1
Exhibit 4(i).1
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$3,000,000,000
CREDIT AGREEMENT
DATED AS OF APRIL 8, 1997
AMONG
SAFEWAY INC.,
THE VONS COMPANIES, INC.
AND
CANADA SAFEWAY LIMITED,
AS BORROWERS,
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT,
THE BANK OF NOVA SCOTIA
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS DOCUMENTATION AGENTS,
THE AGENTS LISTED HEREIN,
AS AGENTS,
AND
THE LENDERS LISTED HEREIN,
AS LENDERS
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SAFEWAY INC.
THE VONS COMPANIES, INC.
CANADA SAFEWAY LIMITED
CREDIT AGREEMENT
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS............................................................... 2
1.1 Certain Defined Terms..................................................... 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.............................................. 33
1.3 Other Definitional Provisions............................................. 33
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS................................ 33
2.1 Commitments; Making of Loans; the Register; Notes......................... 33
2.2 Interest on the Loans..................................................... 49
2.3 Fees...................................................................... 55
2.4 Prepayments and Reductions in Commitments; General
Provisions Regarding Payments............................................. 57
2.5 Use of Proceeds........................................................... 63
2.6 Special Provisions Governing Fixed Rate Loans............................. 63
2.7 Extension of Tranche A Termination Date................................... 66
2.8 Extension of Tranche B Revolving Termination Date......................... 68
2.9 Conversion of Tranche B Domestic Loans into Term Loans.................... 69
SECTION 3. LETTERS OF CREDIT......................................................... 69
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein.................................................... 69
3.2 Letter of Credit Fees..................................................... 73
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters
of Credit................................................................. 74
3.4 Obligations Absolute...................................................... 77
3.5 Indemnification; Nature of Issuing Lenders' Duties........................ 78
SECTION 4. ACCEPTANCES............................................................... 79
4.1 Acceptance Commitment..................................................... 79
4.2 Drawing Notice............................................................ 80
4.3 Form of Acceptances....................................................... 81
4.4 Acceptance and Purchase or Delivery of Drafts............................. 81
4.5 Payment of the Drawing Purchase Price..................................... 82
4.6 Average Effective Discount Rate Determination............................. 82
4.7 Acceptance Payment Obligations............................................ 83
(i)
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4.8 Presigned Draft Forms..................................................... 84
4.9 Circumstances Making Acceptances Unavailable.............................. 84
4.10 Prepayments............................................................... 85
4.11 Use of Proceeds of Loans and Acceptance Facility.......................... 85
SECTION 5. INCREASED COSTS, TAXES, CAPITAL ADEQUACY, AND
MITIGATION................................................................ 85
5.1 Increased Costs; Taxes; Capital Adequacy.................................. 85
5.2 Obligation of Lenders and Issuing Lenders to Mitigate..................... 91
5.3 Replacement of Lenders.................................................... 92
SECTION 6. CONDITIONS TO LOANS, LETTERS OF CREDIT AND
ACCEPTANCES............................................................... 93
6.1 Conditions to Initial Loans............................................... 93
6.2 Conditions to All Loans................................................... 96
6.3 Conditions to Letters of Credit........................................... 97
6.4 Conditions to Acceptances................................................. 98
SECTION 7. BORROWERS' REPRESENTATIONS AND WARRANTIES................................. 98
7.1 Organization, Powers, Qualification, Good Standing and Business........... 98
7.2 Authorization of Borrowing, etc........................................... 99
7.3 Financial Condition.......................................................100
7.4 No Material Adverse Effect................................................100
7.5 Litigation; Adverse Facts.................................................100
7.6 Payment of Taxes..........................................................100
7.7 Governmental Regulation...................................................101
7.8 Securities Activities.....................................................101
7.9 Employee Benefit Plans....................................................101
7.10 Disclosure................................................................102
7.11 Solvency..................................................................102
SECTION 8. BORROWERS' AFFIRMATIVE COVENANTS..........................................102
8.1 Financial Statements and Other Reports....................................103
8.2 Corporate Existence, etc..................................................106
8.3 Payment of Taxes and Claims...............................................106
8.4 Maintenance of Properties; Insurance......................................106
8.5 Inspection................................................................106
8.6 Compliance with Laws, etc.................................................107
8.7 Completion of Stock Repurchase............................................107
SECTION 9. BORROWERS' NEGATIVE COVENANTS.............................................107
9.1 Liens and Related Matters.................................................107
9.2 Restricted Junior Payments................................................110
(ii)
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9.3 Financial Covenants.......................................................111
9.4 Restriction on Fundamental Changes; Material Asset Sales..................111
9.5 Transactions with Shareholders and Affiliates.............................112
9.6 Conduct of Business.......................................................113
9.7 Unrestricted Subsidiaries.................................................113
9.8 Vons Merger Agreement and Stock Repurchase Agreement......................114
SECTION 10. EVENTS OF DEFAULT.........................................................114
10.1 Failure to Make Payments When Due.........................................114
10.2 Default in Other Agreements...............................................114
10.3 Breach of Certain Covenants...............................................115
10.4 Breach of Warranty........................................................115
10.5 Other Defaults Under Loan Documents.......................................115
10.6 Involuntary Bankruptcy; Appointment of Receiver, etc......................116
10.7 Voluntary Bankruptcy; Appointment of Receiver, etc........................116
10.8 Judgments and Attachments.................................................116
10.9 Dissolution...............................................................117
10.10 Employee Benefit Plans....................................................117
10.11 Invalidity of Subsidiary Borrower Guaranty................................117
10.12 Change in Control.........................................................117
SECTION 11. AGENTS....................................................................119
11.1 Appointment...............................................................119
11.2 Powers; General Immunity..................................................119
11.3 Representations and Warranties; No Responsibility For Appraisal
of Creditworthiness.......................................................121
11.4 Right to Indemnity........................................................121
11.5 Successor Agent...........................................................122
11.6 Collateral Account Agreement; Subsidiary Borrower Guaranty................123
SECTION 12. COMPANY GUARANTY OF CERTAIN CREDIT FACILITIES.............................123
SECTION 13. MISCELLANEOUS.............................................................126
13.1 Assignments and Participations in Loans and Letters of Credit.............126
13.2 Expenses..................................................................130
13.3 Indemnity.................................................................131
13.4 Set-Off...................................................................132
13.5 Ratable Sharing...........................................................132
13.6 Amendments and Waivers; Replacement of Banks..............................134
13.7 Independence of Covenants.................................................136
13.8 Notices...................................................................136
13.9 Survival of Representations, Warranties and Agreements....................136
13.10 Failure or Indulgence Not Waiver; Remedies Cumulative.....................137
(iii)
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13.11 Marshalling; Payments Set Aside...........................................137
13.12 Severability..............................................................137
13.13 Obligations Several; Independent Nature of Lenders' Rights and
Borrowers' Obligations....................................................138
13.14 Headings..................................................................138
13.15 Applicable Law............................................................138
13.16 Successors and Assigns....................................................138
13.17 Consent to Jurisdiction and Service of Process............................139
13.18 Waiver of Jury Trial......................................................139
13.19 Confidentiality...........................................................140
13.20 Judgment Currency.........................................................140
13.21 Counterparts; Effectiveness...............................................141
Signature pages ....................................................... S-1
(iv)
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF NOTE (COMPANY)
IV-B FORM OF NOTE (VONS)
IV-C FORM OF NOTE (CANADA SAFEWAY)
V FORM OF COMPLIANCE CERTIFICATE
VI-A FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
VI-B FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇
VI-C FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇
VI-D FORM OF OPINION OF CANADA SAFEWAY GENERAL COUNSEL
VI-E FORM OF OPINION OF DICKINSON, WRIGHT, MOON, VAN DUSEN & ▇▇▇▇▇▇▇
VII FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
VIII FORM OF ASSIGNMENT AGREEMENT
IX FORM OF TRANCHE A EXTENSION REQUEST
X FORM OF TRANCHE B EXTENSION REQUEST
XI FORM OF PRICING LEVEL DETERMINATION CERTIFICATE
XII FORM OF DRAWING NOTICE
XIII FORM OF ACCEPTANCE ENDORSEMENT
XIV FORM OF DRAFT
XV FORM OF CERTIFICATE RE NON-BANK STATUS
XVI FORM OF SPECIAL FUNDING PROCEDURES LETTER
AGREEMENT
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
3.1 EXISTING COMPANY LETTERS OF CREDIT
7.2B CERTAIN INDEBTEDNESS OF VONS
(v)
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SAFEWAY INC.
THE VONS COMPANIES, INC.
CANADA SAFEWAY LIMITED
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 8, 1997 and entered
into by and among SAFEWAY INC., a Delaware corporation ("COMPANY"), THE VONS
COMPANIES, INC., a Michigan corporation ("VONS"; together with Company,
collectively, "DOMESTIC BORROWERS"), and CANADA SAFEWAY LIMITED, an Alberta
corporation ("CANADA SAFEWAY"; and together with Domestic Borrowers,
collectively, "BORROWERS"), BANKERS TRUST COMPANY ("BTCO"), as administrative
agent for the Lenders referred to below (in such capacity, "ADMINISTRATIVE
AGENT"), THE CHASE MANHATTAN BANK ("CHASE"), as the syndication agent for the
Lenders referred to below ("SYNDICATION AGENT"), THE BANK OF NOVA SCOTIA
("SCOTIABANK") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BOFA"), as the documentation agents for the Lenders referred to below
("DOCUMENTATION AGENTS"), THE LENDERS LISTED AS AGENTS ON THE SIGNATURE PAGES
HEREOF, as agents ("AGENTS"), and THE LENDERS LISTED ON THE SIGNATURE PAGES
HEREOF (each individually referred to herein as a "LENDER" and collectively as
"LENDERS").
R E C I T A L S
WHEREAS, Company desires that Lenders extend certain credit
facilities to Borrowers for working capital and other general corporate
purposes, including the refinancing of amounts outstanding under existing bank
credit facilities and, in the case of Company, the repurchase of Company's
common stock as provided herein;
WHEREAS, Company will benefit from the extensions of credit to be
provided under such credit facilities and, in order to induce Lenders to provide
such credit facilities, is willing to guaranty the obligations of Vons and
Canada Safeway with respect to such credit facilities;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Vons, Canada
Safeway, Lenders, Syndication Agent, Agents, Documentation Agents and
Administrative Agent agree as follows:
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SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACCEPTANCE" has the meaning assigned to that term in
subsection 4.1.
"ACCEPTANCE FACILITY" means the bankers' acceptance facility
established under Section 4.
"ACCEPTANCE USAGE" means, as at any date, the sum (without
duplication) of the aggregate Face Amount of all Acceptances created by Canadian
Lenders pursuant to Section 4 which have not been repaid by Canada Safeway
whether or not due and whether or not held by any Lender. For purposes of this
definition, any Acceptance which has been prepaid in full shall not be deemed to
be outstanding and all Acceptances shall be valued in Dollar Equivalents as of
any date of determination.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Tranche A Domestic
Eurodollar Rate Loan or Tranche B Domestic Eurodollar Rate Loan, as the case may
be, the rate per annum obtained by dividing (i) the arithmetic average (rounded
upward to the nearest 1/16 of one percent) of the offered quotation, if any, to
first class banks in the interbank Eurodollar market by each of the Domestic
Reference Banks for Dollar deposits of amounts in same day funds comparable to
the principal amount of the Tranche A Domestic Eurodollar Rate Loan or Tranche B
Domestic Eurodollar Rate Loan, as the case may be, of that Domestic Reference
Bank for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to such Interest Period as of approximately 10:00 A.M.
(New York time) on such Interest Rate Determination Date by (ii) a percentage
equal to 100% minus the stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable on such Interest Rate Determination Date to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
liabilities under Regulation D); provided that if any Domestic Reference Bank
fails to provide Primary Documentation Agent with its aforementioned quotation
then the Adjusted Eurodollar Rate shall be determined based on the quotation(s)
provided to Primary Documentation Agent by the other Domestic Reference Bank(s).
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the
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purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 11.5.
"AGENTS" has the meaning assigned to that term in the introduction
to this Agreement.
"AGGREGATE AMOUNTS DUE FROM CANADA SAFEWAY" has the meaning
assigned to that term in subsection 13.5B.
"AGGREGATE AMOUNTS DUE FROM DOMESTIC BORROWERS" has the meaning
assigned to that term in subsection 13.5A.
"AGGREGATE COMMITMENT" means, with respect to any Lender, the sum
of (i) the Tranche A Domestic Commitment plus (ii) the Tranche A Canadian
Commitment plus (iii) the Tranche B Domestic Commitment of such Lender, and
"AGGREGATE COMMITMENTS" means the Aggregate Commitments of all Lenders; provided
that for the purposes of the definition of Aggregate Commitment (i) upon the
termination of the Tranche A Domestic Commitments, the Tranche A Domestic
Commitment of any Lender shall be deemed to be the total outstanding Tranche A
Domestic Loans of such Lender, (ii) upon the termination of the Tranche A
Canadian Commitments, the Tranche A Canadian Commitment of any Lender shall be
deemed to be the total outstanding Tranche A Canadian Loans of such Lender, and
(iii) upon the termination of the Tranche B Domestic Commitments, the Tranche B
Domestic Commitment of any Lender shall be deemed to be the total outstanding
Tranche B Domestic Loans of such Lender.
"AGGREGATE PRO RATA SHARE" means, with respect to any Lender, the
Aggregate Commitment of such Lender as a percentage of the sum of the Aggregate
Commitments of all Lenders.
"AGREEMENT" means this Credit Agreement dated as of April 8, 1997,
as it may be amended, supplemented or otherwise modified from time to time.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit VIII annexed hereto.
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"AUTHORIZED OFFICER" has the meaning assigned to that term in
subsection 6.2A.
"AVERAGE EFFECTIVE DISCOUNT RATE" means, (a) in respect of any
Acceptances to be purchased by a Schedule I Lender pursuant hereto, the
arithmetic average of the discount rates (calculated on an annual basis and
rounded to the nearest one-hundredth of 1%, with five-thousandths of 1% being
rounded up) quoted by each Schedule I Reference Bank at or about 10:00 A.M.
(Toronto time) as the discount rate at which such Schedule I Reference Bank
would purchase, on the relevant Drawing Date, its own bankers' acceptances
having an aggregate Face Amount equal to and with a term to maturity the same as
the Acceptances to be acquired by such Schedule I Reference Bank on such Drawing
Date or (b) in respect of any Acceptances to be purchased by a Schedule II
Lender or any other Person (other than a Schedule I Lender) pursuant hereto, the
arithmetic average of the discount rates (calculated on an annual basis and
rounded to the nearest one-hundredth of 1%, with five-thousandths of 1% being
rounded up) quoted by each Schedule II Reference Bank at or about 10:00 A.M.
(Toronto time) as the discount rate at which such Schedule II Reference Bank
would purchase, on the relevant Drawing Date, its own bankers' acceptances
having an aggregate Face Amount equal to and with a term to maturity the same as
the Acceptances to be acquired by such Schedule II Reference Bank or other
Person on such Drawing Date. If any Schedule I Reference Bank or Schedule II
Reference Bank fails to provide its quotation to Documentation Agent, the
Average Effective Discount Rate shall be determined on the basis of the
quotation(s) by the other Schedule I Reference Bank(s) or Schedule II Reference
Bank(s), as applicable.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BofA" has the meaning assigned to that term in the introduction
to this Agreement.
"BOOK VALUE" means, with respect to the assets of Company or any
of its Subsidiaries, the value of such Person's assets recorded in the
consolidated balance sheet of Company most recently delivered to Lenders
pursuant to subsection 8.1(i) or 8.1(ii).
"BORROWERS" has the meaning assigned to that term in the
introduction to this Agreement.
"BTCo" has the meaning assigned to that term in the introduction
to this Agreement.
"BTSC" has the meaning assigned to that term in the introduction
to this Agreement.
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"BUSINESS DAY" means any day excluding Saturday and Sunday and
also excluding (i) for all purposes other than as covered by clauses (ii) and
(iii) below, any day which is a legal holiday under the laws of the States of
New York or California or is a day on which banking institutions located in any
such state are authorized or required by law or other governmental action to
close, (ii) with respect to all notices, determinations, fundings and payments
in connection with Tranche A Canadian Loans, Tranche A Canadian Swing Line Loans
and the Acceptance Facility, any day which is a legal holiday under the laws of
the Province of Ontario or Alberta, Canada or is a day on which banking
institutions located in any such Province are authorized or required by law or
other governmental action to close; and (iii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate, any day which is not a Business Day pursuant to clause (i) or which is not
a day for trading by and between banks in Dollar deposits in the applicable
interbank Eurodollar market and with respect to all notices, determinations,
fundings and payments in connection with the Canadian Eurodollar Rate, any day
which is not a Business Day pursuant to clause (ii) and which is also not a day
for trading by and between banks in Dollar deposits in the applicable interbank
Eurodollar market.
"CANADA SAFEWAY" has the meaning assigned to that term in the
introduction to this Agreement.
"CANADIAN BASE RATE" means as at any date, with respect to any
Tranche A Canadian Loan denominated in Dollars that is to be or has been
advanced to Canada Safeway in Canada, the variable rate of interest per annum
equal to the greater of (a) the rate which Primary Documentation Agent announces
from time to time as its base lending rate per annum with respect to loans
denominated in Dollars advanced to Canadian customers in Canada, as in effect
from time to time and (b) the aggregate of (i) the Federal Funds Effective Rate
per annum for such day and (ii) 3/8 of 1% per annum. As to any loan, the
Canadian Base Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer for loans denominated in
Dollars. Primary Documentation Agent may make commercial loans or other loans
denominated in Dollars at rates of interest at, above or below the Canadian Base
Rate.
"CANADIAN DOLLARS" or "CDN.$" means the lawful money of Canada.
"CANADIAN EURODOLLAR RATE" means, with respect to each Interest
Period to be applicable to a Tranche A Canadian Eurodollar Rate Loan, the rate
per annum obtained by determining the arithmetic average (rounded upward to the
nearest 1/16th of 1%) of the offered quotation to first-class banks in the
interbank Eurodollar market by each Canadian Loan Pricing Reference Bank for
Dollar deposits of an amount in immediately available funds approximately equal
to the principal amount of the Tranche A Canadian Eurodollar Rate Loan to be
made by such Canadian Loan Pricing Reference Bank for a period approximately
equal to such Interest Period determined as of 10:00 a.m. (New York time)
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two Business Days prior to the commencement of such Interest Period. If any
Canadian Loan Pricing Reference Bank fails to provide its offered quotation to
Primary Documentation Agent, the Canadian Eurodollar Rate shall be determined on
the basis of the offered quotation(s) by the other Canadian Loan Pricing
Reference Bank(s).
"CANADIAN FUNDING AND PAYMENT OFFICE" means the office of Primary
Documentation Agent located at Commercial Banking Centre, 240-8th Avenue S.W.,
Calgary, Alberta, or such other location in Canada as may from time to time be
designated in writing by Primary Documentation Agent.
"CANADIAN LENDERS" means any Lender having a Tranche A Canadian
Commitment or, on and after the termination of the Tranche A Canadian
Commitments, Tranche A Canadian Loans outstanding and shall include any U.S.
Affiliate of any such Lender.
"CANADIAN LOAN PRICING REFERENCE BANKS" means Scotiabank, BT Bank
of Canada, and Bank of America Canada.
"CANADIAN PRIME RATE" means with respect to any Tranche A Canadian
Loan denominated in Canadian Dollars that is to be or has been advanced to
Canada Safeway in Canada as of any date, the greater of (a) the arithmetic
average (rounded to the nearest one-hundredth of 1%, with five-thousandths of 1%
being rounded up) of the variable rates announced by each of the Canadian Loan
Pricing Reference Banks from time to time as the prime lending rate per annum of
such Canadian Loan Pricing Reference Bank for Canadian Dollar loans made by such
Canadian Loan Pricing Reference Bank in Canada, as in effect on such date and
(b) the sum of (i) the arithmetic average (rounded upward to the nearest 1/16th
of 1%) of the rates per annum for Canadian Dollar bankers' acceptances having a
term of 30 days for the Canadian Loan Pricing Reference Banks as of 10:00 A.M.
(Toronto time) on such date, as determined by Primary Documentation Agent, and
(ii) 3/8 of 1% per annum. As to any loan, the Canadian Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. Each Canadian Loan Pricing Reference Bank may make commercial
loans or other loans at rates of interest at, above or below the Canadian Prime
Rate. If any Canadian Loan Pricing Reference Bank fails to provide its rate to
Primary Documentation Agent, the Canadian Prime Rate shall be determined on the
basis of the quotation(s) by the other Canadian Loan Pricing Reference Bank(s).
"CANADIAN/U.S. BASE RATE LOANS" means Canadian/U.S. Loans bearing
interest at rates determined by reference to the Domestic Base Rate as provided
in subsection 2.2A.
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"CANADIAN/U.S. EURODOLLAR RATE LOANS" means Canadian/U.S. Loans
bearing interest at rates determined by reference to the Adjusted Eurodollar
Rate as provided in subsection 2.2A.
"CANADIAN/U.S. FUNDING ASSIGNMENT" has the meaning assigned to
that term in subsection 13.1B.
"CANADIAN/U.S. LOANS" means Dollar denominated Tranche A Canadian
Loans advanced to Company by Canadian Lenders pursuant to subsection 2.1A(ii).
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock.
"CASA LEY" means Casa ▇▇▇, ▇.▇. de C.V., a Mexican corporation.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially
in the form of Exhibit XV annexed hereto delivered by a Lender to Primary
Documentation Agent pursuant to subsection 5.1B(iii).
"CLOSING DATE" means the date on or before June 3, 1997, on which
the initial Loans are made.
"CO-ARRANGERS" means BT Securities Corporation, Scotiabank, Chase
Securities, Inc. and BancAmerica Securities Inc.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument (which may include a "steamship guaranty" or similar
undertaking issued in connection with such letter of credit or similar
instrument) issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"COMMITMENTS" means the Tranche A Domestic Commitments, the
Tranche A Canadian Commitments or the Tranche B Domestic Commitments, or any
combination thereof.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
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"COMPANY'S COMMON STOCK" means the common stock, $.01 par value,
of Company.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of Exhibit V annexed hereto delivered to Primary Documentation Agent and
Lenders by Company pursuant to subsection 8.1(iii).
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, Consolidated
Net Income adjusted to exclude (without duplication) the effects of (i) any LIFO
expense or income, (ii) Consolidated Interest Expense, (iii) provisions for
taxes based on income, (iv) depreciation expense, (v) amortization expense, (vi)
equity in earnings or losses of unconsolidated affiliates to the extent not
actually received or paid by Company or its Subsidiaries, and (vii) material
non-cash, non-recurring gains and losses, all of the foregoing as determined on
a consolidated basis for Company and its Subsidiaries (excluding any
Unrestricted Subsidiaries) in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, interest
expense with respect to all outstanding Indebtedness (including, without
limitation, net costs under Interest Rate Agreements and any such expense
attributable to Capital Leases in accordance with GAAP) of Company and its
Subsidiaries (excluding any Unrestricted Subsidiaries) for such period
determined on a consolidated basis in conformity with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss), before extraordinary items, of Company and its Subsidiaries
(excluding any Unrestricted Subsidiaries) on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness and all guaranties
of Company and its Subsidiaries (excluding any Unrestricted Subsidiaries),
determined on a consolidated basis in conformity with GAAP.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any material indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person is a party or by
which it or any of its properties is bound or to which it or any of its
properties is subject.
"DEEMED FLOATING RATE" means (a) with respect to any portion of
the principal amount of any Loan advanced to, or to be advanced to, a Domestic
Borrower, the Domestic Base Rate, (b) with respect to any portion of the
principal amount of any Dollar denominated Loan advanced to, or to be advanced
to, Canada Safeway, the Canadian Base Rate, or (c) with respect to any portion
of the principal amount of any Canadian Dollar
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denominated Loan advanced to, or to be advanced to, Canada Safeway, the Canadian
Prime Rate.
"DOCUMENTATION AGENTS" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Documentation Agents appointed pursuant to subsection 11.5.
"DOLLARS", "$" and "U.S.$" mean the lawful money of the United
States of America.
"DOLLAR EQUIVALENTS" means Dollars or, with respect to any amount
of Canadian Dollars, an equivalent amount of Dollars determined at the rate of
exchange quoted by Primary Documentation Agent in New York City, at 9:00 A.M.
(New York time) on the date of determination, to prime banks in New York City
for the spot purchase in the New York foreign exchange market of Dollars with
Canadian Dollars.
"DOMESTIC BASE RATE" means the rate that Primary Documentation
Agent announces from time to time as its prime lending rate in the United States
for Dollar denominated loans, as in effect from time to time. Such prime lending
rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Primary Documentation Agent or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below such prime lending rate.
"DOMESTIC BORROWERS" has the meaning assigned to that term in the
introduction to this Agreement.
"DOMESTIC FUNDING AND PAYMENT OFFICE" means the office of Primary
Documentation Agent located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or such other location in the United States of America as may from time
to time be designated in writing by Primary Documentation Agent.
"DOMESTIC LENDERS" means any Lender having a Tranche A Domestic
Commitment or a Tranche B Domestic Commitment or, on and after the termination
of any such Commitments, Domestic Loans outstanding.
"DOMESTIC LOANS" means the Tranche A Domestic Loans and the
Tranche B Domestic Loans, or any combination thereof.
"DOMESTIC REFERENCE BANKS" means BTCo, Scotiabank and BofA.
"DRAFTS" means, at any time, a ▇▇▇▇▇ ▇▇▇▇ of exchange, within the
meaning of the Bills of Exchange Act (Canada), in substantially the form of
Exhibit XIV annexed hereto, drawn by Canada Safeway on a Canadian Lender and
bearing such distinguishing
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letters and numbers as such Canadian Lender may determine, but which at such
time, except as otherwise provided herein, has not been completed or accepted by
such Canadian Lender.
"DRAWING" means the creation of Acceptances by a Canadian Lender
pursuant to Section 4.
"DRAWING DATE" means any Business Day fixed pursuant to subsection
4.1 for a Drawing.
"DRAWING FEE" means, with respect to the Drafts drawn by Canada
Safeway hereunder and accepted by any Canadian Lender as provided herein on any
Drawing Date, an amount equal to the Tranche A Pricing Margin per annum on the
aggregate Face Amount of such Drafts, calculated, in each case, on the basis of
the term to maturity of such Draft and a year of 365 days, as appropriate.
"DRAWING NOTICE" has the meaning assigned to that term in
subsection 4.2.
"DRAWING PURCHASE PRICE" means, in respect of Acceptances to be
purchased by a Canadian Lender, the difference between (i) the result (rounded
to the nearest whole cent, with one-half of one cent being rounded up) obtained
by dividing the aggregate Face Amount of such Acceptances by the sum of one plus
the product of (x) the applicable Average Effective Discount Rate multiplied by
(y) a fraction the numerator of which is the term of maturity of such
Acceptances and the denominator of which is 365 (as appropriate given the number
of days in the current calendar year); and (ii) the applicable Drawing Fee.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including, but not limited to, insurance companies, mutual
funds and lease financing companies, in each case (under clauses (i) through
(iv) above) to which Administrative Agent and Company have consented (which
consent shall not be unreasonably withheld); and (B) subject to such transfer
not resulting in additional costs being payable by Borrowers under subsection
2.6 or 5.1, any Lender and any Affiliate of any Lender; provided that no
Borrower or Affiliate of Company shall be an Eligible Assignee.
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"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time, maintained or
contributed to by Company or any of its ERISA Affiliates.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and the like relating to (i)
environmental matters, including, without limitation, those relating to fines,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of Hazardous
Materials, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health or welfare,
in any manner applicable to Company or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the
Federal Water Pollution Control Act ( 33 U.S.C. ss. 1251 et seq.), the Clean Air
Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
ss. 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. ss.136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss.
651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. ss. 11001 et seq.), each as amended or supplemented, and any analogous
future or present local, state and federal statutes and regulations promulgated
pursuant thereto, each as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person as of any date, means
(i) any corporation which is (or, for the purposes of subsection 10.10 only, was
at any time during the preceding five years) a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is (or was at any time during the preceding five years) a
member; (ii) any trade or business (whether or not incorporated) which is (or,
for the purposes of subsection 10.10 only, was at any time during the preceding
five years) a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which that
Person is (or was at any time during the preceding five years) a member; and
(iii) any member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is (or, for the purposes of subsection 10.10 only, was at any time during
the preceding five years) a member.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension
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Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company or any of its ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting in
liability pursuant to Sections 4063 or 4064 of ERISA; (v) the institution by the
PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of liability on Company or any of its ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal by Company or any of its ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor, or the receipt by Company or any of its ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or
has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could give rise to the imposition on Company or any of its
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43
of the Internal Revenue Code or under Section 409 or 502(c), (i) or (l) or 4071
of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company or any of its ERISA Affiliates in connection with any such Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant
to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan; provided, however, that for all purposes
of this Agreement, no event specified in clauses (i) through (xi) above shall
constitute an ERISA Event if Company and its ERISA Affiliates would not
reasonably be expected to incur liabilities aggregating more than $50,000,000 in
connection with such event and all other such events.
"EVENT OF DEFAULT" means each of the events set forth in
Section 10.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCLUDED TAXES" means with respect to any Person (i) any Tax
imposed by the jurisdiction in which that Person's principal office (and/or, in
the case of a Lender, its lending office) is located or in which that Person is
deemed to be organized, resident or doing business on all or part of the net
income, profits or gains of that Person (whether worldwide, or only insofar as
such income, profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise), (ii) any Taxes imposed pursuant to
provisions of any laws, treaties, notices or regulations in effect on (and as
interpreted by any relevant taxing authority or agency on) the Closing Date in
the United States of America or Canada or any state or province thereof or
political subdivision of any of the foregoing that are applicable to any of the
Obligations or to any payments thereof made by any Borrower to any Lender except
(a) any such Taxes that are applicable to the Obligations or any such payment
solely by reason of the fact Canada Safeway is doing business in the United
States of America or (b) any withholding tax payable during the continuance of
any Event of Default and (iii) Taxes which a Lender could have avoided in the
ordinary course of business (including by payments of its taxes) without the
incurrence of additional expense.
"EXISTING COMPANY LETTERS OF CREDIT" means those certain Letters
of Credit issued and outstanding pursuant to the Existing Credit Agreement and
described on Schedule 3.1 annexed hereto.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
May 24, 1995 among Company, Canada Safeway, Lucerne Foods Ltd., the lenders
named therein, BTCo, as administrative agent, Scotiabank, as documentation
agent, the co-agents named therein, and the lead managers named therein.
"FACE AMOUNT" means, in respect of a Draft or an Acceptance, as
the case may be, the amount payable to the holder thereof on its maturity.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period 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 which is a Business Day, the average of the quotations for such day
on such transactions received by Primary Documentation Agent from three Federal
funds brokers of recognized standing selected by Primary Documentation Agent.
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"FISCAL YEAR" means, for any purpose, any of the 52-week or
53-week reporting periods used by Company in the financial reports it prepares
for external reporting purposes.
"FIXED RATE LOANS" means Tranche A Domestic Eurodollar Rate Loans,
Tranche A Canadian Eurodollar Rate Loans, Canadian/U.S. Eurodollar Rate Loans or
Tranche B Domestic Eurodollar Rate Loans, or any combination thereof.
"FLOATING RATE LOANS" means Tranche A Domestic Base Rate Loans,
Tranche B Domestic Base Rate Loans, Tranche A Canadian Prime Rate Loans, Tranche
A Canadian Base Rate Loans or Canadian/U.S. Base Rate Loans, or any combination
thereof.
"FUNDING DATE" means the date any Loan is funded or any Acceptance
is created, as applicable.
"GAAP" means generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "restricted hazardous waste", "infectious waste", "toxic substances" or
any other formulations intended to define, list or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws or
publications promulgated pursuant thereto; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; and (ix) pesticides.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred
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under ERISA), which purchase price is (a) due more than six months from the date
of incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument, and (v) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person.
"INDEMNITEE" has the meaning assigned to that term in subsection
13.3.
"INDEMNITY" means the Indemnity dated as of April 8, 1997 from the
Canadian Lenders hereunder to the Old Syndicate Lenders (as defined in the
Indemnity).
"INSOLVENCY LAWS" means the Bankruptcy Code, the Bankruptcy and
Insolvency Act (Canada) or any comparable law of Canada or any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect in the United
States of America or any state thereof or Canada or any province thereof.
"INTEREST COVERAGE RATIO" means, as at any date of determination,
the ratio (rounded down to the nearest one-hundredth) of (i) Consolidated
Adjusted EBITDA to (ii) Consolidated Interest Expense, in each case for the four
fiscal quarter period ending with the most recently completed fiscal quarter of
Company.
"INTEREST PAYMENT DATE" means (i) with respect to any Floating
Rate Loan, each Quarterly Payment Date; (ii) with respect to any Swing Line
Loan, the last day of each month; (iii) with respect to any Fixed Rate Loan, the
last day of each Interest Period applicable to such Loan; provided that in the
case of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period, and (iv) in the case of
any Negotiated Rate Loan, the dates mutually agreed upon by the applicable
Domestic Borrower and the applicable Lender.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect Company or any of its Subsidiaries
against fluctuations in interest rates.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to the first day of such Interest
Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
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"INVESTMENT" means any loans, advances, capital contributions
and transfers of assets (except for transfers for cash and/or other property
other than securities in an amount or having a fair value, in the opinion of
the board of directors of Company, equal to the fair value of the assets
transferred), and all purchases and other acquisitions for consideration by
Company or any of its Subsidiaries of evidences of indebtedness, capital stock
or other securities.
"ISSUING LENDER" means, with respect to any Letter of Credit,
the Lender which agrees or is otherwise obligated to issue such Letter of
Credit, determined as provided in subsection 3.1B(ii).
"KKR" means Kohlberg Kravis ▇▇▇▇▇▇▇ & Co., L.P., a Delaware
limited partnership.
"KKR ASSOCIATES" means KKR Associates, a New York limited
partnership under common control with KKR.
"LENDER" and "LENDERS" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 13.1 (including,
without limitation, any U.S. Affiliate).
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of Company or Vons pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date, (1) with
respect to all Domestic Lenders, the sum of (i) the maximum aggregate amount
which is or at any time thereafter may become available for drawing under all
Letters of Credit then outstanding plus (ii) the aggregate amount of all
drawings under Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed by Company (including any such reimbursement out of the proceeds of
Loans pursuant to subsection 3.3B) and (2) with respect to any Domestic Lender,
such Domestic Lender's Tranche A Domestic Pro Rata Share of the sum of the
amounts described in the preceding clauses (i) and (ii). For purposes of this
definition, any amount described in clauses (i) or (ii) of the preceding
sentence which is denominated in Canadian Dollars shall be valued in Dollar
Equivalents as of such date.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
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"LOAN DOCUMENTS" means this Agreement (including the
Subsidiary Borrower Guaranty), the Notes, the Letters of Credit (and any
applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an Issuing Lender relating to, the
Letters of Credit), the Drafts, the Acceptances, any collateral account
agreement executed and delivered pursuant to Section 10, the Special Funding
Procedures Letter Agreement and any other agreements or instruments executed
and delivered by any Borrower hereunder or thereunder or in connection herewith
or therewith.
