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Exhibit 10.12
AMENDMENT AND RESTATEMENT
Dated as of December 18, 1998
of
CREDIT AGREEMENT
Dated as of March 11, 1998
Among
FMS TRUST 1997-1
as Borrower
and
THE SEVERAL LENDERS FROM TIME TO TIME PARTIES THERETO
and
CHASE SECURITIES INC.
as Lead Arranger and Book Manager
and
BANKERS TRUST COMPANY
as Administrative Agent
and
THE CHASE MANHATTAN BANK
as Syndication Agent
and
NATIONSBANK OF TEXAS, N.A.
and
SALOMON BROTHERS HOLDING CO INC.
as Co-Documentation Agents
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AMENDMENT AND RESTATEMENT, dated as of December 18, 1998 (this
"Amendment"), of the Credit Agreement, dated as of March 11, 1998 (as amended,
the "Credit Agreement"), among FMS TRUST 1997-1, a Delaware business trust (the
"Borrower"), the several banks and other financial institutions from time to
time parties to the Credit Agreement (the "Lenders"), BANKERS TRUST COMPANY
("Bankers Trust"), as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent"), THE CHASE MANHATTAN BANK ("Chase"), as
Syndication Agent (in such capacity, the "Syndication Agent"), CHASE SECURITIES
INC., as Lead Arranger and Book Manager (in such capacity, the "Lead Arranger
and Book Manager"), and NATIONSBANK OF TEXAS, N.A. and SALOMON BROTHERS HOLDING
CO INC., as Co-Documentation Agents.
W I T N E S S E T H :
WHEREAS, The Kroger Co. ("Kroger") has agreed, subject to certain
conditions, to acquire all of the outstanding common stock of Fred Meyer, Inc.
("FMI") in exchange for newly issued shares of common stock of Kroger pursuant
to a merger of a wholly owned subsidiary of Kroger into FMI (the "Acquisition");
WHEREAS, in connection with the Acquisition, Kroger, FMI and the
Borrower have requested and upon the effectiveness of this Amendment, the
Required Lenders have agreed, that certain provisions of the Credit Agreement be
amended and that the Credit Agreement be restated upon the terms and conditions
set forth below to permit the consummation of the Acquisition;
WHEREAS, concurrent with the consummation of the Acquisition, Kroger
and each of its other material subsidiaries will guarantee the obligations of
the Lessee under the Participation Agreement; and
WHEREAS, FMI has further requested CSI to act as Lead Arranger and
Book Manager with respect to this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
Unless otherwise indicated, all Article, Section and subsection references are
to the Credit Agreement.
SECTION 2. Amendment to Section 2. Section 2 of the Credit Agreement
is hereby amended by adding the following new Section 2.18 to the end thereof:
"2.18 Termination or Reduction of Commitments. The Borrower shall
have the right, upon not less than three Business Days' notice to the
Administrative Agent (which will promptly notify the Lenders thereof),
to terminate the Commitments or, from time to time, to reduce the
amount of the Commitments. Any such reduction shall be in an amount
equal to $1,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Commitments then in effect."
