SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended November 8, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File No. 1-13339
FRED MEYER, INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1826443
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3800 S.E. 22nd Avenue
Portland, Oregon 97202
(Address of principal executive offices) (Zip Code)
(503) 232-8844
(Registrant's telephone number, including area code)
Not applicable.
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports); and (2) has been subject to such
filing requirements for the past 90 days.
Yes [ XX ] No [ ]
Shares of Common Stock Outstanding at November 8, 1997: 88,052,304
<PAGE>
PART I - FINANCIAL INFORMATION
FRED MEYER, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited and in thousands)
<TABLE>
<CAPTION>
November 8, February 1,
1997 1997
---------- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents.......................................... $ 117,375 $ 48,769
Receivables-net.................................................... 109,912 23,729
Inventories........................................................ 1,200,557 604,910
Prepaid expenses and other......................................... 52,207 43,149
Current portion of deferred income taxes........................... 81,610 17,226
---------- -----------
Total current assets............................................ 1,561,661 737,783
---------- -----------
PROPERTY AND EQUIPMENT-NET............................................ 1,941,983 929,765
---------- -----------
GOODWILL AND OTHER INTANGIBLES - NET.................................. 1,026,514 4,599
OTHER ASSETS.......................................................... 43,103 19,873
---------- -----------
TOTAL........................................................ $4,573,261 $ 1,692,020
========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and outstanding checks............................. $ 830,429 $ 398,430
Current portion of long-term debt
and capital lease obligations.................................... 3,364 1,038
Income taxes payable................................................ --- 5,115
Accrued expenses and other.......................................... 332,020 99,998
---------- ----------
Total current liabilities........................................ 1,165,813 504,581
---------- ----------
LONG-TERM DEBT AND MORTGAGES........................................... 1,900,504 521,512
---------- ----------
CAPITAL LEASE OBLIGATIONS.............................................. 53,238 13,227
---------- ----------
DEFERRED LEASE TRANSACTIONS............................................ 45,456 46,318
---------- ----------
DEFERRED INCOME TAXES.................................................. 23,150 35,176
---------- ----------
OTHER LONG-TERM LIABILITIES............................................ 100,075 5,302
---------- ----------
STOCKHOLDERS' EQUITY:
Common stock........................................................ 440 287
Additional paid-in capital.......................................... 891,798 203,314
Retained earnings................................................... 393,568 434,122
Treasury stock...................................................... --- (69,773)
Notes receivable from officers...................................... (299) (1,394)
Unearned compensation............................................... (482) (652)
---------- ----------
Total stockholders' equity....................................... 1,285,025 565,904
---------- ----------
TOTAL......................................................... $4,573,261 $1,692,020
========== ==========
</TABLE>
See notes to consolidated financial statements.
2
<PAGE>
FRED MEYER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
12 Weeks Ended
------------------------------
November 8, November 9,
1997 1996
---------- ----------
<S> <C> <C>
NET SALES................................................................$ 1,460,372 $ 835,142
COST OF MERCHANDISE SOLD ................................................ 1,027,847 590,715
----------- -----------
GROSS MARGIN ............................................................ 432,525 244,427
OPERATING AND ADMINISTRATIVE EXPENSES ................................... 372,610 225,884
----------- -----------
INCOME FROM OPERATIONS .................................................. 59,915 18,543
INTEREST EXPENSE-NET .................................................... 22,863 8,324
AMORTIZATION OF GOODWILL ................................................ 4,430 71
----------- -----------
INCOME BEFORE INCOME TAXES AND EXTRAORDINARY LOSS ....................... 32,622 10,148
PROVISION FOR INCOME TAXES .............................................. 14,345 3,856
----------- -----------
INCOME BEFORE EXTRAORDINARY LOSS ........................................ 18,277 6,292
EXTRAORDINARY LOSS, NET OF TAXES ........................................ (91,210) ---
----------- -----------
NET INCOME(LOSS) ........................................................$ (72,933) $ 6,292
=========== ===========
EARNINGS (LOSS) PER COMMON SHARE:
INCOME BEFORE EXTRAORDINARY LOSS ...................................$ .22 $ .11
EXTRAORDINARY LOSS ................................................. (1.10) ---
----------- -----------
NET INCOME (LOSS) ..................................................$ (.88) $ .11
=========== ===========
WEIGHTED AVERAGE NUMBER OF
COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING ................................................... 83,336 55,386
=========== ===========
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
FRED MEYER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
40 Weeks Ended
-----------------------------
November 8, November 9,
1997 1996
---------- ----------
<S> <C> <C>
NET SALES ....................................... $ 3,611,323 $ 2,729,084
COST OF MERCHANDISE SOLD ........................ 2,534,718 1,927,199
----------- -----------
GROSS MARGIN .................................... 1,076,605 801,885
OPERATING AND ADMINISTRATIVE EXPENSES ........... 940,723 721,189
----------- -----------
INCOME FROM OPERATIONS .......................... 135,882 80,696
INTEREST EXPENSE-NET ............................ 46,440 30,606
AMORTIZATION OF GOODWILL ........................ 4,596 237
----------- -----------
INCOME BEFORE INCOME TAXES AND EXTRAORDINARY LOSS 84,846 49,853
PROVISION FOR INCOME TAXES ...................... 34,190 18,944
----------- -----------
INCOME BEFORE EXTRAORDINARY LOSS ................ 50,656 30,909
EXTRAORDINARY LOSS .............................. (91,210) ---
----------- -----------
NET INCOME (LOSS) ............................... $ (40,554) $ 30,909
=========== ===========
EARNINGS (LOSS) PER COMMON SHARE:
INCOME BEFORE EXTRAORDINARY LOSS ........... $ .79 $ .55
EXTRAORDINARY LOSS ......................... (1.42) ---
----------- -----------
NET INCOME (LOSS) .......................... $ (.63) $ .55
=========== ===========
WEIGHTED AVERAGE NUMBER OF
COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING ........................... 64,117 56,670
=========== ===========
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
FRED MEYER, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited and in thousands)
<TABLE>
<CAPTION>
40 Weeks Ended
----------------------------
November 8, November 9,
1997 1996
---------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Income before extraordinary loss ................................ $ 50,656 $ 30,909
Adjustments to reconcile income before
extraordinary loss to net
cash provided by operating activities:
Depreciation and amortization of
property and equipment .................................... 113,629 89,444
Amortization of goodwill ..................................... 4,596 237
Deferred lease transactions .................................. (8,884) (3,699)
Deferred income taxes ........................................ (1,040) (1,384)
Changes in operating assets and liabilities, net of acquisitions:
Inventories .................................................. (186,708) (158,875)
Other current assets ......................................... 7,107 (11,898)
Accounts payable and outstanding checks ...................... 143,396 192,558
Accrued expenses ............................................. (6,816) 4,797
Income taxes ................................................. 7,821 7,805
Other liabilities ............................................ (4,593) (1,089)
Other ........................................................ (532) (9,237)
----------- -----------
Net cash provided by operating activities ....................... 118,632 139,568
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Cash acquired in acquisitions ................................... 57,709 ---
Other acquisition costs ......................................... (25,052) ---
Purchases of property and equipment ............................. (208,185) (124,185)
Net proceeds from sale of real property ......................... 54,794 121,161
Net maturities of investment securities ......................... --- 12,340
----------- -----------
Net cash provided by (used for) investing
activities .................................................... (120,734) 9,316
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock-net .................................... 27,953 1,466
Stock repurchase and related expenses ........................... --- (69,773)
Decrease (increase)in notes receivable .......................... 928 (149)
Long-term financing:
Borrowings ................................................... 1,572,562 90
Repayments ................................................... (1,530,735) (79,533)
----------- -----------
Net cash provided by (used for)
financing activities ......................................... 70,708 (147,899)
----------- -----------
CASH AND CASH EQUIVALENTS:
Net increase for the period ..................................... 68,606 985
Beginning of period ............................................. 48,769 41,849
----------- -----------
End of period ................................................... $ 117,375 $ 42,834
=========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest ..................................................... $ 35,680 $ 30,364
Income taxes ................................................. 20,339 12,279
Noncash capital lease obligations ............................. 761 ---
Details of acquisitions (Note 10):
Fair value of assets acquired .............................. $ 2,624,917 ---
Liabilities assumed ........................................ 1,869,685 ---
Stock issued ............................................... 730,180 ---
----------- -----------
Cash Paid .................................................. 25,052 ---
Less cash acquired ......................................... 57,709 ---
----------- -----------
Net cash received from acquisitions ........................ $ 32,657 ---
=========== ===========
</TABLE>
See notes to consolidated financial statements.