"LOAN PARTIES" means each of the Borrowers.
"LOANS" means Domestic Loans made by Domestic Lenders to
Domestic Borrowers pursuant to subsections 2.1A(i), 2.1A(iii), 2.1A(iv) and
2.1A(v) or Tranche A Canadian Loans made by Canadian Lenders to any Borrower
pursuant to subsections 2.1A(ii) and 2.1A(iv), or any combination thereof.
"MANAGEMENT INVESTORS" means each senior management officer or
employee, or prospective senior management officer or employee, of Company, any
Unrestricted Subsidiary, any Affiliate of Company or any of their respective
Subsidiaries who owns or will own or will have the right to acquire Company's
Common Stock.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries (other than Unrestricted
Subsidiaries), taken as a whole, or (ii) the material impairment of the ability
of Company to perform, or of any Primary Agent or Lender to enforce, the
Obligations in the aggregate.
"MATERIAL ASSET SALE" means the sale, in a single transaction
or series of related transactions, by Company or any of its Subsidiaries (other
than Unrestricted Subsidiaries) to any Person other than Company or any of its
Wholly-Owned Subsidiaries of (i) any of the stock of any of Company's
Subsidiaries, or (ii) any other assets (whether tangible or intangible) of
Company or any of its Subsidiaries outside of the ordinary course of business
provided that the aggregate Book Value of all assets transferred in such sale
(including, without limitation, the assets of any Subsidiary the stock of which
is so transferred) equals or exceeds 20% of the Book Value of the consolidated
assets of Company and its Subsidiaries (other than Unrestricted Subsidiaries)
after giving effect to the Vons Merger and the Stock Repurchase.
"MATERIAL SUBSIDIARY" means, at any date, any domestic
Subsidiary of Company (other than any Unrestricted Subsidiary) whose tangible
assets have a Book Value
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equal to or exceeding 5% of the Book Value of the consolidated tangible assets
of Company and its Subsidiaries.
"MOODYS" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
"NEGOTIATED RATE" means, with respect to any Negotiated Rate
Loan, the fixed rate of interest per annum agreed upon by the applicable
Domestic Borrower and the Domestic Lender funding such Loan.
"NEGOTIATED RATE LOAN" has the meaning set forth in subsection
2.1A(v).
"NOTES" means any promissory notes issued by Company, Vons or
Canada Safeway pursuant to subsection 2.1E, substantially in the form of
Exhibit IV-A, IV-B or IV-C annexed hereto, respectively, to evidence the Loans
of any Lenders, as notes may be amended, supplemented or otherwise modified
from time to time.
"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I annexed hereto delivered by a Borrower to Primary Documentation
Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of Exhibit II annexed hereto delivered by a Borrower
to Primary Documentation Agent pursuant to subsection 2.2D with respect to a
proposed conversion or continuation of the applicable basis for determining the
interest rate with respect to the Loans specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of Exhibit III annexed hereto delivered by Company to
Primary Documentation Agent pursuant to subsection 3.1B(i) with respect to the
proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of
Borrowers from time to time owed to Primary Agents, Lenders or any of them
under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by any of its executive
officers and by any of its vice presidents; provided that every Officers'
Certificate with respect to the compliance
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with a condition precedent to the making of any Loans hereunder shall include
(i) a statement that the officer or officers making or giving such Officers'
Certificate have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement that, in the
opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has been complied with,
and (iii) a statement as to whether, in the opinion of the signers, such
condition has been complied with.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PDA" means Property Development Associates, a California
general partnership.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time, required by
subsection 8.3;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security (and related standby
letters of credit), or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return- of-money bonds and
other similar obligations (exclusive of obligations for the payment of
borrowed money);
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 10.8;
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(v) leases or subleases or licenses of occupancy granted
to others not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor
under any lease, (b) restriction or encumbrance that the interest or
title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such
lease to any restriction or encumbrance referred to in the preceding
clause (b);
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of Company and its Subsidiaries (excluding deposits
securing the repayment of Indebtedness);
(xi) Liens encumbering customary initial deposits and
margin deposits, and other Liens incurred in the ordinary course of
business and which are within the general parameters customary in the
industry securing obligations under commodities agreements; and
(xii) Liens securing reimbursement obligations under
Commercial Letters of Credit or bankers' acceptance facilities, which
Liens encumber documents and other property to be acquired by drawings
under such Commercial Letters of Credit or drafts accepted under such
bankers' acceptance facilities.
"PERMITTED INVESTMENTS" means Investments in Unrestricted
Subsidiaries in an aggregate amount not to exceed the sum of (i) $50,000,000
plus (ii) any amounts received by Company or any Subsidiary from any
Unrestricted Subsidiary which represents a repayment of the principal portion
of any loan or advance or any return of contributed capital in respect of any
previous Permitted Investment.
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"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies,
limited liability partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PRICING LEVEL" means as of any date, the higher Pricing Level,
whether (in descending order from the highest Pricing Level to the lowest
Pricing Level) Pricing Level A, Pricing Level B, Pricing Level C, Pricing Level
D, Pricing Level E, Pricing Level F, or Pricing Level G, that corresponds to
either (a) Company's unsecured senior debt ratings from Moodys or S&P (the more
creditworthy of such ratings being used in the case of a split rating) or (b)
Company's Interest Coverage Ratio as set forth in the most recent effective
Pricing Level Determination Certificate delivered in accordance with the
provisions of subsection 8.1(iv); provided that, notwithstanding anything
herein to the contrary, from the Closing Date to the date on which the first
Pricing Level Determination Certificate is delivered with respect to Company's
financial statements for the third fiscal quarter of 1997, the applicable
Pricing Level shall be Pricing Level D:
Debt Ratings/Interest
Pricing Level Coverage Ratio
------------- ---------------------
Pricing Level A: Aa2 or better by Moodys or AA or better by S&P
or Interest Coverage Ratio of 8.00:1.00 or higher
Pricing Level B: Aa3 by Moodys or AA- by S&P or Interest Coverage Ratio
of at least 7.00:1.00 but less than 8.00:1.00
Pricing Level C: A1 by Moodys or A+ by S&P or Interest Coverage Ratio
of at least 6.25:1.00 but less than 7.00:1.00
Pricing Level D: A2 by Moodys or A by S&P or Interest Coverage Ratio
of at least 5.75:1.00 but less than 6.25:1.00
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Pricing Level E: A3 by Moodys or A- by S&P or Interest Coverage Ratio
of at least 5.25:1.00 but less than 5.75:1.00
Pricing Level F: Baa1 by Moodys or BBB+ by S&P or Interest Coverage Ratio
of at least 4.75:1.00 but less than 5.25:1.00
Pricing Level G: Baa2 or below by Moodys or BBB or below by S&P or
Interest Coverage Ratio below 4.75:1.00
For the purposes of determining the Pricing Level, a Pricing Level
Determination Certificate shall be deemed effective on the next Business Day
following Primary Documentation Agent's receipt thereof, and the Pricing Level
shall change on such Business Day to the extent necessary to reflect Company's
debt rating and Interest Coverage Ratio as set forth in such Pricing Level
Determination Certificate.
"PRICING LEVEL DETERMINATION CERTIFICATE" means a certificate
substantially in the form of Exhibit XI annexed hereto delivered to Primary
Documentation Agent and Lenders by Company pursuant to subsection 8.1(iv).
"PRIMARY AGENT" and "PRIMARY AGENTS" means Primary
Documentation Agent and Administrative Agent and also means and includes any
successor Primary Documentation Agent or Administrative Agent appointed
pursuant to subsection 11.5.
"PRIMARY DOCUMENTATION AGENT" means Scotiabank as a
Documentation Agent and also means and includes any successor Primary
Documentation Agent appointed pursuant to subsection 11.5.
"QUARTERLY PAYMENT DATE" means the last Business Day of March,
June, September and December in each calendar year.
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
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"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Material through the air,
soil, surface water, groundwater or property.
"REPURCHASED STOCK" has the meaning assigned to that term in
subsection 9.1A.
"REQUISITE LENDERS" means Lenders having or holding 51% or more
of the aggregate Tranche A Domestic Loan Exposure, Tranche A Canadian Loan
Exposure and Tranche B Domestic Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENTS" has the meaning assigned to that
term in subsection 9.2.
"SCHEDULE I LENDER" means any Canadian Lender that is a bank
referred to in Schedule I to the Bank Act (Canada), S.C. 1991, c.46, as
amended.
"SCHEDULE I REFERENCE BANKS" means Scotiabank, Royal Bank of
Canada and Bank of Montreal.
"SCHEDULE II LENDER" means any Canadian Lender that is not a
Schedule I Lender.
"SCHEDULE II REFERENCE BANKS" means BT Bank of Canada, Bank of
America Canada and The Sumitomo Bank of Canada.
"SCOTIABANK" has the meaning assigned to that term in the
introduction to this Agreement.
"SEC" means the Securities and Exchange Commission or any
successor thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SPECIAL FUNDING PROCEDURES LETTER AGREEMENT" means a letter
agreement substantially in the form of Exhibit XVI annexed hereto.
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"SOLVENT" means, with respect to any Person, that as of the
date of determination, (i) the then fair saleable value of the property of such
Person is (a) greater than the total amount of liabilities (including
reasonably anticipated liabilities with respect to contingent obligations) of
such Person and (b) greater than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person, and (ii) such person has not
incurred and does not intend to incur, or does not believe that it will incur,
debts beyond its ability to pay such debts as they become due.
"S&P" means Standard & Poors Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"STANDBY LETTER OF CREDIT" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness
incurred by any joint venture to which Company or any of its Subsidiaries is a
party for working capital and general business purposes, (ii) obligations of
Company or any of its Subsidiaries with respect to capital calls or similar
requirements in respect of joint ventures to which Company or such Subsidiary
is a party, (iii) workers' compensation liabilities and directors and officers
insurance of Company or any of its Subsidiaries, (iv) the obligations of third
party insurers of Company or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, (v) Indebtedness of
Company or any of its Subsidiaries or Casa Ley in respect of industrial revenue
or development bonds or financings, (vi) obligations with respect to capital or
operating leases, (vii) performance, payment, deposit or surety obligations of
Company or any of its Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice in
the industry, (viii) the performance of obligations of Company and its
Subsidiaries incurred in connection with the sale of any asset of Company or
any of its Subsidiaries, (ix) the payment of trade payables of Company or any
of its Subsidiaries which payables are incurred on terms customary in the
industry, (x) indebtedness (other than Subordinated Indebtedness) which was
previously secured in whole or in part by assets which were but are no longer
owned by Company and its Subsidiaries, (xi) the obligations of Company or any
of its Subsidiaries with respect to any judgments that are stayed pending
appeal (including, any appeal bonds or other security required to obtain a stay
pending appeal), or (xii) other obligations approved by Administrative Agent,
in its reasonable discretion.
"STOCK REPURCHASE" means the repurchase by Company of thirty
two million shares of Company's Common Stock for $43.00 per share during the
period beginning on the Closing Date (immediately after the consummation of the
Vons Merger) and ending on the date that is two Business Days after the Closing
Date pursuant to the terms and conditions set forth in the Stock Repurchase
Agreement.
24
▇▇
"▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ AGREEMENT" means the Amended and Restated
Stock Repurchase Agreement dated as of January 8, 1997 between Company and SSI
Associates, L.P., a Delaware partnership.
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of
Company evidenced by the Subordinated Securities and (ii) any other
Indebtedness of Company subordinated in right of payment to the Obligations.
"SUBORDINATED SECURITIES" means Company's 10% Senior
Subordinated Notes due 2001, 9.875% Senior Subordinated Debentures due 2007,
9.65% Senior Subordinated Debentures due 2004, and 9.35% Senior Subordinated
Notes due 1999.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, joint venture or other business entity
of which more than 50% of the total voting power of shares of capital stock or
other ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
"SUBSIDIARY BORROWER GUARANTY" means the guaranty by Company of
the Subsidiary Borrower Obligations set forth in Section 12.
"SUBSIDIARY BORROWER OBLIGATIONS" has the meaning assigned to
that term in Section 12.
"SWING LINE LENDER" means Scotiabank or any Lender succeeding
Scotiabank as the Primary Documentation Agent hereunder.
"SWING LINE LOANS" means any Tranche A Domestic Swing Line
Loans, any Tranche A Canadian Swing Lines Loans or any combination thereof.
"SYNDICATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement.
"TAX" or "TAXES" means any present or future governmental tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed.
"TOTAL UTILIZATION OF TRANCHE A CANADIAN COMMITMENTS" means,
(i) as to Canadian Lenders at any date, the sum of (a) the aggregate principal
amount of all
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outstanding Tranche A Canadian Loans, with all Tranche A Canadian Loans
denominated in Canadian Dollars valued in Dollar Equivalents, plus (b) the
aggregate Acceptance Usage; or (ii) as to any Canadian Lender at any date of
determination, the sum of (x) the aggregate principal amount of all outstanding
Tranche A Canadian Loans (other than Tranche A Canadian Swing Line Loans) made
by such Lender (and its U.S. Affiliate) with all such Loans denominated in
Canadian Dollars valued in Dollar Equivalents plus (y) the Acceptance Usage of
such Lender, plus (z) the aggregate principal amount of such Lender's
participations (if any) in Tranche A Canadian Swing Line Loans with all such
Loans denominated in Canadian Dollars valued in Dollar Equivalents.
"TOTAL UTILIZATION OF TRANCHE A DOMESTIC COMMITMENTS" means,
(i) as to Domestic Lenders at any date, the sum of (a) the aggregate principal
amount of all outstanding Tranche A Domestic Loans plus (b) the Letter of
Credit Usage or (ii) as to any Domestic Lender at any date of determination,
the sum of (x) the aggregate principal amount of all outstanding Tranche A
Domestic Loans (other than Tranche A Domestic Swing Line Loans and Negotiated
Rate Loans) made by such Lender plus (y) the Letter of Credit Usage of such
Lender plus (z) the aggregate principal amount of such Lender's participations
(if any) in Tranche A Domestic Swing Line Loans.
"TOTAL UTILIZATION OF TRANCHE B DOMESTIC COMMITMENTS" means,
(i) as to Domestic Lenders at any date, the aggregate principal amount of all
outstanding Tranche B Domestic Loans or (ii) as to any Domestic Lender at any
date of determination, the aggregate principal amount of all outstanding
Tranche B Domestic Loans made by such Lender.
"TRANCHE A CANADIAN BASE RATE LOANS" means Tranche A Canadian
Loans (other than Tranche A Canadian Swing Line Loans) denominated in Dollars
advanced to Canada Safeway and bearing interest at rates determined by
reference to the Canadian Base Rate as provided in subsection 2.2A.
"TRANCHE A CANADIAN COMMITMENT" means the commitment of a
Canadian Lender to make Tranche A Canadian Loans to Company or Canada Safeway
pursuant to subsection 2.1A(ii), and "TRANCHE A CANADIAN COMMITMENTS" means
such commitments of all Canadian Lenders in the aggregate.
"TRANCHE A CANADIAN EURODOLLAR RATE LOANS" means any Tranche A
Canadian Loans denominated in Dollars advanced to Canada Safeway and bearing
interest at rates determined by reference to the Canadian Eurodollar Rate as
provided in subsection 2.2A.
"TRANCHE A CANADIAN LOAN EXPOSURE" means, with respect to any
Canadian Lender as of any date, (a) prior to the termination of the Tranche A
Canadian Commitments, that Lender's Tranche A Canadian Commitment, and (b)
after the
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termination of the Tranche A Canadian Commitments, the sum of (x) the aggregate
outstanding principal amount of the Tranche A Canadian Loans of such Canadian
Lender (it being understood and agreed for the purposes hereof that the
Canadian/U.S. Loans of any U.S. Affiliate of any Canadian Lender are Tranche A
Canadian Loans of such Canadian Lender and not Tranche A Domestic Loans of such
U.S. Affiliate) plus (y) without duplication, the aggregate outstanding amount
of Acceptances created by such Canadian Lender, as measured by the Face Amounts
of the applicable Drafts (with all such Loans denominated in Canadian Dollars
and all such Face Amounts valued in Dollar Equivalents) plus (z) the aggregate
principal amount of such Lender's participations (if any) in Tranche A Canadian
Swing Line Loans with all such Loans denominated in Canadian Dollars valued in
Dollar Equivalents.
"TRANCHE A CANADIAN LOANS" means the Tranche A Canadian Loans
made by Canadian Lenders pursuant to their Tranche A Canadian Commitments to
Company or Canada Safeway (including, without limitation, any Canadian/U.S.
Loans) pursuant to subsection 2.1A(ii) and the Tranche A Canadian Swing Line
Loans, or any combination thereof.
"TRANCHE A CANADIAN PRIME RATE LOANS" means Tranche A Canadian
Loans (other than Tranche A Canadian Swing Line Loans) advanced to Canada
Safeway and denominated in Canadian Dollars and bearing interest at rates
determined by reference to the Canadian Prime Rate as provided in subsection
2.2A.
"TRANCHE A CANADIAN PRO RATA SHARE" means, with respect to any
Canadian Lender, (a) prior to the termination of the Tranche A Canadian
Commitments, the Tranche A Canadian Commitment of such Canadian Lender as a
percentage of the sum of the Tranche A Canadian Commitments of all Canadian
Lenders, and (b) after the termination of the Tranche A Canadian Commitments,
the outstanding Tranche A Canadian Loans made by such Canadian Lender (it being
understood and agreed for the purposes hereof that the Canadian/U.S. Loans of
any U.S. Affiliate of any Canadian Lender are Tranche A Canadian Loans of such
Canadian Lender and not Tranche A Domestic Loans of such U.S. Affiliate) as a
percentage of the sum of the Tranche A Canadian Loans made by all Canadian
Lenders.
"TRANCHE A CANADIAN SWING LINE COMMITMENT" means the commitment
of Swing Line Lender to make Tranche A Canadian Swing Line Loans pursuant to
subsection 2.1A(iv).
"TRANCHE A CANADIAN SWING LINE LOANS" has the meaning assigned
to that term in subsection 2.1A(iv).
"TRANCHE A DOMESTIC BASE RATE LOANS" means Tranche A Domestic
Loans advanced to Domestic Borrowers (excluding Tranche A Domestic Swing Line
Loans)
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34
bearing interest at rates determined by reference to the Domestic Base Rate as
provided in subsection 2.2A.
"TRANCHE A DOMESTIC COMMITMENT" means the commitment of a
Domestic Lender to make Tranche A Domestic Loans to Company or Vons pursuant to
subsection 2.1A(i), and "TRANCHE A DOMESTIC COMMITMENTS" means such commitments
of all Domestic Lenders in the aggregate.
"TRANCHE A DOMESTIC EURODOLLAR RATE LOANS" means Tranche A
Domestic Loans (excluding any Negotiated Rate Loans) denominated in Dollars,
advanced to Domestic Borrowers and bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"TRANCHE A DOMESTIC LOAN EXPOSURE" means, with respect to any
Domestic Lender as of any date, (a) prior to the termination of the Tranche A
Domestic Commitments, that Lender's Tranche A Domestic Commitment, and (b)
after the termination of the Tranche A Domestic Commitments, the sum of (w) the
aggregate outstanding principal amount of the Tranche A Domestic Loans of that
Lender (it being understood and agreed for the purposes hereof that the
Canadian/U.S. Loans of any U.S. Affiliate of any Canadian Lender are Tranche A
Canadian Loans of such Canadian Lender and not Tranche A Domestic Loans of such
U.S. Affiliate) plus (x) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by
that Lender (in each case net of any participations purchased by other Lenders
in any such Letter of Credit or any unreimbursed drawings under such Letters of
Credit) plus (y) the aggregate amount of all participations purchased by that
Lender in Letters of Credit or in any drawings thereunder honored by Issuing
Lenders and not theretofore reimbursed by Company plus (z) the aggregate
principal amount of that Lender's participations (if any) in Tranche A Domestic
Swing Line Loans.
"TRANCHE A DOMESTIC LOANS" means the Tranche A Domestic Loans
made by Domestic Lenders pursuant to their Tranche A Domestic Commitments, to
Domestic Borrowers pursuant to subsection 2.1A(i), the Tranche A Domestic Swing
Line Loans and the Negotiated Rate Loans, or any combination thereof.
"TRANCHE A DOMESTIC PRO RATA SHARE" means, with respect to any
Domestic Lender, (a) prior to the termination of the Tranche A Domestic
Commitments, the Tranche A Domestic Commitment of such Domestic Lender as a
percentage of the sum of the Tranche A Domestic Commitments of all Domestic
Lenders, and (b) after the termination of the Tranche A Domestic Commitments,
the outstanding Tranche A Domestic Loans made by such Domestic Lender (it being
understood and agreed for the purposes hereof that the Canadian/U.S. Loans of
any U.S. Affiliate of any Canadian Lender are Tranche A Canadian Loans of such
Canadian Lender and not Tranche A Domestic Loans
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of such U.S. Affiliate) as a percentage of the sum of the Tranche A Domestic
Loans made by all Domestic Lenders.
"TRANCHE A DOMESTIC SWING LINE COMMITMENT" means the commitment
of Swing Line Lender to make Tranche A Domestic Swing Line Loans pursuant to
subsection 2.1A(iv).
"TRANCHE A DOMESTIC SWING LINE LOANS" has the meaning assigned
to that term in subsection 2.1A(iv).
"TRANCHE A EXTENSION REQUEST" means written notice
substantially in the form of Exhibit IX annexed hereto to be delivered by
Company in accordance with the provisions of subsection 2.7 to request a
one-year extension of the Tranche A Termination Date then in effect.
"TRANCHE A FACILITY FEE PERCENTAGE" means, as of any date, the
percentage per annum set forth below that corresponds to the Pricing Level in
effect on such date:
Tranche A Facility
Fee Percentage
Pricing Level (in basis points)
------------- ------------------------
Pricing Level A: 7.00
Pricing Level B: 7.50
Pricing Level C: 8.00
Pricing Level D: 10.00
Pricing Level E: 10.00
Pricing Level F: 12.50
Pricing Level G: 15.00
The Tranche A Facility Fee Percentage shall change as of the opening of
business on any day that the Pricing Level changes pursuant to the definition
of "Pricing Level."
"TRANCHE A PRICING MARGIN" means, as of any date, the Tranche A
Pricing Margin set forth below that corresponds to the Pricing Level in effect
on such date:
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Tranche A
Pricing Margin
Pricing Level (in basis points)
------------- ------------------------
Pricing Level A: 8.00
Pricing Level B: 10.00
Pricing Level C: 12.00
Pricing Level D: 12.50
Pricing Level E: 15.00
Pricing Level F: 17.50
Pricing Level G: 20.00
The Tranche A Pricing Margin shall change as of the opening of business on any
day that the Pricing Level changes pursuant to the definition of "Pricing
Level."
"TRANCHE A TERMINATION DATE" means April 8, 2002 or, with
respect to each Lender, such subsequent date to which the Tranche A Termination
Date is extended by such Lender pursuant to subsection 2.7 (it being understood
that the Tranche A Termination Date of any Lender not consenting to such
extension shall not be extended beyond the Tranche A Termination Date then in
effect for such Lender).
"TRANCHE B DOMESTIC BASE RATE LOANS" means Tranche B Domestic
Loans advanced to Domestic Borrowers (excluding Tranche B Domestic Swing Line
Loans) bearing interest at rates determined by reference to the Domestic Base
Rate as provided in subsection 2.2A.
"TRANCHE B DOMESTIC COMMITMENT" means the commitment of a
Domestic Lender to make Tranche B Domestic Loans to Company or Vons pursuant to
subsection 2.1A(iii), and "TRANCHE B DOMESTIC COMMITMENTS" means such
commitments of all Domestic Lenders in the aggregate.
"TRANCHE B DOMESTIC EURODOLLAR RATE LOANS" means Tranche B
Domestic Loans (excluding any Negotiated Rate Loans) denominated in Dollars,
advanced to Domestic Borrowers and bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"TRANCHE B DOMESTIC LOAN EXPOSURE" means, with respect to any
Domestic Lender as of any date, (a) prior to the termination of the Tranche B
Domestic Commitments, that Lender's Tranche B Domestic Commitment, and (b)
after the termination of the Tranche B Domestic Commitments, the aggregate
outstanding principal amount of the Tranche B Domestic Loans of that Lender.
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37
"TRANCHE B DOMESTIC LOANS" means the Tranche B Domestic Loans
made by Domestic Lenders pursuant to their Tranche B Domestic Commitments to
Domestic Borrowers pursuant to subsection 2.1A(iii).
"TRANCHE B DOMESTIC PRO RATA SHARE" means, with respect to any
Domestic Lender, (a) prior to the termination of the Tranche B Domestic
Commitments, the Tranche B Domestic Commitment of such Domestic Lender as a
percentage of the sum of the Tranche B Domestic Commitments of all Domestic
Lenders, and (b) after the termination of the Tranche B Domestic Commitments,
the outstanding Tranche B Domestic Loans made by such Domestic Lender as a
percentage of the sum of the Tranche B Domestic Loans made by all Domestic
Lenders.
"TRANCHE B EXTENSION REQUEST" means written notice
substantially in the form of Exhibit X annexed hereto to be delivered by
Company in accordance with the provisions of subsection 2.8 to request a
364-day extension of the Tranche B Revolving Termination Date then in effect.
"TRANCHE B FACILITY FEE PERCENTAGE" means, as of any date, the
percentage per annum set forth below that corresponds to the Pricing Level in
effect on such date:
Tranche B Facility
Fee Percentage
Pricing Level (in basis points)
------------- ------------------------
Pricing Level A: 6.00
Pricing Level B: 6.50
Pricing Level C: 7.00
Pricing Level D: 7.50
Pricing Level E: 8.00
Pricing Level F: 10.00
Pricing Level G: 12.50
The Tranche B Facility Fee Percentage shall change as of the opening of
business on any day that the Pricing Level changes pursuant to the definition
of "Pricing Level."
"TRANCHE B PRICING MARGIN" means, as of any date, the Tranche B
Pricing Margin set forth below that corresponds to the Pricing Level in effect
on such date:
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Tranche B
Pricing Margin
Pricing Level (in basis points)
------------- ------------------------
Pricing Level A: 9.00
Pricing Level B: 11.00
Pricing Level C: 13.00
Pricing Level D: 15.00
Pricing Level E: 17.00
Pricing Level F: 20.00
Pricing Level G: 22.50
The Tranche B Pricing Margin shall change as of the opening of business on any
day that the Pricing Level changes pursuant to the definition of "Pricing
Level."
"TRANCHE B REVOLVING TERMINATION DATE" means April 6, 1998 or,
with respect to each Lender, such subsequent date to which the Tranche B
Revolving Termination Date is extended by such Lender pursuant to subsection
2.8 (it being understood that the Tranche B Revolving Termination Date of any
Lender not consenting to such extension shall not be extended beyond the
Tranche B Revolving Termination Date then in effect for such Lender).
"TRANCHE B TERM TERMINATION DATE" has the meaning assigned to
that term in subsection 2.9.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary designated by
Company as an Unrestricted Subsidiary in accordance with the provisions of
subsection 9.7.
"U.S. AFFILIATE" means, with respect to any Canadian Lender (i)
that is not resident in the United States of America for withholding tax
purposes, or (ii) with respect to which an election under Section 1504(d) of
the Internal Revenue Code has been made, in each case, the Affiliate of such
Canadian Lender that is resident in the United States of America for
withholding tax purposes with respect to which such Canadian Lender shall have
assigned its obligation to fund Canadian/U.S. Loans in accordance with the
provisions of subsections 2.1A(ii) and 13.1.
"U.S./CDN.$" means Dollars or Canadian Dollars, as the case may
be.
"VONS MERGER" means the merger of SSCI Merger Sub, Inc. with
and into Vons pursuant to the Vons Merger Agreement.
"VONS MERGER AGREEMENT" means the Agreement and Plan of Merger
by and among Company, Vons and SSCI Merger Sub, Inc. dated as of December 15,
1996, as
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39
amended as of January 8, 1997 by the First Amendment to the Agreement and Plan
of Merger, as it may be further amended, supplemented or otherwise modified
from time to time.
"VONS CREDIT AGREEMENT" means the Revolving Loan Agreement
dated as of February 17, 1995 among Vons and the lenders and other parties
thereto.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person,
any Subsidiary of such Person that is directly or indirectly wholly-owned by
such Person.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements, determinations relating
to covenants, and other information required to be delivered or determined by
Company pursuant to this Agreement shall be prepared or determined in
conformity with GAAP as in effect at the time of such preparation or
determination.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS AND LOANS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrowers herein set forth:
(i) Tranche A Domestic Loans. Each Domestic Lender
severally agrees, subject to the limitations set forth below with
respect to the maximum amount of Tranche A Domestic Loans permitted to
be outstanding from time to time, to lend to Domestic Borrowers from
time to time during the period from the Closing Date to but excluding
such Lender's Tranche A Termination Date an aggregate amount not
exceeding its Tranche A Domestic Pro Rata Share of the aggregate amount
of the Tranche A Domestic Commitments to be used for the purposes
identified in subsection 2.5A. The original amount of each Domestic
Lender's Tranche A Domestic
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Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate original amount of the Tranche A Domestic
Commitments is $1,600,000,000; provided that the Tranche A Domestic
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Tranche A Domestic Commitments pursuant to
subsection 13.1B; and provided, further that the amount of the Tranche
A Domestic Commitments shall be reduced from time to time by the amount
of any reductions thereto made pursuant to subsection 2.4A(ii). Each
Domestic Lender's Tranche A Domestic Commitment shall expire on such
Lender's Tranche A Termination Date and all Tranche A Domestic Loans
and all other amounts owed hereunder with respect to the Tranche A
Domestic Loans and the Tranche A Domestic Commitment of such Lender
shall be paid in full no later than that date; provided that each
Domestic Lender's Tranche A Domestic Commitment shall expire
immediately and without further action on June 3, 1997 if the Closing
Date shall not have occurred on or before that date. Amounts borrowed
under this subsection 2.1A(i) may be repaid and reborrowed to but
excluding the Tranche A Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Tranche A Domestic Loans and the Tranche A
Domestic Commitments shall be subject to the limitation that in no
event shall the Total Utilization of Tranche A Domestic Commitments at
any time exceed the Tranche A Domestic Commitments then in effect. All
Tranche A Domestic Loans shall be denominated and funded in Dollars.
(ii) Tranche A Canadian Loans. Each Canadian Lender
severally agrees, subject to the limitations set forth below with
respect to the maximum amount of Tranche A Canadian Loans permitted to
be outstanding from time to time, to lend to Company and Canada Safeway
from time to time during the period from the Closing Date to but
excluding such Lender's Tranche A Termination Date an aggregate amount
not exceeding its Tranche A Canadian Pro Rata Share of the aggregate
amount of the Tranche A Canadian Commitments to be used for the
purposes identified in subsection 2.5A. The original amount of each
Canadian Lender's Tranche A Canadian Commitment is set forth opposite
its name on Schedule 2.1 annexed hereto and the aggregate original
amount of the Tranche A Canadian Commitments is $400,000,000; provided
that the Tranche A Canadian Commitments of Lenders shall be adjusted to
give effect to any assignments of the Tranche A Canadian Commitments
pursuant to subsection 13.1B; and provided, further that the amount of
the Tranche A Canadian Commitments shall be reduced from time to time
by the amount of any reductions thereto made pursuant to subsection
2.4A(ii). Each Canadian Lender's Tranche A Canadian Commitment shall
expire on such Lender's Tranche A Termination Date and all Tranche
ACanadian Loans and all other amounts owed hereunder with respect to
the Tranche A Canadian Loans and the Tranche A Canadian Commitment of
such Lender shall
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be paid in full no later than that date; provided that each Canadian
Lender's Tranche A Canadian Commitment shall expire immediately and
without further action on June 3, 1997 if the Closing Date shall not
have occurred on or before that date. Amounts borrowed under this
subsection 2.1A(ii) may be repaid and reborrowed to but excluding the
Tranche A Termination Date.
Upon receipt of a Notice of Borrowing from the Company with
respect to a Canadian/U.S. Loan, each Canadian Lender that is not
resident in the United States of America for withholding tax purposes,
may, in accordance with the provisions of subsection 13.1, assign its
obligations under this subsection 2.1A(ii) to fund such Canadian/U.S.
Loan (together with all of its outstanding Canadian/U.S. Loans) to a
U.S. Affiliate. Notwithstanding any provisions of this Agreement to
the contrary, no U.S. Affiliate shall be deemed to have a Tranche A
Canadian Commitment under this Agreement. For the purposes of
determining whether the Total Utilization of Tranche A Canadian
Commitments of any Canadian Lender exceeds its Tranche A Canadian
Commitments, the outstanding principal amount of its U.S. Affiliate's
Canadian/U.S. Loans shall be considered to be outstanding from such
Canadian Lender hereunder.
Anything contained in this Agreement to the contrary
notwithstanding, the Tranche A Canadian Loans and the Tranche A
Canadian Commitments shall be subject to the limitation that in no
event shall the Total Utilization of Tranche A Canadian Commitments at
any time exceed the Tranche A Canadian Commitments then in effect.
Tranche A Canadian Loans advanced to Canada Safeway may, at Canada
Safeway's option, be denominated and funded in Dollars or Canadian
Dollars; Tranche A Canadian Loans advanced to Company (otherwise
referred to herein as "Canadian/U.S. Loans") shall be denominated and
funded in Dollars only.
(iii) Tranche B Domestic Loans. Each Domestic Lender
severally agrees, subject to the limitations set forth below with
respect to the maximum amount of Tranche B Domestic Loans permitted to
be outstanding from time to time, to lend to Domestic Borrowers from
time to time during the period from the Closing Date to but excluding
such Lender's Tranche B Revolving Termination Date an aggregate amount
not exceeding its Tranche B Domestic Pro Rata Share of the aggregate
amount of the Tranche B Domestic Commitments to be used for the
purposes identified in subsection 2.5A. The original amount of each
Domestic Lender's Tranche B Domestic Commitment is set forth opposite
its name on Schedule 2.1 annexed hereto and the aggregate original
amount of the Tranche B Domestic Commitments is $1,000,000,000;
provided that the Tranche B Domestic Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche B Domestic
Commitments pursuant to subsection 13.1B; and provided, further that
the amount of the Tranche B Domestic Commitments shall be reduced from
time to time by the amount of any reductions thereto made pursuant to
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subsection 2.4A(ii). The unused portion of each Domestic Lender's
Tranche B Domestic Commitment shall expire on such Lender's Tranche B
Revolving Termination Date and Tranche B Domestic Loans may not be made
after that date; provided that each Domestic Lender's Tranche B
Domestic Commitment shall expire immediately and without further action
on June 3, 1997 if the Closing Date shall not have occurred on or
before that date. Each Domestic Lender's Tranche B Domestic Commitment
shall expire on such Lender's Tranche B Term Termination Date and all
Tranche B Domestic Loans and all other amounts owed hereunder with
respect to the Tranche B Domestic Loans and the Tranche B Domestic
Commitment of such Lender shall be paid in full no later than such
Lender's Tranche B Term Termination Date. Amounts borrowed under this
subsection 2.1A(iii) may be repaid and reborrowed to but excluding the
Tranche B Revolving Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Tranche B Domestic Loans and the Tranche B
Domestic Commitments shall be subject to the limitation that in no
event shall the Total Utilization of Tranche B Domestic Commitments at
any time exceed the Tranche B Domestic Commitments then in effect. All
Tranche B Domestic Loans shall be denominated and funded in Dollars.
