fixtures or equipment purchased
with such Debt as reasonably determined at the time of the creation of
such Lien by the authorized officers or Board of Directors of the
Borrower, as the case may be, in a manner consistent with the
Borrower's standard procedure, or
(iv) in the case of any Subsidiary of the Borrower, purchase
money Liens to secure Debt assumed by such Subsidiary solely in
connection with the acquisition of real property, fixtures or
equipment to the extent permitted pursuant to clause (iii) of Section
5.02(d), provided that no such Lien shall secure greater than 75% of
the fair market value of the real property, fixtures or equipment so
acquired as reasonably determined at the time of the assumption of
such Debt by the authorized officers or Board of Directors of the
Borrower, as the case may be, in a manner consistent with the
Borrower's standard procedure, or
(v) in the case of any Subsidiary of the Borrower, Liens to
secure Debt assumed solely in connection with an acquisition to the
extent permitted pursuant to clause (iv) of Section 5.02(d), provided
that no such Lien shall secure greater than 75% of the fair market
value of the assets of the Person so acquired by such Subsidiary as
reasonably determined at the time of the assumption of such Debt by
the authorized officers or Board of Directors of the Borrower, as the
case may be, in a manner consistent with the Borrower's standard
procedure (excluding from the determination of the fair market value
of the assets of the
44
acquired Person all amounts attributable to intangible assets thereof
including, but not limited to, goodwill, licenses and rights in any
thereof, trade names, trademarks and other similar intangibles), or
(vi) in the case of the Borrower, Liens existing on property at
the time of the acquisition thereof by the Borrower (other than any
such Lien created in contemplation of such acquisition that was not
incurred to finance the acquisition of such property), or
(vii) Any extensions, renewals or replacements of any of the
Liens permitted by subclauses (i) through (vi) above or subclause (x)
below for the same or a lesser amount, provided, however, that no such
Liens shall extend to or cover any properties not theretofore subject
to the Lien being extended, renewed or replaced, or
(viii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings and for which appropriate
reserves have been made in accordance with generally accepted
accounting principles, or
(ix) Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business, or
(x) Liens existing on the date hereof, or
(xi) other Liens securing Debt which, together with any Debt
incurred solely pursuant to clause (viii) of Section 5.02(d), does not
exceed $100,000,000 in aggregate principal amount at any time
outstanding.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or permit any of its
Subsidiaries to do so, except that:
45
(i) any Subsidiary of the Borrower may merge or consolidate with
or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with any one or more other
Subsidiaries of the Borrower,
(ii) the Borrower or any Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any of its assets to the
Borrower or any Subsidiary of the Borrower, as the case may be,
(iii) the Borrower or any Subsidiary of the Borrower may merge
with any other corporation, provided that the Borrower or such
Subsidiary shall be the continuing or surviving corporation, and
(iv) the Borrower may engage in transactions permitted by Section
5.02(c),
provided that, in the case of each transaction permitted under this Section
5.02(b), at the time of such proposed transaction and immediately after
giving effect to such proposed transaction, no Default shall have occurred
and be continuing.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, its assets, or grant any option or other right to purchase,
lease or otherwise acquire its assets, other than:
(i) sales of inventory in the ordinary course of its business,
(ii) any sale of assets in a transaction authorized by
subsections (b) (i), (ii) or (iii) of this Section 5.02,
(iii) the sale of the Borrower's remaining interest in ShopKo
Stores Inc.,
(iv) sales of notes receivable payable to the Borrower or any
Subsidiary of the Borrower to the extent such sales are accounted for
as true sales in accordance with generally accepted accounting
principles and
(v) other sales, leases, transfers or other dispositions of
assets of the Borrower or any of its Subsidiaries not to exceed in the
aggregate
46
10% of the Consolidated assets of the Borrower and its Subsidiaries
for all such sales, leases, transfers or other dispositions, provided
that the Consolidated assets of the Borrower and its Subsidiaries
shall be determined at the time of any such sale, lease, transfer or
other disposition by reference to the most recent financial statements
of the Borrower delivered pursuant to Section 5.01(f)(i)(x) or (y)
(excluding from this amount the sale by the Borrower of its remaining
interest in ShopKo Stores, Inc.).