5
<PAGE>
FRED MEYER, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Interim Reporting Periods
-------------------------
The Company's interim reporting periods for reports to stockholders are the
16th, 28th, and 40th weeks of its fiscal year.
2. Reclassifications
-----------------
Certain prior year balances have been reclassified to conform to current
year presentation.
3. Inventories
-----------
Inventories consist mainly of merchandise held for sale. Substantially all
of the inventories are valued at the lower of last-in, first-out (LIFO)
cost or market. The Company has recorded a LIFO charge of $1,926,000 for
the quarter ended November 8, 1997 and a charge of $5,160,000 for the first
40 weeks of 1997 versus a charge of $1,220,000 for the third quarter of the
prior year and a charge of $4,220,000 for the first 40 weeks of the prior
year. Inventories on a first in, first out (FIFO) basis would have been
higher by $57,934,000 and $58,160,000 at November 8, 1997 and November 9,
1996, respectively. Estimated gross margins have been used for determining
the cost of merchandise sold for those operating departments not taking
physical inventories at the end of the interim periods.
4. Goodwill
--------
Goodwill is being amortized on a straight-line basis over 15 to 40 years.
Goodwill recorded in connection with the Smith's Food & Drug Centers, Inc.
(Smith's) and Fox Jewelry Company (Fox) acquisitions is being amortized
over 40 and 15 years, respectively. Other previously recorded goodwill
continues to be amortized over 30 years.
5. Income Taxes
------------
Income taxes have been provided for based upon the current estimate of the
Company's annual effective tax rate.
6. Stockholders' Equity
--------------------
Changes in stockholders' equity for the 40 weeks ended November 8, 1997
were:
(In thousands)
--------------
Stockholders' equity, February 1, 1997 $565,904
Shares issued in Smith's acquisition 720,976
Shares issued in Fox acquisition 9,204
Issuance of common stock, net 27,953
Amortization of discount on stock options 277
Net loss (40,554)
Decrease in notes receivable - officers 1,095
Unearned compensation, net of amortization 170
----------
Stockholders' equity, November 8, 1997 $1,285,025
==========
7. Earnings Per Common Share
-------------------------
Shares outstanding and earnings per share amounts have been adjusted for
the two-for-one stock split, effected as a 100 percent stock dividend,
which was effective September 30, 1997.
Fully diluted earnings per common share are computed by dividing net income
by the weighted average number of common and common equivalent shares
outstanding. Weighted average shares reflect the dilutive effect of
outstanding stock options (ranging in exercise price from $6.063 to $28.125
per share) which was determined by using the "treasury stock" method.
6
<PAGE>
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS) No. 128, Earnings Per Share, which
establishes new standards for computing and presenting earnings per share
(EPS) and applies to entities with publicly held common stock or potential
common stock. SFAS No. 128 replaces the presentation of primary EPS with a
presentation of basic EPS, requires dual presentation of basic and diluted
EPS on the face of the income statement, and requires additional
disclosures regarding EPS. SFAS No. 128 will require changes in the
computation and presentation of the Company's EPS commencing with the
financial statements for the year ending January 31, 1998 and require
restatement of all prior periods presented. Earlier application of this
statement is not permitted.
However, if the Company computed its EPS for the 12 and 40 weeks ended
November 8, 1997 in a manner consistent with SFAS No. 128, the pro forma
amounts would have been as follows:
<TABLE>
<CAPTION>
12 Weeks 40 Weeks
Ended Ended
November 8, 1997 November 8, 1997
---------------- ----------------
<S> <C> <C>
Basic income per share before
extraordinary loss $ .23 $ .83
Basic loss per share after
extraordinary loss $ (.93) $ (.67)
Diluted income per share before
extraordinary loss $ .22 $ .80
Diluted loss per share after
extraordinary loss $ (.89) $ (.64)
Basic weighted average number of common
shares outstanding to the
nearest thousand 78,517 60,805
Diluted weighted average number of common
and common equivalent shares
outstanding to the nearest thousand 82,315 63,624
</TABLE>
8. New Accounting Pronouncements
-----------------------------
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 130, Reporting Comprehensive
Income, which requires that all items of comprehensive income be reported
in a financial statement for the period in which they are recognized.
Comprehensive income is defined as the change in equity of a business
enterprise during a period from transactions and other events from nonowner
sources. SFAS No. 130 will be effective for the fiscal year ending January
30, 1999. The Company does not expect adoption of this statement to have a
material effect on the Company's financial statement disclosure.
Additionally in June 1997, the Financial Accounting Standards Board issued
SFAS No. 131, Disclosures about Segments of an Enterprise and Related
Information, which requires public enterprises to disclose financial and
descriptive information about their operating segments. SFAS No. 131 will
be effective for the fiscal year ending January 30, 1999. At this time, the
Company has not completed its analysis of the effects of implementing SFAS
No. 131, but does not believe that SFAS No. 131 will have a material effect
on the current presentation of the financial statements.
9. Commitments and Contingencies
-----------------------------
The Company and its subsidiaries are parties to various legal claims,
actions, and complaints, certain of which involve material amounts.
Although the Company is unable to predict with certainty whether or not it
will ultimately be successful in these legal proceedings or, if not, what
the impact might be, management presently believes that disposition of
these matters will not have a material adverse effect on the Company's
consolidated financial statements.
7
<PAGE>
10. Acquisitions
------------
On September 9, 1997 the Company succeeded to the businesses of Fred Meyer,
Inc., now known as Fred Meyer Stores, Inc. (Fred Meyer Stores), and
Smith's, as a result of mergers pursuant to the Agreement and Plan of
Reorganization and Merger, dated as of May 11, 1997 (the Smith's
Acquisition). At the closing on September 9, 1997: (i) Fred Meyer Stores
and Smith's became wholly owned subsidiaries of the Company, (ii) each
outstanding share of Class A Common Stock and Class B Common Stock of
Smith's was converted into 1.05 shares of Common Stock of the Company;
(iii) each outstanding share of Series I Preferred Stock of Smith's was
converted into the right to receive in cash the amount of $.33 1/3; and
(iv) each outstanding share of Common Stock of Fred Meyer Stores was
converted into one share of Common Stock of the Company.