(iv) Swing Line Commitments and Swing Line Loans. Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrowers set forth herein, Swing
Line Lender hereby agrees, from time to time during the period from the
Closing Date through but excluding such Lender's Tranche A Termination
Date, (a) to make a portion of the Tranche A Domestic Commitments
available to Domestic Borrowers in an aggregate amount not exceeding
$50,000,000 by making Swing Line Loans denominated in Dollars to
Domestic Borrowers ("TRANCHE A DOMESTIC SWING LINE LOANS") and (b) to
make a portion of the Tranche A Canadian Commitments available to
Canada Safeway in an aggregate principal amount of up to $25,000,000 by
making Swing Line Loans, denominated in Canadian Dollars or Dollars, to
Canada Safeway ("TRANCHE A CANADIAN SWING LINE LOANS"), notwithstanding
the fact that such Swing Line Loans, when aggregated with the Total
Utilization of Tranche A Domestic Commitments or Total Utilization of
Tranche A Canadian Commitments, as the case may be, of Swing Line
Lender may exceed Swing Line Lender's Tranche A Domestic Commitment or
Tranche A Canadian Commitment, respectively. Swing Line Lender's
commitment to make Tranche A Domestic Swing Line Loans pursuant to this
subsection 2.1A(iv) is hereby called its "TRANCHE A DOMESTIC SWING LINE
COMMITMENT," and Swing Line Lender's commitment to make Tranche A
Canadian Swing Line Loans pursuant to this subsection 2.1A(iv) is
hereby called its "TRANCHE A CANADIAN SWING LINE COMMITMENT". In no
event shall the aggregate principal amount of Tranche A Domestic Swing
Line Loans outstanding at any time exceed the Tranche A Domestic Swing
Line Commitment nor shall the
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aggregate principal amount of Tranche A Canadian Swing Line Loans
outstanding at any time exceed the Tranche A Canadian Swing Line
Commitment (with all Tranche A Canadian Swing Line Loans denominated in
Canadian Dollars valued in Dollar Equivalents), and in no event shall
the Total Utilization of Tranche A Domestic Commitments at any time
exceed the Tranche A Domestic Commitments then in effect nor shall the
Total Utilization of Tranche A Canadian Commitments at any time exceed
the Tranche A Canadian Commitments then in effect. In no event shall
the Tranche A Domestic Swing Line Commitment exceed the Tranche A
Domestic Commitments nor shall the Tranche A Canadian Swing Line
Commitment exceed the Tranche A Canadian Commitments, and any voluntary
reduction of the Tranche A Domestic Commitments or Tranche A Canadian
Commitments made pursuant to subsection 2.4A which reduces the Tranche
A Domestic Commitments or Tranche A Canadian Commitments below the then
current amount of the Tranche A Domestic Swing Line Commitment or the
Tranche A Canadian Swing Line Commitment, respectively, shall result in
an automatic corresponding reduction of the Tranche A Domestic Swing
Line Commitment or the Tranche A Canadian Swing Line Commitment,
respectively, to the amount of the Tranche A Domestic Commitments or
the Tranche A Canadian Commitments, respectively, as so reduced,
without any further action on the part of Swing Line Lender.
The Tranche A Domestic Swing Line Commitment and Tranche A
Canadian Swing Line Commitment shall expire on Swing Line Lender's
Tranche A Termination Date and all Swing Line Loans shall be paid in
full no later than that date.
Amounts borrowed under this subsection 2.1A(iv) may be repaid
and, through but excluding Swing Line Lender's Tranche A Termination
Date, reborrowed. All Swing Line Loans shall bear interest as provided
in subsection 2.2A(vi). Swing Line Loans made on any Funding Date
shall be in an aggregate minimum amount of U.S./Cdn.$1,000,000 and
integral multiples of U.S/Cdn.$500,000 in excess of that amount.
Swing Line Lender, at any time in its sole and absolute
discretion may, and on the fifth Business Day after the making of a
Swing Line Loan which has not been voluntarily prepaid by the
applicable Borrower pursuant to subsection 2.4A(i) shall, on one
Business Day's notice, so long as amounts are available to be borrowed
under the Tranche A Domestic Commitments or Tranche A Canadian
Commitments, as the case may be, require each Domestic Lender or
Canadian Lender (including, in either case, Swing Line Lender), as the
case may be, and each Lender hereby agrees, subject to this subsection
2.1A(iv), to make a Tranche A Domestic Loan or Tranche A Canadian Loan,
as the case may be (which shall initially bear interest at the
applicable Deemed Floating Rate), in an amount equal to such Lender's
Tranche A Domestic Pro Rata Share or Tranche A Canadian Pro Rata Share
of the amount of
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the Tranche A Domestic Swing Line Loans or Tranche A Canadian Swing
Line Loans, respectively ("REFUNDED TRANCHE A DOMESTIC SWING LINE
LOANS" and "REFUNDED TRANCHE A CANADIAN SWING LINE LOANS,"
respectively) outstanding on the date notice is given by Swing Line
Lender; provided, however, that, any provision of subsection 2.1C(iii)
or any other subsection of this Agreement to the contrary
notwithstanding, the obligation of each Lender to make any such Loan is
subject to the condition that (i) Swing Line Lender believed in good
faith that all conditions under subsection 6.2 to the making of such
Refunded Tranche A Domestic Swing Line Loan or Refunded Tranche A
Canadian Swing Line Loan were satisfied at the time such Swing Line
Loan was made, or (ii) such Lender shall have actual knowledge, by
receipt of the statements required pursuant to subsection 8.1 or
otherwise, that any such condition has not been satisfied and shall
have failed to notify Swing Line Lender and Administrative Agent in
writing prior to the time such Swing Line Loan was made that it has no
obligation to make Loans until such condition has been satisfied (which
notice shall be effective as of the date of receipt by Swing Line
Lender and Administrative Agent), or (iii) the satisfaction of any such
condition not satisfied had been waived by Requisite Lenders prior to
or at the time such Swing Line Loan was made. In the event that Loans
are made by Lenders other than Swing Line Lender under the immediately
preceding sentence, each such Lender shall make the amount of its Loan
available to Primary Documentation Agent, in same day funds and the
applicable currency (whether Dollars or Canadian Dollars), at the
Domestic Funding and Payment Office (in the case of Refunded Tranche A
Domestic Swing Line Loans) or the Canadian Funding and Paying Office
(in the case of Refunded Tranche A Canadian Swing Line Loans), in
either case not later than 1:00 p.m. (Toronto time) on the Business Day
next succeeding the date such notice is given. The proceeds of such
Loans shall be immediately delivered to Swing Line Lender (and not to
any Borrower) and applied to repay the Refunded Tranche A Domestic
Swing Line Loans or Refunded Tranche A Canadian Swing Line Loans, as
applicable. On the day such Loans are made, Swing Line Lender's
Tranche A Domestic Pro Rata Share or Tranche A Canadian Pro Rata Share
of the Refunded Tranche A Domestic Swing Line Loans or Refunded Tranche
A Canadian Swing Line Loans, respectively, shall be deemed to be paid
with the proceeds of a Loan made by Swing Line Lender bearing interest
at the applicable Deemed Floating Rate and such portion of the Swing
Line Loans deemed to be so paid shall no longer be outstanding as Swing
Line Loans.
Each Domestic Borrower and Canada Safeway authorizes Primary
Documentation Agent to charge such Domestic Borrower's accounts with
Primary Documentation Agent, in the case of any Refunded Tranche A
Domestic Swing Line Loan, and Canada Safeway's accounts with Primary
Documentation Agent, in the case of any Refunded Tranche A Canadian
Swing Line Loans (in each case up to the amount available in each such
account) in order to immediately pay Swing Line Lender the amount of
any Refunded Tranche A Domestic Swing Line Loans or
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45
Refunded Tranche A Canadian Swing Lines Loans, as the case may be, to
the extent amounts received from Lenders, including amounts deemed to
be received from Swing Line Lender, are not sufficient to repay in full
such Refunded Tranche A Domestic Swing Line Loans or Refunded Tranche A
Canadian Swing Line Loans. If any portion of any such amount paid (or
deemed to be paid) to Swing Line Lender should be recovered by or on
behalf of a Domestic Borrower or Canada Safeway from Swing Line Lender
in bankruptcy, by assignment for the benefit of creditors or otherwise,
the loss of the amount so recovered shall be ratably shared among
Domestic Lenders or Canadian Lenders, as the case may be, in the manner
contemplated by subsection 13.5. Nothing in this Agreement shall
prejudice the rights of any Lender sharing such loss as against any
Lender causing such loss through its failure to make a Loan pursuant to
this subsection to refund any Swing Line Loan. Subject to the proviso
contained in the first sentence of the fourth paragraph of this
subsection 2.1A(iv), each Lender's obligation to make the Loans
referred to in this paragraph shall be absolute and unconditional and
shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against Swing Line Lender, any
Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default or a Potential Event
of Default; (iii) any adverse change in the condition (financial or
otherwise) of any Borrower; (iv) any breach of this Agreement by any
Borrower or any other Lender; (v) the acceleration or maturity of any
Loans or the termination of the Tranche A Domestic Commitments after
the making of any Tranche A Domestic Swing Line Loan or the termination
of the Tranche A Canadian Commitments after the making of any Tranche A
Canadian Swing Line Loan; or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
In the event that any Borrower or any of their Subsidiaries has
filed for or becomes subject to protection under the Bankruptcy Code,
or in the case of any Subsidiary of Company organized under the laws of
Canada or any Province, any bankruptcy, insolvency or similar laws of
Canada or its Provinces or otherwise if Swing Line Lender requests and,
in any event, subject to satisfaction of the conditions set forth in
the proviso to the first sentence of the fourth paragraph of this
subsection 2.1A(iv), each Lender shall acquire without recourse or
warranty an undivided participation interest equal to such Lender's
Tranche A Domestic Pro Rata Share or Tranche A Canadian Pro Rata Share
of any Tranche A Domestic Swing Line Loan or Tranche A Canadian Swing
Line Loan, respectively, otherwise required to be repaid by such Lender
pursuant to the preceding paragraph by paying to Swing Line Lender on
the date on which such Lender would otherwise have been required to
make a Loan in respect of such Tranche A Domestic Swing Line Loan or
Tranche A Canadian Swing Line Loan, as the case may be, pursuant to the
preceding paragraph, in immediately available funds and the applicable
currency
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(whether Dollars or Canadian Dollars), an amount equal to such Lender's
Tranche A Domestic Pro Rata Share or Tranche A Canadian Pro Rata Share,
as the case may be, of such Tranche A Domestic Swing Line Loan or
Tranche A Canadian Swing Line Loan, as the case may be, and no Loans
shall be made by such Lender pursuant to the fourth paragraph of this
subsection 2.1A(iv). If any such amount is not in fact made available
to Swing Line Lender by that Lender on the date when Loans would
otherwise be required to be made pursuant to the preceding paragraph,
Swing Line Lender shall be entitled to recover such amount on demand
from that Lender together with interest accrued from such date at the
customary rate set by Swing Line Lender for the correction of errors
among banks for three Business Days and thereafter at the applicable
Deemed Floating Rate. From and after the date on which any Lender
purchases an undivided participation interest in a Swing Line Loan
pursuant to this paragraph, Swing Line Lender shall promptly distribute
to such Lender such Lender's Tranche A Domestic Pro Rata Share or
Tranche A Canadian Pro Rata Share, as applicable, of all payments of
principal and interest in respect of such Swing Line Loan.
A copy of each notice given by Swing Line Lender to Lenders
pursuant to the fourth paragraph of this subsection 2.1A(iv) shall be
promptly delivered by Swing Line Lender to the applicable Borrower.
Upon the making of a Loan by any Lender pursuant to this subsection
2.1A(iv), Primary Documentation Agent shall make such entries in the
Register, and Lenders shall make such entries in their respective
internal records, as appropriate in accordance with subsection 2.1D to
reflect the funding of such Loan and the associated repayment of any
Refunded Tranche A Domestic Swing Line Loan or Refunded Tranche A
Canadian Swing Line Loan.
Notwithstanding anything herein to the contrary, Swing Line
Lender shall not be obligated to make any Swing Line Loans upon the
occurrence and during the continuation of a Potential Event of Default
or Event of Default provided that Swing Line Lender shall have notified
Company and Canada Safeway in writing or by telephone of its election
not to make Swing Line Loans during the continuation of such Potential
Event of Default or Event of Default.
(v) Negotiated Rate Loans. Subject to the terms and
conditions of this Agreement and in reliance upon the representations
and warranties of Domestic Borrowers set forth herein, each Domestic
Lender agrees that, from time to time during the period from and
including the Closing Date to but excluding such Lender's Tranche A
Termination Date, each Domestic Borrower may request one or more
Domestic Lenders, in the sole discretion of each, to make one or more
Tranche A Domestic Loans to such Domestic Borrower on a non-pro rata
basis, each such Loan to remain outstanding for at least one day and to
mature no later than 180 days after the making thereof or if earlier,
such Lender's Tranche A
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Termination Date and to bear interest at such rate as shall be agreed
to by such Domestic Borrower and the applicable Domestic Lender (each
such Loan, a "NEGOTIATED RATE LOAN"); provided that in no event shall
(x) the aggregate principal amount of Negotiated Rate Loans outstanding
at any time exceed $500,000,000 or (y) the Total Utilization of Tranche
A Domestic Commitments exceed the Tranche A Domestic Commitments then
in effect. All Negotiated Rate Loans shall be in such minimum amounts
as may be mutually agreed upon by the applicable Domestic Borrower and
the applicable Domestic Lender. Each Domestic Borrower and Domestic
Lenders acknowledge that (A) subject to the proviso in the first
sentence of this paragraph, notwithstanding the Tranche A Domestic
Commitment of any Domestic Lender, each such Domestic Lender may, but
shall not be obligated to, make Negotiated Rate Loans as of any date in
a aggregate amount that would not cause the Total Utilization of
Tranche A Domestic Commitments to exceed the Tranche A Domestic
Commitments then in effect (and each Domestic Lender may rely on the
information provided by the applicable Borrower in the Notice of
Borrowing, absent any actual knowledge to the contrary); and (B)
Negotiated Rate Loans need not be made in accordance with Lenders'
Tranche A Domestic Pro Rata Shares.
Each Lender making any Negotiated Rate Loan shall, prior to or
concurrently with the making thereof, provide Primary Documentation
Agent with written notice of the amount, Funding Date and maturity date
of such Negotiated Rate Loan, and each Domestic Borrower and Lenders
will, from time to time, furnish such information to Primary
Documentation Agent as Primary Documentation Agent may request relating
to the making of Negotiated Rates Loans, including, without limitation,
confirmation of amounts, Funding Dates and maturities (and, upon the
occurrence and during the continuance of any Potential Event of Default
or Event of Default, applicable interest rates), for the purpose of
determining the Total Utilization of Tranche A Domestic Commitments and
the allocation of amounts received from a Domestic Borrower for payment
of all amounts owing hereunder.
B. BORROWING MECHANICS.
(i) Tranche A Domestic Loans. Tranche A Domestic Loans
made on any Funding Date (other than Swing Line Loans, Tranche A Domestic Loans
made pursuant to subsection 2.1A(iv) for the purpose of refunding Swing Line
Loans, Negotiated Rate Loans and Tranche A Domestic Loans made pursuant to
subsection 3.3B for the purpose of reimbursing any Issuing Lender for the
amount of a drawing under a Letter of Credit issued by it) shall be in an
aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000
in excess of that amount. Tranche A Domestic Swing Line Loans made on any
Funding Date shall be in a minimum amount of $1,000,000 and integral multiples
of $500,000 in excess of that amount. Whenever a Domestic Borrower desires
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that Domestic Lenders make Tranche A Domestic Loans or that Swing Line Lender
make Tranche A Domestic Swing Line Loans, it shall deliver to Primary
Documentation Agent a Notice of Borrowing no later than 12:00 noon (New York
time) at least three Business Days in advance of the proposed Funding Date in
the case of a Tranche A Domestic Eurodollar Rate Loan, at least one Business
Day in advance of the proposed Funding Date in the case of a Tranche A Domestic
Base Rate Loan, or on the proposed Funding Date in the case of a Swing Line
Loan or a Negotiated Rate Loan. The Notice of Borrowing shall specify (i) the
proposed Borrower, (ii) the proposed Funding Date (which shall be a Business
Day), (iii) the amount of Loans requested, (iv) whether such Loans are to be
Tranche A Domestic Swing Line Loans, Negotiated Rate Loans, Tranche A Domestic
Base Rate Loans or Tranche A Domestic Eurodollar Rate Loans (it being agreed
and understood that Tranche A Domestic Eurodollar Rate Loans may not be
borrowed on the Closing Date unless the applicable Domestic Borrower shall have
entered into a Special Funding Procedures Letter Agreement with Primary Agents
and Lenders on or prior to the date that is two Business Days before the
Closing Date), (v) that, after giving effect to such requested Loans, the Total
Utilization of Tranche A Domestic Commitments will not exceed the Tranche A
Domestic Commitments and, if applicable, that the aggregate outstanding
principal amount of Tranche A Domestic Swing Line Loans will not exceed the
Tranche A Domestic Swing Line Commitment or that the aggregate outstanding
principal amount of Negotiated Rate Loans will not exceed $500,000,000, (vi) in
the case of any Loans requested to be made as Tranche A Domestic Eurodollar
Rate Loans, the initial Interest Period requested therefor, and (vii) in the
case of any Negotiated Rate Loans, the proposed maturity date therefor.
Tranche A Domestic Loans (other than Swing Line Loans and Negotiated Rate
Loans) may be continued as or converted into Tranche A Domestic Base Rate Loans
and Tranche A Domestic Eurodollar Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, a Domestic Borrower may give Primary Documentation Agent telephonic
notice by the required time of any proposed borrowing under this subsection
2.1B; provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Borrowing to Primary Documentation Agent on or before
the applicable Funding Date.
(ii) Tranche A Canadian Loans. Tranche A Canadian Loans
made on any Funding Date (other than Tranche A Canadian Swing Line Loans,
Tranche A Canadian Loans made pursuant to subsection 2.1A(iv) for the purpose
of refunding Tranche A Canadian Swing Line Loans, and Tranche A Canadian Loans
made pursuant to subsection 4.7 for the purpose of paying matured Acceptances)
shall be in an aggregate minimum amount of U.S./Cdn.$10,000,000 and integral
multiples of U.S./Cdn.$1,000,000 in excess of that amount. Tranche A Canadian
Swing Line Loans made on any Funding Date shall be in a minimum amount of
U.S./Cdn.$1,000,000 and integral multiples of U.S./Cdn.$500,000 in excess of
that amount. Whenever Company or Canada Safeway desires that Canadian Lenders
make Tranche A Canadian Loans or that Swing Line Lender make Tranche A Canadian
Swing Line Loans, it shall deliver to Primary Documentation Agent a Notice of
Borrowing no later than 12:00 noon (New York time) at least ten Business Days
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49
in advance of the proposed Funding Date in the case of any Canadian/U.S. Loan,
at least three Business Days in advance of the proposed Funding Date in the
case of a Tranche A Canadian Eurodollar Rate Loan, at least two Business Days
in advance of the proposed Funding Date in the case of any Tranche A Canadian
Base Rate Loan or Tranche A Canadian Prime Rate Loan having a principal amount
exceeding U.S./Cdn.$50,000,000, at least one Business Day in advance of the
proposed Funding Date in the case of a Tranche A Canadian Base Rate Loan or a
Tranche A Canadian Prime Rate Loan having a principal amount not exceeding
U.S./Cdn.$50,000,000, or on the proposed Funding Date in the case of a Tranche
A Canadian Swing Line Loan. The Notice of Borrowing shall specify (i) the
proposed Borrower, (ii) the proposed Funding Date (which shall be a Business
Day), (iii) the amount of Loans requested, (iv) whether such Loans are
requested to be denominated in Dollars or Canadian Dollars (it being understood
that Company may request Loans denominated in Dollars only), (v) whether such
Loans are to be Tranche A Canadian Swing Line Loans, Tranche A Canadian Base
Rate Loans, Tranche A Canadian Prime Rate Loans, Tranche A Canadian Eurodollar
Rate Loans, Canadian/U.S. Eurodollar Rate Loans or Canadian/U.S. Base Rate
Loans (it being agreed and understood that Company and Canada Safeway may not
request Fixed Rate Loans on the Closing Date unless Company and Canada Safeway,
as the case may be, shall have entered into a Special Funding Procedures Letter
Agreement with Primary Agents and Lenders on or prior to the date that is two
Business Days before the Closing Date), (vi) that, after giving effect to the
requested Loans, the Total Utilization of Tranche A Canadian Commitments will
not exceed the Tranche A Canadian Commitments then in effect and, if
applicable, that the aggregate outstanding principal amount of the Tranche A
Canadian Swing Line Loans will not exceed the Tranche A Canadian Swing Line
Commitment, and (vii) in the case of any Loans requested to be made as Fixed
Rate Loans, the initial Interest Period requested therefor. Canadian/U.S.
Loans may be continued as or converted into Canadian/U.S. Base Rate Loans and
Canadian/U.S. Eurodollar Rate Loans and Tranche A Canadian Loans (other than
Canadian/U.S. Loans and Tranche A Canadian Swing Line Loans) denominated in
Dollars may be continued as or converted into Tranche A Canadian Base Rate
Loans or Tranche A Canadian Eurodollar Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company or Canada Safeway may give Primary Documentation Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Primary Documentation Agent on
or before the applicable Funding Date.
(iii) Tranche B Domestic Loans. Tranche B Domestic Loans
made on any Funding Date shall be in an aggregate minimum amount of $50,000,000
and integral multiples of $10,000,000 in excess of that amount. Whenever a
Domestic Borrower desires that Domestic Lenders make Tranche B Domestic Loans,
it shall deliver to Primary Documentation Agent a Notice of Borrowing no later
than 12:00 noon (New York time) at least three Business Days in advance of the
proposed Funding Date in the case of a Tranche B Domestic Eurodollar Rate Loan,
or at least one Business Day in advance of the proposed
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Funding Date in the case of a Tranche B Domestic Base Rate Loan. The Notice of
Borrowing shall specify (i) the proposed Borrower, (ii) the proposed Funding
Date (which shall be a Business Day), (iii) the amount of Loans requested, (iv)
whether such Loans are to be Tranche B Domestic Base Rate Loans or Tranche B
Domestic Eurodollar Rate Loans (it being agreed and understood that Tranche B
Domestic Eurodollar Rate Loans may not be borrowed on the Closing Date unless
the applicable Domestic Borrower shall have entered into a Special Funding
Procedures Letter Agreement with Primary Agents and Lenders on or prior to the
date that is two Business Days before the Closing Date), (v) that, after giving
effect to such requested Loans, the Total Utilization of Tranche B Domestic
Commitments will not exceed the Tranche B Domestic Commitments and (vi) in the
case of any Loans requested to be made as Tranche B Domestic Eurodollar Rate
Loans, the initial Interest Period requested therefor. Tranche B Domestic
Loans may be continued as or converted into Tranche B Domestic Base Rate Loans
and Tranche B Domestic Eurodollar Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, a Domestic Borrower may give Primary Documentation Agent telephonic
notice by the required time of any proposed borrowing under this subsection
2.1B; provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Borrowing to Primary Documentation Agent on or before
the applicable Funding Date.
(iv) General Provisions Relating to Borrowing. Neither
Primary Documentation Agent nor any Lender shall incur any liability to any
Borrower in acting upon any telephonic notice referred to above that Primary
Documentation Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of a Borrower
or for otherwise acting in good faith under this subsection 2.1B, and upon
funding of Loans by Lenders in accordance with this Agreement pursuant to any
such telephonic notice, the applicable Borrower shall have effected Loans
hereunder.
The Borrower submitting any Notice of Borrowing shall notify
Primary Documentation Agent prior to the funding of any Loans thereby requested
in the event that any of the matters to which such Borrower is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by any Borrower of the
proceeds of any Loans shall constitute a re-certification by such Borrower, as
of the applicable Funding Date, as to the matters to which such Borrower is
required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Borrowing for a Fixed Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the applicable Borrower shall be bound to make a
borrowing in accordance therewith.
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C. DISBURSEMENT OF FUNDS.
(i) Funding Domestic Loans Other Than Swing Line Loans and
Negotiated Rate Loans. All Tranche A Domestic Loans (other than Swing Line
Loans and Negotiated Rate Loans) and Tranche B Domestic Loans, as the case may
be, under this Agreement shall be made by Domestic Lenders simultaneously and
proportionately to their respective Tranche A Domestic Pro Rata Shares and
Tranche B Domestic Pro Rata Shares, as the case may be. Promptly after receipt
by Primary Documentation Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof) requesting a Tranche A Domestic
Loan (other than a Swing Line Loan or a Negotiated Rate Loan) or a Tranche B
Domestic Loan, as the case may be, Primary Documentation Agent shall notify
each Domestic Lender of the proposed borrowing. Each Domestic Lender shall
make the amount of its Loan available to Primary Documentation Agent, in
Dollars and same day funds, at the Domestic Funding and Payment Office not
later than 12:00 noon (New York time) on the applicable Funding Date.
(ii) Funding Tranche A Canadian Loans Other Than Swing Line
Loans. All Tranche A Canadian Loans (other than Swing Line Loans) under this
Agreement shall be made by Canadian Lenders (including, in the case of
Canadian/U.S. Loans, U.S. Affiliates, as applicable) simultaneously and
proportionately to their respective Tranche A Canadian Pro Rata Shares.
Promptly after receipt by Primary Documentation Agent of a Notice of Borrowing
pursuant to subsection 2.1B (or telephonic notice in lieu thereof) requesting a
Tranche A Canadian Loan (other than a Swing Line Loan), Primary Documentation
Agent shall notify each Canadian Lender of the proposed borrowing. Each
Canadian Lender shall make the amount of its Loan available to Primary
Documentation Agent, in same day funds in the currency specified in the
applicable Notice of Borrowing, whether Dollars or Canadian Dollars, at the
Domestic Funding and Payment Office (in the case of any Canadian/U.S. Loans) or
the Canadian Funding and Payment Office (in the case of any Canadian Loans
other than Canadian/U.S. Loans), not later than 12:00 noon (New York time) on
the applicable Funding Date.
(iii) Disbursement of Loan Proceeds by Primary Documentation
Agent. Except as provided in subsection 2.1A(iv) with respect to Loans
advanced to refund Swing Line Loans and in subsection 3.3B with respect to
Tranche A Domestic Loans used to reimburse any Issuing Lender for the amount of
a drawing under a Letter of Credit issued by it, upon satisfaction or waiver of
the conditions precedent specified in subsections 6.1 (in the case of Loans
made on the Closing Date) and 6.2 (in the case of all Loans), Primary
Documentation Agent shall make the proceeds of such Loans available to the
applicable Borrower on the applicable Funding Date by causing an amount of same
day funds in Dollars or Canadian Dollars, as the case may be, equal to the
proceeds of all such Loans received by Primary Documentation Agent from Lenders
to be credited to an account of the applicable Borrower at the Domestic Funding
and Payment Office or Canadian Funding
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and Payment Office or to be wired to such account with another financial
institution as such Borrower may specify in writing to Primary Documentation
Agent, as applicable.
(iv) Primary Documentation Agent May Advance Funds; Failure
of Lender to Fund Loan. Except with respect to Negotiated Rate Loans, unless
Primary Documentation Agent shall have been notified by any Lender prior to the
Funding Date for any Loans to be funded by such Lender that such Lender does
not intend to make available to Primary Documentation Agent the amount of such
Lender's Loan requested on such Funding Date, Primary Documentation Agent may
assume that such Lender has made such amount available to Primary Documentation
Agent on such Funding Date and Primary Documentation Agent may, in its sole
discretion, but shall not be obligated to, make available to the applicable
Borrower a corresponding amount on such Funding Date. If such corresponding
amount is not in fact made available to Primary Documentation Agent by such
Lender, Primary Documentation Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Primary Documentation Agent, at the customary rate set by Primary Documentation
Agent for the correction of errors among banks in the relevant currency for
three Business Days and thereafter at the applicable Deemed Floating Rate. If
such Lender does not pay such corresponding amount forthwith upon Primary
Documentation Agent's demand therefor, Primary Documentation Agent shall
promptly notify the applicable Borrower and such Borrower shall immediately pay
such corresponding amount to Primary Documentation Agent together with interest
thereon, for each day from such Funding Date until the date such amount is paid
to Primary Documentation Agent, at the applicable Deemed Floating Rate.
Nothing in this subsection 2.1C shall be deemed to relieve any Lender from its
obligation to fulfill its Tranche A Domestic Commitment, Tranche A Canadian
Commitment or Tranche B Domestic Commitment hereunder or to prejudice any
rights that any Borrower may have against any Lender as a result of any default
by such Lender hereunder.
No Lender shall be responsible for any default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder nor
shall the Tranche A Domestic Commitment, Tranche A Canadian Commitment or
Tranche B Domestic Commitment of any Lender be increased or decreased as a
result of a default by any other Lender in that other Lender's obligation to
make a Loan requested hereunder.
(v) Funding Swing Line Loans or Negotiated Rate Loans;
Disbursement of Proceeds. Promptly after receipt by Primary Documentation
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic
notice in lieu thereof) requesting a Swing Line Loan or a Negotiated Rate Loan,
Primary Documentation Agent shall forward a copy of such notice to the Swing
Line Lender or the applicable Lender(s) specified therein. Upon satisfaction
or waiver of the conditions precedent specified in subsections 6.1 (in the case
of Loans made on the Closing Date) and 6.2 (in the case of all Loans), the
Swing Line Lender or the Lender funding any Negotiated Rate Loan shall make the
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proceeds of any Swing Line Loan or Negotiated Rate Loan, as the case may be,
available to the applicable Borrower on the applicable Funding Date by causing
an amount equal to the proceeds of such Loan, in same day funds and in Dollars
or Canadian Dollars, as the case may be, to be credited to such account of the
applicable Borrower as may be agreed to by the applicable Borrower and Lender.
D. THE REGISTER.
(i) Primary Documentation Agent shall maintain, at its
address referred to in subsection 13.8, a register for the recordation of the
names and addresses of Lenders, the Tranche A Domestic Commitment, Tranche A
Canadian Commitment, Tranche B Domestic Commitment and Loans of each Lender,
and the Tranche A Domestic Swing Line Commitment, Tranche A Canadian Swing Line
Commitment and Swing Line Loans of Swing Line Lender from time to time (the
"REGISTER"). The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(ii) Primary Documentation Agent shall record in the
Register the Tranche A Domestic Commitment, Tranche A Canadian Commitment,
Tranche B Domestic Commitment and the Loans from time to time of each Lender
and the Tranche A Domestic Swing Line Commitment and Tranche A Canadian Swing
Line Commitment of Swing Line Lender and each repayment or prepayment in
respect of the principal amount of the Loans of each Lender. Any such
recordation shall be conclusive and binding on Borrowers and each Lender,
absent manifest or demonstrable error; provided that failure to make any such
recordation, or any error in such recordation, shall not affect any Borrower's
Obligations in respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, any Note held by such Lender) the amount of
each Loan made by it and each payment in respect thereof. Any such recordation
shall be conclusive and binding on Borrowers and such Lender, absent manifest
or demonstrable error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Borrower's Obligations in
respect of the applicable Loans; and provided, further that in the event of any
inconsistency between the Register and any Lender's records, the recordations
in the Register shall govern.
(iv) Borrowers, Primary Documentation Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Tranche A Domestic Commitments, Tranche A Canadian
Commitments, Tranche B Domestic Commitments, Tranche A Domestic Swing Line
Commitment, Tranche A Canadian Swing Line Commitment and Loans listed therein
for all purposes hereof, and no assignment or transfer of any such Tranche A
Domestic Commitment, Tranche A Canadian Commitment, Tranche B Domestic
Commitments, Tranche A
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Domestic Swing Line Commitment, Tranche A Canadian Swing Line Commitment or
Loan shall be effective, in each case unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Primary Documentation Agent and recorded in the Register as provided in
subsection 13.1B(ii). Prior to such recordation, all amounts owed with respect
to the applicable Tranche A Domestic Commitment, Tranche A Canadian Commitment,
Tranche B Domestic Commitment, Tranche A Domestic Swing Line Commitment,
Tranche A Canadian Swing Line Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Tranche A Domestic Commitment, Tranche A Canadian Commitment,
Tranche B Domestic Commitment, Tranche A Domestic Swing Line Commitment,
Tranche A Canadian Swing Line Commitment or Loan.
(v) Company hereby designates Primary Documentation Agent to
serve as Company's agent solely for purposes of maintaining the Register as
provided in this subsection 2.1D, and Company hereby agrees that, to the extent
Primary Documentation Agent serves in such capacity, Primary Documentation
Agent and its officers, directors, employees, agents and affiliates shall
constitute Indemnitees for all purposes under subsection 13.3.
E. OPTIONAL NOTES. If so requested by any Lender by written
notice to any Borrower (with a copy to Primary Documentation Agent) at least
two Business Days prior to the Closing Date or at any time thereafter, such
Borrower shall execute and deliver to such Lender (and/or, if applicable and if
so specified in such notice, to any Person who is an assignee of such Lender
pursuant to subsection 13.1) on the Closing Date (or, if such notice is
delivered after the Closing Date, promptly after such Borrower's receipt of
such notice) a promissory note to evidence such Lender's Loans to such
Borrower, substantially in the form of Exhibit IV-A annexed hereto, in the case
of Domestic Loans and Canadian/U.S. Loans advanced to Company, Exhibit IV-B
annexed hereto, in the case of Domestic Loans advanced to Vons, or Exhibit IV-C
annexed hereto, in the case of Tranche A Canadian Loans advanced to Canada
Safeway, in each case with appropriate insertions.
Primary Documentation Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been accepted
by Primary Documentation Agent as provided in subsection 13.1B(ii). Any
request, authority or consent of any person or entity who, at the time of
making such request or giving such authority or consent, is the record holder
of any Note shall be conclusive and binding on any subsequent holder, assignee
or transferee of that Note or of any Note or Notes issued in exchange therefor.