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SECTION 3. Amendments to Section 6.1. Section 6.1 of the Credit
Agreement is hereby amended as follows:
(a) by amending and restating paragraph (e) to read in its entirety as
follows:
"(e) Kroger or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Indebtedness that is
outstanding in a principal or notional amount of at least $40,000,000
in the aggregate (but excluding Indebtedness outstanding hereunder) of
Kroger or such Subsidiary (as the case may be), when the same become
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 Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness and 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 Indebtedness;
or any such Indebtedness shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated
maturity thereof; or";
(b) by amending and restating paragraph (f) to read in its entirety as
follows:
"(f) Kroger, any of its Subsidiaries or any Investor 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 Kroger, any of its Subsidiaries or
any Investor seeking to adjudicate it as 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 30 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 Kroger, any of its Subsidiaries or any
Investor shall take any corporate action to authorize any of the
actions set forth above in this paragraph (f); or";
(c) by inserting in paragraph (h) after the words "in any Credit
Document)" the following:
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"and, if such default occurs with respect to Sections 4.1 or 4.4
(to the extent Section 4.4 applies to Section 4.1) of the Kroger
Guarantee, such default shall have continued unremedied for a period
of thirty days after written notice thereof to the Borrower by the
Administrative Agent or the Required Lenders"; and
(d) by deleting paragraphs (j) and (k) in their entireties and
substituting in lieu thereof the following new paragraphs (j), (k),
(l) and (m) as follows:
"(j) Any judgment or order for the payment of money in excess of
$40,000,000 shall be rendered against Kroger 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 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; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.1(j) if and for so long as (i) the amount of such judgment or order
is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such
insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
(k) Any non-monetary judgment or order shall be rendered against
Kroger or any of its Subsidiaries that could be reasonably expected to
have a Material Adverse Effect, and there shall be any period of 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
(l) A Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan
or Plans that reasonably could be expected to result in liability of
Kroger or any of its Subsidiaries to the PBGC or to a Plan in an
aggregate amount exceeding $40,000,000 and, within 30 days after
Kroger has provided written notice of any such Reportable Event to the
Administrative Agent, the Administrative Agent shall have notified
Kroger in writing that (i) the Required Lenders have determined that,
on the basis of such Reportable Event or Reportable Events or the
failure to make a required payment, there are reasonable grounds (A)
for the termination of such Plan or Plans by the PBGC, (B) for the
appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans or (C) for the imposition of
a lien in favor of a Plan and (ii) as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United
States District Court to administer any such Plan or Plans; or the
PBGC shall institute proceedings (including giving notice of intent
thereof) to terminate any Plan or Plans; or
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(m) (A) (i) Kroger or any ERISA Affiliate of Kroger shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii) Kroger
or such ERISA Affiliate does not have reasonable grounds for
contesting such Withdrawal Liability or is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner and (iii) the
amount of the Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the
date or dates of such notification), either (x) exceeds $100,000,000
or requires payments exceeding $40,000,000 in any year or (y) is less
than $100,000,000 but any Withdrawal Liability payment remains unpaid
30 days after such payment is due (unless such Withdrawal Liability is
being contested in good faith by Kroger or any ERISA Affiliate of
Kroger), or (B) Kroger or any ERISA Affiliate of Kroger shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if solely as a result of such
reorganization or termination the aggregate contributions of Kroger
and its ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $40,000,000."
SECTION 4. Restatement of Credit Agreement. The Credit Agreement is
hereby restated in its entirety to read as set forth in Exhibit A to this
Amendment. The only amendments to the Credit Agreement, as restated, are those
reflected in this Amendment.
SECTION 5. Representations and Warranties. After giving effect to this
Amendment, the Borrower hereby confirms, reaffirms and restates in all material
respects the representations and warranties set forth in Section 3 of the Credit
Agreement as if made on and as of the date hereof except for any representation
or warranty made as of an earlier date, which representation or warranty shall
have been true and correct in all material respects as of such earlier date.
SECTION 6. Lead Arranger; Book Manager. CSI shall act as Lead Arranger
and Book Manager with respect to this Amendment. CSI shall not have, except as
to and to the limited extent expressly provided herein, any obligation,
responsibility or duty under the Credit Agreement or this Amendment. Each Lender
acknowledges that it has not relied, and will not rely, on CSI in deciding to
consent to this Amendment or in taking or not taking action hereunder.
Notwithstanding any language to the contrary in the Credit Agreement, CSI shall
be entitled to the benefits of Section 7.3 of the Credit Agreement to the same
extent as if it were the Administrative Agent.
SECTION 7. Conditions to Effectiveness. This Amendment shall become
effective as of the date (the "Effective Date") of consummation of the
Acquisition and upon receipt by the Lead Arranger and Book Manager of each of
the following:
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(a) counterparts of this Amendment, duly executed and delivered by the
Borrower, FMI, the Owner Trustee, the Investors and the Required Lenders;
(b) counterparts of a Guarantee, substantially in the form of Exhibit
B to this Amendment (the "Kroger Guarantee"), duly executed and delivered by
Kroger and each other Kroger Guarantor;
(c) an opinion of counsel to the Borrower and FMI, as to the due
authorization and execution by the Borrower and FMI of this Amendment and to
such other matters, as is customary for similar transactions, as may be
reasonably requested by the Lead Arranger and Book Manager;
(d) an opinion of counsel to Kroger as to the due authorization and
execution by the Kroger Guarantors of the Kroger Guarantee and to such other
matters, as is customary for similar transactions, as may be reasonably
requested by the Lead Arranger and Book Manager;
(e) such documents and certificates as the Lead Arranger and Book
Manager and its counsel may reasonably request relating to this Amendment, all
in form and substance satisfactory to the Lead Arranger and Book Manager and its
counsel;
(f) satisfactory evidence that the Lease Amendment (the execution and
delivery of which is hereby consented to by the Required Lenders) and the
Participation Agreement Amendment have been duly executed and delivered by the
requisite parties and all conditions precedent to the effectiveness thereof have
been satisfied;
(g) satisfactory evidence that the Amendment and Restatement, dated as
of December 18, 1998, of the Loan Agreement has been executed and delivered by
the requisite parties and all conditions precedent to the effectiveness thereof
have been satisfied.