The Smith's Acquisition was accounted for under the purchase method of
accounting as a purchase by Fred Meyer and, accordingly, the operating
results of Smith's from the date of acquisition are included in the
Company's financial statements. 16.6 million shares of Common Stock of the
Company (with a value of $720,976,000) were issued to Smith's shareholders
in the Smith's Acquisition. The estimated value of goodwill assigned to
Smith's amounted to approximately $1,021,000,000. The final goodwill amount
will be determined when appraisals of assets and liabilities are completed
which is expected to occur in the fourth quarter.
The following unaudited pro forma results of operations assume the Smith's
Acquisition occurred on February 4, 1996 (in thousands, except per share
data):
40 Weeks Ended
----------------------------------
November 8, November 9,
1997 1996
----------- -----------
Net sales $ 5,471,428 $ 5,037,288
Net income before extraordinary loss 79,785 54,269
Net loss (11,425) (36,941)
Earnings per share:
Income before extraordinary loss .88 .60
Net loss (.13) (.41)
The pro forma financial information is not necessarily indicative of the
operating results that would have occurred had the Smith's Acquisition been
consummated as of February 4, 1996 nor is it necessarily indicative of
future operating results.
On August 17, 1997, the Company acquired substantially all of the assets
and liabilities of Fox in exchange for common stock with a fair value of
$9,204,000. The Fox acquisition was accounted for under the purchase method
of accounting. The value of goodwill assigned to Fox amounted to
approximately $5,300,000. The results of operations of Fox do not have a
material effect on the consolidated operating results, and therefore are
not included in the pro forma data presented.
11. Refinancing
-----------
In connection with the Smith's Acquisition, the Company refinanced a
substantial portion of the indebtedness of Fred Meyer Stores and Smith's.
At the closing of the Smith's Acquisition, the Company entered into a five
year $1.03 billion revolving credit facility, a $500.0 million 364-day
revolving credit facility and a five year $500.0 million bridge facility
(the "Senior Credit Facilities"), each guaranteed by certain of the
Company's subsidiaries (including Smith's and Fred Meyer Stores). The
Senior Credit Facilities were used to refinance the 11 1/4 percent Senior
Subordinated Notes of Smith's and certain bank and insurance company loans
of Fred Meyer Stores and Smith's. The revolving portion of the Senior
Credit Facilities is available for general corporate purposes, including
the support of the commercial paper program of the Company. The revolving
credit facility and the bridge facility mature on September 9, 2002. The
364-day facility matures on September 9, 1998 with a one year extension
available upon the request of the Company. The debt covenants associated
with the new facility are similar to previous debt covenants required under
agreements outstanding at February 1, 1997. The Senior Credit Facilities
8
<PAGE>
carry a floating interest rate that is more favorable than the rate in the
previous Fred Meyer credit facility. The rate on outstanding debt at
November 8, 1997 ranged from 5.8 percent to 6.2 percent. In addition to the
Senior Credit Facilities, Fred Meyer Stores entered into a lease
refinancing program of up to $270.0 million, which refinanced its tax
retention operating lease programs. The obligations under the lease finance
program were guaranteed by the Company and certain of the subsidiaries
(including Smith's and Fred Meyer Stores).
The premiums paid and the write-off of deferred financing costs of
$148,309,000 relating to the debt refinanced has been reported as an
extraordinary loss, net of the $57,099,000 tax benefit, in the 12 and 40
week periods ended November 8, 1997.
12. Subsequent Events
-----------------
On November 6, 1997 the Company entered into separate merger agreements
with Quality Food Centers, Inc. (QFC) and Food 4 Less Holdings, Inc. (FFL).
Pursuant to the merger agreement with QFC, QFC will become a wholly owned
subsidiary of the Company and each outstanding share of QFC common stock
will be converted into the greater of (a) 1.9 shares of common stock of the
Company or (b) the number of shares of common stock of the Company having a
value equal to $55.00, but in no event will an outstanding share of QFC
common stock be converted into more than 2.3 shares of common stock of the
Company. Pursuant to the merger agreement with FFL, FFL will become a
wholly owned subsidiary of the Company and stockholders and warrant holders
of FFL in the aggregate will receive the greater of (a) 22.5 million shares
of common stock of the Company or (b) the number of shares of common stock
of the Company having a value equal to $600 million, but in no event will
FFL stockholders and warrant holders receive more than 24 million shares of
common stock of the Company.
The number of shares of common stock of the Company to be received by
stockholders of QFC and FFL may be reduced under certain circumstances as a
result of store divestitures in California which may be required by state
or federal regulatory authorities. In addition, the number of shares of
common stock of the Company to be received by FFL stockholders will be
subject to a net downward adjustment based on the cash settlement of FFL
options and new issuances of FFL stock to employee stock ownership plans of
FFL prior to the merger.
The mergers are subject to regulatory and stockholder approval.
The QFC merger is expected to be accounted for as a pooling-of-interests
and the FFL merger will be accounted for as a purchase. These transactions
are independent of each other and the completion of one merger is not a
condition to the completion of the other merger. If the shareholders of the
Company approve either the QFC merger or the FFL merger but not both, the
Company intends to proceed with the merger that is approved. In connection
with the above transactions, the Company intends to refinance certain
outstanding indebtedness.
---------------------
The financial information furnished in this Form 10-Q reflects all adjustments
of a normal recurring nature which, in the opinion of management, are necessary
for a fair presentation of the results for the 12 and 40 weeks ended November 8,
1997 and November 9, 1996.
The consolidated results of operations presented herein are not necessarily
indicative of the results to be expected for the year due to the seasonality of
the Company's business. These consolidated financial statements should be read
in conjunction with the financial statements and related notes incorporated by
reference in the Company's latest annual report filed on Form 10-K.
9
<PAGE>
FRED MEYER, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION
The Company funded its working capital and capital expenditure needs in 1996 and
the first three quarters of 1997 through internally generated cash flow and the
issuance of unrated commercial paper, supplemented by borrowings under committed
and uncommitted bank lines of credit, and sale/leaseback proceeds.
In conjunction with the Smith's acquisition, the Company entered into a new bank
credit facility on September 9, 1997 that refinanced a substantial portion of
the indebtedness of its Fred Meyer Stores and Smith's subsidiaries. The Company
entered into a 5-year $1.03 billion revolving credit facility, a $500.0 million
364-day revolving credit facility, and a 5-year $500.0 million bridge facility
(the Senior Credit Facilities), each guaranteed by the accompanying subsidiaries
(including Smith's and Fred Meyer Stores). In addition to the committed Senior
Credit Facilities, at November 8, 1997, the Company had $125.0 million of
uncommitted money market lines with four banks. The bank lines and unrated
commercial paper are used primarily for seasonal inventory requirements, new
store construction and financing, existing store remodeling, acquisition of
land, and major projects such as management information systems. At November 8,
1997, the Company had borrowings under the Senior Credit Facilities of $1.42
billion and unrated commercial paper outstanding in the amount of $370.4
million. In addition, the Company had borrowings under uncommitted borrowing
facilities of $20.0 million. A total of approximately $239.6 million was
available for borrowings under the Senior Credit Facilities, and $105.0 million
was available for borrowings from the uncommitted money market lines. In
addition to the Senior Credit Facilities, on September 9, 1997 Fred Meyer Stores
entered into a lease financing arrangement of up to $270.0 million, which
refinanced approximately $235.0 million in existing tax retention operating
leases. The balance of this facility will be used to cover construction costs on
three new stores.