(d) Debt of Subsidiaries. Permit any of its Subsidiaries to create,
incur, assume or suffer to exist any Debt, other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary of
the Borrower, provided that in no event shall any Subsidiary of the
Borrower be permitted to create, incur, assume or suffer to exist any
Debt to the Borrower as a result of, or in connection with, the sale,
lease, transfer or other disposition of assets by the Borrower to such
Subsidiary,
(ii) Debt incurred to finance the purchase price of real
property, fixtures or equipment acquired by such Subsidiary from a
Person other than the Borrower or any other Subsidiary of the
Borrower, provided that such real property, fixtures or equipment
shall be purchased on an arm's-length basis and at a fair market value
as reasonably determined at the time of such acquisition by the
authorized officers or the Board of Directors of the Borrower, as the
case may be, in a manner consistent with the Borrower's standard
procedures,
(iii) secured Debt assumed by such Subsidiary in connection
with the acquisition of real property, fixtures or equipment which
Debt (x) is secured only by such property and (y) is outstanding at
the time of the acquisition of such property and not incurred to
finance the acquisition thereof, provided that the aggregate of all
such Debt assumed in any such acquisition or related acquisitions
shall not exceed 75% of the fair market value of the property,
fixtures or equipment so acquired and by which such Debt is secured as
reasonably determined at the time of each such acquisition by the
authorized officers or the Board of Directors of the Borrower, as the
case may be, in a manner consistent with the Borrower's standard
procedures,
47
(iv) secured Debt of a Person that is acquired by the Borrower or
a Subsidiary of the Borrower, which Person will be, upon such
acquisition, a Subsidiary of the Borrower and which Debt (x) is
secured only by the assets of such Person and (y) is outstanding at
the time of the acquisition of such Person and not incurred to finance
the acquisition thereof, provided that the aggregate of all such Debt
assumed in any such acquisition or related acquisitions shall not
exceed 75% of the fair market value of the assets of such Person as
reasonably determined at the time of the assumption of such Debt by
the authorized officers or the Board of Directors of the Borrower, as
the case may be, in a manner consistent with the Borrower's standard
procedures (excluding from the determination of the fair market value
of the acquired Person all amounts attributable to intangible assets
thereof including, but not limited to, goodwill, licenses and rights
in any thereof, trade names, trademarks and other similar
intangibles),
(v) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
(vi) Debt existing on the date hereof, including Debt of the
Subsidiaries of the Borrower for borrowed money in a principal amount
of $5,000,000 or greater as set forth on Schedule III,
(vii) any extension, refinancing, or renewal of any of the Debt
specified in subclauses (i) through (iv) and subclause (vi) of this
subsection (d) not resulting in an increase in the principal amount of
such Debt so extended, refinanced, or renewed and
(viii) other Debt not to exceed $50,000,000 in aggregate
principal amount at any time outstanding, provided that the aggregate
amount permitted under this clause (viii), together with the aggregate
amount of Debt secured by Liens permitted solely pursuant to clause
(xi) of Section 5.02(a), shall not exceed $100,000,000 in aggregate
principal amount at any time outstanding.
ARTICLE VI
EVENTS OF DEFAULT
48
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any principal of any Note when
the same becomes due and payable; (ii) any interest on any Note or any
other amount due hereunder (other than as set forth in clause (iii) of this
subsection (a)), in each case within three (3) days of the date on which
the same becomes due and payable; or (iii) fees required to be paid
pursuant to Section 2.04, and amounts due under Section 8.08, in each case
within three (3) days of notice thereof; or
(b) Any written representation or warranty made by the Borrower (or
any of its officers) herein 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 (i) any term,
covenant or agreement contained in Section 5.01(d), 5.01(e) or 5.02, or
(ii) any other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if the failure to perform or observe
such other term, covenant or agreement shall remain unremedied for thirty
(30) days after the earliest of: (i) the date written notice thereof shall
have been given to the Borrower by the Agent or any Lender; (ii) the date
written notice thereof shall have been given by the Borrower to the Agent
or any Lender; and (iii) the date by which the Borrower was required to
have delivered to the Lenders the statement required under Section
5.01(f)(ii); or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $10,000,000 in the aggregate (but excluding
Debt evidenced by the Notes) of the Borrower or such Subsidiary (as the
case may be), when the same becomes due and payable (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 Debt; or the Borrower or
any of its Subsidiaries shall fail to be in compliance with any covenant
measuring the Borrower's or such Subsidiary's financial performance under
any agreement or instrument relating to any Debt outstanding in a principal
amount of at least $10,000,000 in the aggregate (but excluding Debt
evidenced by the Notes) and such failure shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate or to permit the
acceleration of, the maturity of such Debt; or any Debt outstanding in a
principal amount of at
49
least $10,000,000 in the aggregate (but excluding Debt evidenced by the
Notes) shall be declared to be due and payable, or required to be prepaid
(other than by a required prepayment), redeemed, purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its 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 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, custodian 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 sixty (60)
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, 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 the Borrower or any of
its 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
$25,000,000 or otherwise materially adverse to the business, condition
(financial or otherwise), results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole shall be rendered against
the Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of ten (10) consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) any ERISA Event shall have occurred with respect to a Plan of the
Borrower or any of its ERISA Affiliates and the sum (determined as of the
date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans of the Borrower and its
ERISA Affiliates with respect to which an ERISA Event shall have occurred
and then exist (or the liability of the Borrower and its ERISA Affiliates
related to such ERISA Event) exceeds $25,000,000; or
50
(h) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower and its
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $10,000,000 or requires payments exceeding