(h) satisfactory evidence that (i) the Current Synthetic Lease
Facility of the Borrower has been terminated and all Loans outstanding under the
Credit Agreement have been paid in full, (ii) the commitments under the Loan
Agreement have been reduced by $500,000,000 or (iii) a combination thereof
resulting in the reduction of commitments under the Loan Agreement and
Commitments under the Credit Agreement in an aggregate amount of $500,000,000;
(i) the surviving corporation following the Acquisition has confirmed
in writing its assumption of all of the obligations of FMI under the Operative
Agreements; and
(j) the payment of all fees and other amounts payable in connection
with this Amendment.
SECTION 8. Payment of Expenses. FMI agrees to pay or reimburse the
Lead Arranger and Book Manager for all of its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel.
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SECTION 9. Continuing Effect of Credit Agreement. Except as expressly
amended herein, the Credit Agreement shall continue to be, and shall remain, in
full force and effect in accordance with its terms.
SECTION 10. Governing Law; Counterparts. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. The execution and delivery of this
Amendment by any Lender on or before the Effective Date shall be binding upon
each of its transferees, successors and assigns and binding in respect of all of
its Commitments and Loans, including any acquired subsequent to its execution
and delivery hereof and prior to the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FMS TRUST 1997-1,
By WILMINGTON TRUST COMPANY, not
individually but solely as Owner Trustee
By: /s/
-------------------------------------
Title:
BANKERS TRUST COMPANY, as Administrative
Agent and as a Lender
By: MARY KAY COYLE
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Title: Managing Director
THE CHASE MANHATTAN BANK, as Syndication
Agent and as a Lender
By: WILLIAM P. RINDFUSS
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Title: Vice President
CHASE SECURITIES INC., as Lead Arranger
and Book Manager
By: RUTH STRITEHOFF
-------------------------------------
Title: Managing Director
NATIONSBANK OF TEXAS, N.A., as
Co-Documentation Agent and as a Lender
By: JAMES P. JOHNSON
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Title: Managing Director
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SALOMON BROTHERS HOLDING CO INC., as
Co-Documentation Agent and as a Lender
By:
-------------------------------------
Title:
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ABN AMRO BANK N.V., as a Lender
By: SUSAN HENDRICKSON
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Title: Vice President
By: PAUL FAUST
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Title: Vice President
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BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH, as a Lender
By: ANDREW M. ORSEN
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Title: Vice President
By: TERRY R. HULL
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Title: Senior Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: JAMES P. JOHNSON
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Title: Managing Director
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BANK OF HAWAII, as a Lender
By: DAVID L. WARD
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Title: Assistant Vice President
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BANK LEUMI U.S.A., as a Lender
By: /s/
-------------------------------------
Title:
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BANK OF MONTREAL, as a Lender
By: SHEILA C. WEIMER
-------------------------------------
Title: Director
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THE BANK OF NEW YORK, as a Lender
By: PAULA REGAN
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Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI LTD.,
PORTLAND BRANCH, as a Lender
By: H. MEKALAWA
-------------------------------------
Title: V.P.