The Company has entered into interest rate swap, cap and collar agreements to
reduce the impact of changes in interest rates on its floating rate long-term
debt and rent expense on its lease lines of credit. At November 8, 1997, the
Company had outstanding four interest rate contracts for a total notional amount
of $180.0 million, and seven rent rate contracts, for a total notional amount of
$80.0 million. All contracts are with commercial banks. The interest rate
contracts effectively fix the Company's interest rates between 5.00 percent and
9.00 percent on the notional amount, and expire through 1999. The rent rate
contracts effectively fix the Company's rental rates between 6.28 percent and
7.25 percent on the notional amount, and expire through 2000. The Company is
exposed to credit loss in the event of nonperformance by the counterparties to
the interest rate and rent rate swap and cap agreements. The Company requires an
A or better rating of the counter parties and, accordingly, does not anticipate
nonperformance by the counter parties.
The Company believes that a combination of cash flow from operations and
borrowings under its credit facilities will permit it to finance its capital
expenditure requirements for 1997, currently budgeted to be approximately $300.0
million, net of estimated real estate sales and stores financed on leases. If
the Company determines that it is preferable, it may fund its capital
expenditure requirements by mortgaging facilities, entering into sale/leaseback
transactions, or by issuing additional debt or equity. The Company currently
owns real estate with a net book value of approximately $1.0 billion.
10
<PAGE>
RESULTS OF OPERATIONS
Results include Smith's from September 9, 1997, the date of the Smith's
acquisition.
Comparison of the 12 weeks ended November 8, 1997 with the 12 weeks ended
November 9, 1996.
Net sales for the third quarter of 1997 increased $625.2 million or 74.9 percent
over the corresponding quarter in 1996. The 1997 increase includes $513.1
million in sales from Smith's. Without Smith's, sales increased 13.4 percent.
This increase was due to openings of new stores, the acquisition of mall jewelry
stores and strong food and nonfood sales. Comparable store sales, without
Smith's, increased 8.6 percent with food comparable sales increasing 7.8 percent
and nonfood comparable sales increasing 9.9 percent. The Company's food
operations accounted for 73.8 percent of the overall sales in 1997 and 60.2
percent in 1996.
Gross margin as a percent of net sales was 29.6 percent for the third quarter of
1997, compared with 29.3 percent for 1996's third quarter. Gross margins
increased in the third quarter of 1997 primarily due to the impact on margins of
multi-store jewelry acquisitions.
Operating and administrative expenses as a percent of net sales were 25.5
percent for the third quarter of 1997, compared with 27.1 percent for 1996's
third quarter. Expenses as a percent of sales decreased in 1997's third quarter
primarily due to the impact of the acquisition of Smith's on expenses.
Net interest expense in the third quarter of 1997 was $22.9 million, an increase
of 174.7 percent from the $8.3 million reported for 1996. The increase reflects
higher borrowings related to the Smith's acquisition, partially offset by lower
interest rates achieved due to the refinancing of a majority of the Company's
debt.
The effective tax rate for the third quarter of 1997 was 44.0 percent and 38.0
percent for 1996's third quarter. The higher rate is due primarily to the effect
of non-deductible goodwill amortization resulting from the Smith's acquisition.
Income before the extraordinary loss increased 190.5 percent to $18.3 million in
the third quarter of 1997 from $6.3 million in the third quarter of 1996. The
extraordinary loss of $91.2 million, net of taxes, is for early extinguishment
of debt. This charge covers premiums paid and the write-off of financing costs
relating to debt refinanced in the Smith's acquisition. After the extraordinary
loss, a net loss of $72.9 million was reported in the third quarter of 1997.
Earnings per share before the extraordinary loss were $.22 in 1997's third
quarter, an increase of 100 percent over the $.11 reported in 1996's third
quarter. Including the effect of the extraordinary loss, a net loss per share of
$.88 was reported in 1997's third quarter.
Income before net interest expense, income taxes, depreciation and amortization
expense and LIFO expense (EBITDA) for the third quarter of 1997 was $107.9
million or 7.4 percent of sales, compared with $46.6 million or 5.6 percent of
sales for the comparable quarter in 1996.
Comparison of the 40 weeks ended November 8, 1997 with the 40 weeks ended
November 9, 1996.
Net sales for the first 40 weeks of 1997 increased $882.2 million or 32.3
percent to $3.61 billion. This increase includes $513.1 million in sales for
Smith's. Without Smith's, sales increased 13.5 percent. This increase is due to
openings of new stores, strong food and nonfood sales, and the acquisition of
mall jewelry stores. Comparable store sales, without Smith's, increased 7.2
percent, with food comparable sales increasing 6.2 percent and nonfood
comparable store sales increasing 8.9 percent. The Company's food operations
accounted for 65.1 percent of the overall sales for the first 40 weeks of 1997,
compared with 60.2 percent for the first 40 weeks of 1996.
11
<PAGE>
Gross margin as a percent of net sales was 29.8 percent for the first 40 weeks
of 1997 compared with 29.4 percent for 1996. Gross margins increased in the
first 40 weeks of 1997 due to the impact on margins of the multi-store jewelry
acquisitions and lower markdowns.
Operating and administrative expenses as a percent of net sales were 26.1
percent for the first 40 weeks of 1997 compared with 26.4 percent for the first
40 weeks of 1996. Expenses as a percent of net sales decreased in 1997's first
40 weeks primarily due to the impact of the acquisition of Smith's on expenses.
Net interest expense in the first 40 weeks of 1997 was $46.4 million, an
increase of 51.7 percent from the $30.6 million for 1996. The increase reflects
higher borrowings relating to the acquisition of Smith's, partially offset by
lower interest rates.
The effective tax rate for the first 40 weeks of 1997 was 40.3 percent and 38.0
percent for the first 40 weeks of 1996. The higher rate is due primarily to the
effect of non-deductible goodwill amortization resulting from the Smith's
acquisition.
Income before the extraordinary loss increased 63.9 percent to $50.7 million in
the first 40 weeks of 1997 from $30.9 million in the first 40 weeks of 1996. The
extraordinary loss of $91.2 million, net of taxes, is for early extinguishment
of debt. This charge covers premiums paid and the write-off of financing costs
related to debt refinanced in the Smith's acquisition. After the extraordinary
loss a net loss of $40.6 million was reported in the first 40 weeks of 1997.
Earnings per share before the extraordinary loss were $.79 in 1997's first 40
weeks, an increase of 43.6 percent over the $.55 reported in 1996's first 40
weeks. Including the effect of the extraordinary loss, a net loss per share of
$.63 was reported in 1997's first 40 weeks.
Income before net interest expense, income taxes, depreciation and amortization
expense and LIFO expense (EBITDA) for the first 40 weeks for 1997 was $254.7
million or 7.1 percent of sales, compared with $174.4 million or 6.4 percent of
sales for the first 40 weeks in 1996.
EFFECT OF LIFO
Each year, the Company estimates the LIFO adjustment for the year based on
estimates of three factors: inflation rates (calculated by reference to the
Department Stores Inventory Price Index published by the Bureau of Labor
Statistics for softgoods and jewelry, and to internally generated indices based
on Company purchases during the year for all other departments), expected
inventory levels, and expected markup levels (after reflecting permanent
markdowns and cash discounts). The Company reviewed these year-to-date indices
at the end of the third quarter and adjusted its LIFO reserve on a year-to-date
basis to reflect the Company's overall product mix, anticipated year-end
inventory levels, and the Company's expectations of the indices for the
remainder of the year. At year-end, the Company makes the final adjustment
reflecting the difference between its prior quarterly estimates and actual LIFO
amount for the year.