$1,000,000 per annum; or
(i) the Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will
be increased over the amounts contributed to such Multiemployer Plans for
the plan year of each such Multiemployer Plan immediately preceding the
plan year in which such reorganization or termination occurs by an amount
exceeding $1,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, 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 under
the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
51
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram,
52
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any Person who may
do business with or own securities of the Borrower or any such Subsidiary, all
as if Citibank were not the Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent, any other Lender, any
Co-Agent or any Lead Manager and based on the financial statements referred to
in Section 4.01 and such other 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 Agent, any other Lender, any Co-Agent or any Lead
Manager 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 this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the A Notes then held by each of them (or if no
A Notes are at the time outstanding or if any A Notes are held by Persons that
are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including counsel fees and expenses) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
53
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, 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 Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, 3.02 or 3.03, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the A Notes or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless
54
in writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at 11840 Valley View
Road, Eden Prairie, MN 55344, Attention: Treasurer with a copy to the Corporate
Secretary of the Borrower, at the aforesaid address; if to any Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at 399 Park Avenue, New York, New York 10043, Attention: Bank Loan
Syndication, with a copy to One Court Square, Seventh Floor, Zone One, Long
Island City, New York 11120, Attention: Bank Loan Syndication; or as to the
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed, telexed or cabled, be effective when deposited
in the mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, except that notices
and communications to the Agent pursuant to Article II or VII shall not be
effective until received by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrower further agrees
to pay on demand all reasonable costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses) of the Agent and the Lenders,
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable
55
counsel fees and expenses in connection with the enforcement of rights under
this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance, or any B Advance which bears interest based on a rate per annum at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market, is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.09(g), 2.11 or 2.13 or
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon written demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(c) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Section 2.16 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 8.05. Right of Setoff. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and the Agent are 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 or the Agent 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
any Note held by such Lender or the Agent, whether or not such Lender or the
Agent shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender and the Agent agree promptly to
notify the Borrower after any such set-off and application made by such Lender
or the Agent, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender and the
Agent under this Section 8.05 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender and
the Agent may have.
56
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions set forth in Section 3.01) when it shall have
been executed by the Borrower and the Agent and when the Agent shall have been
notified by each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent and each Lender
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
at any time, with the consent of the Borrower (which consent shall not be
unreasonably withheld), assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the A Advances owing to it and
the A Note or Notes held by it); provided, however, that (i) the Borrower's
consent shall not be required in the case of an assignment to another Lender or
to an Affiliate of any existing Lender, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make B Advances, B Advances owing to it or B
Notes), (iii) the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall, without the
consent of the Borrower and the Agent, in no event be less than the lesser of
(x) such Lender's Commitment and (y) $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, provided that no such limitations shall apply in
the case of an assignment to an existing Lender or any Affiliate thereof, (iv)
no assigning Lender shall, after giving effect to any such assignment, and as
determined on the effective date of the Assignment and Acceptance with respect
thereto, retain a Commitment hereunder of less than $10,000,000, (v) each such
assignment shall be to an Eligible Assignee and (vi) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance (which
acceptance shall not constitute a consent) and recording in the Register, an
Assignment and Acceptance, together with any A Note or Notes subject to such
assignment and a processing and recordation fee of $2,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all
57
or the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender, any other Lender, any Co-Agent
or any Lead Manager 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 this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that such assignee is an Eligible
Assignee, together with any A Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five (5) Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered A Note or Notes
a new A Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new
58
A Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new A Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered A
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1
hereto.
(d) Each Lender may assign to one or more banks or other entities any
B Note or Notes held by it.
(e) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and, the Commitment of, and principal amount of the A Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) such Lender shall
retain the right to consent or agree to any amendment or waiver of the
provisions of this Agreement without the need to obtain the consent or agreement
of its participants except with respect to any amendments or waivers that would
reduce the principal, interest, fees or other amounts payable hereunder or
postpone any date fixed for the payment thereof, and (v) the Borrower, the 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.