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2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. (i) Domestic Loans (other than Swing Line
Loans or Negotiated Rate Loans) shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Domestic Base Rate or the
Adjusted Eurodollar Rate. Tranche A Canadian Loans denominated in Canadian
Dollars (other than Swing Line Loans) shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Canadian
Prime Rate; Tranche A Canadian Loans made to Canada Safeway and denominated in
Dollars (other than Swing Line Loans) shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Canadian
Base Rate or the Canadian Eurodollar Rate; Canadian/U.S. Loans shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Domestic Base Rate or the Adjusted Eurodollar Rate. Tranche A
Domestic Swing Line Loans shall bear interest at a rate determined by reference
to the Domestic Base Rate; Tranche A Canadian Swing Line Loans denominated in
Dollars shall bear interest at a rate determined by reference to the Canadian
Base Rate; and Tranche A Canadian Swing Line Loans denominated in Canadian
Dollars shall bear interest at a rate determined by reference to the Canadian
Prime Rate. The applicable basis for determining the rate of interest on Loans
shall be selected by the applicable Borrower at the time such Borrower submits
a Notice of Borrowing pursuant to subsection 2.1B or a Notice of
Conversion/Continuation is given pursuant to subsection 2.2D. If on any date a
Loan is outstanding with respect to which notice has not been delivered to
Primary Documentation Agent in accordance with the terms of this Agreement
specifying the basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the applicable Deemed
Floating Rate.
(ii) Subject to the provisions of subsections 2.2E and 5.1,
Domestic Loans (other than Tranche A Domestic Swing Line Loans or Negotiated
Rate Loans) shall bear interest as follows:
(a) if a Tranche A Domestic Base Rate Loan or a Tranche B
Domestic Base Rate Loan, then at the Domestic Base Rate per annum; or
(b) if a Tranche A Domestic Eurodollar Rate Loan, then at
a rate per annum equal to the sum of the Adjusted Eurodollar Rate for
the applicable Interest Period plus the Tranche A Pricing Margin.
(c) if a Tranche B Domestic Eurodollar Rate Loan, then at
a rate per annum equal to the sum of the Adjusted Eurodollar Rate for
the applicable Interest Period plus the Tranche B Pricing Margin.
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(iii) Subject to the provisions of subsections 2.2E and 5.1,
Tranche A Canadian Loans (other than Tranche A Canadian Swing Line Loans) made
to Canada Safeway and denominated in Dollars shall bear interest as follows:
(a) if a Tranche A Canadian Base Rate Loan, then at the
Canadian Base Rate per annum; or
(b) if a Tranche A Canadian Eurodollar Rate Loan, then at
a rate per annum equal to the sum of the Canadian Eurodollar Rate for
the applicable Interest Period plus the Tranche A Pricing Margin.
(iv) Subject to the provisions of subsections 2.2E and 5.1,
Canadian/U.S. Loans shall bear interest as follows:
(a) if a Canadian/U.S. Base Rate Loan, then at the
Domestic Base Rate per annum; or
(b) if a Canadian/U.S. Eurodollar Rate Loan, then at a
rate per annum equal to the sum of the Adjusted Eurodollar Rate for the
applicable Interest Period plus the Tranche A Pricing Margin.
(v) Subject to the provisions of subsections 2.2E and 5.1,
Tranche A Canadian Loans (other than Tranche A Canadian Swing Line Loans)
denominated in Canadian Dollars shall bear interest at the Canadian Prime Rate
per annum.
(vi) Subject to the provisions of subsections 2.2E and 5.1,
Tranche A Canadian Swing Line Loans denominated in Dollars shall bear interest
at a rate per annum equal to the Canadian Base Rate minus the Tranche A
Facility Fee Percentage, as in effect from time to time; Tranche A Canadian
Swing Line Loans denominated in Canadian Dollars shall bear interest at a rate
equal to the Canadian Prime Rate minus the Tranche A Facility Fee Percentage,
as in effect from time to time; and Tranche A Domestic Swing Line Loans shall
bear interest at a rate per annum equal to the Domestic Base Rate minus the
Tranche A Facility Fee Percentage, as in effect from time to time.
(vii) Subject to the provisions of subsections 2.2E and 5.1,
each Negotiated Rate Loan shall bear interest at the Negotiated Rate applicable
thereto.
Notwithstanding the foregoing, if Company fails to deliver a
Pricing Level Determination Certificate when due pursuant to subsection 8.1(iv)
or delivers an incorrect Pricing Level Determination Certificate and as the
result thereof the amount of interest paid by the applicable Borrower for any
period is less than it would have been if a correct Pricing Level Determination
Certificate had been timely delivered in accordance with the provisions of
subsection 8.1(iv), the amount of interest payable on the next Quarterly
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Payment Date following the delivery of a correct Pricing Level Determination
Certificate (or the Tranche A Termination Date or Tranche B Term Termination
Date, as the case may be, if no Quarterly Payment Date will occur prior
thereto) shall be increased by any additional amount of interest that would
have accrued during such period if the Pricing Level had been correctly and
timely determined.
B. INTEREST PERIODS. In connection with each Fixed Rate Loan, the
applicable Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an interest
period (each an "INTEREST PERIOD") to be applicable to such Loan, which
Interest Period shall be, at Company's option, either a one, two, three or six
month period or, if permitted under clause (vii) of this subsection 2.2B, a
twelve month period; provided that:
(i) the initial Interest Period for any Fixed Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a Fixed Rate Loan, or on the date specified
in the applicable Notice of Conversion/Continuation, in the case of a
Loan converted to a Fixed Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Fixed Rate Loan continued as such pursuant to a Notice
of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period
expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that, if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on
the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Loans shall extend beyond (a) the Tranche A Termination Date in the
case of Tranche A Domestic Loans, Tranche A Canadian Loans, Tranche A
Domestic Swing Line Loans and Tranche A Canadian Swing Line Loans, and
(b) the Tranche B Term Termination Date in the case of Tranche B
Domestic Loans;
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(vi) there shall be no more than 20 Interest Periods
outstanding at any time; provided that there shall be no more than 12
Interest Periods outstanding at any time with respect to the Tranche A
Canadian Loans;
(vii) no Fixed Rate Loan shall have an Interest Period of
twelve months unless Primary Documentation Agent, after consultation
with the Lenders that will fund such Loan, has received notice from
each such Lender that said Lender has determined in good faith based on
prevailing conditions in the Eurodollar market, that Dollar deposits
are generally offered by such Lenders to first class banks in the
Eurodollar market for a comparable maturity (and Primary Documentation
Agent shall notify Company of any notice it receives from any Lender to
the contrary); and
(viii) in the event the applicable Borrower fails to specify
an Interest Period for any Fixed Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, such Borrower shall be
deemed to have selected an Interest Period of one month.
C. INTEREST PAYMENTS; PAYMENT CURRENCY. Subject to the provisions
of subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity). Interest in respect of any Loan denominated in
Dollars shall accrue and be paid in Dollars; interest in respect to any Loan
denominated in Canadian Dollars shall accrue and be paid in Canadian Dollars.
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, each Borrower shall have the option (i) to continue all or any
part of its outstanding Fixed Rate Loans in an amount equal to
U.S./Cdn.$10,000,000 and integral multiples thereof or (ii) to convert all or
any part of its outstanding Loans in an amount equal to U.S./Cdn.$10,000,000
and integral multiples of U.S.$10,000,000 (in the case of Domestic Loans) or
U.S./Cdn.$1,000,000 (in the case of Tranche A Canadian Loans) in excess thereof
from Loans bearing interest at a rate determined by reference to one basis to
Loans bearing interest at a rate determined by reference to an alternative
basis provided (a) Tranche A Domestic Loans may be continued as or converted
into Tranche A Domestic Base Rate Loans or Tranche A Domestic Eurodollar Rate
Loans only, Tranche A Canadian Loans (other than Canadian/U.S. Loans)
denominated in Dollars may be continued as or converted into Tranche A Canadian
Eurodollar Rate Loans or Tranche A Canadian Base Rate Loans only, Canadian/U.S.
Loans may be continued as or converted into Canadian/U.S. Eurodollar Rate
Loans or Canadian/U.S. Base Rate Loans only, Tranche A Canadian Loans
denominated in Canadian Dollars may not be converted but shall at all times be
Tranche A Canadian Prime Rate Loans, Swing Line Loans may not be converted but
shall at all times bear interest as provided in subsection 2.2A(vi) and
Negotiated Rate Loans may not be converted or continued but shall at all times
bear interest at the
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applicable Negotiated Rate; (b) Floating Rate Loans may be converted into Fixed
Rate Loans at any time, and, subject to subsection 2.6D, Fixed Rate Loans may
be converted or continued at any time; and (c) no Loan may be continued as or
converted into a Fixed Rate Loan at any time that an Event of Default has
occurred and is continuing.
The applicable Borrower shall deliver a Notice of
Conversion/Continuation to Primary Documentation Agent no later than 1:00 P.M.
(New York time) at least one Business Day in advance of the proposed conversion
date in the case of a conversion to a Floating Rate Loan and at least three
Business Days in advance of the proposed conversion/continuation date in the
case of a conversion to, or a continuation of, a Fixed Rate Loan. A Notice of
Conversion/Continuation shall specify (i) the Borrower, (ii) the proposed
conversion/continuation date (which shall be a Business Day), (iii) the amount
and type of the Loan to be converted/continued, (iv) the nature of the proposed
conversion/ continuation, (v) in the case of a conversion to, or a continuation
of, a Fixed Rate Loan, the requested Interest Period, and (vi) in the case of a
conversion to, or a continuation of, a Fixed Rate Loan, that no Event of
Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, the applicable Borrower may
give Primary Documentation Agent telephonic notice by the required time of any
proposed conversion/continuation under this subsection 2.2D; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Primary Documentation Agent on or before the
proposed conversion/continuation date.
Neither Primary Documentation Agent nor any Lender shall incur
any liability to any Borrower in acting upon any telephonic notice referred to
above that Primary Documentation Agent believes in good faith to have been
given by a duly authorized officer or other person authorized to act on behalf
of a Borrower or for otherwise acting in good faith under this subsection 2.2D,
and upon conversion or continuation of the applicable basis for determining the
interest rate with respect to any Loans in accordance with this Agreement
pursuant to any such telephonic notice the applicable Borrower shall have
effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation
of, a Fixed Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and the
Borrower submitting any such Notice of Conversion/Continuation shall be bound
to effect a conversion or continuation in accordance therewith unless such
Borrower pays to Lenders such amounts as may be due under subsection 2.6D for
failure of a conversion to or continuation of any Fixed Rate Loan to occur on
the date specified therefor in the Notice of Conversion/Continuation (or
telephonic notice in lieu thereof).
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E. POST-MATURITY INTEREST. Any principal payments on the Loans
not paid when due and, to the extent permitted by applicable law, any interest
payments on the Loans not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable Insolvency Laws) payable on
demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans; provided
that, in the case of Fixed Rate Loans, upon the expiration of the Interest
Period in effect at the time any such increase in interest rate is effective,
such Fixed Rate Loans shall thereupon become Floating Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the applicable Deemed Floating Rate. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or otherwise prejudice or limit any rights or remedies of
any Primary Agent or Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed (i) in the case of Floating Rate Loans and Swing Line Loans, on the
basis of a 365-day or 366-day year, as the case may be, (ii) in the case of
Fixed Rate Loans, on the basis of a 360-day year, and (iii) in the case of any
Negotiated Rate Loans, on such basis as is agreed upon by the applicable
Domestic Borrower and the Lender advancing such Loan, in each case for the
actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the
first day of an Interest Period applicable to such Loan or, with respect to a
Floating Rate Loan being converted from a Fixed Rate Loan, the date of
conversion of such Fixed Rate Loan to such Floating Rate Loan, as the case may
be, shall be included, and the date of payment of such Loan or the expiration
date of an Interest Period applicable to such Loan or, with respect to a
Floating Rate Loan being converted to a Fixed Rate Loan, the date of conversion
of such Floating Rate Loan to such Fixed Rate Loan, as the case may be, shall
be excluded; provided that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan.
G. CANADIAN INTEREST PROVISIONS. For purposes of disclosure
pursuant to the Interest Act (Canada), the parties hereto acknowledge that with
respect to any Loan to Canada Safeway which is expressed as a rate for a period
of less than one year, the yearly rate of interest to which any such rate is
equivalent is the rate for the applicable period divided by the number of days
in such period and multiplied by the actual number of days in the year.
2.3 FEES.
A. FACILITY FEES. Company agrees to pay to Primary Documentation
Agent, for distribution to each Domestic Lender in proportion to that Lender's
Tranche A Domestic
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Pro Rata Share, facility fees for the period from and including the Closing
Date to and excluding such Lender's Tranche A Termination Date equal to the
average of the daily Tranche A Domestic Commitments during each fiscal quarter
of Company multiplied by the Tranche A Facility Fee Percentage, as in effect
from time to time. Canada Safeway agrees to pay to Primary Documentation
Agent, for distribution to each Canadian Lender (excluding any U.S. Affiliate)
in proportion to that Lender's Tranche A Canadian Pro Rata Share, facility fees
for the period from and including Closing Date to and excluding such Lender's
Tranche A Termination Date equal to the average of the daily Tranche A Canadian
Commitments during each fiscal quarter of Company multiplied by the Tranche A
Facility Fee Percentage, as in effect from time to time. Company agrees to pay
to Primary Documentation Agent, for distribution to each Domestic Lender in
proportion to that Lender's Tranche B Domestic Pro Rata Share, facility fees
for the period from and including the Closing Date to and excluding such
Lender's Tranche B Revolving Termination Date equal to the average of the daily
Tranche B Domestic Commitments during each fiscal quarter of Company multiplied
by the Tranche B Facility Fee Percentage, as in effect from time to time.
Company agrees to pay to Primary Documentation Agent, for distribution to each
Domestic Lender in proportion to that Lender's Tranche B Domestic Pro Rata
Share, facility fees for the period from and including such Lender's Tranche B
Revolving Termination Date to and excluding such Lender's Tranche B Term
Termination Date equal to the average of the daily Tranche B Domestic Loans
outstanding during each fiscal quarter of Company during such period multiplied
by the Tranche B Facility Fee Percentage, as in effect from time to time. In
the event (i) any Tranche A Domestic Loans or Tranche A Canadian Loans remain
outstanding beyond any Lender's Tranche A Termination Date or (ii) any Tranche
B Domestic Loans remain outstanding beyond any Lender's Tranche B Term
Termination Date, the facility fees described in this subsection 2.3A shall
continue to accrue on such Loans and be due and payable as described in this
subsection 2.3A. All such facility fees described in this subsection 2.3A are
to be calculated on the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears on each Quarterly Payment Date,
commencing on the first such date to occur after the Closing Date, and on each
Lender's Tranche A Termination Date, Tranche B Revolving Termination Date and
Tranche B Term Termination Date, as the case may be.
Notwithstanding the foregoing, if Company fails to deliver a
Pricing Level Determination Certificate when due in accordance with the
provisions of subsection 8.1(iv) or delivers an incorrect Pricing Level
Determination Certificate, and as the result thereof, the amount of facility
fees paid by Company for any period is less than it would have been if a
correct Pricing Level Determination Certificate had been timely delivered in
accordance with the provisions of subsection 8.1(iv), the amount of facility
fees payable on the next Quarterly Payment Date following the delivery of a
correct Pricing Level Determination Certificate (or the Tranche A Termination
Date or Tranche B Revolving Termination Date, as the case may be, if no
Quarterly Payment Date will occur prior
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thereto) shall be increased by any additional amount of facility fees that
would have accrued during such period if the Pricing Level had been correctly
and timely determined.
B. CLOSING FEES. Company agrees to pay, on the Closing Date,
closing fees (a) to each of the Co-Arrangers and the Agents a fee in an amount
equal to .02% of its Aggregate Commitment and (b) to each Lender other than the
Co-Arrangers and the Agents a fee in an amount equal to .01% of its Aggregate
Commitment.
C. OTHER FEES. Company agrees to pay such other fees in the
amounts and at the times as may be separately agreed upon by Company in
connection with this Agreement.
2.4 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN COMMITMENTS.
(i) Voluntary Prepayments. Each Borrower may, upon
written or telephonic notice delivered to Primary Documentation Agent
not later than 12:00 noon (New York time) on any prepayment date,
prepay the Swing Line Loans in whole or in part in an aggregate minimum
amount of U.S./Cdn.$1,000,000 and integral multiples of
U.S./Cdn.$500,000 in excess thereof. Each Borrower may upon not less
than one Business Day's prior written or telephonic notice, in the case
of Floating Rate Loans, and three Business Days' prior written or
telephonic notice, in the case of Fixed Rate Loans, in each case given
to Primary Documentation Agent by 12:00 noon (New York time) on the
date required and, if given by telephone, promptly confirmed in writing
to Primary Documentation Agent (which original written or telephonic
notice Primary Documentation Agent will promptly transmit by telecopy
or telephone to each Lender), at any time and from time to time prepay
any Loans on any Business Day in whole or in part in an aggregate
minimum amount of (a) U.S.$50,000,000 and integral multiples of
U.S.$10,000,000 in excess of that amount, in the case of Domestic
Loans, or (b) U.S./Cdn.$10,000,000 and integral multiples of
U.S./Cdn.$1,000,000 in excess of that amount, in the case of Tranche A
Canadian Loans; provided, however, that a Fixed Rate Loan may only be
prepaid prior to the expiration of the Interest Period applicable
thereto upon the applicable Borrower's payment of any amounts that may,
as a result of such prepayment, be due and payable to Lenders pursuant
to subsection 2.6D. Any Negotiated Rate Loan may be prepaid only upon
such terms and conditions as are agreed to by the Lender funding such
Negotiated Rate Loan. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein.
Any such voluntary prepayment shall be applied as specified in
subsection 2.4A(iv).
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(ii) Voluntary Reductions of Commitments. Company may,
upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Documentation Agent (which original
written or telephonic notice Primary Documentation Agent will promptly
transmit by telecopy or telephone to each Domestic Lender or Canadian
Lender, as the case may be), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or
penalty, the Tranche A Domestic Commitments, the Tranche A Canadian
Commitments or the Tranche B Domestic Commitments in an amount up to
the amount by which the Tranche A Domestic Commitments exceed the Total
Utilization of Tranche A Domestic Commitments, the Tranche A Canadian
Commitments exceed the Total Utilization of Tranche A Canadian
Commitments or the Tranche B Domestic Commitments exceed the Total
Utilization of Tranche B Domestic Commitments, respectively, at the
time of such proposed termination or reduction; provided that any such
partial reduction of the Tranche A Domestic Commitments or the Tranche
B Domestic Commitments shall be in an aggregate minimum amount of
U.S.$50,000,000 and integral multiples of U.S.$10,000,000 in excess of
that amount and any such partial reduction of the Tranche A Canadian
Commitments shall be in an aggregate minimum amount of U.S.$10,000,000
and integral multiples of U.S.$1,000,000 in excess of that amount.
Company's notice to Primary Documentation Agent shall designate the
date (which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction, and such termination or
reduction of the Tranche A Domestic Commitments, Tranche A Canadian
Commitments or Tranche B Domestic Commitments shall be effective on the
date specified in Company's notice and shall reduce the Tranche A
Domestic Commitment or Tranche B Domestic Commitment of each Domestic
Lender or Tranche A Canadian Commitment of each Canadian Lender, as
applicable, proportionately to its Tranche A Domestic Pro Rata Share,
Tranche A Canadian Pro Rata Share or Tranche B Domestic Pro Rata Share,
respectively.
(iii) Mandatory Prepayments. Borrowers shall from time to
time prepay their respective Loans (and in the case of Canada Safeway,
after repayment of its outstanding Loans, its outstanding Acceptances)
to the extent necessary (1) so that the Total Utilization of Tranche A
Domestic Commitments shall not at any time exceed the Tranche A
Domestic Commitments, (2) so that the Total Utilization of Tranche A
Canadian Commitments shall not at any time exceed the Tranche A
Canadian Commitments and (3) so that the Total Utilization of Tranche B
Domestic Commitments shall not at any time exceed the Tranche B
Domestic Commitments; provided that if the Total Utilization of Tranche
A Canadian Commitments at any time exceeds the Tranche A Canadian
Commitments solely as a result of a change in the relative exchange
rate for Dollars and Canadian Dollars, Canada Safeway shall within five
Business Days of such change in such exchange rate prepay Tranche A
Canadian Loans or, to the extent no Tranche A Canadian Loans are
outstanding, Acceptances in an amount necessary so that the Total
Utilization of Tranche A
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Canadian Commitments is equal to or less than the Tranche A Canadian
Commitments. Any mandatory prepayments pursuant to this subsection
2.4A(iii) shall be applied as specified in subsection 2.4A(iv).
(iv) Application of Prepayments to Swing Line Loans,
Floating Rate Loans and Fixed Rate Loans. Any prepayment by Company of
Tranche A Domestic Loans shall be applied first to Tranche A Domestic
Swing Line Loans of Company to the full extent thereof, second to
Tranche A DomesticBase Rate Loans of Company to the full extent thereof
and third to Tranche A Domestic Eurodollar Rate Loans of Company, in
each case in a manner which minimizes the amount of any payments
required to be made by Company pursuant to subsection 2.6D. Any
prepayment by Vons of Tranche A Domestic Loans of Vons shall be applied
first to Tranche A Domestic Swing Line Loans of Vons to the full extent
thereof, second to Tranche A Domestic Base Rate Loans of Vons to the
full extent thereof and third to Tranche A Domestic Eurodollar Rate
Loans of Vons, in each case in a manner which minimizes the amount of
any payments required to be made by Vons pursuant to subsection 2.6D.
Any prepayment by Company of Tranche B Domestic Loans shall be applied
first to Tranche B Domestic Base Rate Loans of Company to the full
extent thereof and second to Tranche B Domestic Eurodollar Rate Loans
of Company, in each case in a manner which minimizes the amount of any
payments required to be made by Company pursuant to subsection 2.6D.
Any prepayment by Vons of Tranche B Domestic Loans of Vons shall be
applied first to Tranche B Domestic Base Rate Loans of Vons to the full
extent thereof and second to Tranche B Domestic Eurodollar Rate Loans
of Vons, in each case in a manner which minimizes the amount of any
payments required to be made by Vons pursuant to subsection 2.6D. Any
prepayment by Company of Canadian/U.S. Loans shall be applied first to
Canadian/U.S. Base Rate Loans to the full extent thereof and second to
Canadian/U.S. Eurodollar Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by Company
pursuant to subsection 2.6D. Any prepayment in any currency (whether
Dollars or Canadian Dollars) by Canada Safeway of Tranche A Canadian
Loans shall be applied first to Tranche A Canadian Swing Line Loans
denominated in such currency to the full extent thereof, second to
Floating Rate Loans of Canada Safeway denominated in such currency to
the full extent thereof and third to Fixed Rate Loans of Canada Safeway
denominated in such currency, in each case in a manner which minimizes
the amount of any payments required to be made by Canada Safeway
pursuant to subsection 2.6D. The applicable Borrower shall, upon
making any prepayment, specify whether such prepayment is to be applied
to Tranche A Domestic Loans, Tranche A Canadian Loans or Tranche B
Domestic Loans, as applicable.
(v) Prepayments to Remove a Lender. In the event Company
is entitled to replace a non-consenting Lender pursuant to subsection
13.6B, each Borrower shall have the right, upon five Business Days'
prior written notice to Primary
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Documentation Agent (which notice Primary Documentation Agent shall
promptly transmit to each of the Lenders), to prepay all Loans,
together with accrued and unpaid interest, fees and other amounts owing
to such Lender (including the U.S. Affiliate of such Lender, if any) in
accordance with subsection 13.6B so long as and subject to subsection
2.4A(vii) (1) all Commitments of such Lender (including the U.S.
Affiliate of such Lender, if any) are terminated concurrently with such
prepayment pursuant to subsection 2.4A(vi) (at which time Schedule 2.1
shall be deemed modified to reflect the changed Commitments), and (2)
the consents required by subsection 13.6B in connection with the
prepayment pursuant to this subsection 2.4A(v) shall have been
obtained, and at such time, such Lender (including the U.S. Affiliate
of such Lender, if any) shall no longer constitute a "Lender" for
purposes of this Agreement, except with respect to indemnifications
under this Agreement (including, without limitation, subsections 2.6D,
3.5A, 13.2 and 13.3), which shall survive as to such Lender (including
the U.S. Affiliate of such Lender, if any).
(vi) Reductions of Commitments to Remove a Lender. In the
event Company is entitled to replace a non-consenting Lender pursuant
to subsection 13.6B, each Borrower shall have the right, upon five
Business Days' prior written notice to Primary Documentation Agent
(which notice Primary Documentation Agent shall promptly transmit to
each of the Lenders), to terminate the entire Commitment of such Lender
(including the U.S. Affiliate of such Lender, if any), so long as (1)
all Loans, together with accrued and unpaid interest, fees and other
amounts owing to such Lender (including the U.S. Affiliate of such
Lender, if any) are repaid, including without limitation amounts owing
to such Lender (including the U.S. Affiliate of such Lender, if any)
pursuant to subsection 2.6D, pursuant to subsection 2.4A(v)
concurrently with the effectiveness of such termination (at which time
Schedule 2.1 shall be deemed modified to reflect the changed
Commitments) and (2) the consents required by subsection 13.6B in
connection with the prepayment pursuant to subsection 2.4A(v) shall
have been obtained, and at such time, such Lender (including the U.S.
Affiliate of such Lender, if any) shall no longer constitute a "Lender"
for purposes of this Agreement, except with respect to indemnifications
under this Agreement (including, without limitation, subsections 2.6D,
3.5A, 13.2 and 13.3), which shall survive as to such Lender (including
the U.S. Affiliate of such Lender, if any).
(vii) Replacement of Outstanding Letters of Credit and
Prepayment of Acceptances. If the Lender being replaced or terminated
as contemplated by subsection 2.4A(v) or 2.4A(vi) (1) is an Issuing
Lender which has agreed to issue any Letter of Credit (but has not yet
issued such Letter of Credit), such agreement shall be automatically
terminated without any
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further act of the parties hereto, (2) is a Lender which has agreed to
create any Acceptances (but such Acceptances are not yet outstanding),
such agreement shall be automatically terminated without any further
act of the parties and (3) is an Issuing Lender that has issued any
Letter of Credit and such Letter of Credit is still outstanding or any
amounts drawn under such Letter of Credit have not been reimbursed by
the applicable Domestic Borrower pursuant to subsection 3.3B, or such
Lender has created any Acceptances which are outstanding, thenthe
replacement or termination of such Lender shall not take effect until
(y) in the case of an Issuing Lender, any Letters of Credit issued by
such Lender shall have been returned to such Issuing Lender and such
Issuing Lender shall have been reimbursed in full for all amounts drawn
under such Letters of Credit pursuant to subsection 3.3B and (z) in the
case of a Lender which has created any Acceptances, such Lender shall
have been paid in full for all sums due or to become due pursuant to
such Acceptances.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by each
Domestic Borrower of principal, interest, fees and other Obligations
hereunder and under the Notes issued by such Domestic Borrower shall be
made in Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Primary Documentation Agent not later than 12:00 noon (New York time)
on the due date at the Domestic Funding and Payment Office. All
payments by Canada Safeway shall be in Dollars except for payments in
respect of the principal amount of, and interest accrued in respect of,
Loans denominated in Canadian Dollars or Acceptances, which principal
and interest shall be payable in Canadian Dollars, and, in any event,
shall be payable in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Primary Documentation Agent not later than 12:00 noon (New York time)
on the due date at the Canadian Funding and Payment Office. Funds
received by Primary Documentation Agent after that time on such due
date shall be deemed to have been paid by the applicable Borrower on
the next succeeding Business Day. Each Borrower hereby authorizes
Primary Documentation Agent to charge its accounts with Primary
Documentation Agent in order to cause timely payment to be made to
Primary Documentation Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in
its accounts for that purpose). Primary Documentation Agent shall give
the applicable Borrower notice of any such charge as soon as
practicable, whether before or after making such charge.
(ii) Application of Payments to Principal and Interest.
All payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments shall be applied to the
payment of interest before application to principal.
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(iii) Apportionment of Payments. Aggregate principal and
interest payments shall be apportioned among all outstanding Loans or
Acceptances to which such payments relate, in each case proportionately
to Lenders' respective Tranche A Domestic Pro Rata Shares, Tranche A
Canadian Pro Rata Shares or Tranche B Domestic Pro Rata Shares, as
applicable, of such Loans or Acceptances. Primary Documentation Agent
shall promptly distribute to each Domestic Lender, at its primary
address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request, its Tranche
A Domestic Pro Rata Share of all payments received by Primary
Documentation Agent in respect of Tranche A Domestic Loans (other than
Swing Line Loans and Negotiated Rate Loans). Primary Documentation
Agent shall promptly distribute to each Canadian Lender (or in the case
of payments relating to Canadian/U.S. Loans, any U.S. Affiliate of such
Canadian Lender, if any) at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request, its Tranche A Canadian Pro Rata Share of
all payments received by Primary Documentation Agent in respect of
Tranche A Canadian Loans (other than Swing Line Loans) and Acceptances.
Primary Documentation Agent shall promptly distribute to each Domestic
Lender, at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Lender may request, its Tranche B Domestic Pro Rata Share of all
payments received by Primary Documentation Agent in respect of Tranche
B Domestic Loans. Additionally, Primary Documentation Agent shall
distribute to each Lender, at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request, its Aggregate Pro Rata Share of the
facility fees when received by Primary Documentation Agent pursuant to
subsection 2.3.
Notwithstanding the foregoing provisions of this
subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Floating Rate Loans in
lieu of its Pro Rata Share of any Fixed Rate Loans, Primary
Documentation Agent shall give effect thereto in apportioning payments
received thereafter.
(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the facility
fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that
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Note and all principal payments previously made thereon and of the date
to which interest thereon has been paid; provided that the failure to
make (or any error in the making of) a notation of any Loan made under
such Note shall not limit or otherwise affect the obligations of any
Borrower hereunder or under such Note with respect to any Loan or any
payments of principal or interest on such Note.
2.5 USE OF PROCEEDS.
A. TRANCHE A DOMESTIC LOANS AND TRANCHE A CANADIAN LOANS.
Proceeds of the Tranche A Domestic Loans and the Tranche A Canadian Loans
advanced on the Closing Date shall be applied, together with other available
funds of Borrowers, by the applicable Borrowers (i) to repay all amounts of
principal and accrued interest owing by Company and Canada Safeway under the
Existing Credit Agreement; (ii) to repay all amounts of principal and accrued
interest, and to pay fees and expenses, owing by Vons, if any, under the Vons
Credit Agreement; (iii) for the payment of fees and expenses due and payable on
the Closing Date associated with the negotiation, preparation, execution and
syndication of this Agreement; and (iv) after the applications described in
clauses (i) through (iii) above, to consummate the Stock Repurchase. Any
excess proceeds of the initial Tranche A Domestic Loans and the Tranche A
Canadian Loans and the proceeds of any subsequent Tranche A Domestic Loans and
Tranche A Canadian Loans shall be applied by the applicable Borrower for
general corporate purposes, including the repurchase of Capital Stock of
Company and the making of other Restricted Junior Payments as permitted herein.
B. TRANCHE B DOMESTIC LOANS. No Tranche B Domestic Loans shall be
advanced on the Closing Date. Proceeds of Tranche B Domestic Loans shall be
applied by the applicable Domestic Borrower for general corporate purposes,
including the repurchase of Capital Stock of Company and the making of other
Restricted Junior Payments as permitted herein. No Domestic Borrower shall
request Tranche B Domestic Loans unless and until the Total Utilization of
Tranche A Domestic Commitments is greater than 87.50% of the aggregate Tranche
A Domestic Commitments; provided that any Domestic Borrower may request Tranche
B Domestic Loans at any time in order to refinance commercial paper facilities
of such Domestic Borrower.
C. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by Company or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation G, Regulation U, Regulation T or Regulation
X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board or to violate the Exchange Act, in each case as in
effect on the date or dates of such borrowing and such use of proceeds.
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2.6 SPECIAL PROVISIONS GOVERNING FIXED RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Fixed Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York time) on each Interest Rate
Determination Date, Primary Documentation Agent shall determine (which
determination shall, absent manifest or demonstrable error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to
the Fixed Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to the Borrower requesting such
Fixed Rate Loans and the Lenders having commitments hereunder to fund such
Fixed Rate Loans.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Primary Documentation Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto), on any
Interest Rate Determination Date with respect to any Fixed Rate Loans, that by
reason of circumstances affecting the interbank Eurodollar market adequate and
fair means do not exist for ascertaining the interest rate applicable to such
Loans on the basis provided for in the definition of Adjusted Eurodollar Rate
or Canadian Eurodollar Rate, as applicable, Primary Documentation Agent shall
on such date give notice (by telecopy or by telephone confirmed in writing) to
Borrowers and each Lender of such determination, whereupon (i) no Loans may be
made as, or converted to, Tranche A Domestic Eurodollar Rate Loans, Tranche A
Canadian Eurodollar Rate Loans or Tranche B Domestic Eurodollar Rate Loans, as
the case may be, until such time as Primary Documentation Agent notifies
Borrowers and Lenders that the circumstances giving rise to such notice no
longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by any Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
the applicable Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF FIXED RATE LOANS. In the
event that on any date any Lender shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with Company and Primary Documentation Agent) that
the making, maintaining or continuation of its Tranche A Domestic Eurodollar
Rate Loans, Tranche A Canadian Eurodollar Rate Loans or Tranche B Domestic
Eurodollar Rate Loans, as the case may be, (i) has become unlawful as a result
of compliance by such Lender in good faith with any law, treaty, governmental
rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the
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date of this Agreement which materially and adversely affect the interbank
Eurodollar market or the position of such Lender in that market, then, and in
any such event, such Lender shall be an "AFFECTED LENDER" and it shall on that
day give notice (by telecopy or by telephone confirmed in writing) to Borrowers
and Primary Documentation Agent of such determination (which notice Primary
Documentation Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Tranche A Domestic Eurodollar Rate Loans, Tranche A Canadian Eurodollar
Rate Loans or Tranche B Domestic Eurodollar Rate Loans, as the case may be,
shall be suspended until such notice shall be withdrawn by the Affected Lender,
(b) to the extent such determination by the Affected Lender relates to a Fixed
Rate Loan then being requested by a Borrower pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation, the Affected Lender shall make such
Loan as (or convert such Loan to, as the case may be) a Floating Rate Loan
bearing interest at the applicable Deemed Floating Rate, (c) the Affected
Lender's obligation to maintain its outstanding Tranche A Domestic Eurodollar
Rate Loans, Tranche A Canadian Eurodollar Rate Loans or Tranche B Domestic
Eurodollar Rate Loans, as the case may be (the "AFFECTED LOANS"), shall be
terminated at the earlier to occur of the expiration of the Interest Period
then in effect with respect to the Affected Loans or when required by law, and
(d) the Affected Loans shall automatically convert into Floating Rate Loans
bearing interest at the applicable Deemed Floating Rate on the date of such
termination. Notwithstanding the foregoing, to the extent a determination by
an Affected Lender as described above relates to a Fixed Rate Loan then being
requested by a Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, such Borrower shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telecopy or by
telephone confirmed in writing) to Primary Documentation Agent of such
rescission on the date on which the Affected Lender gives notice of its
determination as described above (which notice of rescission Primary
Documentation Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Fixed Rate Loans in accordance
with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Lender, upon written request by that
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Fixed Rate Loans and any loss, expense or liability
sustained by that Lender in connection with the liquidation or re-employment of
such funds) which that Lender may sustain: (i) if for any reason (other than a
default by that Lender) a borrowing of any Fixed Rate Loan does not occur on a
date specified
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therefor in a Notice of Borrowing or a telephonic request for borrowing, or a
conversion to or continuation of any Fixed Rate Loan does not occur on a date
specified therefor in a Notice of Conversion/Continuation or a telephonic
request for conversion or continuation, (ii) if any prepayment or other
principal payment or any conversion of any of its Fixed Rate Loans occurs on a
date prior to the last day of an Interest Period applicable to that Loan, (iii)
if any prepayment of any of its Fixed Rate Loans is not made on any date
specified in a notice of prepayment given by a Borrower, or (iv) as a
consequence of any other default by a Borrower in the repayment of its Fixed
Rate Loans when required by the terms of this Agreement.