12
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
--------
2.1 Agreement and Plan of Merger among Quality Food Centers, Inc., Q
Acquisition Corp. and Fred Meyer, Inc. dated as of November 6, 1997.
Incorporated by reference to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K dated November 6, 1997.
2.2 Agreement and Plan of Merger among Food 4 Less Holdings, Inc., FFL
Acquisition Corp. and Fred Meyer, Inc. dated as of November 6, 1997.
Incorporated by reference to Exhibit 99.2 to Fred Meyer's Current
Report on Form 8-K dated November 6, 1997.
3.1 Restated Certificate of Incorporation of Fred Meyer, Inc.
3.2 Bylaws of Fred Meyer, Inc.
4.1 Specimen Stock Certificate. Incorporated by reference to Exhibit
4.1 to Fred Meyer's Registration Statement on Form S-4 (No. 333-
32927).
4.2 $1,030,000,000 Credit Agreement dated as of September 9, 1997 among
Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.3 $500,000,000 364-Day Credit Agreement dated as of September 9, 1997
among Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.4 $500,000,000 Bridge Credit Agreement dated as of September 9, 1997
among Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.5 Form of Registration Rights Agreement for Fred Meyer, Inc.
Incorporated by reference to Exhibit C to Exhibit 99.1 to Fred
Meyer's Current Report on Form 8-K dated May 11, 1997.
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, the registrant
agrees to furnish to the Commission upon request copies of
agreements relating to other indebtedness.
10.1 Form of Executive Severance Agreement among Fred Meyer, Inc. and
each executive officer.
10.2 Form of Management Services Agreement. Incorporated by reference to
Exhibit D to Exhibit 99.1 to Fred Meyer's Current Report on Form 8-K
dated May 11, 1997.
10.3 Yucaipa Warrant Agreement. Incorporated by reference to Exhibit 10.3
to Smith's Registration Statement on Form S-3 (No. 333-14953).
Supplemental Warrant, dated as of September 9, 1997 among Fred
Meyer, Inc. (formerly Meyer-Smith Holdco, Inc.) and The Yucaipa
Companies.
10.4 Fred Meyer, Inc. 1997 Stock Incentive Plan. Incorporated by
reference to Appendix I to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K dated September 9, 1997.
10.5-1 Fred Meyer, Inc. 1983 Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10D to Fred Meyer's Quarterly Report on Form
10-K for the year ended January 28, 1989 (File No. 0-15023).
10.5-2 Amended Fred Meyer, Inc. 1990 Stock Incentive Plan. Incorporated by
reference to Exhibit 22 to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended August 12, 1995 (File No. 1-11274).
13
<PAGE>
10.6 Fred Meyer, Inc. Bonus Plan Description, as amended. Incorporated
by reference to Exhibit 10B to Fred Meyer's Annual Report on Form
10-K for the year ended February 1, 1997 (File No. 1-11274).
10.7 Assumption Agreement and Unconditional Guaranty of Certain
Obligations, dated December 11, 1981, among Fred Meyer, Inc., The
Predecessor Company, DTC Acquisition Corporation, and Real Estate
Properties Limited Partnership (formerly Fred Meyer Real Estate
Properties, Ltd.). Incorporated by reference to Exhibit 10FF to Fred
Meyer's Registration Statement on Form S-1, Registration No.
2-87139.
10.8 Non-Employee Directors' Deferred Compensation Plan. Incorporated by
reference to Appendix J to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K, dated September 9, 1997.
10.9 Form of contract for Senior Executive Long-Term Disability Program.
Incorporated by reference to Exhibit 10G to Fred Meyer's Annual
Report on Form 10-K for the year ended January 30, 1993.
10.10 Fred Meyer Supplemental Income Plan dated January 1, 1994.
Incorporated by reference to Exhibit 10H to Fred Meyer's Annual
Report on Form 10-K for the year ended January 29, 1994.
10.11 Employment Agreement between Fred Meyer Stores, Inc. and Robert G.
Miller, as amended.
10.12 Form of Lease Agreement for substantially identical leases covering
36 stores and other locations leased by Fred Meyer, Inc. (or a
wholly owned subsidiary) from Real Estate Properties Limited
Partnership (formerly Fred Meyer Real Estate Properties, Ltd.)
including form of Assignment of Master Lease wherein Fred Meyer Real
Estate Properties, Ltd. (now Real Estate Properties Limited
Partnership) assigned its interest to Metropolitan Life Insurance
Company and a First Amendment to Lease Agreement, dated November 25,
1985, with appendices containing certain nonstandard provisions of
the Lease Agreement and the First Amendment; Collateral Matters
Agreement and Indemnification Agreement, each dated November 25,
1986, between Fred Meyer, Inc. and Metropolitan Life Insurance
Company. Incorporated by reference to Exhibit 101 to Fred Meyer's
Annual Report on Form 10-K for the year ended January 31, 1987 (File
No. 0-15023). Memorandum of First Amendment to Lease Agreement,
dated March 6, 1987, between Metropolitan Life Insurance Company
("Metropolitan"), Landlord and Fred Meyer, Inc., Tenant; and
Assignment of Master Lease, dated March 6, 1987, between Real Estate
Properties Limited Partnership (formerly Fred Meyer Real Estate
Properties, Ltd.) (Assignor) and Metropolitan (Assignee) for Nampa,
Idaho. Incorporated by reference to Exhibit 10I to Fred Meyer's
Annual Report on Form 10-K for the year ended January 30, 1988 (File
No. 0-15023). Form of Modification to Master Lease Agreement entered
into as of February 4, 1997 between Metropolitan, as Landlord and
Fred Meyer, as Tenant/Lessee relating to 29 leases with nonstandard
provisions attached as appendices and form of Termination of Master
Lease entered into as of February 4, 1997 with respect to six
Premises and one distribution center. See appendices. Incorporated
by reference to Exhibit 101 to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
10.13 Form of Lease Agreement for substantially identical leases covering
27 stores and other locations subleased by Fred Meyer, Inc. (or a
wholly owned subsidiary) from Real Estate Properties Limited
Partnership (formerly Fred Meyer Real Estate Properties, Ltd.) with
appendices containing certain nonstandard provisions contained in
the Lease Agreement. Incorporated by reference to Exhibit 10J to
Fred Meyer's Annual Report on Form 10-K for the year ended January
31, 1987 (File No. 0-15023). Appendices containing certain
additional nonstandard Provisions. Incorporated by reference to
Exhibit 10J to Fred Meyer's Annual Reports on Form 10-K for the
years ended January 28, 1989, February 3, 1990, and February 2, 1991
(File No. 0-15023). Certain lease modifications for Burien,
14
<PAGE>
Washington facility. Incorporated by reference to Exhibit 10K to
Fred Meyer's Annual Report on Form 10-K for the year ended January
30, 1993. Second Lease Modification Agreement for Cornelius store,
dated as of August 16, 1994; and Second Lease Modification Agreement
for Fairbanks store, dated as of March 18, 1994. Incorporated by
reference to Exhibit 10J to Fred Meyer's Annual Report on Form 10-K
for the year ended January 28, 1995. Lease Amendment No. 2 (AN-
Northern Lights, Boulevard Store) between Fred Meyer and Real Estate
Properties Limited Partnership, and Memorandum of Modification to
Lease/Short-Form Lease (AN-Northern Lights, Anchorage, Alaska)
between Fred Meyer and Real Estate Properties Limited Partnership
dated December 20, 1996; Lease Amendment No. 4 (Burien, Washington)
by and between Real Estate Properties Limited Partnership and
Roundup Co., a Washington corporation ("Roundup"), and Memorandum of
Modification to Lease/Short-Form Lease (Burien, Washington) by and
between Real Estate Properties Limited Partnership and Roundup,
dated December 20, 1996; Lease Amendment No. 3 (Clackamas, Oregon)
by and between Real Estate Properties Limited Partnership and Fred
Meyer, and Memorandum of Modification to Lease/Short-Form Lease (CK-
Clackamas, Oregon) by and between Real Estate Properties Limited
Partnership and Fred Meyer dated December 20, 1996; Lease Amendment
No. 3 (Cornelius, Oregon) by and between Real Estate Properties
Limited Partnership and Fred Meyer, and Memorandum of Modification
to Lease/Modification to Lease/Short-Form Lease (CN-Cornelius,
Oregon) by and between Real Estate Properties Limited Partnership,
Fred Meyer Real Estate Properties and Fred Meyer dated December 20,
1996; Lease Amendment No. 3 (Fairbanks, Alaska) by and between Real
Estate Properties Limited Partnership and Fred Meyer of Alaska,
Inc., an Alaska corporation ("Fred Meyer-Alaska"), and Memorandum of
Modification to Lease/Short-Form Lease (FB Fairbanks, Alaska) by and
between Real Estate Properties Limited Partnership and Fred Meyer-
Alaska, dated December 20, 1996 and Lease Assignment Agreement
(Stark Street, Portland) between Fred Meyer, Inc., a Delaware
corporation and Real Estate Properties Limited Partnership, an
Oregon limited partnership and made as of December 16, 1996 and
Agreement and Supplement to Leasehold Assignment and Modification
Agreement (Stark Street, Portland, Oregon). Incorporated by
reference to Exhibit 10J to Fred Meyer's Annual Report on Form 10-K
for the year ended February 1, 1997.