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BANQUE NATIONALE DE PARIS, as a Lender
By: NICHOLAS ROGERS
-------------------------------------
Title: Senior Vice President
By: STEPHEN H. CELLA
-------------------------------------
Title: Vice President
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BAYERISCHE HYPO-UND VEREINSBANK AG, as a
Lender
By:
-------------------------------------
Title:
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BHF-BANK AKTIENGESELLSCHAFT, as a Lender
By:
-------------------------------------
Title:
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CITY NATIONAL BANK, as a Lender
By: /s/
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Title: Vice President
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COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE, as a Lender
By: ANTHONY ROCK
-------------------------------------
Title: Vice President
By: BRIAN O'LEARY
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Title: Vice President
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CREDIT AGRICOLE INDOSUEZ, as a Lender
By: MARCY LYONS
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Title: First Vice President
By: /s/
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Title: EVP
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By:
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Title:
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DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/
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Title:
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DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Lenders
By: BRIGITTE SACIN
-------------------------------------
Title: Assistant Treasurer
By: CHRISTOPHER E. SARISKY
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Title: Assistant Vice President
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ERSTE BANK NEW YORK BRANCH, as a Lender
By:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By: CATHERINE A. MUZZEST
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Title: Vice President
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FIRST SECURITY BANK, N.A., as a Lender
By:
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Title:
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FIRST UNION NATIONAL BANK, as a Lender
By: DOUGLAS NICKEL
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Title: Vice President
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FIRSTRUST BANK, as a Lender
By:
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Title:
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FLEET BANK, N.A., as a Lender
By: /s/
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Title: Vice President
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THE FUJI BANK, LIMITED LOS ANGELES
AGENCY, as a Lender
By: MASAHITO FUKUDA
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Title: Joint General Manager
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GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender
By: JANET K. WILLIAMS
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Title: Duly Authorized Signatory
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GOLDMAN SACHS CREDIT PARTNERS L.P., as a
Lender
By: STEPHEN B. KING
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Title: Authorized Signatory
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IMPERIAL BANK, as a Lender
By:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Lender
By: TAKUYA HONJO
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Title: Senior Vice President
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By: RICHARD J. AMENY, JR.
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Title: Assistant Vice President
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LAND BANK OF TAIWAN, LOS ANGELES BRANCH,
as a Lender
By:
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Title:
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THE LONG TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as a Lender
By:
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Title:
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MARINE MIDLAND BANK, as a Lender
By: SUSAN L. LEFEVRE
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Title: Authorized Signatory
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:
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Title:
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MEESPIERSON CAPITAL CORP., as a Lender
By:
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Title:
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MELLON BANK, N.A., as a Lender
By: L. C. IVEY
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Title: Vice President
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MERCANTILE BANK N.A., as a Lender
By:
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Title:
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MERITA BANK PLC, as a Lender
By: /s/
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Title: VP
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: TOSHIHIRO HAYASHI
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Title: Senior Vice President
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MORGAN STANLEY SENIOR FUNDING, INC., as a
Lender
By:
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Title:
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NATEXIS BANQUE BFCE, as a Lender
By: PAYMAN PARHAMI
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Title: Assistant Treasurer
By: IAIN A. WHYTE
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Title: Vice President
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NATIONAL CITY BANK, as a Lender
By:
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Title:
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NATS LOAN TRUST 6, as a Lender By: The
Bank of New York, as Trustee
By:
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Title:
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PARIBAS, as a Lender
By: JUDITH A. DOWLY
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Title:
By: LEE S. BUCKNER
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Title: Managing Director
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By:
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Title:
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ROYAL BANK OF CANADA, as a Lender
By:
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Title:
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THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: DEREK BONNAR
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Title: Vice President
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STB DELWARE FUNDING TRUST I, as a Lender
By: DONALD C. HARGADON
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Title: Assistant Vice President
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THE TOKAI BANK, LIMITED, LOS ANGELES
AGENCY, as a Lender
By: /s/
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Title: SVP & Assistant General Manager
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TORONTO DOMINION (TEXAS) INC., as a
Lender
By:
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Title:
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TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:
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Title:
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US BANK NATIONAL ASSOCIATION, as a Lender
By: STEVEN T. WILLIAMS
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Title: Vice President
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WACHOVIA BANK, N.A., as a Lender
By: /s/
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Title: Vice President
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WELLS FARGO BANK, N.A., as a Lender
By: DONALD A. HARTMANN
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Title: Senior Vice President
By: CATHERINE M. WALLACE
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Title: Vice President
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ZIONS FIRST NATIONAL BANK, as a Lender
By: RICHARD P. JACKSON
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Title: Vice President
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The foregoing Amendment is hereby
consented to and approved by each of the
undersigned:
FRED MEYER, INC.
By: JAMES C. AALBERG
-------------------------------------
Title: Vice President, Treasurer
SOCIETE GENERALE FINANCIAL CORPORATION,
as Investor and as a Lender
By: /s/
-------------------------------------
Title: Vice President