(g) Any Lender may, in connection with any assignment, or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or
59
proposed assignee or participant shall agree to preserve the confidentiality of
any confidential information relating to the Borrower received by it from such
Lender in accordance with Section 8.11.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(i) Notwithstanding anything to the contrary in this Section 8.07 or
otherwise in this Agreement, no Lender may assign all or any portion of its
rights and obligations under this Agreement (including, without limitation, any
B Note) or sell participations in all or a portion of its rights and obligations
under this Agreement if such assignment or sale would require the Borrower to
file a registration statement with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, or apply to qualify this Agreement, the
Notes or any other evidence of its obligations to any Lender, assignee or
participant under the blue sky law of any state.
SECTION 8.08. Indemnification. The Borrower agrees to indemnify and
hold harmless the Agent, each Lender and each of their Affiliates and their
respective directors, officers, employees, agents, advisors and representatives
(each, an "Indemnified Party"), from and against, and to promptly reimburse them
and each of them, for any and all liabilities, losses, damages, actions,
judgments, suits, claims, costs, out-of-pocket expenses (including, without
limitation, interest, penalties and all reasonable attorneys' fees and expenses)
and settlement costs that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
litigation or proceeding or governmental action or investigation (administrative
or judicial), arising out of, related to or in connection with the actual or
proposed use of the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto or is otherwise required to respond thereto,
provided that the Borrower shall not be liable hereunder to the extent such
claim, damage, loss, liability or expense (i) arises out of any settlement made
without the Borrower's consent, which consent shall not unreasonably be
withheld, (ii) arises out of any proceeding brought against any Indemnified
Party by a security holder of such Indemnified Party based upon rights afforded
such security holder solely in its capacity as such, (iii) arises solely from
disputes among two or more Indemnified Parties, (iv) is found in a final, non-
appealable judgment of a court of competent jurisdiction to have resulted from
the gross negligence
60
or willful misconduct of such Indemnified Party or (v) is found in a final, non-
appealable judgment of a court of competent jurisdiction to have resulted solely
from such Indemnified Party's breach of its obligations under the Loan
Documents.
SECTION 8.09. Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Confidentiality. Except to the extent permitted by
this Section 8.11 or by Section 8.07(g), the Lenders shall keep confidential all
non-public information obtained by them from the Borrower pursuant to this
Agreement that has been identified as such by the Borrower; provided, however,
that Lenders may make such disclosure thereof as is required or requested by any
governmental agency or self-regulatory organization or representative thereof
with supervisory jurisdiction over it or pursuant to legal process, or as may
otherwise be required by law or court order; provided further, however, that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify the Borrower of any request received by it from any governmental
agency or self-regulatory organization or representative thereof (other than any
such request in connection with an examination of such Lender by a governmental
agency or self-regulatory organization with supervisory jurisdiction over it)
for disclosure of any such non-public information prior to disclosure of such
information so that the Borrower may seek an appropriate protective order. The
Borrower authorizes each Lender to disclose to any of its Affiliates, attorneys,
auditors and accountants and any prospective Lender or participant any and all
information in such Lender's possession concerning the Borrower and any
Subsidiary of the Borrower that has been delivered to such Lender by or on
behalf of the Borrower pursuant to Section 5.01(f), provided that each such
Person shall agree to keep such information confidential in accordance with this
Section 8.11. In no event shall any Lender be obligated or required to return
any materials furnished by or on behalf of the Borrower or any of its
Subsidiaries. Notwithstanding the foregoing, this Section 8.11 shall not
61
apply to any information that is or becomes generally available to the public
other than as a result of the disclosure by any Lender, participant, prospective
Lender or participant or their respective representatives.
SECTION 8.12. WAIVER OF JURY TRIAL, ETC. EACH OF THE BORROWER, THE
AGENT, THE CO-AGENTS, THE LEAD MANAGERS AND THE LENDERS HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY
OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE AGENT, ANY CO-AGENT,
ANY LEAD MANAGER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT THEREOF.
62
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.
SUPERVALU INC.
By:
_________________________
Title:
CITIBANK, N.A.,
as Agent
By:
_________________________
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Co-Agent
By:
_________________________
Title:
NATIONSBANK, N.A. (CAROLINAS),
as Co-Agent
By:
_________________________
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent
By:
_________________________
Title:
63
THE FUJI BANK, LIMITED, CHICAGO
BRANCH,
as Co-Agent
By: __________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Lead Manager
By: ___________________________
Title:
ROYAL BANK OF CANADA,
as Lead Manager
By: ___________________________
Title:
SHAWMUT BANK, N.A.,
as Lead Manager
By: ___________________________
Title:
64
Commitment Banks
- ---------- -----
$13,500,000 BANKERS TRUST COMPANY
By:
-------------------------
Title:
$13,500,000 BANK OF HAWAII
By:
-------------------------
Title:
$45,000,000 CITICORP USA, INC.