10.14 Form of Sublease, dated May 1, 1984, Fred Meyer Real Estate
Properties Ltd. (now Real Estate Properties Limited Partnership),
Lessor to Roundup Co., Lessee for Photo Plant Parking Lot.
Incorporated by reference to Exhibit 10J(7) to Fred Meyer's
Registration Statement on Form S-1, Registration No. 33-8574.
10.15 Lease Agreement, dated October 22, 1986, including Amendment, dated
April 30, 1987, between Fred Meyer Real Estate Properties, Ltd. (now
Real Estate Properties Limited Partnership) and Roundup Co. for
Midway store. Incorporated by reference to Exhibit 10N to Fred
Meyer's Annual Report on Form 10-K for the year ended January 31,
1987 (File No. 0-15023).
10.16 Lease Agreement, dated February 19, 1987, including Addendum, dated
September 16, 1987, between Fred Meyer, Inc., as Lessee, and REC
Resolution Co. as successor in interest to Duane Company, as Lessor,
for the Gateway store. Incorporated by reference to Exhibit 10Q to
Fred Meyer's Annual Report on Form 10-K for the year ended January
30, 1988 (File No. 0-15023). Addendum No. 2 to Lease Agreement.
Incorporated by reference to Exhibit 10Q to Fred Meyer's Annual
Report on Form 10-K for the year ended February 2, 1991 (File No.
0-15023).
10.17 Lease Cancellation Agreement between Fred Meyer and Real Estate
Properties Limited Partnership, regarding termination of the lease
of the photo plant facility, dated as of January 17, 1995.
Incorporated by reference to Exhibit 10Q to Fred Meyer's Annual
Report on Form 10-K for the year ended January 28, 1995.
15
<PAGE>
10.18 Lease for Swan Island Parking Lot between Fred Meyer as lessee and
Real Estate Properties Limited Partnership as lessor, dated November
16, 1994. Incorporated by reference to Exhibit 10R to Fred Meyer's
Annual Report on Form 10-K for the year ended January 28, 1995.
Rider to Lease dated as of November 1, 1994. Incorporated by
reference to Exhibit 10R to Fred Meyer's Annual Report on Form 10-K
for the year ended February 3, 1996 (File No. 1-11274).
10.19 Fred Meyer Excess Deferral and Benefit Equalization Plan. 1994
Restatement dated as of January 1, 1994. Incorporated by reference
to Exhibit 10T to Fred Meyer's Annual Report on Form 10-Q for the
quarter ended November 4, 1995 (File No. 1-11274).
10.20 Settlement Agreement and Mutual Release dated as of August 10, 1995
between REPL, REC Resolution Co., and Fred Meyer and certain of its
subsidiaries and restated Second Lease Modification Agreement dated
October 12, 1995 between Fred Meyer and REPL, with respect to the
Gresham, Oregon store, and Second Lease Modification Agreement dated
October 12, 1995 between Fred Meyer and REPL with respect to the
Clackamas, Oregon store. Incorporated by reference to Exhibit 10W to
Fred Meyer's Annual Report on Form 10-K for the year ended February
3, 1996 (File No. 1-11274).
10.21 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Juneau. Incorporated by
reference to Exhibit 10R to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
10.22 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Columbia Falls and
Kalispell. Incorporated by reference to Exhibit 10S to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
10.23 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Clackamas Distribution
Center. Incorporated by reference to Exhibit 10T to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
10.24 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Roseburg. Incorporated
by reference to Exhibit 10U to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
10.25 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Fourth Plain and Tacoma
Lakewood. Incorporated by reference to Exhibit 10V to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
10.26 Agreement Concerning Miscellaneous Parcels dated as of February 4,
1997 between Metropolitan and Fred Meyer (Pad Agreements).
Incorporated by reference to Exhibit 10W to Fred Meyer's Quarterly
Report on Form 10-Q for the quarter ended May 24, 1997 (File No. 1-
11274).
11 Computation of Earnings Per Share
21.1 List of subsidiaries of Fred Meyer, Inc. Incorporated by reference
to Exhibit 21.1 to Form S-4.
27 Financial Data Schedule
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K dated November 6, 1997
to report under Item 5 that it had entered into merger agreements with
Quality Food Centers, Inc. and Food 4 Less Holdings, Inc.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FRED MEYER, INC.
(Registrant)
Dated: December 18, 1997 DAVID R. JESSICK
---------------------------------------
David R. Jessick
Senior Vice President - Finance
Chief Financial Officer
17
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Document Description Page Number
2.1 Agreement and Plan of Merger among Quality Food Centers, Inc., Q
Acquisition Corp. and Fred Meyer, Inc. dated as of November 6, 1997.
Incorporated by reference to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K dated November 6, 1997.
2.2 Agreement and Plan of Merger among Food 4 Less Holdings, Inc., FFL
Acquisition Corp. and Fred Meyer, Inc. dated as of November 6, 1997.
Incorporated by reference to Exhibit 99.2 to Fred Meyer's Current
Report on Form 8-K dated November 6, 1997.
3.1 Restated Certificate of Incorporation of Fred Meyer, Inc.
3.2 Bylaws of Fred Meyer, Inc.
4.1 Specimen Stock Certificate. Incorporated by reference to Exhibit
4.1 to Fred Meyer's Registration Statement on Form S-4 (No. 333-
32927).
4.2 $1,030,000,000 Credit Agreement dated as of September 9, 1997 among
Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.3 $500,000,000 364-Day Credit Agreement dated as of September 9, 1997
among Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.4 $500,000,000 Bridge Credit Agreement dated as of September 9, 1997
among Fred Meyer, Inc., as Borrower, and The Lenders Party Thereto,
Bankers Trust Company, as Administrative Agent, and The Chase
Manhattan Bank, as Syndication Agent.