E. BOOKING OF FIXED RATE LOANS. Any Lender may make, carry or
transfer Fixed Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF FIXED RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 5.1A shall be made as though that Lender had actually funded
each of its relevant Fixed Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate or pursuant to the definition of
Canadian Eurodollar Rate, as applicable, in an amount equal to the amount of
such Fixed Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of that Lender to an office of that Lender in the United States of
America or Canada, as applicable; provided, however, that each Lender may fund
each of its Fixed Rate Loans in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating amounts
payable under this subsection 2.6 and under subsection 5.1A.
G. FIXED RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of an Event of Default, (i) Borrowers may not elect to
have a Loan be made or maintained as, or converted to, a Fixed Rate Loan after
the expiration of any Interest Period then in effect for that Loan and (ii)
subject to the provisions of subsection 2.6D, any Notice of Borrowing or Notice
of Conversion/Continuation given by any Borrower with respect to a requested
borrowing or conversion/continuation that has not yet occurred shall be deemed
to be rescinded by such Borrower.
2.7 EXTENSION OF TRANCHE A TERMINATION DATE.
Subject to the provisions of the following paragraph of this
subsection 2.7, at any time not more than two years nor less than 60 days prior
to the Tranche A Termination Date then in effect, Company may, at its option,
deliver to Administrative Agent, for distribution to each Lender within five
Business Days of Administrative Agent's receipt thereof, a Tranche A Extension
Request signed by each Borrower requesting an extension of the Tranche A
Termination Date to a date one year after the Tranche A Termination Date which
is then in effect. Each Lender may, in its sole discretion, consent or not
consent to any such Tranche A Extension Request and, if such Lender so
consents, such
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Lender shall deliver its consent to such Tranche A Extension Request to
Administrative Agent (which shall promptly notify Company of such consent)
within 25 Business Days of the date of the Tranche A Extension Request. Any
Lender that fails to consent to any Tranche A Extension Request within such 25
Business Day period shall be deemed to have rejected such Tranche A Extension
Request. If Administrative Agent shall have received, within such 25 Business
Day period, consents to such Tranche A Extension Request from Lenders having
50% or more of the aggregate Tranche A Domestic Loan Exposure and Tranche A
Canadian Loan Exposure of all Lenders, the Tranche A Termination Date to be
extended pursuant to such request shall, with respect to those Lenders
consenting to such request, be extended for one year from the then current
Tranche A Termination Date. If any Lender rejects a Tranche A Extension
Request but Lenders having 50% or more of the aggregate Tranche A Domestic Loan
Exposure and Tranche A Canadian Loan Exposure of all Lenders consent thereto,
Company may, at its option, at any time prior to the Tranche A Termination Date
(as in effect prior to giving effect to such Tranche A Extension Request),
replace such rejecting Lender by causing such Lender to assign, and each Lender
agrees that, following its rejection of any Tranche A Extension Request and
upon the written request of Company, it shall assign, its Tranche A Domestic
Loans, Tranche A Canadian Loans, Tranche A Domestic Commitment, Tranche A
Canadian Commitment, Acceptances, and participations in Letters of Credit, as
the case may be, to another Lender or an Eligible Assignee identified by
Company (that, in either case, has agreed to the Tranche A Extension Request)
in accordance with the provisions of subsection 13.1; provided that no
assignment fee shall be payable to Primary Documentation Agent in connection
with such assignment. If Administrative Agent shall not have received, within
such 25 Business Day period, consents to such Tranche A Extension Request from
Lenders having 50% of the aggregate Tranche A Domestic Loan Exposure and
Tranche A Canadian Loan Exposure of all Lenders, the Tranche A Termination Date
requested to be extended by Borrowers shall not be extended for any Lender
(including, without limitation, any such consenting Lenders). Administrative
Agent shall give Company and each Lender prompt notice of any extension of the
Tranche A Termination Date.
Company may only request two annual extensions of the Tranche A
Termination Date pursuant to this subsection 2.7, and the Tranche A Termination
Date shall in no event be extended beyond April 8, 2004.
2.8 EXTENSION OF TRANCHE B REVOLVING TERMINATION DATE.
At any time not more than 90 days nor less than 30 days prior
to the Tranche B Revolving Termination Date then in effect, Company may, at its
option, deliver to Administrative Agent, for distribution to each Lender within
five Business Days of Administrative Agent's receipt thereof, a Tranche B
Extension Request signed by each Domestic Borrower requesting an extension of
the Tranche B Revolving Termination Date to a date 364 days after the Tranche B
Revolving Termination Date which is then in effect. Each Lender may, in its
sole discretion, consent or not consent to any such Tranche B
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Extension Request and, if such Lender so consents, such Lender shall deliver
its consent to such Tranche B Extension Request to Administrative Agent (which
shall promptly notify Company of such consent) during the period not more than
30 days nor less than 15 days prior to the Tranche B Revolving Termination
Date. Any Lender that fails to consent to any Tranche B Extension Request
within such 15 day period shall be deemed to have rejected such Tranche B
Extension Request. If Administrative Agent shall have received, within such 15
day period, consents to such Tranche B Extension Request from Lenders having
50% or more of the aggregate Tranche B Domestic Loan Exposure of all Lenders,
the Tranche B Revolving Termination Date to be extended pursuant to such
request shall, with respect to those Lenders consenting to such request, be
extended for 364 days from the then current Tranche B Revolving Termination
Date. If any Lender rejects a Tranche B Extension Request but Lenders having
50% or more of the aggregate Tranche B Domestic Loan Exposure of all Lenders
consent thereto, Company may, at its option, at any time prior to the Tranche B
Revolving Termination Date (as in effect prior to giving effect to such Tranche
B Extension Request), replace such rejecting Lender by causing such Lender to
assign, and each Lender agrees that, following its rejection of any Tranche B
Extension Request and upon the written request of Company, it shall assign, its
Tranche B Domestic Loans and Tranche B Domestic Commitment, as the case may be,
to another Lender or an Eligible Assignee identified by Company (that, in
either case, has agreed to the Tranche B Extension Request) in accordance with
the provisions of subsection 13.1; provided that no assignment fee shall be
payable to Primary Documentation Agent in connection with such assignment. If
Administrative Agent shall not have received, within such 15 day period,
consents to such Tranche B Extension Request from Lenders having 50% of the
aggregate Tranche B Domestic Loan Exposure of all Lenders, the Tranche B
Revolving Termination Date requested to be extended by Borrowers shall not be
extended for any Lender (including, without limitation, any such consenting
Lenders). Administrative Agent shall give Company and each Lender prompt
notice of any extension of the Tranche B Revolving Termination Date.
2.9 CONVERSION OF TRANCHE B DOMESTIC LOANS INTO TERM LOANS.
The unused portion of each Domestic Lender's Tranche B Domestic
Commitment shall expire on such Domestic Lender's Tranche B Revolving
Termination Date as set forth in subsection 2.1A(iii). All Tranche B Domestic
Loans outstanding on such Domestic Lender's Tranche B Revolving Termination
Date shall be paid in full no later than the second anniversary of such
Domestic Lender's Tranche B Revolving Termination Date (such subsequent date
being such Domestic Lender's "TRANCHE B TERM TERMINATION DATE").
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SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Domestic Borrowers
requesting that Domestic Lenders make Tranche A Domestic Loans pursuant to
subsection 2.1A(i), each Domestic Borrower may request, in accordance with the
provisions of this subsection 3.1, from time to time during the period from the
Closing Date to but excluding the tenth Business Day prior to the Tranche A
Termination Date, that one or more Domestic Lenders issue Letters of Credit for
the account of such Domestic Borrower for the purposes specified in the
definitions of Commercial Letters of Credit and Standby Letters of Credit.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrowers herein set forth, any one or more
Domestic Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the provisions
of this subsection 3.1; provided that no Domestic Borrower shall request that
any Domestic Lender issue (and no Domestic Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Tranche A Domestic Commitments would
exceed the Tranche A Domestic Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $500,000,000;
(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) the fifth Business Day prior to the
Tranche A Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender
from agreeing that a Standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Issuing Lender elects not to extend for any such additional
period; provided, further that, unless Requisite Lenders otherwise
consent, such Issuing Lender shall give notice that it will not extend
such Standby Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing on the last day on which such
Issuing Lender may give notice that it will not extend such Standby
Letter of Credit;
(iv) any Commercial Letter of Credit having an expiration
date (a) later than the earlier of (X) the date which is 30 days prior
to the Tranche A Termination Date and (Y) the date which is 180 days
from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion;
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(v) any Commercial Letter of Credit if, after giving
effect to such issuance, the Letter of Credit Usage in respect of
Commercial Letters of Credit would exceed $100,000,000; or
(vi) any Letter of Credit denominated in a currency other
than Dollars or Canadian Dollars.
Company and Lenders agree that, on and after the Closing Date,
the Existing Company Letters of Credit shall for all purposes hereof be deemed
to be Letters of Credit issued pursuant to and governed in all respects by the
terms of this Agreement.
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever any Domestic Borrower
desires the issuance of a Letter of Credit, it shall deliver to the
proposed Issuing Lender (with a copy to Primary Documentation Agent if
Primary Documentation Agent is not the proposed Issuing Lender) a
Notice of Issuance of Letter of Credit substantially in the form of
Exhibit III annexed hereto no later than 12:00 noon (New York time) at
least five Business Days, or such shorter period as may be agreed to by
any Issuing Lender in any particular instance, in advance of the
proposed date of issuance. The Notice of Issuance of Letter of Credit
shall specify (a) the Domestic Lender requested to issue the Letter of
Credit, (b) whether such Letter of Credit is to be a Commercial Letter
of Credit or a Standby Letter of Credit, (c) the proposed date of
issuance (which shall be a Business Day), (d) the face amount of the
Letter of Credit, (e) whether such Letter of Credit is to be
denominated in Dollars or Canadian Dollars, (f) the expiration date of
the Letter of Credit, (g) the name and address of the beneficiary, and
(h) a summary of the purpose of such Letter of Credit. At least two
Business Days prior to the proposed date of issuance, the applicable
Domestic Borrower shall specify to the Issuing Lender the proposed text
of the proposed Letter of Credit or the proposed terms and conditions
thereof, including a precise description of any documents and the
verbatim text of any certificates to be presented by the beneficiary
which, if presented by the beneficiary in substantial compliance with
such terms and conditions and on or before the expiration date of the
Letter of Credit, would require the Issuing Lender to make payment
under the Letter of Credit; provided that the Issuing Lender, in its
reasonable judgment, may require changes in the text of the proposed
Letter of Credit or any such documents or certificates; and provided,
further that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same business day (under
the laws of the jurisdiction in which the office of the Issuing Lender
to which such draft is required to be presented is located) that such
draft is presented if such presentation is made after 11:00 A.M. (in
the time zone of such office of the Issuing Lender) on such business
day.
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The applicable Domestic Borrower shall notify the
applicable Issuing Lender (and Primary Documentation Agent, if Primary
Documentation Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which
such Domestic Borrower is required to certify in the applicable Notice
of Issuance of Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit such Domestic Borrower shall be deemed
to have re-certified, as of the date of such issuance, as to the
matters to which such Domestic Borrower is required to certify in the
applicable Notice of Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by a
proposed Issuing Lender of a Notice of Issuance of Letter of Credit
from a Domestic Borrower pursuant to subsection 3.1B(i) requesting the
issuance of a Letter of Credit, (a) in the event Administrative Agent
is the proposed Issuing Lender, Administrative Agent shall be the
Issuing Lender with respect to such Letter of Credit, notwithstanding
the fact that the Letter of Credit Usage with respect to such Letter of
Credit and with respect to all other Letters of Credit issued by
Administrative Agent, when aggregated with Administrative Agent's
outstanding Loans, may exceed Administrative Agent's Tranche A Domestic
Commitment then in effect; and (b) in the event any other Domestic
Lender is the proposed Issuing Lender, such Domestic Lender shall
promptly notify such Domestic Borrower and Primary Documentation Agent
whether or not, in its sole discretion, it has elected to issue such
Letter of Credit, and (1) if such Domestic Lender so elects to issue
such Letter of Credit it shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters
of Credit issued by such Domestic Lender, when aggregated with such
Domestic Lender's outstanding Loans, may exceed such Domestic Lender's
Tranche A Domestic Commitment then in effect and (2) if such Domestic
Lender fails to so promptly notify such Domestic Borrower and Primary
Documentation Agent or declines to issue such Letter of Credit, such
Domestic Borrower may request another Domestic Lender to be the Issuing
Lender with respect to such Letter of Credit in accordance with the
provisions of this subsection 3.1B; provided, that in the event such
other Domestic Lender fails to promptly notify such Domestic Borrower
and Primary Documentation Agent or declines to issue such Letter of
Credit, Administrative Agent shall be the Issuing Lender.
(iii) Issuance of Letter of Credit. Upon satisfaction or
waiver (in accordance with subsection 13.6) of the conditions set forth
in subsection 6.3, the Issuing Lender shall issue the requested Letter
of Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) Notification to Domestic Lenders. Upon the issuance
of any Standby Letter of Credit the applicable Issuing Lender shall
promptly notify Primary
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Documentation Agent of such issuance, which notice shall be accompanied
by a copy of such Standby Letter of Credit. Promptly after receipt of
such notice, Primary Documentation Agent shall notify each Domestic
Lender of the amount of such Domestic Lender's respective participation
in such Standby Letter of Credit, determined in accordance with
subsection 3.1C.
(v) Reports to Domestic Lenders Regarding Standby Letters
of Credit. Within 15 days after the end of each calendar quarter
ending after the Closing Date, so long as any Standby Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to Primary Documentation Agent for distribution to
each other Domestic Lender a report setting forth for such calendar
quarter the daily maximum amount available to be drawn under the
Letters of Credit issued by such Issuing Lender that were outstanding
during such calendar quarter.
(vi) Reports to Domestic Lenders Regarding Commercial
Letters of Credit. In the event that the Issuing Lender of any
Commercial Letter of Credit is other than the Primary Documentation
Agent, such Issuing Lender shall send by facsimile transmission to the
Primary Documentation Agent promptly on the first Business Day of each
week the daily maximum amount available for drawing under such
Commercial Letter of Credit for the previous week. The Primary
Documentation Agent shall deliver to each Domestic Lender, upon each
calendar month end, a report setting forth for such period the daily
maximum amount available for drawing under all Commercial Letters of
Credit issued by any Issuing Lender for such period.
C. DOMESTIC LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit, each Domestic
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and drawings
thereunder in an amount equal to such Domestic Lender's Tranche A Domestic Pro
Rata Share of the maximum amount which is or at any time may become available
to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Each Domestic Borrower requesting the issuance of a Letter of
Credit pursuant to subsection 3.1 agrees to pay the following amounts with
respect to Letters of Credit issued hereunder by any Issuing Lender (including,
without limitation, the Existing Company Letters of Credit):
(i) with respect to each Standby Letter of Credit, (a) a
fronting fee payable directly to such Issuing Lender for its own
account, equal to the greater of (X) $250 and (Y) 0.125% per annum of
the daily maximum amount available to be
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drawn under such Standby Letter of Credit and (b) a letter of credit
fee payable to Primary Documentation Agent for the account of Domestic
Lenders, equal to the Tranche A Pricing Margin, as in effect from time
to time, per annum on the daily maximum amount available to be drawn
under such Standby Letter of Credit, in each case payable in arrears on
and to (but excluding) each Quarterly Payment Date and computed on the
basis of a 360-day year for the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, such
fees and commissions as are mutually agreed to by the Issuing Lender
issuing such Commercial Letter of Credit and such Domestic Borrower,
payable directly to such Issuing Lender for its own account and at the
times and calculated in the manner required by such Issuing Lender,
which fees and commissions shall be no less than the amount which such
Issuing Lender requires for the issuance of a Commercial Letter of
Credit of similar tenor and denomination for the account of an account
party with a credit standing similar to such Domestic Borrower; and
(iii) with respect to the amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clauses (i) and (ii) above),
documentary and processing charges payable directly to such Issuing
Lender for its own account and in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or payment of drawing, as the case may
be.
Promptly upon receipt by Primary Documentation Agent of any amount described in
clause (i)(b) of this subsection 3.2, Primary Documentation Agent shall
distribute to each other Domestic Lender its Tranche A Domestic Pro Rata Share
of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to use
reasonable care to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit.
B. REIMBURSEMENT BY DOMESTIC BORROWER OF AMOUNTS DRAWN UNDER
LETTERS OF CREDIT. In the event an Issuing Lender has determined to honor a
drawing under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify the Domestic Borrower that requested the issuance of such
Letter of Credit and Primary Documentation Agent, and such Domestic Borrower
shall reimburse such Issuing Lender on or before the Business Day (the
"REIMBURSEMENT DATE") immediately following the date on which such drawing is
honored in an amount in Dollars (which amount, in the case of a drawing under
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a Letter of Credit which is denominated in Canadian Dollars, shall be
calculated in Dollar Equivalents) and in same day funds equal to the amount of
such drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless such Domestic Borrower shall have notified
Primary Documentation Agent and such Issuing Lender prior to 11:00 A.M. (New
York time) on the date of such drawing that such Domestic Borrower intends to
reimburse such Issuing Lender for the amount of such drawing with funds other
than the proceeds of Loans, such Domestic Borrower shall be deemed to have
given a timely Notice of Borrowing to Primary Documentation Agent requesting
Domestic Lenders to make Loans that are Tranche A Domestic Base Rate Loans on
the Reimbursement Date in an amount in Dollars (which amount, in the case of a
drawing under a Letter of Credit which is denominated in Canadian Dollars,
shall be the amount drawn in Canadian Dollars converted into Dollar
Equivalents) equal to the amount of such drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 6.2B, Domestic
Lenders shall, on the Reimbursement Date, make Tranche A Domestic Base Rate
Loans in the amount of such drawing, the proceeds of which shall be applied
directly by Primary Documentation Agent to reimburse such Issuing Lender for
the amount of such drawing; and provided, further that if for any reason
proceeds of Loans are not received by such Issuing Lender on the Reimbursement
Date in an amount equal to the amount of such drawing, such Domestic Borrower
shall reimburse such Issuing Lender, on demand, in an amount in same day funds
equal to the excess of the amount of such drawing over the aggregate amount of
such Loans, if any, which are so received. Nothing in this subsection 3.3B
shall be deemed to relieve any Domestic Lender from its obligation to make
Loans on the terms and conditions set forth in this Agreement, and the
applicable Domestic Borrower shall retain any and all rights it may have
against any Domestic Lender resulting from the failure of such Domestic Lender
to make such Loans under this subsection 3.3B.
C. PAYMENT BY DOMESTIC LENDERS OF UNREIMBURSED DRAWINGS UNDER
LETTERS OF CREDIT.
(i) Payment by Domestic Lenders. In the event that a
Domestic Borrower shall fail for any reason to reimburse any Issuing
Lender as provided in subsection 3.3B in an amount (calculated in
Dollar Equivalents, in the case of a drawing under a Letter of Credit
denominated in Canadian Dollars) equal to the amount of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it,
such Issuing Lender shall promptly notify each other Domestic Lender of
the unreimbursed amount of such drawing and of such other Domestic
Lender's respective participation therein based on such Domestic
Lender's Tranche A Domestic Pro Rata Share. Each Domestic Lender shall
make available to such Issuing Lender an amount equal to its respective
participation, in Dollars and in same day funds, at the office of such
Issuing Lender specified in such notice, not later than 1:00 P.M. (New
York time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located)
after the date
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notified by such Issuing Lender. In the event that any Domestic Lender
fails to make available to such Issuing Lender on such business day the
amount of such Domestic Lender's participation in such Letter of Credit
as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Domestic Lender
together with interest thereon at the rate customarily used by such
Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Domestic Base Rate. Nothing in
this subsection 3.3C shall be deemed to prejudice the right of any
Domestic Lender to recover from any Issuing Lender any amounts made
available by such Domestic Lender to such Issuing Lender pursuant to
this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such Issuing Lender in respect of
which payment was made by such Domestic Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Domestic Lenders of Reimbursements
Received From Domestic Borrowers. In the event any Issuing Lender
shall have been reimbursed by other Domestic Lenders pursuant to
subsection 3.3C(i) for all or any portion of any drawing honored by
such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall distribute to each other Domestic Lender which has paid
all amounts payable by it under subsection 3.3C(i) with respect to such
drawing such other Domestic Lender's Tranche A Domestic Pro Rata Share
of all payments subsequently received by such Issuing Lender from a
Domestic Borrower in reimbursement of such drawing when such payments
are received. Any such distribution shall be made to a Domestic Lender
at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Domestic Lender
may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Domestic Borrower. Each
Domestic Borrower agrees to pay to each Issuing Lender, with respect to
drawings made under any Letters of Credit requested by such Domestic
Borrower and issued by such Issuing Lender, interest on the amount paid
by such Issuing Lender in respect of each such drawing from the date of
such drawing to but excluding the date such amount is reimbursed by
such Domestic Borrower (including any such reimbursement out of the
proceeds of Loans pursuant to subsection 3.3B) at a rate equal to (a)
for the period from the date of such drawing to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with
respect to Tranche A Domestic Base Rate Loans and (b) thereafter, a
rate which is 2% per annum in excess of the rate of interest otherwise
payable under this Agreement with respect to Tranche A Domestic Base
Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall
be computed on the basis of a 365-day or 366-day year, as the case may
be,
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for the actual number of days elapsed in the period during which it
accrues and shall be payable on demand or, if no demand is made, on the
date on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing under a Letter
of Credit issued by it, (a) such Issuing Lender shall distribute to
each other Domestic Lender, out of the interest received by such
Issuing Lender in respect of the period from the date of such drawing
to but excluding the date on which such Issuing Lender is reimbursed
for the amount of such drawing (including any such reimbursement out of
the proceeds of Loans pursuant to subsection 3.3B), the amount that
such other Domestic Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection
3.2 if no drawing had been made under such Letter of Credit, and (b) in
the event such Issuing Lender shall have been reimbursed by other
Domestic Lenders pursuant to subsection 3.3C(i) for all or any portion
of such drawing, such Issuing Lender shall distribute to each other
Domestic Lender which has paid all amounts payable by it under
subsection 3.3C(i) with respect to such drawing such other Domestic
Lender's Tranche A Domestic Pro Rata Share of any interest received by
such Issuing Lender in respect of that portion of such drawing so
reimbursed by other Domestic Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Domestic Lenders
to and including the date on which such portion of such drawing is
reimbursed by the applicable Domestic Borrower. Any such distribution
shall be made to a Domestic Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such
other address as such Domestic Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of each Domestic Borrower to reimburse each
Issuing Lender for drawings made under the Letters of Credit requested by such
Domestic Borrower and issued by such Issuing Lender and to repay any Loans made
by Domestic Lenders pursuant to subsection 3.3B and the obligations of Domestic
Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other
right which any Domestic Borrower or any Domestic Lender may have at
any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any
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such transferee may be acting), any Issuing Lender or other Domestic
Lender or any other Person or, in the case of a Domestic Lender,
against any Domestic Borrower, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any Domestic
Borrower or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any
Letter of Credit against presentation of a demand, draft or certificate
or other document which does not comply with the terms of such Letter
of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) of any Domestic
Borrower or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event
of Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 5.1, each Domestic Borrower hereby agrees to protect, indemnify, pay
and save harmless each Issuing Lender from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel and reasonable allocated
costs of internal counsel) which such Issuing Lender may incur or be subject to
as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit by such Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of such Issuing Lender as determined by a
final judgment of a court
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of competent jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future de jure
or de facto government or governmental authority (all such acts or omissions
herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between any Domestic
Borrower and any Issuing Lender, such Domestic Borrower assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit issued by such
Issuing Lender by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Lender shall
not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
such Letter of Credit to substantially comply with any conditions required in
order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond
the control of such Issuing Lender, including without limitation any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith and without gross negligence,
shall not put such Issuing Lender under any resulting liability to any Domestic
Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, each Domestic Borrower shall retain any and all rights it may
have against any Issuing Lender for any liability arising solely out of (a) the
gross negligence or willful misconduct of such Issuing Lender, as determined by
a final judgment of a court of competent jurisdiction, or (b) the wrongful
dishonor by such Issuing Lender of a proper demand for
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payment made under any Letter of Credit issued by it except where such dishonor
results from Governmental Acts.
SECTION 4. ACCEPTANCES
4.1 ACCEPTANCE COMMITMENT.
In addition to requesting Tranche A Canadian Loans pursuant to
subsection 2.1A(ii), Canada Safeway may request pursuant to this Section 4,
from time to time during the period from the Closing Date to but excluding the
Tranche A Termination Date, that Canadian Lenders create bankers' acceptances
(each, an "ACCEPTANCE") by accepting Drafts from Canada Safeway in an aggregate
amount not exceeding each such Canadian Lender's Tranche A Canadian Pro Rata
Share of the aggregate amount of the Tranche A Canadian Commitments to be used
for the purposes identified in subsection 4.11; provided that Canada Safeway
shall not request the creation and purchase of any Acceptance if, after giving
effect thereto, the Total Utilization of Tranche A Canadian Commitments would
exceed the Tranche A Canadian Commitments then in effect, and no Canadian
Lender shall have any obligation to create and purchase any Acceptance if,
after giving effect thereto, the Total Utilization of Tranche A Canadian
Commitments of such Canadian Lender would exceed its Tranche A Canadian
Commitment.
Each Drawing shall be in an aggregate Face Amount of not less
than Cdn.$10,000,000 and in integral multiples of Cdn.$1,000,000 and shall
consist of the creation and purchase of Acceptances by Canadian Lenders on the
same day in accordance with subsection 4.4, ratably in accordance with their
respective Tranche A Canadian Pro Rata Shares; provided that if apportionment
of Acceptances among the Canadian Lenders cannot be made on a pro rata basis in
even multiples of Cdn.$100,000, Primary Documentation Agent shall round the
allocations among Canadian Lenders consistent with Primary Documentation
Agent's money market practices.
Notwithstanding anything herein to the contrary, the bankers'
acceptances (the "EXISTING ACCEPTANCES") described in Appendix A attached to
the Indemnity shall be deemed for all purposes hereunder to be Acceptances
outstanding under this Agreement and all the terms and obligations set forth
herein with respect to Acceptances shall be applicable to the Existing
Acceptances.
4.2 DRAWING NOTICE.
Each Drawing shall be made on two Business Days prior written
notice specified in relation to Acceptances, given not later than 12:00 noon
(Toronto time), by Canada Safeway to Primary Documentation Agent, which shall
give each Canadian Lender prompt notice thereof and of such Canadian Lender's
ratable portion of aggregate Face Amount of the Drafts to be accepted under the
Drawing. Each such notice of a Drawing (a
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"DRAWING NOTICE") shall be given in substantially the form of Exhibit XII
annexed hereto or by telephone confirmed promptly in writing, containing the
same information as would be contained in a Drawing Notice, and shall specify
therein (i) the Drawing Date; (ii) the aggregate Face Amount of Drafts to be
accepted; (iii) the maturity date for such Drafts (it being agreed and
understood that Canada Safeway shall not request a maturity date for Drafts
which would be subsequent to the Tranche A Termination Date); and (iv) whether
the Acceptances are to be delivered to or to the order of the applicable
Borrower or to be purchased by the Canadian Lenders.
Neither Primary Documentation Agent nor any Canadian Lender
shall incur any liability to any Borrower in acting on the telephonic notice
referred to above which Primary Documentation Agent or such Canadian Lender
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of Canada Safeway or for otherwise acting
in good faith under this Section 4, and upon the creation and purchase or
delivery of Acceptances pursuant to any such telephonic notice, Canada Safeway
shall be liable with respect thereto as provided herein.
Each Drawing Notice shall be irrevocable and binding on Canada
Safeway. Canada Safeway shall indemnify each Canadian Lender against any loss
or expense incurred by such Canadian Lender as a result of any failure by
Canada Safeway to fulfill or honor before the date specified for any Drawing,
the applicable conditions set forth in this Section 4 or subsection 6.4, if the
Drawing, as a result of such failure, is not made on such date.
4.3 FORM OF ACCEPTANCES.
Each Draft presented by Canada Safeway shall (i) be in an
integral multiple of Cdn.$100,000; (ii) be dated the date of the Drawing; (iii)
mature and be payable by Canada Safeway (in common with all other Drafts
presented in connection with such Drawing) on a Business Day which occurs
approximately 30, 60, 90, 120 or 180 days after the date thereof; (iv) be
substantially in the form of Exhibit XIV annexed hereto; and (iv) be otherwise
consistent with the provisions of this Agreement relating to the amounts and
maturity dates thereof. The acceptance endorsed by a Canadian Lender on any
Draft shall be substantially in the form of Exhibit XIII annexed hereto or such
other form as may be agreed by Canada Safeway and such Canadian Lender.
Canada Safeway hereby renounces, and shall not claim, any days
of grace for the payment of any Acceptances.
4.4 ACCEPTANCE AND PURCHASE OR DELIVERY OF DRAFTS.
Not later than 11:00 A.M. (Toronto time) on an applicable
Drawing Date, each Canadian Lender shall complete one or more Drafts dated the
date of such Drawing,
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with the maturity date specified in the applicable Drawing Notice, accept such
Drafts, and following fulfillment of any applicable conditions and as specified
in the applicable Drawing Notice either (a) purchase the Acceptances thereby
created for the Drawing Purchase Price or (b) deliver such Acceptances as
provided below.
Canada Safeway shall, not later than 10:30 A.M. (Toronto time)
on the applicable Drawing Date, notify Primary Documentation Agent of such
Borrower's delivery instructions for the Acceptances to be delivered to it in
accordance with the applicable Drawing Notice and pay to Primary Documentation
Agent, for distribution to the Canadian Lenders in accordance with their
Tranche A Canadian Pro Rata Shares, the Drawing Fees relating thereto. The
Canadian Lenders shall promptly deliver such Acceptances in accordance with
such instructions.
Canada Safeway shall pay Drawing Fees in respect of Acceptances
by deposit of the required funds to Primary Documentation Agent at its Canadian
Funding and Payment Office. On receipt of those payments, Primary
Documentation Agent will promptly thereafter cause those Drawing Fees to be
distributed in like funds to the applicable Canadian Lender for its account.
The failure of any Canadian Lender to create and purchase or
deliver Acceptances as part of any Drawing shall not relieve such Canadian
Lender of its obligation, if any, to create and purchase or deliver Acceptances
hereunder, but a Canadian Lender shall not be responsible for the failure of
any other Canadian Lender to create and purchase or deliver Acceptances on the
Drawing Date for any Drawing.
4.5 PAYMENT OF THE DRAWING PURCHASE PRICE.
Subject to subsection 4.2 and satisfaction of the conditions
set forth in subsection 6.4, each Canadian Lender shall, before 12:00 noon
(Toronto time) on the applicable Drawing Date, pay or cause to be paid the
Drawing Purchase Price in respect of any Acceptances to be purchased by such
Canadian Lender by depositing or causing to be deposited such amount to such
account maintained by Primary Documentation Agent at its Canadian Funding and
Payment Office as shall have been notified to such Canadian Lender by Primary
Documentation Agent, in Canadian Dollars in same day funds. Promptly upon
receipt of such funds, Primary Documentation Agent shall make such funds
available to Canada Safeway by debiting such account (or causing such account
to be debited), and (a) by crediting Canada Safeway's account, as specified by
Canada Safeway in writing to Primary Documentation Agent prior thereto,
maintained by Primary Documentation Agent at its Canadian Funding and Payment
Office (or causing such account to be credited) with like funds in the
aggregate amount of such funds or (b) by wiring such funds in such amount to
the account of Canada Safeway with another financial institution specified
prior thereto by Canada Safeway in writing to Primary Documentation Agent.
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Acceptances purchased by a Canadian Lender hereunder may be
held by it for its own account until maturity or sold by it at any time prior
thereto in any relevant market therefor in Canada, in such Canadian Lender's
sole discretion.
4.6 AVERAGE EFFECTIVE DISCOUNT RATE DETERMINATION.
Each Schedule I Reference Bank or Schedule II Reference Bank,
as the case may be, agrees to furnish to Primary Documentation Agent timely
information for the purpose of determining each Average Effective Discount
Rate. If any one or more of the Schedule I Reference Banks or Schedule II
Reference Banks shall not furnish such information to Primary Documentation
Agent, Primary Documentation Agent shall determine such Average Effective
Discount Rate on the basis of timely information furnished by the remaining
Schedule I Reference Bank(s) or Schedule II Reference Bank(s), as applicable.
Primary Documentation Agent shall give prompt notice to
Borrowers and Canadian Lenders of each Average Effective Discount Rate
determined by Primary Documentation Agent for an applicable Drawing Date and
the applicable discount rates, if any, furnished by each Schedule I Reference
Bank or Schedule II Reference Bank for determining any applicable Average
Effective Discount Rate.
4.7 ACCEPTANCE PAYMENT OBLIGATIONS.
A. GENERAL OBLIGATION. Canada Safeway unconditionally hereby
agrees to pay to Primary Documentation Agent for the account of each Canadian
Lender, on the maturity date for each Acceptance an amount in Canadian Dollars
in same day funds equal to the Face Amount of such then-maturing Acceptance.
B. PAYMENT AT MATURITY. The obligation of Canada Safeway set
forth in subsection 4.7A to pay to Primary Documentation Agent the Face Amount
of any then-maturing Acceptance may be satisfied by paying to Primary
Documentation Agent at or before 12:00 noon (Toronto time) on the maturity date
for such Acceptance an amount in Canadian Dollars in same day funds equal to
the Face Amount of such Acceptance; provided that Canada Safeway shall have
given not less than one Business Day's prior notice to Primary Documentation
Agent (which shall promptly notify each Canadian Lender thereof) of its intent
to pay Primary Documentation Agent in the manner contemplated by this sentence.