By:
-------------------------
Title:
$13,500,000 CREDIT SUISSE
By:
-------------------------
Title:
$40,000,000 FIRST BANK NATIONAL ASSOCIATION
By:
-------------------------
Title:
65
Commitment Banks
- ---------- -----
$13,500,000 MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION
By:
-------------------------
Title:
$20,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:
-------------------------
Title:
$40,000,000 NATIONSBANK, N.A. (CAROLINAS)
By:
-------------------------
Title:
$13,500,000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-------------------------
Title:
$40,000,000 PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------
Title:
66
Commitment Banks
- ---------- -----
$20,000,000 ROYAL BANK OF CANADA
By:
-------------------------
Title:
$20,000,000 SHAWMUT BANK, N.A.
By:
-------------------------
Title:
$13,500,000 SOCIETE GENERALE
By:
-------------------------
Title:
$13,500,000 THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By:
-------------------------
Title:
$13,500,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By:
-------------------------
Title:
67
Commitment Banks
- ---------- -----
$40,000,000 THE FUJI BANK, LIMITED, CHICAGO
BRANCH
By:
-------------------------
Title:
$13,500,000 THE SANWA BANK LTD.,
CHICAGO BRANCH
By:
-------------------------
Title:
$13,500,000 WACHOVIA BANK OF GEORGIA, N.A.
By:
-------------------------
Title:
SCHEDULE I
LIST OF APPLICABLE
LENDING OFFICES
---------------
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
Bankers Trust Company Bankers Trust Company Bankers Trust Company
130 Liberty Street 130 Liberty Street
32nd Floor 32nd Floor
New York, NY 10006 New York, NY 10006
Attn: Katherine A. Judge Attn: Katherine A. Judge
Tel: (212) 250-4969 Tel: (212) 250-4969
Fax: (212) 250-7478 Fax: (212) 250-7478
- ---------------------------------------------------------------------------------------------------------------
Bank of Hawaii Bank of Hawaii Bank of Hawaii
130 Merchant Street 130 Merchant Street
20th Floor 20th Floor
Honolulu, Hawaii 96813 Honolulu, Hawaii 96813
Attn: Iwalani Attn: Iwalani
Sabarre-Kapika Sabarre-Kapika
Tel: (808) 484-3584 Tel: (808) 484-3584
Fax: (808) 484-3606 Fax: (808) 484-3606
- ---------------------------------------------------------------------------------------------------------------
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Attn: Rachel Heisler Attn: Rachel Heisler
I-2
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
Tel: (212) 559-1875 Tel: (212) 559-1875
Fax: (212) 793-7585 Fax: (212) 793-7585
- ---------------------------------------------------------------------------------------------------------------
Credit Suisse Credit Suisse Credit Suisse
12 E. 49th Street 12 E. 49th Street
New York, NY 10017 New York, NY 10017
Attn: Kristin Kristinsson Attn: Kristin Kristinsson
Tel: (212) 238-5206 Tel: (212) 238-5206
Fax: (212) 238-5245 Fax: (212) 238-5245
- ---------------------------------------------------------------------------------------------------------------
First Bank National Association First Bank National Association First Bank National Association
601 Second Avenue South 601 Second Avenue South
Minneapolis, MN 55402-4302 Minneapolis, MN 55402-4302
Attn: Mark R. Olman Attn: Mark R. Olman
Tel: (612) 973-1085 Tel: (612) 973-1085
Fax: (612) 973-0825 Fax: (612) 973-0825
- ---------------------------------------------------------------------------------------------------------------
Mercantile Bank of St. Louis Mercantile Bank of St. Louis Mercantile Bank of St. Louis
721 Locust Street 721 Locust Street
St. Louis, MO 63101 St. Louis, MO 63101
Attn: John Holland Attn: John Holland
Tel: (314) 425-1315 Tel: (314) 425-1315
Fax: (314) 425-2162 Fax: (314) 425-2162
- ---------------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of Morgan Guaranty Trust Company of Morgan Guaranty Trust Company of
New York New York New York
c/o J.P. Morgan Services, Inc. c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road 500 Stanton Christiana Road
I-3
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
P.O. Box 6070 P.O. Box 6070
Newark, Delaware 19713-2107 Newark, Delaware 19713-2107
Attn: Multi-Option Unit-Loan Dept. Attn: Multi-Option Unit-Loan Dept.