4.5 Form of Registration Rights Agreement for Fred Meyer, Inc.
Incorporated by reference to Exhibit C to Exhibit 99.1 to Fred
Meyer's Current Report on Form 8-K dated May 11, 1997.
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, the registrant
agrees to furnish to the Commission upon request copies of
agreements relating to other indebtedness.
10.1 Form of Executive Severance Agreement among Fred Meyer, Inc. and
each executive officer.
10.2 Form of Management Services Agreement. Incorporated by reference to
Exhibit D to Exhibit 99.1 to Fred Meyer's Current Report on Form 8-K
dated May 11, 1997.
10.3 Yucaipa Warrant Agreement. Incorporated by reference to Exhibit 10.3
to Smith's Registration Statement on Form S-3 (No. 333-14953).
Supplemental Warrant, dated as of September 9, 1997 among Fred
Meyer, Inc. (formerly Meyer-Smith Holdco, Inc.) and The Yucaipa
Companies.
10.4 Fred Meyer, Inc. 1997 Stock Incentive Plan. Incorporated by
reference to Appendix I to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K dated September 9, 1997.
10.5-1 Fred Meyer, Inc. 1983 Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10D to Fred Meyer's Quarterly Report on Form
10-K for the year ended January 28, 1989 (File No. 0-15023).
10.5-2 Amended Fred Meyer, Inc. 1990 Stock Incentive Plan. Incorporated by
reference to Exhibit 22 to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended August 12, 1995 (File No. 1-11274).
<PAGE>
10.6 Fred Meyer, Inc. Bonus Plan Description, as amended. Incorporated
by reference to Exhibit 10B to Fred Meyer's Annual Report on Form
10-K for the year ended February 1, 1997 (File No. 1-11274).
10.7 Assumption Agreement and Unconditional Guaranty of Certain
Obligations, dated December 11, 1981, among Fred Meyer, Inc., The
Predecessor Company, DTC Acquisition Corporation, and Real Estate
Properties Limited Partnership (formerly Fred Meyer Real Estate
Properties, Ltd.). Incorporated by reference to Exhibit 10FF to Fred
Meyer's Registration Statement on Form S-1, Registration No.
2-87139.
10.8 Non-Employee Directors' Deferred Compensation Plan. Incorporated by
reference to Appendix J to Exhibit 99.1 to Fred Meyer's Current
Report on Form 8-K, dated September 9, 1997.
10.9 Form of contract for Senior Executive Long-Term Disability Program.
Incorporated by reference to Exhibit 10G to Fred Meyer's Annual
Report on Form 10-K for the year ended January 30, 1993.
10.10 Fred Meyer Supplemental Income Plan dated January 1, 1994.
Incorporated by reference to Exhibit 10H to Fred Meyer's Annual
Report on Form 10-K for the year ended January 29, 1994.
10.11 Employment Agreement between Fred Meyer Stores, Inc. and Robert G.
Miller, as amended.
10.12 Form of Lease Agreement for substantially identical leases covering
36 stores and other locations leased by Fred Meyer, Inc. (or a
wholly owned subsidiary) from Real Estate Properties Limited
Partnership (formerly Fred Meyer Real Estate Properties, Ltd.)
including form of Assignment of Master Lease wherein Fred Meyer Real
Estate Properties, Ltd. (now Real Estate Properties Limited
Partnership) assigned its interest to Metropolitan Life Insurance
Company and a First Amendment to Lease Agreement, dated November 25,
1985, with appendices containing certain nonstandard provisions of
the Lease Agreement and the First Amendment; Collateral Matters
Agreement and Indemnification Agreement, each dated November 25,
1986, between Fred Meyer, Inc. and Metropolitan Life Insurance
Company. Incorporated by reference to Exhibit 101 to Fred Meyer's
Annual Report on Form 10-K for the year ended January 31, 1987 (File
No. 0-15023). Memorandum of First Amendment to Lease Agreement,
dated March 6, 1987, between Metropolitan Life Insurance Company
("Metropolitan"), Landlord and Fred Meyer, Inc., Tenant; and
Assignment of Master Lease, dated March 6, 1987, between Real Estate
Properties Limited Partnership (formerly Fred Meyer Real Estate
Properties, Ltd.) (Assignor) and Metropolitan (Assignee) for Nampa,
Idaho. Incorporated by reference to Exhibit 10I to Fred Meyer's
Annual Report on Form 10-K for the year ended January 30, 1988 (File
No. 0-15023). Form of Modification to Master Lease Agreement entered
into as of February 4, 1997 between Metropolitan, as Landlord and
Fred Meyer, as Tenant/Lessee relating to 29 leases with nonstandard
provisions attached as appendices and form of Termination of Master
Lease entered into as of February 4, 1997 with respect to six
Premises and one distribution center. See appendices. Incorporated
by reference to Exhibit 101 to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
<PAGE>
10.13 Form of Lease Agreement for substantially identical leases covering
27 stores and other locations subleased by Fred Meyer, Inc. (or a
wholly owned subsidiary) from Real Estate Properties Limited
Partnership (formerly Fred Meyer Real Estate Properties, Ltd.) with
appendices containing certain nonstandard provisions contained in
the Lease Agreement. Incorporated by reference to Exhibit 10J to
Fred Meyer's Annual Report on Form 10-K for the year ended January
31, 1987 (File No. 0-15023). Appendices containing certain
additional nonstandard Provisions. Incorporated by reference to
Exhibit 10J to Fred Meyer's Annual Reports on Form 10-K for the
years ended January 28, 1989, February 3, 1990, and February 2, 1991
(File No. 0-15023). Certain lease modifications for Burien,
Washington facility. Incorporated by reference to Exhibit 10K to
Fred Meyer's Annual Report on Form 10-K for the year ended January
30, 1993. Second Lease Modification Agreement for Cornelius store,
dated as of August 16, 1994; and Second Lease Modification Agreement
for Fairbanks store, dated as of March 18, 1994. Incorporated by
reference to Exhibit 10J to Fred Meyer's Annual Report on Form 10-K
for the year ended January 28, 1995. Lease Amendment No. 2 (AN-
Northern Lights, Boulevard Store) between Fred Meyer and Real Estate
Properties Limited Partnership, and Memorandum of Modification to
Lease/Short-Form Lease (AN-Northern Lights, Anchorage, Alaska)
between Fred Meyer and Real Estate Properties Limited Partnership
dated December 20, 1996; Lease Amendment No. 4 (Burien, Washington)
by and between Real Estate Properties Limited Partnership and
Roundup Co., a Washington corporation ("Roundup"), and Memorandum of
Modification to Lease/Short-Form Lease (Burien, Washington) by and
between Real Estate Properties Limited Partnership and Roundup,
dated December 20, 1996; Lease Amendment No. 3 (Clackamas, Oregon)
by and between Real Estate Properties Limited Partnership and Fred
Meyer, and Memorandum of Modification to Lease/Short-Form Lease (CK-
Clackamas, Oregon) by and between Real Estate Properties Limited
Partnership and Fred Meyer dated December 20, 1996; Lease Amendment
No. 3 (Cornelius, Oregon) by and between Real Estate Properties
Limited Partnership and Fred Meyer, and Memorandum of Modification
to Lease/Modification to Lease/Short-Form Lease (CN-Cornelius,
Oregon) by and between Real Estate Properties Limited Partnership,
Fred Meyer Real Estate Properties and Fred Meyer dated December 20,
1996; Lease Amendment No. 3 (Fairbanks, Alaska) by and between Real
Estate Properties Limited Partnership and Fred Meyer of Alaska,
Inc., an Alaska corporation ("Fred Meyer-Alaska"), and Memorandum of
Modification to Lease/Short-Form Lease (FB Fairbanks, Alaska) by and
between Real Estate Properties Limited Partnership and Fred Meyer-
Alaska, dated December 20, 1996 and Lease Assignment Agreement
(Stark Street, Portland) between Fred Meyer, Inc., a Delaware
corporation and Real Estate Properties Limited Partnership, an
Oregon limited partnership and made as of December 16, 1996 and
Agreement and Supplement to Leasehold Assignment and Modification
Agreement (Stark Street, Portland, Oregon). Incorporated by
reference to Exhibit 10J to Fred Meyer's Annual Report on Form 10-K
for the year ended February 1, 1997.