Canada Safeway shall make each payment hereunder in respect of Acceptances by
deposit of the required funds to Primary Documentation Agent at the Canadian
Funding and Payment Office. Upon receipt of such payment, Primary
Documentation Agent will promptly thereafter cause such payment to be
distributed in like funds in payment of Acceptances ratably (based on the
proportion that the aggregate Face Amount of Acceptances accepted by any
Canadian Lender maturing on the relevant date bears to the aggregate Face
Amount of Acceptances accepted by all Canadian Lenders
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maturing on such date) to Canadian Lenders for their account. Such payment to
Primary Documentation Agent shall satisfy Canada Safeway's obligations under
any Acceptances to which it relates and each Canadian Lender that has accepted
such Acceptances shall thereafter be solely responsible for the payment of such
Acceptances.
C. ROLLOVER. The obligation of Canada Safeway set forth in
subsection 4.7A to pay to Primary Documentation Agent the Face Amount of any
then-maturing Acceptance may be satisfied by Canada Safeway requesting that new
Drafts be accepted and discounted by the Canadian Lenders in the manner
contemplated by Section 4 in substitution for any then-maturing Acceptance;
provided that no Default or Event of Default shall have occurred and be
continuing and Canada Safeway shall have delivered to Primary Documentation
Agent (which shall promptly provide a copy thereof to each Canadian Lender) a
duly completed Drawing Notice not later than 12:00 noon (Toronto time) one
Business Day prior to such maturity date, together with any other documents,
instruments, certificates and other information contemplated by Section 4.
D. CONVERSION. In the event Canada Safeway does not or cannot for
any reason comply with the provisions of subsections 4.7B or 4.7C with respect
to the obligation of Canada Safeway set forth in subsection 4.7A to pay to
Primary Documentation Agent the Face Amount of any then-maturing Acceptance,
the unpaid amount due and payable in respect thereof shall be converted as of
such date, and without any necessity for Canada Safeway to give a Notice of
Borrowing in accordance with subsection 2.1B, to, and thereafter be outstanding
as, a Tranche A Canadian Prime Rate Loan made by Canadian Lenders in accordance
with their Tranche A Canadian Pro Rata Shares and shall bear interest
calculated and payable as provided in subsection 2.2.
4.8 PRESIGNED DRAFT FORMS.
To enable the Canadian Lenders to complete Drafts and create
Acceptances in the manner specified in this subsection 4.8, Canada Safeway
shall supply each Canadian Lender with such number of Drafts as such Canadian
Lender may reasonably request, duly endorsed and executed on behalf of Canada
Safeway by any one or more of its authorized officers. Each Canadian Lender
shall exercise such care in the custody and safekeeping of Drafts as it would
exercise in the custody and safekeeping of similar property owned by it. Each
Canadian Lender will, upon request by Canada Safeway, promptly advise Canada
Safeway of the number and designations, if any, of the uncompleted Drafts then
held by it. The signatures of such officers may be mechanically reproduced in
facsimile, and Drafts and Acceptances bearing such facsimile signatures shall
be binding upon Canada Safeway as if they had been manually signed by such
officers. Notwithstanding that any of the individuals whose manual or
facsimile signature appears on any Draft or Acceptance as one of such officers
may no longer hold office at the date thereof or at the date of its acceptance
by a Canadian Lender hereunder or at any time thereafter, any Draft or
Acceptance so signed shall be valid and binding upon Canada Safeway.
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4.9 CIRCUMSTANCES MAKING ACCEPTANCES UNAVAILABLE.
If Primary Documentation Agent determines in good faith, which
determination shall be final, conclusive and binding upon Canada Safeway and
notifies Canada Safeway and each Canadian Lender that, by reason of
circumstances affecting the money market (i) there is no market for
Acceptances; or (ii) the demand for Acceptances is insufficient to allow the
sale or trading of the Acceptances created and purchased hereunder; then:
(a) the right of Canada Safeway to request a Drawing shall
be suspended until Primary Documentation Agent determines that the
circumstances causing such suspension no longer exist and Primary
Documentation Agent so notifies Canada Safeway; and
(b) any Drawing Notice which is outstanding shall be
cancelled and the Drawing requested therein shall not be made.
Primary Documentation Agent shall promptly notify Canada
Safeway of the suspension of its right to request a Drawing and of the
termination of any such suspension.
4.10 PREPAYMENTS.
Except as required or permitted by subsection 2.4A(iii) or
Section 10, no repayment of an Acceptance shall be made by Canada Safeway to a
Canadian Lender prior to the maturity date thereof. Any such repayment, made
as required by subsection 2.4A(iii) or Section 10, shall be made (unless such
repayment has been rescinded or otherwise is required to be returned by such
Canadian Lender to Canada Safeway for any reason) in accordance with the
provisions of subsection 4.7B. Any such payment by Canada Safeway to Primary
Documentation Agent shall satisfy Canada Safeway obligations under the
Acceptance to which it relates and any such Canadian Lender which has accepted
such Acceptance shall thereafter be solely responsible for the payment of such
Acceptance and shall indemnify and hold Canada Safeway harmless against any
liabilities, costs or expenses incurred by Canada Safeway as a result of any
failure by such Canadian Lender to pay such Acceptance in accordance with its
terms.
4.11 USE OF PROCEEDS OF LOANS AND ACCEPTANCE FACILITY.
The proceeds of any Acceptance created under this Section 4
shall be used in the manner and for the purposes set forth in subsection 2.5A
with respect to the use of proceeds of Loans.
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SECTION 5. INCREASED COSTS, TAXES, CAPITAL ADEQUACY, AND MITIGATION
5.1 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 5.1B, in the event that any Lender shall determine
(which determination shall, absent manifest or demonstrable error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective or is adopted after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Excluded Tax) with
respect to, or changes the basis of taxation applicable to (except for
changes in the rate of any Excluded Tax), this Agreement or any of its
obligations hereunder (including, without limitation, its obligation to
make Loans, issue or participate in Letters of Credit, or accept Drafts
and purchase the Acceptances thereby created) or any payments to such
Lender (or its applicable lending office) of principal, interest, fees,
letter of credit commissions, the Face Amounts of any Acceptances, or
any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement (including, without limitation, any
such requirement imposed under the Bank Act (Canada) with respect to
Tranche A Canadian Eurodollar Rate Loans, but excluding any such
reserve or other requirements that are reflected in the definition of
Adjusted Eurodollar Rate with respect to Tranche A Domestic Eurodollar
Rate Loans or Tranche B Domestic Eurodollar Rate Loans or that are
reflected in the definition of Canadian Eurodollar Rate with respect to
Tranche A Canadian Eurodollar Rate Loans) against assets held by, or
deposits or other liabilities in or for the account of, or advances or
loans by, or other credit extended by, or any other acquisition of
funds by, any office of such Lender (including, without limitation, the
Commitments, Loans, Letters of Credit or participations in Letters of
Credit and Acceptances of such Lender); or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations
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hereunder, its Loans, its Letters of Credit and participations therein,
its Acceptances or the interbank Eurodollar market;
and the result of any of the foregoing is (1) to increase the cost to such
Lender of agreeing to make, making or maintaining Loans hereunder, (2) to
increase the cost to such Lender of agreeing to issue, issuing or maintaining
any Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein, (3) to increase the cost to such Lender of agreeing to
accept Drafts and to purchase and maintain the Acceptances created thereby, or
(4) to reduce any amount received or receivable by such Lender (or its
applicable lending office) with respect to its Loans, Letters of Credit and
participations therein and its Acceptances; then, in any such case, Borrowers
shall promptly pay to such Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder; provided that such Lender shall not be
entitled to avail itself of the benefits of this subsection 5.1A to the extent
that any such increased cost or reduction was incurred more than six months
prior to the time it gives notice to Borrowers unless such circumstances arose
or became applicable retrospectively, in which case no time limit shall apply
(provided such Lender has notified the applicable Borrower within six months
from the date such circumstance arose or became applicable). Such Lender shall
deliver to Borrowers (with a copy to Primary Documentation Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 5.1A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest or demonstrable error.
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by
any Borrower to any Lender under this Agreement and the other Loan
Documents shall be paid free and clear of and (except to the extent
required by law or resulting from a breach of the exemption
requirements specified in subsection 5.1B(iii) below or the fact that
the exemption forms delivered by such Lender pursuant to subsection
5.1B(iii) were not true and correct) without any deduction or
withholding on account of any Tax (other than any Excluded Taxes
relating to such Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or Canada or any
political subdivision in or of the United States of America or Canada
or any other jurisdiction from or to which a payment is made by or on
behalf of any Borrower or by any federation or organization of which
the United States of America or Canada or any such jurisdiction is a
member at the time of payment.
(ii) Grossing-up of Payments. If any Borrower is required
by law to make any deduction or withholding on account of any such Tax
(other than
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Excluded Taxes) from any sum paid or payable by such Borrower to any
Primary Agent or any Lender under any of the Loan Documents:
(a) such Borrower shall notify each Primary Agent of any
such requirement or any change in any such requirement as soon
as such Borrower becomes aware of it;
(b) such Borrower shall pay any such Tax before the date
on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on any Primary Agent
or any Lender, as the case may be) on behalf of and in the name
of such Primary Agent or such Lender, as the case may be;
(c) the sum payable by such Borrower in respect of which
the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment,
such Primary Agent or such Lender, as the case may be, receives
on the due date a net sum equal to what it would have received
had no such deduction, withholding or payment been required or
made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, such Borrower shall
deliver to each Primary Agent evidence reasonably satisfactory
to the other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing or
other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each
other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate
of such deduction, withholding or payment from that in effect at the
date of this Agreement or at the date of such Assignment Agreement, as
the case may be, in respect of payments to such Lender.
In the event any Borrower is required to pay any amount under
clause (b) or (c) above, such Borrower may do so under protest and may
contest the imposition or amount of any Tax giving rise to such
payment, and each Lender agrees, at such Borrower's cost and expense,
to cooperate with and assist such Borrower in any proceeding related to
any such contest.
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(iii) Evidence of Exemption from Withholding Tax.
(a) Each Domestic Lender and each Canadian Lender that
makes Loans to any Domestic Borrower, which in either case is organized
under the laws of any jurisdiction other than the United States, any
state thereof or any political subdivision of either (for purposes of
this subsection 5.1B(iii), a "NON-US LENDER") shall deliver to Primary
Documentation Agent for transmission to Company, on or prior to the
Closing Date (in the case of each Lender listed on the signature pages
hereof) or on the date of the Assignment Agreement pursuant to which it
becomes a such Lender (in the case of each other Lender), and at such
other times as may be necessary in the determination of Company or
Primary Documentation Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder or otherwise to establish that such
Lender is not subject to deduction or withholding of Taxes imposed by
the United States, any State thereof or any political subdivision of
either with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan Documents
or (2) if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(1) above, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender, together with any
other certificate or statement of exemption required under the Internal
Revenue Code or the regulations issued thereunder or otherwise to
establish that such Lender is not subject to deduction or withholding
of Taxes imposed by the United States, any state thereof or any
political subdivision of either with respect to any payments to such
Lender of interest payable under any of the Loan Documents.
Each Canadian Lender that is organized under the laws
of any jurisdiction other than Canada or any Province thereof or is not
resident in Canada agrees to deliver to Canada Safeway and Primary
Documentation Agent upon request such certificates, documents or other
evidence as may be required from time to time, properly completed and
duly executed by such Canadian Lender to establish the basis for any
applicable exemption from or reduction of Taxes with respect to any
payments to such Canadian Lender of principal, interest, fees,
commissions or any other amount payable under this Agreement or the
Tranche A Canadian Loans.
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(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal
income tax withholding or Canadian income tax withholding matters
pursuant to subsection 5.1B(iii)(a) hereby agrees, from time to time
after the initial delivery by such Lender of such forms, certificates
or other evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, such Lender shall (1) in the case
of any Domestic Lender or Canadian Lender advancing Loans to any
Domestic Borrower, deliver to Primary Documentation Agent for
transmission to Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case may
be, or in the case of any Canadian Lender,such certificates, documents
or other evidence as may be required from time to time under the second
paragraph of subsection 5.1B(iii)(a), in each case properly completed
and duly executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or establish
that such Lender is not subject to deduction or withholding of United
States or Canadian (as applicable) federal income tax with respect to
payments to such Lender under the Loan Documents or (2) immediately
notify Primary Documentation Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
(c) Borrowers shall not be required to pay any additional
amount to any Non-US Lender or Canadian Lender under clause (b) or (c)
of subsection 5.1B(ii) if such Lender shall have failed to satisfy the
requirements of subsection 5.1B(iii)(a); provided that if such Lender
shall have satisfied such requirements on the Closing Date (in the case
of each Lender listed on the signature pages hereof) or on the date of
the Assignment Agreement pursuant to which it became a Lender (in the
case of each other Lender), nothing in this subsection 5.1B(iii)(c)
shall relieve any Borrower of its obligation to pay any additional
amounts pursuant to clause (b) or (c) of subsection 5.1B(ii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender is
not subject to withholding as described in subsection 5.1B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after
the date hereof of any law, rule or regulation (or any provision thereof)
regarding capital adequacy (excluding those published as of the Closing Date
but scheduled to take effect thereafter), or any change
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therein or in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such Lender's Domestic
Loans, Tranche A Domestic Commitment, Tranche B Domestic Commitment or Letters
of Credit or participations therein or other obligations hereunder with respect
to the Domestic Loans or the Letters of Credit, in the case of any Domestic
Lender, or such Lender's Tranche A Canadian Loans, Tranche A Canadian
Commitment, or Acceptances or other obligations hereunder with respect to the
Tranche A Canadian Loans, or Acceptances, in the case of an Canadian Lender, to
a level below that which such Lender or such controlling corporation could have
achieved but for such adoption, effectiveness, phase-in, applicability, change
or compliance (taking into consideration the policies of such Lender or such
controlling corporation with regard to capital adequacy), then from time to
time, within 15 Business Days after receipt by Company from such Lender of the
statement referred to in the next sentence, Domestic Borrowers (in the case of
any such statement received from a Domestic Lender) or Borrowers (in the case
of any such statement receive from a Canadian Lender) shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction; provided no
Lender shall be entitled to avail itself of the benefit of this subsection 5.1C
to the extent that any such reduction in return was incurred more than six
months prior to the time it first makes a demand therefor, unless the
circumstance giving rise to such reduced return arose or became applicable
retrospectively, in which case no time limit shall apply (provided that such
Lender has notified Borrowers within six months from the date such
circumstances arose or became applicable). Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this
subsection 5.1C, will give prompt written notice thereof to Borrowers, which
notice shall set forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest or demonstrable error.
5.2 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans, or Acceptances of such Lender or Letters of Credit of
such Issuing Lender, as the case may be, becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 5.1 it will, to the extent not inconsistent with the
internal policies of such Lender or Issuing Lender and any applicable legal or
regulatory restrictions, use reasonable efforts (i) to make, issue, fund or
maintain
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the Commitment of such Lender or the affected Loans, Acceptances or Letters of
Credit of such Lender or Issuing Lender through another lending or letter of
credit office of such Lender or Issuing Lender, or (ii) take such other
measures as such Lender or Issuing Lender may deem reasonable, if as a result
thereof the circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender or Issuing Lender pursuant to subsection 5.1
would be materially reduced and if, as determined by such Lender or Issuing
Lender in its sole discretion, the making, issuing, funding or maintaining of
such Commitment, Loans, Acceptances or Letters of Credit through such other
lending or letter of credit office or in accordance with such other measures,
as the case may be, would not otherwise materially adversely affect such
Commitment, Loans, Acceptances or Letters of Credit or the interests of such
Lender or Issuing Lender; provided that such Lender or Issuing Lender will not
be obligated to utilize such other lending or letter of credit office pursuant
to this subsection 5.2 unless each Domestic Borrower (in the case of any
Domestic Lender) or each Borrower (in the case of any Canadian Lender) agrees
to pay all reasonable expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses
payable by Domestic Borrowers or Borrowers pursuant to this subsection 5.2
(setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender or Issuing Lender to Company (with a copy to Primary
Documentation Agent) shall be conclusive absent manifest or demonstrable error.
5.3 REPLACEMENT OF LENDERS.
In the event (i) any Borrower is required under the provisions
of subsection 2.6C or 5.1 to make payments to any Lender, or (ii) any Lender
refuses to consent to a proposed change, waiver, discharge or termination with
respect to this Agreement which has been approved by the Requisite Lenders as
provided in the first sentence of subsection 13.6A, (x) such Borrower may
within 120 days after the date of any notice or demand requiring such payment
under subsection 2.6C or 5.1 is given and so long as no Event of Default shall
have occurred and be continuing, in the case of clause (i) above, and (y)
Company may at any time, so long as no Event of Default shall have occurred and
be continuing, in the case of clause (ii) above, elect to terminate such Lender
(and, if such Lender is a Canadian Lender having a U.S. Affiliate, such U.S.
Affiliate) as a party (or parties) to this Agreement; provided that,
concurrently with such termination, (i) each Borrower shall pay that Lender
(and any U.S. Affiliate of such Lender, if any), without duplication, all
principal, interest and fees and other amounts (including, without limitation,
amounts, if any, owed under subsections 5.1 or 2.6D) owed to such Lender (and
any such U.S. Affiliate) through such date of termination, (ii) another Lender
or Eligible Assignee shall agree, as of such date, to become a Lender for all
purposes under this Agreement (whether by assignment or amendment, if
necessary) and to assume all obligations of the Lender to be terminated as of
such date and (iii) all documents and supporting materials necessary, in the
judgment of Primary Documentation Agent to
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evidence the substitution of such Lender shall have been received and approved
by Primary Documentation Agent as of such date.
SECTION 6. CONDITIONS TO LOANS, LETTERS OF CREDIT AND ACCEPTANCES
The obligations of Lenders to make Loans, to create Acceptances
and to issue and participate in Letters of Credit hereunder and to deem the
Existing Company Letters of Credit to be Letters of Credit issued hereunder are
subject to the satisfaction of the following conditions.
6.1 CONDITIONS TO INITIAL LOANS.
The obligations of Lenders to extend any credit hereunder on
the Closing Date are, in addition to the conditions precedent specified in
subsection 6.2, subject to prior or concurrent satisfaction of the following
conditions:
A. BORROWER DOCUMENTS. On or before the Closing Date, each
Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient copies, where appropriate, for
each Lender) the following, each, unless otherwise noted, dated the Closing
Date:
(i) Certified copies of its Articles or Certificate of
Incorporation, together with a good standing certificate from the
Secretary of State (or comparable official) of its jurisdiction of
incorporation, each dated a recent date prior to the Closing Date;
(ii) Copies of its Bylaws, certified as of the Closing Date
by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is a party, certified as of
the Closing Date by its corporate secretary or an assistant secretary
as being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents to which it is a
party;
(v) Executed originals of this Agreement, the Notes (duly
executed in accordance with subsection 2.1E, drawn to the order of each
Lender and with appropriate insertions) and the other Loan Documents to
which it is a party; and
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(vi) Such other documents as any Primary Agent may
reasonably request.
B. OPINIONS OF COMPANY'S COUNSEL. On or before the Closing Date,
Company shall deliver or cause to be delivered to Lenders (or to Administrative
Agent for Lenders with sufficient copies for each Lender) (i) originally
executed copies of one or more favorable written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
special counsel for Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel of Company,
Dickinson, Wright, Moon, Van Dusen & ▇▇▇▇▇▇▇, special Michigan counsel for
Company and Vons, ▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for Canada Safeway, and M. ▇▇▇▇▇
▇▇▇▇▇▇, Esq., General Counsel for Canada Safeway, each in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of
the Closing Date and setting forth substantially the matters in the opinions
designated in Exhibits VI-A, VI-B, VI-C, VI-D and VI-E annexed hereto and as to
such other matters as Administrative Agent acting on behalf of Lenders may
reasonably request and (ii) evidence satisfactory to Administrative Agent that
Company has requested such counsel to deliver such opinions to Lenders.
C. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders (or
Administrative Agent for Lenders with sufficient copies for each Lender) shall
have received originally executed copies of one or more favorable written
opinions of O'Melveny & ▇▇▇▇▇ LLP, counsel to Administrative Agent, dated as of
the Closing Date, substantially in the form of Exhibit VII annexed hereto and
as to such other matters as Administrative Agent acting on behalf of Lenders
may reasonably request.
D. FEES. Company shall have paid the fees payable on the Closing
Date referred to in subsection 2.3.
E. REPAYMENT OF OBLIGATIONS UNDER EXISTING CREDIT AGREEMENT AND
VONS CREDIT AGREEMENT. On or before the Closing Date, Borrowers shall have
paid in full all amounts outstanding under the Existing Credit Agreement and
the Vons Credit Agreement and shall have terminated all commitments of the
lenders thereunder (except with respect to the Existing Company Letters of
Credit issued pursuant to the Existing Credit Agreement and the letters of
credit issued pursuant to the Vons Credit Agreement, in each case which shall
remain issued notwithstanding the termination of all commitments thereunder).
Without affecting the terms of the Existing Credit Agreement or the Vons Credit
Agreement which expressly survive the termination of the Existing Credit
Agreement or the Vons Credit Agreement, as applicable, each Lender party to the
Existing Credit Agreement or the Vons Credit Agreement, as applicable, hereby
waives any requirement of advance notice of termination required under the
Existing Credit Agreement and the Vons Credit Agreement, as applicable, and
hereby agrees that the Existing Credit Agreement, the Vons Credit Agreement and
the commitments thereunder shall terminate simultaneously with or before the
satisfaction by Borrowers of the conditions to the funding of the initial Loans
set forth in this subsection 6.1 (it being understood that, effective as of the
Closing Date, Vons hereby requests termination of the Vons Credit Agreement).
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F. VONS MERGER AND COMMON STOCK REPURCHASE. On or prior to the
Closing Date, Company shall have provided evidence in form and substance
satisfactory to Administrative Agent that the Vons Merger has been consummated
and that, after the consummation of the Vons Merger, Company has commenced the
Stock Repurchase.
G. NO MATERIAL ADVERSE EFFECT. Since December 28, 1996, no event
shall have occurred, and no condition shall have developed and persist, that
could, in the reasonable opinion of Requisite Lenders have a Material Adverse
Effect other than as disclosed to Lenders in Company's public filings with the
SEC prior to the date hereof (it being understood and agreed that the Vons
Merger and the Stock Repurchase shall not constitute a Material Adverse
Effect).
H. REPRESENTATIONS AND WARRANTIES. Each Borrower shall have
delivered to Administrative Agent an Officers' Certificate, in form and
substance satisfactory to Administrative Agent, to the effect that the
representations and warranties of such Borrower in Section 7 hereof are true,
correct and complete in all material respects on and as of the Closing Date to
the same extent as though made on and as of that date.
I. NO DISRUPTION OF FINANCIAL MARKETS. From February 1, 1997 to
the Closing Date, there shall have occurred no disruption or adverse change in
the financial or capital markets which any Primary Agent, in its reasonable
discretion, deems material.
J. INTERCREDITOR ARRANGEMENTS. Domestic Lenders and Canadian
Lenders shall have entered into arrangements satisfactory to each Primary Agent
and Lenders relating to the sharing of payments received by Lenders upon the
exercise of remedies under this Agreement, including, but not limited to, the
Subsidiary Borrower Guaranty.
K. VONS MERGER AGREEMENT AND STOCK REPURCHASE AGREEMENT. On or
before the Closing Date Company shall deliver or cause to be delivered to
Lenders (or to Administrative Agent for Lenders with sufficient copies for each
Lender) a fully executed or conformed copy of each of the Vons Merger Agreement
and any amendments thereto and the Stock Repurchase Agreement and any
amendments thereto accompanied by an Officers' Certificate to the effect that
each of the Vons Merger Agreement and the Stock Repurchase Agreement are in
full force and effect and no material provision thereof has been modified or
waived in any respect.
L. EXISTING COMPANY LETTERS OF CREDIT. All accrued and
outstanding fees as of the Closing Date with respect to the Existing Company
Letters of Credit shall have been paid to the applicable Lender to which such
fees are payable pursuant to the terms governing such Existing Company Letters
of Credit prior to the Closing Date.
M. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby
and all documents
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incidental thereto not previously found acceptable by each Primary Agent,
acting on behalf of Lenders, and their counsel shall be reasonably satisfactory
in form and substance to each Primary Agent and such counsel, and each Primary
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as such Primary Agent may reasonably
request.
6.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. Primary Documentation Agent shall have received before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by any executive
officer or vice president of the applicable Borrower (each such person being a
"AUTHORIZED OFFICER").
B. As of that Funding Date:
(i) The representations and warranties contained herein
and in the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same extent
as though made on and as of that date, except to the extent that
changes in the facts and circumstances on which such representations
and warranties are based are required or permitted under this
Agreement;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) The applicable Borrower shall have performed in all
material respects all agreements and satisfied all conditions which
this Agreement provides shall be performed or satisfied by it on or
before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator
or governmental authority shall purport to enjoin or restrain Lenders
from making the Loans to be made on that Funding Date;
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation, Regulation G,
Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System; and
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(vi) There shall not be pending or, to the knowledge of
Borrowers, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries that
has not been disclosed by Company in writing pursuant to subsection 7.6
or 8.1(viii) prior to the making of the last preceding Loans (or, in
the case of the initial Loans, prior to the execution of this
Agreement), and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either event, in
the opinion of any Primary Agent or of Requisite Lenders, would be
expected to have a Material Adverse Effect.
6.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Primary Documentation Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), an originally executed Notice of Issuance of
Letter of Credit, in each case signed by an Authorized Officer, together with
all other information specified in subsection 3.1B(i) and such other documents,
agreements or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 6.2B shall be satisfied to the
same extent as if the issuance of such Letter of Credit were the making of a
Loan and the date of issuance of such Letter of Credit were a Funding Date.
6.4 CONDITIONS TO ACCEPTANCES.
The creation of any Acceptance hereunder is subject to the
following conditions precedent:
A. On or before the date of the initial creation of any Acceptance
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of the creation of any Acceptance,
Primary Documentation Agent shall have received, in accordance with the
provisions of subsection 4.2, an originally executed Drawing Notice, in each
case signed by any executive officer or
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vice president of Canada Safeway and acknowledged by any Authorized Officer of
Company.
C. On the date of the creation of any Acceptance, all conditions
precedent described in subsection 6.2B shall be satisfied to the same extent as
if the creation of such Acceptance were the making of a Loan and the Drawing
Date were a Funding Date.
SECTION 7. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement, to
make the Loans and/or create any Acceptance, to induce Issuing Lenders to issue
Letters of Credit and to induce other Domestic Lenders to purchase
participations therein, each Borrower represents and warrants to each Lender
(which representations and warranties in the case of Canada Safeway and Vons
shall be limited to Canada Safeway and Vons and their respective Subsidiaries
and shall exclude the representations and warranties set forth in subsection
7.9), on the date of this Agreement, on each Funding Date, Drawing Date and on
the date of issuance of each Letter of Credit, that the following statements
are true, correct and complete:
7.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING AND BUSINESS.
A. ORGANIZATION AND POWERS. Each of the Loan Parties is a
corporation duly incorporated, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation. Each of the Loan Parties
has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted, to enter into each Loan
Document to which it is a party and to carry out the transactions contemplated
hereby and thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified
to do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had and will not have a Material Adverse Effect.
7.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of each of the Loan Documents by each of the Loan Parties party
thereto have been duly authorized by all necessary corporate action on the part
of such Loan Parties.
B. NO CONFLICT. The execution, delivery and performance by each
of the Loan Parties of the Loan Documents to which it is a party and the
consummation of the transactions contemplated by the Loan Documents do not and
will not (i) violate any
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provision of any law or any governmental rule or regulation applicable to any
Loan Party, the Certificate or Articles of Incorporation or Bylaws of any Loan
Party or any order, judgment or decree of any court or other agency of
government binding on any Loan Party, (ii) conflict with, result in a material
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of any Loan Party except Indebtedness of Vons
incurred prior to the consummation of the Vons Merger and listed on Schedule
7.2B annexed hereto and not exceeding $30,000,000 in aggregate principal
amount, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Loan Party, or (iv) require any approval
of stockholders or any approval or consent of any Person under any Contractual
Obligation of any Loan Party, except for such approvals or consents which will
be obtained on or before the Closing Date and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by each of the Loan Parties of the Loan Documents to which it is a party and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require such Loan Party to make or obtain any registration with,
consent or approval of, or notice to, or other action to, with or by, any
United States federal, Canadian Federal, state, provincial or other
governmental authority or regulatory body.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by each of the Loan Parties party thereto and is the
legally valid and binding obligation of each such Loan Party, enforceable
against each such Loan Party in accordance with its respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
7.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the audited consolidated balance sheet of Company and its Subsidiaries
as at December 28, 1996 and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended, in each case as presented in Company's Annual Report on
SEC Form 10-K for its 1996 fiscal year. All such statements were prepared in
conformity with GAAP and fairly present the financial position (on a
consolidated basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and cash flows
(on a consolidated basis) of the entities described therein for each of the
periods then ended.
7.4 NO MATERIAL ADVERSE EFFECT.
Since December 28, 1996, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect other than as
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disclosed to Lenders in Company's public filings with the SEC prior to the date
hereof (it being understood and agreed that the Vons Merger and the Stock
Repurchase shall not constitute a Material Adverse Effect).
7.5 LITIGATION; ADVERSE FACTS.
Except as set forth in Company's Annual Report on SEC Form 10-K
for its 1996 fiscal year and Company's 1996 Annual Report to Stockholders,
there are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that, individually or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect.
Neither Company nor any of its Subsidiaries is (i) in violation of any
applicable laws that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect or (ii) subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect.
7.6 PAYMENT OF TAXES.
Except to the extent permitted by subsection 8.3, all material
tax returns and reports of Company and its Subsidiaries required to be filed by
any of them have been timely filed, and all material taxes, assessments, fees
and other governmental charges upon Company and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable.
7.7 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other United States federal, Canadian federal, state or provincial
statute or regulation which may limit its ability to incur or guaranty
Indebtedness.
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7.8 SECURITIES ACTIVITIES.
A. Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not
more than 25% of the value of the assets (either of Company only or of Company
and its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 9.1 or 9.4 or subject to any restriction contained in any agreement
or instrument between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 10.2, will be
Margin Stock.
7.9 EMPLOYEE BENEFIT PLANS.
A. Company and each of its ERISA Affiliates are in compliance
in all material respects with all applicable provisions and requirements of
ERISA and the regulations and published interpretations thereunder with respect
to each Employee Benefit Plan, and have performed all their material
obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to
occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or as disclosed in Company's financial statements, no
Employee Benefit Plan that is not a Multiemployer Plan provides health or
welfare benefits (through the purchase of insurance or otherwise) for any
retired or former employees of Company or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan,
the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18)
of ERISA), individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $50,000,000.
7.10 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of
Company or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement, as of the date made, contained any untrue
statement of a material fact or omitted to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to
make the statements contained herein or therein not misleading in light of the
circumstances in
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which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by Company to be reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known to
Company (other than matters of a general economic nature) that, individually or
in the aggregate, would reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
7.11 SOLVENCY.
At the making of any Tranche A Canadian Loan, or utilization of
the Acceptance Facility, by Canada Safeway, it will be Solvent.
SECTION 8. BORROWERS' AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees (which covenants and
agreements, in the case of Canada Safeway and Vons, shall be limited to those
covenants and agreements that are within the control and discretion of Canada
Safeway and Vons, respectively, and their respective Subsidiaries) that, so
long as the Commitments hereunder shall remain in effect and until payment in
full of all of the Loans, Acceptances and other Obligations and the
cancellation or expiration of all Letters of Credit, unless Requisite Lenders
shall otherwise give prior written consent, each Borrower shall perform, and
shall cause each of its Subsidiaries to perform, all covenants in this Section
8.
8.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower shall maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Company shall deliver to Primary
Documentation Agent and Lenders:
(i) Quarterly Financials: As soon as available and in any
event within 45 days after the close of each of the first three fiscal
quarters in each fiscal year of Company, to the extent prepared to
comply with SEC requirements, a copy of Company's report on SEC Form
10-Q filed with the SEC for such fiscal quarter, or, if no such Form
10-Q was filed by Company, the unaudited consolidated condensed balance
sheet of Company and its Subsidiaries as at the end of such fiscal
quarter, the related unaudited consolidated
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condensed statements of income of Company and its Subsidiaries for such
fiscal quarter and for the elapsed portion of the fiscal year ended as
of the end of such fiscal quarter and the related unaudited
consolidated condensed statement of cash flows of Company and its
Subsidiaries for the elapsed portion of the fiscal year ended as of the
end of such fiscal quarter, in each case setting forth the comparative
consolidated figures for the corresponding periods in the prior fiscal
year of Company or, in the case of such consolidated balance sheet, for
the last day of the corresponding fiscal quarter in the prior fiscal
year of Company, all of which shall be certified by the chief financial
officer of Company as fairly presenting the consolidated financial
condition of Company and its Subsidiaries at the respective dates
indicated and the results of their consolidated operations and cash
flows for each of the periods indicated, subject to changes resulting
from audit and normal year-end adjustments;
(ii) Year-End Financials: as soon as available and in any
event within 90 days after the end of each Fiscal Year, to the extent
prepared to comply with SEC requirements, a copy of Company's report on
SEC Form 10-K filed with the SEC for such fiscal year, or, if no such
Form 10-K was filed by Company, the consolidated balance sheet of
Company and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for such Fiscal Year, in
each case setting forth the comparative figures for the previous Fiscal
Year and certified by independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Primary Agents, whose opinion shall be unqualified as to the scope of
audit or as to the ability of Company and its Subsidiaries to continue
as a going concern and shall state that such consolidated financial
statements fairly present the consolidated financial position of
Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated in
conformity with GAAP and that the audit by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officers'
Certificate of Company stating that the signers have reviewed the terms
of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
condition of Company and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence as at the
date of such Officers' Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event existed or exists, specifying the nature
and period of existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail
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compliance during and at the end of the applicable accounting periods
with the restrictions contained in subsections 9.1, 9.2 and 9.3;
(iv) Pricing Level Determination Certificates: (a)
together with each delivery of financial statements of Company and its
Subsidiaries pursuant to subdivisions (i) and (ii) above, (b) within
one Business Day after any public release by S&P or Moodys lowering its
credit rating on any of Company's outstanding senior unsecured
Indebtedness, and (c) at such additional times as Company may elect, a
Pricing Level Determination Certificate; provided that no such Pricing
Level Determination Certificate need be delivered pursuant to clause
(a) above with respect to Company's financial statements for the first
and second fiscal quarters of 1997.