Tel: (302) 634-1800 Tel: (302) 634-1800
Fax: (302) 634-1094 Fax: (302) 634-1094
- ---------------------------------------------------------------------------------------------------------------
NationsBank, N.A. (Carolinas) NationsBank, N.A. (Carolinas) NationsBank, N.A. (Carolinas)
233 South Wacker Drive 233 South Wacker Drive
Suite 2800 Suite 2800
Chicago, IL 60606-6308 Chicago, IL 60606-6308
- ---------------------------------------------------------------------------------------------------------------
Norwest Bank Minnesota, National Norwest Bank Minnesota, National Norwest Bank Minnesota, National
Association Association Association
Norwest Center Norwest Center
Sixth and Marquette Sixth and Marquette
Minneapolis, MN 55479-0085 Minneapolis, MN 55479-0085
Attn: Molly Van Metre Attn: Molly Van Metre
Tel: (612) 667-9147 Tel: (612) 667-9147
Fax: (612) 667-4145 Fax: (612) 667-4145
- ---------------------------------------------------------------------------------------------------------------
PNC Bank, National Association PNC Bank, National Association PNC Bank, National Association
Fifth Avenue & Wood Street Fifth Avenue & Wood Street
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Address for notices: Address for notices:
------------------- -------------------
PNC Bank, National Association PNC Bank, National Association
I-4
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
500 West Madison Street 500 West Madison Street
Suite 3140 Suite 3140
Chicago, IL 60661 Chicago, IL 60661
Attn: Jon C. Otterberg Attn: Jon C. Otterberg
Tel: (312) 906-3425 Tel: (312) 906-3425
Fax: (312) 906-3420 Fax: (312) 906-3420
- ---------------------------------------------------------------------------------------------------------------
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
Grand Cayman (North America No. Grand Cayman (North America No. 1)
1) Branch c/o New York Branch Branch c/o New York Branch
Financial Square Financial Square
23rd Floor 23rd Floor
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Manager, Loans Attn: Manager, Loans Administration
Administration Tel: (212) 428-6324
Tel: (212) 428-6324 Fax: (212) 428-2372
Fax: (212) 428-2372
With a copy to:
--------------
With a copy to:
--------------
Royal Bank of Canada
Royal Bank of Canada One North Franklin Street
One North Franklin Street Suite 700
Suite 700 Chicago, IL 60600
Chicago, IL 60600 Attn: Karen T. Hull
Attn: Karen T. Hull Tel: (312) 551-1617
Tel: (312) 551-1617 Fax: (312) 551-0805
I-5
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
Fax: (312) 551-0805
- ---------------------------------------------------------------------------------------------------------------
Shawmut Bank, N.A. Shawmut Bank, N.A. Shawmut Bank, N.A.
One Federal Street One Federal Street
Boston, MA 02211 Boston, MA 02211
Attn: Anahed Varsabedian Attn: Anahed Varsabedian
Tel: (617) 292-2609 Tel: (617) 292-2609
Fax: (617) 292-3241 Fax: (617) 292-3241
- ---------------------------------------------------------------------------------------------------------------
Societe Generale Societe Generale Societe Generale
181 West Madison Street 181 West Madison Street
Suite 3400 Suite 3400
Chicago, IL 60602 Chicago, IL 60602
Attn: Eric E.O. Siebert Attn: Eric E.O. Siebert
Tel: (312) 578-5003 Tel: (312) 578-5003
Fax: (312) 578-5099 Fax: (312) 578-5099
- ---------------------------------------------------------------------------------------------------------------
The Boatmen's National Bank of The Boatmen's National Bank of The Boatmen's National Bank of
St. Louis St. Louis St. Louis
One Boatmen's Plaza One Boatmen's Plaza
St. Louis, Missouri 63101 St. Louis, Missouri 63101
Attn: Sharron Kovach Attn: Sharron Kovach
Tel: (314) 466-6944 Tel: (314) 466-6944
Fax: (314) 466-6499 Fax: (314) 466-6499
- ---------------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd., The Dai-Ichi Kangyo Bank, Ltd., The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch Chicago Branch Chicago Branch
10 South Wacker Drive 10 South Wacker Drive
I-6
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
26th Floor 26th Floor
Chicago, IL 60606 Chicago, IL 60606
Attn: Brian Cushing Attn: Brian Cushing
Vice President, Corporate Vice President, Corporate
Banking Dept. I Banking Dept. I
Tel: (312) 715-6361 Tel: (312) 715-6361
Fax: (312) 876-2011 Fax: (312) 876-2011
- ---------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited, Chicago The Fuji Bank, Limited, Chicago The Fuji Bank, Limited, Chicago
Branch Branch Branch
225 W. Wacker Drive 225 W. Wacker Drive
Suite 2000 Suite 2000
Chicago, IL 60606 Chicago, IL 60606
Attn: Vir Guiang Attn: Vir Guiang
Tel: (312) 621-3385 Tel: (312) 621-3385
Fax: (312) 621-0539 Fax: (312) 621-0539
- ---------------------------------------------------------------------------------------------------------------
The Sanwa Bank Ltd., Chicago Branch The Sanwa Bank Ltd., Chicago The Sanwa Bank Ltd., Chicago
Branch Branch
10 South Wacker Drive 10 South Wacker Drive
31st Floor 31st Floor
Chicago, IL 60606 Chicago, IL 60606
Attn: Joe Moreno Attn: Joe Moreno
Vice President & Manager Vice President & Manager
Tel: (312) 368-3007 Tel: (312) 368-3007
Fax: (312) 346-6677 Fax: (312) 346-6677
I-7
- ---------------------------------------------------------------------------------------------------------------
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ---------------------------------------------------------------------------------------------------------------
Wachovia Bank of Georgia, N.A. Wachovia Bank of Georgia, N.A. Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E. 191 Peachtree Street, N.E.