(v) Accountants' Certification: together with each
delivery of consolidated financial statements of Company and its
Subsidiaries pursuant to subdivision (ii) above, a written statement by
the independent certified public accountants giving the report thereon
(a) stating that their audit has included a review of the terms of this
Agreement insofar as they relate to financial and accounting matters
and (b) stating whether, in connection with their audit examination,
any condition or event that constitutes an Event of Default or
Potential Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature
and period of existence thereof; provided that such accountants shall
not be liable by reason of any failure to obtain knowledge of any such
Event of Default or Potential Event of Default that would not be
disclosed in the course of their audit;
(vi) SEC Filings and Earnings Releases: promptly upon
their becoming available, copies of (a) annual reports and proxy
statements sent or made available by Company to its security holders or
by any Subsidiary of Company to its security holders other than Company
or another Subsidiary of Company, (b) all reports and registration
statements of Company or its Subsidiaries filed with the SEC on SEC
Forms ▇-▇, ▇-▇, ▇-▇ and 8-K, (c) all press releases concerning
Company's earnings made available generally by Company or any of its
Subsidiaries to the public and (d) such other filings with the SEC or
any other regulatory agency having jurisdiction over the affairs of
Company and its Subsidiaries as any Primary Agent may reasonably
request;
(vii) Events of Default, etc.: promptly upon any executive
officer, the vice president-treasurer or the vice president- corporate
accounting of any Borrower obtaining knowledge (a) of any condition or
event that constitutes an Event of Default or Potential Event of
Default, or becoming aware that any Lender has given any notice (other
than to any Primary Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, or (b) of the
occurrence
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of any event or change that has caused or evidences, either in any case
or in the aggregate, a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action
taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action such Borrower has taken, is taking and proposes to take
with respect thereto;
(viii) Litigation or Other Proceedings: promptly upon any
executive officer of any Borrower obtaining knowledge of (X) the
institution of, or non-frivolous threat of, any action, suit,
proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting Company
or any of its Subsidiaries or any property of Company or any of its
Subsidiaries (collectively, "PROCEEDINGS") not previously disclosed in
writing by any Borrower to Lenders or (Y) any material development in
any Proceeding, that, in either case, has a reasonable possibility of
giving rise to a Material Adverse Effect, written notice thereof
together with such other information as may be reasonably available to
Borrowers to enable Lenders and their counsel to evaluate such matters;
and
(ix) Other Information: with reasonable promptness, such
other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by any
Lender.
8.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 9.4, each Borrower shall,
and shall cause each of its Subsidiaries (other than Unrestricted Subsidiaries)
to, at all times preserve and keep in full force and effect its corporate
existence and all rights and franchises material to its business; provided that
nothing in this subsection 8.2 shall prevent the withdrawal by Company or any
of its Subsidiaries of qualification to do business as a foreign corporation in
any jurisdiction where such withdrawal would not reasonably be expected to have
a Material Adverse Effect.
8.3 PAYMENT OF TAXES AND CLAIMS.
Each Borrower shall, and shall cause each of its Subsidiaries
to, pay all material taxes, assessments and other governmental charges imposed
upon it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all material
claims (including, without limitation, claims for labor, services, materials
and supplies) for sums that have become due and payable and that by law have or
may become a Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided that no
such charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
such reserve or other appropriate
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provision, if any, as shall be required in conformity with GAAP shall have been
made therefor.
8.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Each Borrower shall, and shall cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all material properties used or
useful in the business of such Borrower and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof. The Company will, and will cause each Subsidiary to,
maintain insurance (including self-insurance) in such amounts and covering such
risks as is customarily carried or maintained under similar circumstances by
corporations engaged in similar businesses.
8.5 INSPECTION.
Each Borrower shall, and shall cause each of its Subsidiaries
to, permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of Company or any of its Subsidiaries, including
its and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants (provided that
Company may, if it so chooses, be present at or participate in any such
discussion), all upon reasonable notice and at such reasonable times during
normal business hours and as often as may be reasonably requested.
8.6 COMPLIANCE WITH LAWS, ETC.
Each Borrower shall, and shall cause each of its Subsidiaries
to, comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which would reasonably
be expected to result in a Material Adverse Effect.
8.7 COMPLETION OF STOCK REPURCHASE.
Company shall, not later than two Business Days after the
Closing Date, provide evidence in form and substance satisfactory to
Administrative Agent that the Stock Repurchase has been completed.
SECTION 9. BORROWERS' NEGATIVE COVENANTS
Each Borrower covenants and agrees (which covenants and
agreements, in the case of Canada Safeway and Vons shall be limited to those
covenants and agreements that are within the control and discretion of Canada
Safeway and Vons, respectively, and
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their respective Subsidiaries) that, so long as the Commitments hereunder shall
remain in effect and until payment in full of all of the Loans, Acceptances and
other Obligations and the cancellation or expiration of all Letters of Credit,
unless Requisite Lenders shall otherwise give prior written consent, such
Borrower shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Section 9.
9.1 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Each Borrower shall not, and shall
not permit any of its Subsidiaries (other than Unrestricted Subsidiaries) to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable, but excluding any of
Company's Common Stock repurchased in the Stock Repurchase or otherwise
acquired with the proceeds of Loans and not retired or canceled by Company
(such Company's Common Stock being "REPURCHASED STOCK")) of such Borrower or
any such Subsidiary, whether now owned or hereafter acquired, or any income or
profits therefrom, or file or permit the filing of, or permit to remain in
effect, any financing statement or other similar notice of any Lien with
respect to any such property, asset, income or profits under the Uniform
Commercial Code of any State or under any similar recording or notice statute,
except:
(i) Permitted Encumbrances;
(ii) Liens existing as of the Closing Date (including Liens
on assets of Vons and its Subsidiaries existing as of the date of the
Vons Merger) securing Indebtedness in an aggregate amount not exceeding
the principal amount of the Indebtedness or related commitment secured
by such Liens on the Closing Date;
(iii) Liens arising pursuant (a) to purchase money mortgages
securing Indebtedness representing the purchase price (or financing of
the purchase price within 180 days after the respective purchase) of
property or other assets acquired by Company or any of its Subsidiaries
(including, without limitation, Liens arising under Capital Leases) or
(b) mortgages or security agreements securing financing incurred to
refurbish, renovate or otherwise improve existing assets, provided, in
any event, that (1) any such Liens attach only to the assets so
purchased, refurbished, renovated or improved, and (2) the principal
amount of Indebtedness secured by any such Lien is neither greater than
100% nor less than 70% of the purchase price of the assets being
purchased or the fair market value of the assets being refurbished,
renovated or improved (determined in Company's reasonable judgment so
as to give effect to such refurbishment, renovation or improvement), as
applicable;
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(iv) Liens existing on specific tangible assets at the time
acquired (including by acquisition, merger or consolidation) by Company
or any of its Subsidiaries or on assets of a Person at the time such
Person first becomes a Subsidiary of Company, provided that (a) any
such Liens were not created at the time of or in contemplation of the
acquisition of such assets or Person by Company or any of its
Subsidiaries, (b) in the case of any such acquisition of a Person other
than Casa Ley, any such Lien attached only to specific tangible assets
of such Person and not assets of such Person generally, and (c) in
Company's reasonable judgment the Indebtedness secured by any such Lien
does not exceed 100% of the fair market value of the asset to which
such Lien attaches, determined at the time of the acquisition of such
asset or the time at which such Person first becomes a Subsidiary, as
the case may be;
(v) Liens securing extensions, renewals or refinancings of
any Indebtedness secured by Liens permitted under any of the preceding
clauses (i), (ii), (iii) and (iv) of this subsection 9.1A provided that
the principal amount of any such Indebtedness (a) is not increased over
the principal amount outstanding at the time of any such extension or
renewal and (b) is not secured by Liens on any additional assets,
except that all or any portion of the aggregate amount of the
Indebtedness described in such clauses (i), (ii), (iii) or (iv) may be
extended, renewed or refinanced in a single financing that does not
increase the aggregate principal amount of such Indebtedness but which
may provide for cross-collateralization with respect to property and
assetstheretofore encumbered to secure all or any portion of the
Indebtedness being extended, renewed or refinanced;
(vi) Liens on assets substituted for assets theretofore
encumbered pursuant to Liens permitted pursuant to the preceding
clauses (i), (ii), (iii), (iv) and (v) of this subsection 9.1A to
secure the Indebtedness or obligations theretofore secured provided
that the fair market value of such assets at the time such Liens are
created, as reasonably determined by Company, shall not exceed the fair
market value of such previously encumbered assets for which such assets
have been substituted;
(vii) Liens on Company's and its Subsidiaries' accounts
receivable securing receivable securitizations and similar receivable
financing programs;
(viii) Liens on assets of Company's Subsidiaries securing
Indebtedness owed to Company or any of its Wholly-Owned Subsidiaries;
provided that the holder of such secured Indebtedness may not transfer
any such secured Indebtedness to any Person other than Company or a
Wholly-Owned Subsidiary of Company unless, upon giving effect to such
transfer, such Liens would be permitted under the provisions of this
subsection 9.1A (other than this clause (viii)); and
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(ix) Other Liens securing Indebtedness in an aggregate
amount not to exceed 5% of the Book Value of the consolidated tangible
assets of Company and its Subsidiaries (other than Unrestricted
Subsidiaries) at any time.
B. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein, each Borrower will not, and will not
permit any of its Subsidiaries (other than Unrestricted Subsidiaries) to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary's
capital stock owned by Company, such Borrower or any other Subsidiary of
Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Company, such Borrower or any other Subsidiary of Company, (iii) make loans or
advances to Company, such Borrower or any other Subsidiary of Company, or (iv)
transfer any of its property or assets to Company, such Borrower or any other
Subsidiary of Company, except for such restrictions or encumbrances existing by
reason of (a) any restrictions existing under any of the Loan Documents, the
Subordinated Securities or any other agreements or contracts in effect on the
Closing Date (including any agreement of Vons or its Subsidiaries existing on
the date of the Vons Merger) or any restrictions under any Subordinated
Indebtedness, provided that such restrictions are no less favorable to Company
than those under the Subordinated Securities, (b) any restrictions with respect
to a Subsidiary that is not a Subsidiary on the Closing Date under any
agreement in existence at the time such Subsidiary becomes a Subsidiary of
Company, (c) any restrictions with respect to a Subsidiary of Company imposed
pursuant to an agreement which has been entered into for the sale or
disposition of all or substantially all of the capital stock or assets of such
Subsidiary, (d) any restrictions with respect to any Subsidiary of Company all
or substantially all of whose assets consist of property encumbered by Liens
permitted under subsection 9.1A, (e) restrictions imposed by applicable laws,
(f) restrictions under leases of, or mortgages and other agreements relating to
Liens on, specified property or assets limiting or prohibiting transfers of
such property or assets (including, without limitation, non-assignment clauses,
due-on-sale clauses and clauses prohibiting junior Liens), and (g) any
restrictions existing under any agreement that amends, refinances or replaces
any agreement containing restrictions permitted under the preceding clauses (a)
through (f) provided that the terms and conditions of any such agreement are no
less favorable to Company than those under the agreement so amended, refinanced
or replaced.
9.2 RESTRICTED JUNIOR PAYMENTS.
Company shall not directly or indirectly (i) declare or pay any
dividend or make any distribution on Capital Stock of Company or to the holders
of its Capital Stock (other than dividends or distributions payable in
Company's Common Stock or in shares of Capital Stock of the same class held by
such holders or in options, warrants or other rights to purchase Company's
Common Stock or such Capital Stock) or (ii) purchase, redeem or otherwise
acquire or retire for value, or permit any Subsidiary of Company to, directly
or
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indirectly, purchase, redeem or otherwise acquire or retire for value, any such
Capital Stock of Company (other than in exchange for Company's Common Stock or
options, warrants or other rights to purchase Company's Common Stock or such
Capital Stock) or (iii) make, or permit any Subsidiary to make, any Investment
in any Unrestricted Subsidiary (other than Permitted Investments) (the
foregoing actions set forth in clauses (i), (ii) and (iii) being referred to as
"RESTRICTED JUNIOR PAYMENTS") if at the time of such Restricted Junior Payment
(a) an Event of Default with respect to Section 9.3 shall have occurred and be
continuing or would result from the making of such Restricted Junior Payment,
or (b) such Restricted Junior Payment is prohibited under the terms of any
indentures (as amended from time to time) of Company executed in connection
with the Subordinated Securities or other Subordinated Indebtedness (unless
such terms are waived by the requisite holders of such securities or
indebtedness or such Restricted Junior Payment is consented to by such
holders). The restrictions on the making of Restricted Junior Payments set
forth in clause (b) above shall not be applicable so long as the aggregate
amount of the Subordinated Indebtedness outstanding is less than $250,000,000.
For purposes of this subsection 9.2, an Unrestricted Subsidiary shall not be
deemed to be a Subsidiary of Company. The provisions of this subsection 9.2
shall not be violated by reason of (x) the payment of any dividend within 60
days after the date of declaration thereof, if at such date of declaration such
payment would comply with the provisions of this subsection 9.2, (y) the
payment of dividends on Company's Common Stock of up to 6% per annum of the
aggregate net proceeds received by Company in the initial public offering of
such stock in April, 1990 and any public offerings of such stock subsequent to
such initial public offering and (z) the repurchase of Capital Stock of Company
from Management Investors pursuant to the terms of the subscription and option
agreements under which such Management Investors have purchased or will
purchase Company's Capital Stock as in effect from time to time.
9.3 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Borrowers shall not permit
the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest
Expense, in each case for any four-fiscal quarter period ending as of the last
day of any fiscal quarter of Company, to be less than 2.00:1.00.
B. MAXIMUM LEVERAGE RATIO. Borrowers shall not permit the ratio
of (i) Consolidated Total Debt as of the last day of any fiscal quarter of
Company to (ii) Consolidated Adjusted EBITDA for the four-fiscal quarter period
ending as of the last day of any such fiscal quarter to exceed 3.50:1.00.
9.4 RESTRICTION ON FUNDAMENTAL CHANGES; MATERIAL ASSET SALES.
Each Borrower shall not, and shall not permit any of its
Subsidiaries (other than Unrestricted Subsidiaries) to, (A) liquidate, wind-up
or dissolve itself (or suffer any
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liquidation or dissolution), or (B) enter into any transaction of merger or
consolidation, or convey, sell, lease, sub-lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business, property or fixed assets (but excluding any Repurchased Stock),
whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company may be merged or amalgamated
with or into Company or any Wholly-Owned Subsidiary of Company, or be
liquidated, wound up or dissolved into, or all or any part of its
business, property or assets may be conveyed, sold, leased, transferred
or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Wholly-Owned Subsidiary of Company;
provided that, in the case of such a merger, Company, Vons (in the case
of a merger with a Wholly-Owned Subsidiary of Company other than
another Borrower), Canada Safeway (in the case of a merger with a
Wholly-Owned Subsidiary of Company other than another Borrower) or a
Wholly-Owned Subsidiary shall be the continuing or surviving
corporation; and
(ii) subject to the provisions of subsections 9.1, 9.5 and
9.7, Company and its Subsidiaries may convey, lease, sublease,
transfer, sell or otherwise dispose of all or any part of its business,
property or fixed assets, whether now owned or hereafter acquired in
transactions that do not constitute Material Asset Sales; provided that
if Canada Safeway or Vons would cease to be a Wholly-Owned Subsidiary
of Company as the result of such conveyance, sale, transfer or other
disposition, Borrowers shall have taken such actions as are necessary
to terminate and pay all amounts due hereunder with respect to (i) the
Tranche A Canadian Commitments as to Canada Safeway and (ii) the
Tranche A Domestic Commitments and the Tranche B Domestic Commitments
as to Vons prior to or at the time such conveyance, sale, transfer or
disposition becomes effective.
9.5 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5%
or more of any class of Company's Common Stock or with any Affiliate of Company
or of any such holder, on terms that are less favorable to Company or that
Subsidiary, as the case may be, than those that might be obtained at the time
from Persons who are not such a holder or Affiliate; provided that the
foregoing restriction shall not apply to (i) any transaction between Company
and any of its Wholly-Owned Subsidiaries (other than Unrestricted Subsidiaries)
or between any of Company's Wholly-Owned Subsidiaries and any other such
Wholly-Owned Subsidiary (other than an Unrestricted Subsidiary); (ii)
reasonable and customary fees paid to members of the Boards of Directors of
Company and its Subsidiaries; (iii) except as restricted by clause (i),
transactions by Unrestricted Subsidiaries; (iv) transactions approved by a
majority of the
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disinterested directors of Company's or the applicable Subsidiary's, as the
case may be, board of directors; (v) purchases and sales of goods from
retailers and suppliers affiliated with KKR in the ordinary course of business
on terms not materially less favorable than generally available from such
retailers or suppliers; (vi) the payment of an annual fee to KKR for rendering
management and consulting services to Company and reimbursement of expenses in
connection therewith; (vii) transactions relating to nonoperating properties
transferred to PDA or another Person serving in a similar function; (viii)
transactions with banks relating to cash or automated teller machines and cash
advance services; and (ix) loans to officers of Borrowers for business or
personal purposes in an aggregate outstanding principal amount not exceeding
$20,000,000 at any time.
9.6 CONDUCT OF BUSINESS.
From and after the Closing Date, each Borrower shall not, and
shall not permit any of its Subsidiaries (other than Unrestricted Subsidiaries)
to, fundamentally or substantively alter the character of its business from
that conducted by Company and its Subsidiaries (including Vons and its
Subsidiaries on the date of the Vons Merger), taken as a whole, as of such
date.
9.7 UNRESTRICTED SUBSIDIARIES
Company may from time to time deliver to each Primary Agent an
Officers' Certificate designating one or more of its Subsidiaries (other than
Canada Safeway or Vons) as Unrestricted Subsidiaries; provided no Subsidiary
shall be designated as an Unrestricted Subsidiary if, upon giving effect to
such designation, the aggregate Book Value of all assets of all Unrestricted
Subsidiaries would exceed 15% of the Book Value of the consolidated assets of
Company and its Subsidiaries or if doing so would cause an Event of Default
under subsection 9.3. Company will not, and will not permit its Subsidiaries,
including any Unrestricted Subsidiary, to enter into any contract, agreement,
financing or other arrangement that would provide the creditors of any
Unrestricted Subsidiary (including Persons with contingent claims against any
Unrestricted Subsidiary) with any recourse to or against Company or any of its
Subsidiaries (other than Unrestricted Subsidiaries) or any of their respective
assets or revenues. Any Officers' Certificate designating any Unrestricted
Subsidiaries shall show, in reasonable detail, the Book Value of such
Subsidiary's assets and the consolidated assets of Company and its
Subsidiaries, shall provide proforma financial statements demonstrating Company
will continue to be in compliance with subsection 9.3 upon giving effect to
such designation, and shall certify that Company and its Subsidiaries are not
parties to any contract or agreement that would provide any such creditors of
such Subsidiary with recourse to or against Company or any of its Subsidiaries
(other than Unrestricted Subsidiaries) and that no such creditor of such
Subsidiary would have recourse to or against Company or any of its Subsidiaries
(other than Unrestricted Subsidiaries) as a matter of law. Any Person
designated as an Unrestricted Subsidiary in any such Officers' Certificate
shall, without further action,
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become an Unrestricted Subsidiary on the fifth Business Day after each Primary
Agent receives such Officers' Certificate.
Company shall not, and shall not permit any of its Subsidiaries
(other than Unrestricted Subsidiaries) to convey, transfer, sell or otherwise
dispose of any of its assets or properties to any Unrestricted Subsidiary if,
after giving effect thereto, the aggregate Book Value of all assets of all
Unrestricted Subsidiaries would exceed 15% of the Book Value of all assets of
Company and its Subsidiaries.
Company may from time to time deliver to each Primary Agent an
Officers' Certificate changing the designation of an Unrestricted Subsidiary so
that such Subsidiary ceases to be an Unrestricted Subsidiary, which change
shall be effective on the third Business Day after each Primary Agent receives
such Officers' Certificate. Upon effectiveness of such change, such formerly
Unrestricted Subsidiary shall be subject to the provisions of this Agreement
applicable to all other Subsidiaries of Company that are not Unrestricted
Subsidiaries and such formerly Unrestricted Subsidiary shall not maintain any
contract or condition that is not permitted hereunder for any Subsidiary of
Company that is not an Unrestricted Subsidiary regardless of when it first
entered into such contract or permitted such condition to exist.
9.8 VONS MERGER AGREEMENT AND STOCK REPURCHASE AGREEMENT
Company and Vons shall not permit the Vons Merger Agreement or
the Stock Repurchase Agreement to be amended, supplemented or modified in any
material respect after the date hereof without the consent of Requisite
Lenders.
Lenders acknowledge (i) in good faith that they have not relied and will not
rely upon Repurchased Stock as security, direct or indirect, in the extension
or maintenance of the credit facilities under this Agreement and (ii) that
Repurchased Stock shall not be subject to the provisions of subsection 9.1 or
9.4 or subject to any restriction contained in any agreement or instrument
between Company and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of subsection 10.2.
SECTION 10. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur and be continuing:
10.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by any Borrower to pay any installment of principal of
any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by either
Domestic Borrower to pay when
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due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; failure by Canada Safeway to pay to the amount of any
Acceptance at maturity; or failure by any Borrower to pay any interest on any
Loan or any fee or any other amount due under this Agreement within five days
after the date due; or
10.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries (other
than Unrestricted Subsidiaries) to pay when due any principal of or interest on
any items of Indebtedness (other than items of Indebtedness referred to in
subsection 10.1) with an aggregate principal amount of $50,000,000 or more or
beyond the end of any grace period provided therefor; or (ii) breach or default
by Company or any of its Subsidiaries (other than Unrestricted Subsidiaries)
with respect to any other material term of any Indebtedness with an aggregate
principal amount of $50,000,000 or any loan agreement, mortgage, indenture or
other agreement relating to such Indebtedness, if the effect of such breach or
default is to cause, or to permit the holder or holders of that Indebtedness
(or a trustee on behalf of such holder or holders) to cause, that Indebtedness
to become or be declared due and payable prior to its stated maturity (upon the
giving or receiving of notice, lapse of time, both, or otherwise); provided
that in the event that any non-payment described in clause (i) above or any
breach or default described in clause (ii) above is, prior to any acceleration
of the Obligations pursuant to this Section 10, cured or waived by the holders
of such Indebtedness without (a) any consent, waiver or other fee being paid to
such holders, (b) prepayments or theretofore unscheduled reductions of such
Indebtedness, (c) any additional collateral (or if such Indebtedness was
theretofore unsecured, any collateral) being encumbered to secure such
Indebtedness or any additional guaranties thereof (or if such Indebtedness was
not theretofore guarantied, any guaranty thereof), (d) any amendment to or
modification of the terms of such Indebtedness, except any such amendment or
modification as may be necessary to relax the provisions thereof to cure such
non-payment, breach or default, then such non-payment, breach or default shall
not constitute an Event of Default hereunder; or
10.3 BREACH OF CERTAIN COVENANTS.
Failure of any Borrower to perform or comply with any term or
condition contained in subsection 2.5, 8.1(vii) or Section 9 of this Agreement
or the failure of any Borrower to maintain its corporate existence to the
extent required under subsection 8.2 of this Agreement; or
10.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its
Subsidiaries (or deemed to be given in
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connection with any borrowing hereunder) pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material respect on the
date as of which made; or
10.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Borrower shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section
10, and such default shall not have been remedied or waived within 30 days
after receipt by such Borrower of notice from any Primary Agent or any Lender
of such default; or
10.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Borrower or any Material
Subsidiary in an involuntary case under any Insolvency Laws which decree or
order is not stayed; or any other similar relief shall be granted under any
applicable Insolvency Laws; or (ii) an involuntary case shall be commenced
against any Borrower or any Material Subsidiary under any Insolvency Laws; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over any Borrower or any Material
Subsidiary, or over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of any Borrower or any Material Subsidiary
for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of any Borrower or any Material Subsidiary, and any such
event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or
10.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Any Borrower or any Material Subsidiary shall have an
order for relief entered with respect to it or commence a voluntary case under
any Insolvency Laws, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such laws, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or any Borrower or any Material Subsidiary shall make any
assignment for the benefit of creditors; or (ii) any Borrower or any Material
Subsidiary shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of any Borrower or any Material Subsidiary (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
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10.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving in the aggregate at any time an amount in excess of
$50,000,000 (not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company or any of its Subsidiaries other than an Unrestricted
Subsidiary or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of 60 days (or in any event later
than five days prior to the date of any proposed sale thereunder); or
10.9 DISSOLUTION.
Any order, judgment or decree shall be entered against any
Borrower or any Material Subsidiaries decreeing the dissolution or split up of
any Borrower or that Material Subsidiary (which dissolution, in the case of
Canada Safeway, Vons or a Material Subsidiary is not permitted under subsection
9.4) and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
10.10 EMPLOYEE BENEFIT PLANS.
There shall occur any ERISA Event which individually results in
or might reasonably be expected to result in liability of Company or any of its
ERISA Affiliates in excess of $50,000,000 or, if taken together with all other
ERISA Events results in or might reasonably be expected to result in an
aggregate liability of Company or any of its ERISA Affiliates in excess of
$50,000,000 during the term of this Agreement; or there shall exist an amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $50,000,000; or
10.11 INVALIDITY OF SUBSIDIARY BORROWER GUARANTY.
The Subsidiary Borrower Guaranty for any reason, other than the
satisfaction in full of all the "Subsidiary Borrower Obligations" as defined
therein or any written release by the Lenders required under the provisions of
subsection 11.6, ceases to be in full force and effect or is declared to be
null and void, or Company denies that it has any further liability thereunder,
or gives notice to such effect; or
10.12 CHANGE IN CONTROL.
Any Person or any two or more Persons (in either case, other
than KKR, KKR Associates, so long as KKR Associates remains under the control
of KKR, or a Person controlled by KKR or KKR Associates) acting in concert
shall have acquired
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beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Exchange Act), directly or indirectly, of capital
stock of Company (or other securities at the time convertible into capital
stock) representing 35% or more of the combined voting power of all capital
stock of Company entitled to vote in the election of directors, other than
capital stock having such power only by reason of the happening of a
contingency:
THEN (i) upon the occurrence of any Event of Default described in subsection
10.6 or 10.7, each of (a) the unpaid principal amount of and accrued interest
on the Loans, (b) an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), (c) an amount equal to the Face
Amount of all unmatured Acceptances, and (d) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by each Borrower and the obligation of each Lender to make any Loan or
create or purchase any Acceptance, the obligation of Administrative Agent to
issue any Letter of Credit and the right of any Lender to issue any Letter of
Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and
during the continuation of any other Event of Default, Primary Documentation
Agent shall, upon the written request or with the written consent of Requisite
Lenders, by written notice to Company, declare all or any portion of the
amounts described in clauses (a) through (d) above to be, and the same shall
forthwith become, immediately due and payable, and the obligation of each
Lender to make any Loan or create or purchase any Acceptance, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; provided
that the foregoing shall not affect in any way the obligations of Lenders under
subsection 2.1A(iv) or 3.3C(i).
Any amounts described in clauses (b) and (c) above shall be
paid to Administrative Agent and shall be held by Administrative Agent in a
collateral account over which Administrative Agent shall have sole dominion and
control upon terms that are customary to cash collateral accounts maintained
with Administrative Agent, as cash collateral for the obligation of Company and
Vons to reimburse drawings under Letters of Credit and the obligations of
Canada Safeway to pay the amount of such Acceptances at maturity, and upon any
drawing under such a Letter of Credit or the maturity of such an Acceptance,
Administrative Agent shall apply such amounts held pursuant to the terms of the
collateral account agreement to the payment thereof. Each Borrower hereby
grants Administrative Agent a security interest in any such collateral account
held by it and all funds on deposit therein.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans and
Acceptances pursuant to
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such paragraph Borrowers shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of
the principal of and accrued interest on the Loans, in each case which is due
and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to subsection 13.6, then Requisite Lenders, by written notice to
Borrowers, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended to
benefit Borrowers and do not grant Borrowers the right to require Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
SECTION 11. AGENTS
11.1 APPOINTMENT.
BTCo is hereby appointed Administrative Agent and Scotiabank is
hereby appointed Primary Documentation Agent for the purposes of this Agreement
and the other Loan Documents and each Lender hereby authorizes each Primary
Agent to act as its agent in accordance with the terms of this Agreement and
the other Loan Documents. Each Primary Agent agrees to act upon the express
conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 11 are solely for the benefit of
Primary Agents and Lenders and Company shall have no rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and
duties under this Agreement, each Primary Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or
any of its Subsidiaries.
The Borrowers and the Lenders hereby acknowledge and agree that
BofA, in its capacity as a Documentation Agent, the Syndication Agent and the
Agents are neither agents or fiduciaries of any Borrower or any Lender, and
such Persons in such capacities shall have no rights, duties or
responsibilities hereunder or under the other Loan Documents except those
applicable to Lenders generally and except as set forth in subsection 13.1.
11.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes each
Primary Agent to take such action on such Lender's behalf and to exercise such
powers hereunder and under the other Loan Documents as are specifically
delegated to such Primary Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto.
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Each Primary Agent shall have only those duties and responsibilities that are
expressly specified for such Primary Agent in this Agreement and the other Loan
Documents and it may perform such duties by or through its agents or employees.
Neither Primary Agent shall have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon any Primary
Agent any obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Primary Agent shall
be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or
any other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by any Primary Agent to Lenders or by or
on behalf of Company to any Primary Agent or any Lender in connection with the
Loan Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall any Primary Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions (other than those set forth in subsection 6.1), provisions,
covenants or agreements contained in any of the Loan Documents or as to the use
of the proceeds of the Loans or the Acceptances or the use of the Letters of
Credit or as to the existence or possible existence of any Event of Default or
Potential Event of Default.
C. EXCULPATORY PROVISIONS. No Primary Agent nor its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Primary Agent under or in connection with any of the Loan
Documents except to the extent caused by such Primary Agent's gross negligence
or willful misconduct. If any Primary Agent shall request instructions from
Lenders with respect to any act or action (including the failure to take an
action) in connection with this Agreement or any of the other Loan Documents,
such Primary Agent shall be entitled to refrain from such act or taking such
action unless and until such Primary Agent shall have received instructions
from Requisite Lenders or all Lenders, as applicable. Without prejudice to the
generality of the foregoing, (i) each Primary Agent shall be entitled to rely,
and shall be fully protected in relying, upon any communication, instrument or
document believed by such Primary Agent, in good faith, to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii)
no Lender shall have any right of action whatsoever against either Primary
Agent as a result of such Primary Agent acting or (where so instructed)
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of Requisite
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Lenders or all Lenders, as applicable. Each Primary Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it under
this Agreement or any of the other Loan Documents unless and until it has
obtained the instructions of Requisite Lenders or all Lenders, as applicable.
D. PRIMARY AGENTS ENTITLED TO ACT AS LENDER. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, any Primary Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the
Loans, the Acceptances and the Letters of Credit, each Primary Agent shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as though it were not performing the duties and functions delegated to it
hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless
the context clearly otherwise indicates, include each Primary Agent in its
individual capacity. Each Primary Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as
if it were not performing the duties specified herein, and may accept fees and
other consideration from Company and its Subsidiaries for services in
connection with this Agreement and otherwise without having to account for the
same to Lenders.
11.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans, the creation of
Acceptances and the issuance of Letters of Credit hereunder and that it has
made and shall continue to make its own appraisal of the creditworthiness of
Company and its Subsidiaries. No Primary Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter (except such information as is, pursuant to the terms of this
Agreement, required to be circulated by such Primary Agent, to Lenders), and no
Primary Agent shall have any responsibility with respect to the accuracy of or
the completeness of any information provided to Lenders.
11.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Aggregate Pro Rata Share,
severally agrees to indemnify each Primary Agent, to the extent that such
Primary Agent shall not have been reimbursed by Borrowers, for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, but not limited to reasonable
counsel fees and disbursements) or disbursements of any kind or nature what-
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soever which may be imposed on, incurred by or asserted against such Primary
Agent, in performing its duties hereunder or under the other Loan Documents or
otherwise in its capacity as Administrative Agent or Primary Documentation
Agent, in any way relating to or arising out of this Agreement or the other
Loan Documents, as the case may be; provided that no Lender shall be liable to
such Primary Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of such Primary
Agent. If any indemnity furnished to any Primary Agent for any purpose shall,
in the opinion of such Primary Agent be insufficient or become impaired, such
Primary Agent may call for additional indemnity and cease, or not commence, to
do the acts indemnified against until such additional indemnity is furnished.
11.5 SUCCESSOR AGENT.
Administrative Agent or any Documentation Agent may resign at
any time by giving 30 days' prior written notice thereof to Lenders and
Company, and Administrative Agent or any Documentation Agent may be removed at
any time with or without cause by an instrument or concurrent instruments in
writing delivered to Company and Primary Agents and signed by Requisite
Lenders. Upon any such notice of resignation or any such removal, Requisite
Lenders shall have the right, upon five Business Days' notice to Company, to
appoint a successor Administrative Agent, Primary Documentation Agent or
Documentation Agent, as applicable; provided that if such successor shall not
be an Agent, such appointment shall be subject to Company's consent, which
consent shall not be unreasonably withheld; provided, further, that if
Requisite Lenders have not acted to appoint a successor Administrative Agent,
Primary Documentation Agent or Documentation Agent, as applicable, within 30
days after any such notice of resignation or any such removal, then the
remaining Primary Agent or Primary Agents shall appoint such a successor
(subject to Company's consent to such appointment, such consent not to be
unreasonably withheld), and in the event there is no remaining Primary Agent,
Company shall appoint such a successor. Upon the acceptance of any appointment
as Administrative Agent, Primary Documentation Agent or Documentation Agent
hereunder by a successor Administrative Agent, Primary Documentation Agent or
Documentation Agent, as applicable, such successor Administrative Agent,
Primary Documentation Agent or Documentation Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent, Primary Documentation Agent or
Documentation Agent, as applicable, and the retiring or removed Administrative
Agent, Primary Documentation Agent or Documentation Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring or
removed Administrative Agent's, Primary Documentation Agent's or Documentation
Agent's resignation or removal hereunder as Administrative Agent, Primary
Documentation Agent or Documentation Agent, as applicable, the provisions of
this Section 11 shall inure to its benefit as to any actions taken or omitted
to be taken by it
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while it was Administrative Agent, Primary Documentation Agent or Documentation
Agent, as applicable, under this Agreement.
11.6 COLLATERAL ACCOUNT AGREEMENT; SUBSIDIARY BORROWER GUARANTY.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to accept the Subsi diary Borrower
Guaranty and, as secured party on behalf of and for the benefit of Agents and
Lenders, to enter into a collateral account agreement as contemplated by
Section 10 of this Agreement, and agrees to be bound by the terms of any such
collateral account agreement. Anything contained in any of the Loan Documents
to the contrary notwithstanding, each Lender agrees that no Lender shall have
any right individually to realize upon any of the collateral under any such
collateral account agreement or to enforce the Subsidiary Borrower Guaranty, it
being understood and agreed that all rights and remedies under the Subsidiary
Borrower Guaranty and any such collateral account agreement may be exercised
solely by Administrative Agent for the benefit of Agents and Lenders in
accordance with the terms thereof. Administrative Agent will not release
Company from its obligations under the Subsidiary Borrower Guaranty and will
not release any collateral under any such collateral account agreement without
the prior written consent of all Lenders.