Atlanta, GA 30303 Atlanta, GA 30303
Attn: Francis Whitington Josephic Attn: Francis Whitington Josephic
Tel: (404) 332-4132 Tel: (404) 332-4132
Fax: (404) 332-6898 Fax: (404) 332-6898
- ---------------------------------------------------------------------------------------------------------------
SCHEDULE II
LITIGATION
----------
NONE
EXHIBIT A-1
FORM OF A NOTE
U.S.$______________ Dated: May 26, 1995
FOR VALUE RECEIVED, the undersigned, SUPERVALU INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
___________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the A Advances (as defined below) made
by the Lender to the Borrower pursuant to the Credit Agreement outstanding on
the Termination Date (as defined in the Credit Agreement).
The Borrower promises to pay interest on the unpaid principal amount of
each A Advance from the date of such A Advance until such principal amount is
paid in full, at such interest rates, and 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 Citibank, N.A., as Agent, at 399 Park Avenue, New York, NY
10043, in same day funds. Each A Advance made by the Lender to the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the A Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of May 26, 1995 (as
amended or modified from time to time, the "Credit Agreement") among the
Borrower, the Lender and certain other Banks and the Co-Agents and the Lead
Managers (each as defined in the Credit Agreement) parties thereto, and
Citibank, N.A., as Agent for the Lender and such other banks. The Credit
Agreement, among other things, (i) provides for the making of advances (the "A
Advances") by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such A Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and
A-1-2
also for prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
A-1-3
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, United States.
SUPERVALU INC.
By: ______________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
AMOUNT OF
PRINCIPAL UNPAID
AMOUNT OF MATURITY OF PAID PRINCIPAL NOTATION
DATE ADVANCE ADVANCE OR PREPAID BALANCE MADE BY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
EXHIBIT A-2
FORM OF B NOTE
U.S.$____________ Dated: ______________
FOR VALUE RECEIVED, the undersigned, SUPERVALU INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below), on
___________________, the principal amount of ______________ Dollars
($______________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: [____% per annum (calculated on the basis of a year of ____
days for the actual number of days elapsed)].
Interest Payment Date or Dates: ___________________________________________
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent for the account of the Lender at
the office of ____________________, at ___________________________________, in
same day funds, free and clear of and without any deduction, with respect to the
payee named above, for any and all present and future taxes, deductions, charges
or withholdings, and all liabilities with respect thereto.
This Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of May 26, 1995 (as
amended or modified from time to time, the "Credit Agreement") among the
Borrower, the Lender and certain other Banks and the Co-Agents and the Lead
Managers (each as defined in the Credit Agreement) parties thereto, and
Citibank, N.A., as Agent for the Lender and such other banks. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
A-2-2
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, United States.
SUPERVALU INC.
By: _______________________________
Title:
EXHIBIT B-1
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, SUPERVALU INC., refers to the Credit Agreement, dated
as of May 26, 1995 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders, the Co-Agents and the Lead Managers
parties thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests an A Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such A Borrowing
(the "Proposed A Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed A Borrowing is ____________.
(ii) The Type of A Advances comprising the Proposed A Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is $___________.
B-1-2
[(iv) The Interest Period for each Eurodollar Rate Advance made as part
of the Proposed A Borrowing is ____ month[s].]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed A Borrowing:
(A) The representations and warranties contained in Section 4.01 of the
Credit Agreement (excluding that contained in the last sentence of
subsection (e) thereof) are correct on and as of the date of such A
Borrowing, before and after giving effect to such A Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; and
(B) no event has occurred and is continuing, or would result from such
Proposed A Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
SUPERVALU INC.
By:
-----------------------------------
Title:
EXHIBIT B-2
NOTICE OF B BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, SUPERVALU INC., refers to the Credit Agreement, dated
as of May 26, 1995 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders, the Co-Agents and the Lead Managers
parties thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives
you notice pursuant to Section 2.03 of the Credit Agreement that the undersigned
hereby requests a B Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such B Borrowing (the "Proposed B Borrowing") is
requested to be made:
(A) Date of B Borrowing _______________________________
(B) Amount of B Borrowing _______________________________
(C) Maturity Date _______________________________
(D) Interest Rate Basis _______________________________
(E) Interest Payment Date(s) _______________________________
B-2-2
(F) _____________________ _______________________________
(G) _____________________ _______________________________
(H) _____________________ _______________________________
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed B Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement (excluding that contained in the last sentence of
subsection (e) thereof) are correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date;
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom,
that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the undersigned that has been provided to
the Agent and each Lender by the undersigned in connection with the Credit
Agreement would include an untrue statement of a material fact or omit to
state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; and
(d) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within
the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
SUPERVALU INC.
By:
-----------------------------------
Title:
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________
Reference is made to the Credit Agreement dated as of May 26, 1995 (as
amended or modified from time to time, the "Credit Agreement") among SUPERVALU
INC., a Delaware corporation (the "Borrower"), the Lenders, the Co-Agents and
the Lead Managers (each as defined in the Credit Agreement) and Citibank, N.A.,
as Agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement
are used herein with the same meaning.
____________ (the "Assignor") and______________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of B Advances and B Notes) that
represents the percentage interest specified on Schedule 1 of all outstanding
rights and obligations of the Lenders under the Credit Agreement (other than in
respect of B Advances and B Notes), including, without limitation, such interest
in the Assignor's Commitment, the A Advances owing to the Assignor, and the A
Note[s] held by the Assignor. After giving effect to such sale and assignment,
the Assignee's Commitment and the amount of the A Advances owing to the Assignee
will be as set forth in Section 2 of Schedule 1, and the Assignor's Commitment
and the amount of A Advances owing to the Assignor will be as set forth in
Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) 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 the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or
C-2
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the A Note[s] referred to in
paragraph 1 above and requests that the Agent exchange such A Note[s] for a new
A Note payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new A Notes payable to the order of
the Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto and the Assignor in an amount equal to the Commitment retained
by the Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 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; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor, any other Lender, any Co-Agent or
any Lead Manager 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; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender;
[and] (vi) specifies as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof[; and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced to zero by an applicable
tax treaty.]/++/
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, and, to the extent required under Section 8.07 of the
Credit Agreement, the Borrower's consent hereto, it will be delivered to the
Agent for acceptance (which acceptance shall not constitute a consent) and
recording by the
- -----------------------
/++/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
C-3
Agent. The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Agent, unless otherwise specified on Schedule 1 hereto
(the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) 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 (ii) 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.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
and the A Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the A Notes for periods
prior to the Effective Date directly between themselves.
7. 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 by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
C-4
Schedule 1
to
Assignment and Acceptance
Dated ________________
Section 1.
- ---------
Percentage Interest: ________%
Section 2.
- ---------
Assignee's Commitment: $_______
Aggregate Outstanding Principal
Amount of A Advances owing
to the Assignee: $_______
Assignor's Commitment after this Assignment: $_______
Aggregate Outstanding Principal Amount
of A Advances owing to the Assignor after
this Assignment: $_______
An A Note payable to the order of the Assignee
Dated: ________________
Principal amount: $_______
An A Note payable to the order of the Assignor
Dated: ________________
Principal amount: $_______
C-5
Section 3.
- ---------
Effective Date*: ________________
[NAME OF ASSIGNOR]
By:
------------------------
Title:
[NAME OF ASSIGNEE]
By:
------------------------
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
- --------------------------
* This date should be no earlier than the date of acceptance by the Agent.
C-6
*[Consented to this ____ day
of _________________
SUPERVALU INC.
By:
--------------------------
Title:]
Accepted this ____ day
of _________________
[NAME OF AGENT]
By:
--------------------------
Title:
________________________
* Add if Borrower's consent is required under Section 8.07 of the Credit
Agreement.