SECTION 12. COMPANY GUARANTY OF CERTAIN CREDIT FACILITIES
Company hereby unconditionally guaranties the due and punctual
payment of all obligations of each of Vons and Canada Safeway arising under
this Agreement, any Notes, any Acceptances and any other Loan Documents, in
each case when due, whether by required prepayment, declaration, demand or
otherwise (including amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a) or operation of any stay under applicable Canadian law) (the
"SUBSIDIARY BORROWER OBLIGATIONS"), and agrees to pay any and all costs and
expenses (including fees and disbursements of counsel and reasonable allocated
costs of internal counsel) incurred by any Primary Agent or Lender in enforcing
any rights under this guaranty. For purposes of this Section 12, the
obligations of Company under this Section 12, as they may be amended, modified
or supplemented from time to time, are referred to as its "SUBSIDIARY BORROWER
GUARANTY".
Company agrees that the Subsidiary Borrower Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
it, and that it will remain bound upon this Subsidiary Borrower Guaranty
notwithstanding any extension, renewal or other alteration of any such
Subsidiary Borrower Obligation or any other Obligation.
Company waives presentation of, demand of and protest of any
Subsidiary Borrower Obligation and also waives notice of protest for
nonpayment. The obligations of
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Company under this Subsidiary Borrower Guaranty shall be valid and enforceable
and shall not be subject to any limitation, impairment, or discharge for any
reason (other than payment in full of the Subsidiary Borrower Obligations) and
Company hereby irrevocably waives any defenses it may now or hereafter have in
any way relating thereto, including, without limitation, the occurrence of any
of the following, whether or not Company shall have had notice or knowledge of
any of them:
(a) the failure of any Domestic Lender, Canadian Lender or
any other Lender to assert any claim or demand or to enforce any right
or remedy against Canada Safeway, any Domestic Borrower or any other
Person under the provisions of this Agreement, this Subsi diary
Borrower Guaranty or any other Loan Document,
(b) any extension or renewal of any provision of any
thereof,
(c) any rescission, waiver, amendment or modification of
any of the terms or provisions of this Agreement or any other Loan
Document (other than this Section 12, it being agreed and understood
that any waiver, amendment or modification of this Section 12 shall be
limited exactly as written and shall not, except as expressly written,
affect the obligations of Company under this Subsidiary Borrower
Guaranty),
(d) the failure to perfect any security interest in, or
the release of, any of the security held by any Primary Agent, a
Domestic Lender or any Canadian Lender for the Subsidiary Borrower
Obligations hereby guarantied or any of them or held by any Primary
Agent, a Lender or any other Person for any of the Obligations or any
of them, or
(e) the failure of any Lender to exercise any right or
remedy against any other guarantor of the Subsidiary Borrower
Obligations or the Obligations.
Company further agrees that this Subsidiary Borrower Guaranty
constitutes a guaranty of payment when due and not of collection and waives any
right to require that any resort be had by any Primary Agent or Lender to any
of the security held for payment of the Subsidiary Borrower Obligations or to
any balance of any deposit account or credit on the books of any Primary Agent
or Lender in favor of any Domestic Borrower, Canada Safeway or any other
Person.
The obligations of Company under this Subsidiary Borrower
Guaranty shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise of any of the Subsidiary Borrower
Obligations, and shall not be subject to any defense or set-off, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Subsidiary Borrower Obligations,
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discharge of Vons or Canada Safeway from any of the Subsidiary Borrower
Obligations in a bankruptcy or similar proceeding, or otherwise. Without
limiting the generality of the foregoing, the obligations of Company under this
Subsidiary Borrower Guaranty shall not be discharged or impaired or otherwise
affected by the failure of any Primary Agent or Lender to assert any claim or
demand or to enforce any remedy under this Agreement or any document or
instrument executed by Vons or Canada Safeway in connection therewith, by any
waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Subsidiary Borrower
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
Company or which would otherwise operate as a discharge of Company as a matter
of law or equity.
Company further agrees that this Subsidiary Borrower Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any
Subsidiary Borrower Obligation is rescinded or must otherwise be restored by
any Primary Agent or Lender upon the bankruptcy or reorganization of Vons or
Canada Safeway, any other person or otherwise.
Company further agrees, in furtherance of the foregoing and not
in limitation of any other right which any Primary Agent or Lender may have at
law or in equity against Company by virtue hereof, upon the failure of Vons or
Canada Safeway to pay any of the Subsidiary Borrower Obligations when and as
the same shall become due, whether by required prepayment, declaration, demand
or otherwise (including amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a) or operation of any stay under applicable Canadian law),
Company will forthwith pay, or cause to be paid, in cash, to Administrative
Agent for the ratable benefit of Lenders an amount equal to the sum of the
unpaid principal amount of such Subsidiary Borrower Obligations then due as
aforesaid, accrued and unpaid interest on such Subsidiary Borrower Obligations
(including, without limitation, interest which, but for the filing of a
petition in bankruptcy with respect to Company, would accrue on such Subsidiary
Borrower Obligations) and all other Subsidiary Borrower Obligations then owed
to Primary Agents and Lenders as aforesaid.
Upon payment by Company of any sum to the Administrative Agent
for the ratable benefit of Primary Agents and Lenders as provided above so long
as any of the Subsidiary Borrower Obligations shall remain outstanding
hereunder, all rights of Company against Vons or Canada Safeway arising as a
result thereof, by way of right of subrogation or otherwise, shall in all
respects be subordinate and junior in right of payment to the prior
indefeasible payment in full of all the Subsidiary Borrower Obligations to
Primary Agents and Lenders.
This Subsidiary Borrower Guaranty shall be binding upon Company
and its successors and assigns and shall inure to the benefit of the successors
and assigns of
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Primary Agents and Lenders and, in the event of any transfer and assignment of
rights by a Primary Agent or Lender, the rights and privileges herein conferred
upon such Primary Agent or Lender shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions hereof.
Notwithstanding any provisions of subsection 5.1 to the
contrary, all sums payable by Company under this Subsidiary Borrower Guaranty
shall be paid free and clear of and (except to the extent required by law)
without any deduction or withholding on account of any Tax (other than any
Excluded Tax) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from or to which a payment is made
by or on behalf of Company or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of
payment. If Company is required by law to make any deduction or withholding on
account of any such Tax from any sum paid or payable by Company to any Primary
Agent or any Lender hereunder with respect to any of the Subsidiary Borrower
Obligations and such deduction or withholding would not have been required if
Vons or Canada Safeway were to have paid such Subsidiary Borrower Obligation,
Company agrees, as a separate obligation, to pay such additional amounts to
such Primary Agent or Lender, as the case may be, so that the sum payable by
Company in respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, such Primary Agent or Lender,
as the case may be, receives on the due date of such payment on an after-tax
basis a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made.
SECTION 13. MISCELLANEOUS
13.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to the provisions of this subsection 13.1,
each Lender shall have the right at any time to (i) sell, assign or transfer to
any Eligible Assignee, or (ii) sell participations to any Person in, all or any
part of its Commitments or any Loan or Loans made by it or its Letters of
Credit or participations therein or any other interest herein or in any other
Obligations owed to it; provided that no such sale, assignment, transfer or
participation shall, without the consent of Company, require Company to file a
registration statement with the SEC or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; provided,
further that no such sale, assignment or transfer described in clause (i) above
shall be effective unless and until an Assignment Agreement effecting such
sale, assignment or transfer shall have been accepted by Primary Documentation
Agent and recorded in the Register as provided in subsection 13.1B(ii);
provided, further that no such sale, assignment, transfer or participation of
any Letter of Credit or any participation therein may be made separately from a
sale, assignment,
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transfer or participation of a corresponding interest in the Tranche A Domestic
Commitment and the Tranche A Domestic Loans (other than Tranche A Domestic Swing
Line Loans and Negotiated Rate Loans) of the Lender effecting such sale,
assignment, transfer or participation; and provided, further that no such sale,
assignment, transfer or participation of any Draft or Acceptance or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Tranche A Canadian
Commitment and the Tranche A Canadian Loans (other than Tranche A Canadian Swing
Line Loans of the Lender effecting such sale, assignment, transfer or
participation as permitted herein). Except as otherwise provided in this
subsection 13.1, no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any sale, assignment
or transfer of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein, or
the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment,
Loan, Acceptance, Letter of Credit or participation therein, or other
Obligation may (a) be assigned in any amount to an Eligible Assignee
that is another Lender, or to an Affiliate of the assigning Lender or
another Lender, with the giving of notice to Company and each Primary
Agent or (b) be assigned in an aggregate amount of not less than
$10,000,000 (or such lesser amount as shall constitute the Aggregate
Commitment, Loans, Letters of Credit and participations therein,
Acceptances and other Obligations of the assigning Lender) to any other
Eligible Assignee upon notice to the Primary Documentation Agent and
with the consent of Company and Administrative Agent (which consent of
Company and Administrative Agent shall not be unreasonably withheld);
provided that any such assignment in accordance with either clause (a)
or (b) shall effect an assignment of either (1) a proportionate share
of the Tranche A Domestic Commitment or Tranche B Domestic Commitment
of the assigning Lender and all corresponding Loans and interests in
Letters of Credit (in the case of the Tranche A Domestic Commitment) of
the assigning Lender or (2) except as set forth in the next paragraph
of this subsection, a proportionate share of the Tranche A Canadian
Commitment of the assigning Lender and all corresponding Loans and
Acceptances of the assigning Lender; and provided further that no
assignment of less than all of any Lender's Aggregate Commitment, and
all related Loans, Letters of Credit and participations therein,
Acceptances and other Obligations, shall result in the assigning Lender
having an Aggregate Commitment of less than $20,000,000, in the case of
any Lender other than Administrative Agent, Primary Documentation
Agent, Syndication Agent or any Agent, or $50,000,000 (or such smaller
amount as may be consented to by Company, in its sole discretion), in
the case of Administrative Agent, Primary Documentation Agent,
Syndication Agent or any Agent. To the extent of any such assignment
in accordance with the preceding clause (a) or (b) of this subsection
13.1B, the
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assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein,
Acceptances or other Obligations or the portion thereof so assigned.
Notwithstanding the provisions of the preceding paragraph of
this subsection, any Canadian Lender that is not resident in the United
States of America for withholding tax purposes shall have the option to
assign only its obligation to fund Canadian/U.S. Loans from time to
time upon its receipt of a Notice of Borrowing relating thereto,
together with all of its rights to receive payments of principal of and
interest on such Loans (including any such Canadian/U.S. Loans
theretofore funded and outstanding), to a U.S. Affiliate of such
Canadian Lender (such an assignment, a "CANADIAN/U.S. FUNDING
ASSIGNMENT"); provided no such assignment shall relieve such Canadian
Lender of its obligation to fund Loans (including Canadian/U.S. Loans)
under subsection 2.1A(ii). Any such assignment shall obligate the U.S.
Affiliate of such Canadian Lender to make such loans on behalf of such
Canadian Lender, and Company shall be an express and intended
third-party beneficiary of any such assignment and shall have such
rights and remedies against a U.S. Affiliate of any Canadian Lender
with respect to the funding of any Canadian/U.S. Loan as Company would
have against such Canadian Lender with respect to such Loan. If any
Canadian Lender proposing to make an assignment of its Tranche A
Canadian Commitments, Tranche A Canadian Loans and Acceptances in
accordance with the first paragraph of this subsection 13.1B, has
theretofore entered into a Canadian/U.S. Funding Assignment with its
U.S. Affiliate, such Lender and its U.S. Affiliate shall jointly enter
into such proposed assignment so that the conditions set forth in
clause (b) of the first paragraph of this subsection 13.1B are
satisfied as if such Canadian Lender and its U.S. Affiliate were a
single Lender.
The parties to each such assignment shall execute and deliver
to Primary Documentation Agent, for its acceptance and recording in the
Register, an Assignment Agreement, together with a processing and
recordation fee of $3,000, and in each case with such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Primary
Documentation Agent pursuant to subsection 5.1B(iii)(a); provided that
no such processing or recordation fee shall be payable in connection
with any Canadian/U.S. Funding Assignment, any assignment described in
clause (a) of subsection 13.1B(i) or any assignment undertaken pursuant
to subsection 5.3. Upon such execution, delivery, and acceptance and
recordation, from and after the effective date specified in such
Assignment Agreement, (y) 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 Agreement, shall have
the rights and obligations of a Lender hereunder and (z) except as set
forth with respect to Canadian/U.S. Funding
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Assignments, the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to
such Assignment Agreement, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto); provided no assignment hereunder shall
impair any rights the assigning Lender may have under subsections 2.6D,
3.5A, 5.1, 13.2 or 13.3 with respect to matters arising prior to such
assignment. The Commitments hereunder shall be modified to reflect the
Commitment(s) of such assignee and any remaining Commitments of such
assigning Lender (it being agreed that a Canadian/U.S. Funding
Assignment shall not affect the Tranche A Canadian Commitment of any
Lender) and new Notes shall, if requested by the assignee in accordance
with subsection 2.1E, be issued to the assignee, substantially in the
form of Exhibit IV-A, Exhibit IV-B or Exhibit IV-C annexed hereto, as
applicable, with appropriate insertions.
(ii) Acceptance by Primary Documentation Agent; Recordation
in Register. Upon its receipt of an Assignment Agreement executed by
an assigning Lender and an assignee representing that it is an
Affiliate of the assigning Lender or an Eligible Assignee, together
with (x) the processing and recordation fee referred to in subsection
13.1B(i) (except in the case of a Canadian/U.S. Funding Assignment, any
assignment described in clause (a) of subsection 13.1B(i) or any
assignment undertaken pursuant to subsection 5.3) and (y) any forms,
certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Primary Documentation Agent pursuant to subsection
5.1B(iii)(a), Primary Documentation Agent shall, if such Assignment
Agreement has been completed and is in substantially the form of
Exhibit VIII hereto and if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to subsection 13.1B(i)), (a)
accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent
of Primary Documentation Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt
notice thereof to Company. Primary Documentation Agent shall maintain
a copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 13.1B(ii).
C. PARTICIPATIONS. None of Administrative Agent, Primary
Documentation Agent, Syndication Agent or the Agents shall grant any
participation if, after giving effect thereto, the excess of the Aggregate
Commitment of such Lender over the amount of all participations granted therein
would be less than $25,000,000 unless Company otherwise consents to the
granting of such participation. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such
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Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation or
any letter of credit fees, facility fees or Drawing Fees allocated to such
participation, and all amounts payable by any Borrower hereunder (including
without limitation amounts payable to such Lender pursuant to subsections 2.6D
and 5.1) shall be determined as if such Lender had not sold such participation.
Each Borrower and each Lender hereby acknowledge and agree that, solely for
purposes of subsections 13.4 and 13.5, (a) any participation will give rise to
a direct obligation of the applicable Borrower to the participant and (b) the
participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 13.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank; provided that (i) no Lender shall, as between the
applicable Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in no event
shall such Federal Reserve Bank be considered to be a "Lender" or be entitled
to require the assigning Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 13.19.
13.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents; (ii) all the
reasonable costs of furnishing all opinions by counsel for Borrowers (including
without limitation any opinions requested by Lenders as to any legal matters
arising hereunder) and of Borrowers' performance of and compliance with all
agreements and conditions on their parts to be performed or complied with under
this Agreement and the other Loan Documents; (iii) the reasonable fees,
expenses and disbursements of counsel to Primary Agents (including reasonable
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and the Loans
and any consents, amendments, waivers or other modifications hereto or thereto
and any other documents or matters requested by Borrowers; (iv) all other
actual and reasonable costs and expenses incurred by Primary Agents in
connection with the primary syndication of the Commitments and the
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negotiation, preparation and execution of the Loan Documents and the
transactions contemplated hereby and thereby; and (v) after the occurrence and
during the continuation of an Event of Default, all costs and expenses,
including reasonable attorneys' fees (including allocated costs of internal
counsel) and costs of settlement, incurred by any Primary Agent or any Lender
in enforcing any Obligations of or in collecting any payments due from
Borrowers hereunder or under the other Loan Documents by reason of such Event
of Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
13.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
13.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless each of
Administrative Agent, Documentation Agents, Syndication Agent, Agents,
Co-Arrangers and Lenders, and the officers, directors, employees, agents and
affiliates of each of Administrative Agent, Documentation Agents, Syndication
Agent and Agents, Co-Arrangers and Lenders (collectively called the
"INDEMNITEES") from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including without
limitation the reasonable fees and disbursements of counsel for such
Indemnitees (including reasonable allocated costs of internal counsel) in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto), whether direct,
indirect or consequential and whether based on any federal, state or foreign
laws, statutes, rules or regulations (including without limitation securities
and commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including without limitation
Lenders' agreement to make the Loans hereunder or the use or intended use of
the proceeds of any of the Loans or Acceptances or the issuance of Letters of
Credit hereunder or the use or intended use of any of the Letters of Credit) or
the statements contained in the commitment letter delivered by any Lender to
any Borrower with respect thereto (collectively called the "INDEMNIFIED
LIABILITIES"); provided that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertaking to defend,
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Company
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable
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law to the payment and satisfaction of all Indemnified Liabilities incurred by
the Indemnitees or any of them.
13.4 SET-OFF
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Borrower at any time or from time to time, without notice to such Borrower or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender or any bank
controlling that Lender to or for the credit or the account of such Borrower
against and on account of the obligations and liabilities of such Borrower to
that Lender under this Agreement, any Letters of Credit and participations
therein, any Acceptances and the other Loan Documents, including, but not
limited to, all claims of any nature or description arising out of or connected
with this Agreement, the Letters of Credit and participations therein, the
Acceptances or any other Loan Document, irrespective of whether or not (i) that
Lender shall have made any demand hereunder or (ii) the principal of or the
interest on the Loans or any amounts in respect of the Letters of Credit or any
other amounts due hereunder or any other Loan Document shall have become due
and payable pursuant to Section 10 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
13.5 RATABLE SHARING.
A. AMOUNTS OWED BY DOMESTIC BORROWERS. Lenders hereby agree
among themselves that if any of them shall, whether by voluntary payment, by
realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under applicable Insolvency Laws, receive
payment or reduction of a proportion of the aggregate amount of principal,
interest, amounts payable in respect of Letters of Credit, fees and other
amounts then due and owing to that Lender from any Domestic Borrower (and not
from Canada Safeway) hereunder or under the other Loan Documents (collectively,
the "AGGREGATE AMOUNTS DUE FROM DOMESTIC BORROWERS" to such Lender) which is
greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due From Domestic Borrowers then due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
each Primary Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due From Domestic Borrowers then due to the other Lenders so
that all such recoveries of Aggregate
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Amounts Due From Domestic Borrowers then due shall be shared by all Lenders in
proportion to the Aggregate Amounts Due From Domestic Borrowers then due to
them (as calculated prior to such recovery); provided that if all or part of
such proportionately greater payment received by such purchasing Lender is
thereafter recovered from such Lender upon the bankruptcy or reorganization of
any Domestic Borrower or otherwise, those purchases shall be rescinded and the
purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
Each Domestic Borrower expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by such Domestic Borrower to that holder with respect thereto as
fully as if that holder were owed the amount of the participation held by that
holder.
B. AMOUNTS OWED BY CANADA SAFEWAY. Canadian Lenders hereby
agree among themselves that if any of them shall, whether by voluntary payment,
by realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under any applicable Insolvency Laws,
receive payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Loans, Acceptances, fees and
other amounts then due and owing to that Lender hereunder or under the other
Loan Documents from Canada Safeway (collectively, the "AGGREGATE AMOUNTS DUE
FROM CANADA SAFEWAY" to such Lender) which is greater than the proportion
received by any other Canadian Lender in respect of the Aggregate Amounts Due
From Canada Safeway to such other Canadian Lender, then the Canadian Lender
receiving such proportionately greater payment shall (i) notify each Primary
Agent and each other Canadian Lender of the receipt of such payment and (ii)
apply a portion of such payment to purchase participations (which it shall be
deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due From Canada Safeway to the other Canadian Lenders so that
all such recoveries of Aggregate Amounts Due From Canada Safeway shall be
shared by all Canadian Lenders in proportion to the Aggregate Amounts Due From
Canada Safeway to them (as calculated prior to such recovery); provided that if
all or part of such proportionately greater payment received by such purchasing
Canadian Lender is thereafter recovered from such Canadian Lender upon the
bankruptcy or reorganization of any Canada Safeway or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Canadian Lender ratably to
the extent of such recovery, but without interest. Canada Safeway expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by Canada
Safeway to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.
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13.6 AMENDMENTS AND WAIVERS; REPLACEMENT OF BANKS.
A. AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Agreement or of the Notes, or
consent to any departure by any Borrower therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided that
any such amendment, modification, termination, waiver or consent which (i)
increases the amount of any of the Commitments or reduces the principal amount
of any of the Loans; (ii) increases the maximum amount set forth in subsection
3.1A(ii); (iii) changes any Lender's Tranche A Canadian Pro Rata Share, Tranche
A Domestic Pro Rata Share, Tranche B Domestic Pro Rata Share or Aggregate Pro
Rata Share; (iv) changes in any manner the definition of "Requisite Lenders";
(v) changes in any manner any provision of this Agreement which, by its terms,
expressly requires the approval or concurrence of all Lenders; (vi) postpones
the scheduled final maturity date of any of the Loans (except pursuant to
subsection 2.7 or 2.8); (vii) postpones the date on which any interest or any
fees are payable (except in accordance with the provisions of the last
paragraph of Section 10); (viii) decreases the interest rate borne by any of
the Loans (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or the amount of
any fees payable hereunder; (ix) increases the maximum duration of Interest
Periods permitted hereunder; (x) reduces the amount or postpones the due date
of any amount payable in respect of, or extends the required expiration date
beyond the Tranche A Termination Date of, any Letter of Credit; (xi) changes in
any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit or Swing Line Loans; (xii) changes in any
manner the provisions of subsections 2.7 or 2.8 with respect to each Lender's
right to decline to extend the Tranche A Termination Date or the Tranche B
Revolving Termination Date; or (xiii) changes in any manner the provisions
contained in subsection 10.1 or this subsection 13.6, shall be effective only
if evidenced by a writing signed by or on behalf of all Lenders with
Obligations directly affected thereby. In addition, (i) any amendment,
modification, termination or waiver of any of the provisions contained in
Section 6 shall be effective only if evidenced by a writing signed by or on
behalf of each Primary Agent and Requisite Lenders, (ii) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (iii) no amendment, modification, termination or waiver of any
provision relating to the Swing Line Loans (including, without limitation, the
provisions of subsection 2.1A(iv)) shall be effective without the written
concurrence of the Swing Line Lender and (iv) no amendment, modification,
termination or waiver of any provision of Section 11 or of any other provision
of this Agreement which, by its terms, expressly requires the approval or
concurrence of a Primary Agent shall be effective without the written
concurrence of such Primary Agent. Each Primary Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on any Borrower in any
case shall entitle such Borrower to any other or
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further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 13.6 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by any Borrower, on such Borrower.
B. REPLACEMENT OF BANKS. If, in connection with any proposed
amendment, modification, termination or waiver to any of the provisions of this
Agreement or the Notes as contemplated by clauses (i) through (xii) of the
proviso of the first sentence of subsection 13.6A, the consent of Requisite
Lenders is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then Company shall have the right, so long
as all non-consenting Lenders whose individual consent is required are treated
as described in either clause (i) or (ii) below, to either (i) replace each
such non-consenting Lender or Lenders pursuant to subsection 5.3 so long as at
the time of such replacement, each such replacement Lender consents to the
proposed amendment, modification, termination or waiver, or (ii) terminate such
non-consenting Lender's Commitments, repay in full its outstanding Loans,
Acceptances and all other amounts due hereunder in accordance with subsections
2.4A(v), 2.4A(vi) and 2.4A(vii); provided that unless the Commitments that are
terminated and the Loans that are repaid pursuant to the preceding clause (ii)
are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Commitments and/or outstanding Loans of existing
Lenders (who in each case must specifically consent thereto), then in the case
of any action pursuant to the preceding clause (ii), the Requisite Lenders
(determined before giving effect to the proposed action) shall specifically
consent thereto; provided further that Company shall not have the right to
terminate any such non-consenting Lender's Commitment and repay in full its
outstanding Loans pursuant to clause (ii) of this subsection 13.6B if,
immediately after the termination of such Lender's Commitments in accordance
with subsection 2.4A(vi), (x) the Tranche A Domestic Loan Exposure of all
Lenders would exceed the Tranche A Domestic Commitments of all Lenders, (y) the
Tranche A Canadian Loan Exposure of all Lenders would exceed the Tranche A
Canadian Commitments of all Lenders or (z) the Tranche B Domestic Loan Exposure
of all Lenders would exceed the Tranche B Domestic Commitments of all Lenders;
provided further that Company shall not have the right to replace a Lender
solely as a result of the exercise of such Lender's rights (and the withholding
of any required consent by such Lender) pursuant to the second and third
sentences of subsection 13.6A.
13.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
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13.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in
writing and may be personally served, telexed or sent by telecopy or United
States or Canadian mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of telecopy
or telex, or three Business Days after depositing it in the United States or
Canadian mail with postage prepaid and properly addressed; provided that
notices to each Primary Agent shall not be effective until received. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or (i) as to Borrowers and
Primary Agents, such other address as shall be designated by any such Person in
a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Primary Documentation Agent.
13.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of
the Loans or other extensions of credit hereunder, including the issuance of
the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the applicable Borrower set forth in
subsections 2.6D, 3.5A, 5.1, 13.2 and 13.3 and the agreements of Lenders set
forth in subsections 11.2C, 11.4 and 13.5 shall survive the payment of the
Loans and Acceptances, the cancellation or expiration of the Letters of Credit,
and the termination of this Agreement.
13.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Primary Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any
other Loan Document shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or privilege. All rights
and remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
13.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Primary Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Borrower or any other party or
against or in payment of any or all of the Obligations. To the extent that any
Borrower makes a payment or
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payments to any Primary Agent or Lender (or to any Primary Agent for the
benefit of Lenders), or any Primary Agent or Lender enforces any security
interests or exercises its rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.
13.12 SEVERABILITY.
In case any provision in or obligation under this Agreement,
the Notes, the Acceptances or any Letter of Credit shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
13.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS AND
BORROWERS' OBLIGATIONS.
A. The obligations of Lenders hereunder are several and no
Lender shall be responsible for the obligations or Commitments of any other
Lender hereunder. Nothing contained herein or in any other Loan Document, and
no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and, subject to Section 10, each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Lender or Primary Agent
to be joined as an additional party in any proceeding for such purpose.
B. Each of Canada Safeway and Vons shall not have any
obligation for any extensions of credit made to any other Borrower.
13.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
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13.15 APPLICABLE LAW.
EXCEPT AS PROVIDED IN THE NEXT SUCCEEDING SENTENCE, THIS
AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
MATTERS PERTAINING TO DRAFTS AND ACCEPTANCES SHALL, TO THE EXTENT APPLICABLE,
BE GOVERNED BY THE BILLS OF EXCHANGE ACT (CANADA).
13.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being understood
that Lenders' rights of assignment are subject to subsection 13.1). No
Borrower's rights or obligations hereunder or any interest therein may be
assigned or delegated by any Borrower without the prior written consent of all
Lenders.
13.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH OBLIGATION. Each Borrower hereby
agrees that service of all process in any such proceeding in any such court may
be made by registered or certified mail, return receipt requested, to such
Borrower at its address provided in subsection 13.8, such service being hereby
acknowledged by such Borrower to be sufficient for personal jurisdiction in any
action against such Borrower in any such court and to be otherwise effective
and binding service in every respect. Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any Lender to bring proceedings against any Borrower in the courts of any other
jurisdiction.
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13.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS CREDIT TRANSACTION
OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of
this waiver is intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in entering
into this Agreement, and that each will continue to rely on this waiver in
their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE AND MAY NOT BE MODIFIED ORALLY
BUT MAY BE MODIFIED ONLY IN A WRITTEN INSTRUMENT, SIGNED BY EACH OF THE PARTIES
HERETO AND SPECIFICALLY REFERRING TO THIS SUBSECTION 13.18. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE CREDIT EXTENDED HEREUNDER. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
13.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with
safe and sound banking practices, it being understood and agreed by each
Borrower that in any event a Lender may make disclosures reasonably required by
any bona fide assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans or any
participation therein, as long as such Lender informs such assignee, transferee
or participant of the existence and content of this subsection 13.19 and such
Person agrees to be bound hereby, or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided that, unless specifically prohibited by applicable law or court order,
each Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of
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any such non-public information prior to disclosure of such information; and
provided, further that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
13.20 JUDGMENT CURRENCY.
(a) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder in any currency (the
"ORIGINAL CURRENCY") into another currency (the "OTHER CURRENCY"), the parties
hereto agree, to the fullest extent permitted by law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Primary Documentation Agent could purchase the Original Currency with the Other
Currency on the Business Day immediately preceding the day on which any such
judgment, or any relevant part thereof, is paid or otherwise satisfied.
(b) The obligations of each Borrower in respect of any sum
due from it to the Lenders hereunder shall, notwithstanding any judgment in
such Other Currency, be discharged only to the extent that on the Business Day
following receipt by the Primary Documentation Agent of any sum adjudged to be
so due in the Other Currency the Primary Documentation Agent may in accordance
with normal banking procedures purchase the Original Currency with the Other
Currency; if the Original Currency so purchased is less than the sum originally
due to the Lenders in the Original Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Lenders against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due to the Lenders in the Original
Currency, the Lenders shall remit such excess to such Borrower.
13.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Primary Documentation Agent of written or telephonic notification
of authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS: SAFEWAY INC.
By:
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Title:
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Notice Address:
Safeway Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE VONS COMPANIES, INC.
By:
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Title:
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Notice Address:
The Vons Companies, Inc.
c/o Safeway Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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CANADA SAFEWAY LIMITED
By:
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Title:
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Notice Address:
Canada Safeway Limited
c/o Safeway Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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LENDERS: BANKERS TRUST COMPANY,
as a Domestic Lender and as Administrative
Agent
By:
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Title:
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Notice Address:
Bankers Trust Company
c/o BT Securities Corporation
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇
BT BANK OF CANADA, TORONTO,
as a Canadian Lender
By:
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Title:
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By:
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Title:
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Notice Address:
BT Bank of Canada
Royal Bank Plaza, North Tower
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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THE CHASE MANHATTAN BANK,
as Syndication Agent and a Domestic Lender
By:
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Title:
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Notice Address:
The Chase Manhattan Bank, N.A.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
THE CHASE MANHATTAN BANK OF CANADA,
as a Canadian Lender
By:
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Title:
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Notice Address:
The Chase Manhattan Bank of Canada
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▇▇▇▇▇▇ M5X 1A4
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇
S-4
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as a Domestic Lender and a Canadian Lender and
as Primary Documentation Agent
By:
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Title:
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Notice Address:
The Bank of Nova Scotia
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Domestic Lender
and as a Documentation Agent
By:
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Title:
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Notice Address:
Bank of America
SF Credit Products #3838
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇
BANK OF AMERICA CANADA, as a Canadian Lender
By:
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Title:
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By:
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Title:
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Notice Address:
Bank of America
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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CITICORP USA, INC.,
as a Domestic Lender and as an Agent
By:
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Title:
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Notice Address:
Citicorp USA, Inc.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇
CITIBANK CANADA,
as a Canadian Lender and as an Agent
By:
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Title:
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Notice Address:
Citibank Canada
Cantera Tower #4210
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇
151
BANK OF MONTREAL,
as a Domestic Lender and a Canadian Lender and
as an Agent
By:
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Title:
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Notice Address:
Bank of Montreal
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-8
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as a Domestic Lender and a Canadian Lender and
as an Agent
By:
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Title:
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Notice Address:
Canadian Imperial Bank of Commerce
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26th Floor, Suite 2600
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇
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ROYAL BANK OF CANADA,
as a Domestic Lender and a Canadian Lender and
as an Agent
By:
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Title:
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Notice Address:
Royal Bank of Canada
Grand Cayman (North America No. 1) Branch
c/o New York Branch
Financial Square, 23rd Floor
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager, Credit Administration
with a copy to:
Royal Bank of Canada
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
NATIONSBANK OF TEXAS, N.A., as a Domestic
Lender and as an Agent
By:
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Title:
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Notice Address:
NationsBank
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇. ▇▇▇▇▇▇▇▇
S-10
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as a Domestic Lender and as an Agent
By:
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Title:
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Notice Address:
United States National Bank of Oregon
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
S-11
155
THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, as a Domestic Lender and as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Sumitomo Bank, Limited,
San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
THE SUMITOMO BANK OF CANADA,
as a Canadian Lender and as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
By:
---------------------------------------
Title:
---------------------------------------
The Sumitomo Bank of Canada
Ernst and ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Centre
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇
S-12
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.,
as a Domestic Lender and as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BANK OF TOKYO-MITSUBISHI (CANADA),
as a Canadian Lender and as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Bank of Tokyo-Mitsubishi (Canada)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
S-13
157
THE DAI-ICHI KANGYO BANK, LIMITED, SAN
FRANCISCO AGENCY, as a Domestic Lender and
as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Dai-Ichi Kangyo Bank, Limited,
San Francisco Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
THE BANK OF NEW YORK,
as a Domestic Lender and as an Agent
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-14
158
THE FIRST NATIONAL BANK OF CHICAGO,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE FUJI BANK, LIMITED
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Fuji Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
S-15
159
ABN AMRO BANK N.V.,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
ABN AMRO Bank, N.V.
San Francisco International Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-16
160
THE TOKAI BANK, LTD., LOS ANGELES AGENCY,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Tokai Bank, Ltd., Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. Poebus Hon
TOKAI BANK CANADA,
as a Canadian Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Tokai Bank Canada
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
S-17
161
FIRST HAWAIIAN BANK,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
First Hawaiian Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇-▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ CREDIT AGRICOLE,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Credit Agricole
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
S-19
163
BANQUE NATIONALE DE PARIS,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BANQUE NATIONALE DE PARIS (CANADA),
as a Canadian Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Banque Nationale de Paris
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-20
164
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
SAN FRANCISCO AGENCY, as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Industrial Bank of Japan, Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN (CANADA),
as a Canadian Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Industrial Bank of Japan (Canada)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
S-21
165
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY, as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Long-Term Credit Bank of Japan, Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE SANWA BANK LIMITED, LOS ANGELES
BRANCH, as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Sanwa Bank Limited
Corporate Finance Group
Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
S-22
166
CREDIT SUISSE FIRST BOSTON,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Credit Suisse First Boston
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
S-23
167
THE SAKURA BANK, LIMITED, SAN FRANCISCO
AGENCY, as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The Sakura Bank, Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. J.R. Best
SAKURA BANK (CANADA),
as a Canadian Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Sakura Bank (Canada)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇▇▇
S-24
168
THE FIRST NATIONAL BANK OF MARYLAND,
as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
The First National Bank of Maryland
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
BANCA DI ROMA, as a Domestic Lender
By:
---------------------------------------
Title:
---------------------------------------
Notice Address:
Banca di Roma
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇
S-25
169
SCHEDULE A
[INSERT NAMES OF LENDERS]
Schedule A - 1