10.14 Form of Sublease, dated May 1, 1984, Fred Meyer Real Estate
Properties Ltd. (now Real Estate Properties Limited Partnership),
Lessor to Roundup Co., Lessee for Photo Plant Parking Lot.
Incorporated by reference to Exhibit 10J(7) to Fred Meyer's
Registration Statement on Form S-1, Registration No. 33-8574.
10.15 Lease Agreement, dated October 22, 1986, including Amendment, dated
April 30, 1987, between Fred Meyer Real Estate Properties, Ltd. (now
Real Estate Properties Limited Partnership) and Roundup Co. for
Midway store. Incorporated by reference to Exhibit 10N to Fred
Meyer's Annual Report on Form 10-K for the year ended January 31,
1987 (File No. 0-15023).
<PAGE>
10.16 Lease Agreement, dated February 19, 1987, including Addendum, dated
September 16, 1987, between Fred Meyer, Inc., as Lessee, and REC
Resolution Co. as successor in interest to Duane Company, as Lessor,
for the Gateway store. Incorporated by reference to Exhibit 10Q to
Fred Meyer's Annual Report on Form 10-K for the year ended January
30, 1988 (File No. 0-15023). Addendum No. 2 to Lease Agreement.
Incorporated by reference to Exhibit 10Q to Fred Meyer's Annual
Report on Form 10-K for the year ended February 2, 1991 (File No.
0-15023).
10.17 Lease Cancellation Agreement between Fred Meyer and Real Estate
Properties Limited Partnership, regarding termination of the lease
of the photo plant facility, dated as of January 17, 1995.
Incorporated by reference to Exhibit 10Q to Fred Meyer's Annual
Report on Form 10-K for the year ended January 28, 1995.
10.18 Lease for Swan Island Parking Lot between Fred Meyer as lessee and
Real Estate Properties Limited Partnership as lessor, dated November
16, 1994. Incorporated by reference to Exhibit 10R to Fred Meyer's
Annual Report on Form 10-K for the year ended January 28, 1995.
Rider to Lease dated as of November 1, 1994. Incorporated by
reference to Exhibit 10R to Fred Meyer's Annual Report on Form 10-K
for the year ended February 3, 1996 (File No. 1-11274).
10.19 Fred Meyer Excess Deferral and Benefit Equalization Plan. 1994
Restatement dated as of January 1, 1994. Incorporated by reference
to Exhibit 10T to Fred Meyer's Annual Report on Form 10-Q for the
quarter ended November 4, 1995 (File No. 1-11274).
10.20 Settlement Agreement and Mutual Release dated as of August 10, 1995
between REPL, REC Resolution Co., and Fred Meyer and certain of its
subsidiaries and restated Second Lease Modification Agreement dated
October 12, 1995 between Fred Meyer and REPL, with respect to the
Gresham, Oregon store, and Second Lease Modification Agreement dated
October 12, 1995 between Fred Meyer and REPL with respect to the
Clackamas, Oregon store. Incorporated by reference to Exhibit 10W to
Fred Meyer's Annual Report on Form 10-K for the year ended February
3, 1996 (File No. 1-11274).
10.21 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Juneau. Incorporated by
reference to Exhibit 10R to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
10.22 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Columbia Falls and
Kalispell. Incorporated by reference to Exhibit 10S to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
10.23 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Clackamas Distribution
Center. Incorporated by reference to Exhibit 10T to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
10.24 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Roseburg. Incorporated
by reference to Exhibit 10U to Fred Meyer's Quarterly Report on Form
10-Q for the quarter ended May 24, 1997 (File No. 1-11274).
10.25 Sale Agreement between Metropolitan, as Seller, and Fred Meyer, as
Purchaser, dated as of February 3, 1997 for Fourth Plain and Tacoma
Lakewood. Incorporated by reference to Exhibit 10V to Fred Meyer's
Quarterly Report on Form 10-Q for the quarter ended May 24, 1997
(File No. 1-11274).
<PAGE>
10.26 Agreement Concerning Miscellaneous Parcels dated as of February 4,
1997 between Metropolitan and Fred Meyer (Pad Agreements).
Incorporated by reference to Exhibit 10W to Fred Meyer's Quarterly
Report on Form 10-Q for the quarter ended May 24, 1997 (File No. 1-
11274).
11 Computation of Earnings Per Share
21.1 List of subsidiaries of Fred Meyer, Inc. Incorporated by reference
to Exhibit 21.1 to Form S-4.
27 Financial Data Schedule
RESTATED CERTIFICATE OF INCORPORATION
OF
MEYER-SMITH HOLDCO, INC.
A DELAWARE CORPORATION
(Originally incorporated on July 7, 1997)
Pursuant to Sections 242 and 245 of the Delaware General Corporation Law,
the undersigned hereby makes this Restated Certificate of Incorporation of the
Delaware corporation MEYER-SMITH HOLDCO, INC., whose Certificate of
Incorporation was filed in the office of the Secretary of State of Delaware on
July 7, 1997, and certifies as follows:
ARTICLE I
The name of the Corporation is FRED MEYER, INC.
ARTICLE II
The registered office and registered agent of the Corporation is The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which Corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
A. The total number of shares of stock that the Corporation shall have
authority to issue is five hundred million (500,000,000) shares, consisting of
four hundred million (400,000,000) shares of Common Stock having a par value of
$.01 per share and one hundred million (100,000,000) shares of Preferred Stock
having a par value of $.01 per share.
B. The Board of Directors is authorized, subject to limitations prescribed
by law and the provisions of this Article IV, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include determination of the following:
<PAGE>
(1) The number of shares constituting that series and the distinctive
designation of that series;
(2) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such
voting rights and the voting powers, if any, of the holders of
such series;
(4) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(5) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(7) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(8) Any other relative rights, preferences and limitations of that
series.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
ARTICLE V
The Board of Directors of the Corporation may alter, amend or repeal the
Bylaws of the Corporation.
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<PAGE>
ARTICLE VI
No action may be taken by stockholders of this Corporation other than at an
annual or special meeting of stockholders and the ability of stockholders to act
by written consent is specifically denied.
ARTICLE VII
A. The Corporation shall indemnify to the fullest extent then permitted by
law any person who is made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (including an action, suit or
proceeding by or in the right of the Corporation) by reason of the fact that the
person is or was a director or officer of the Corporation, or serves or served
at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred in connection therewith. Expenses
incurred by an officer or director in defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
Corporation as authorized in this Article. The indemnification provided hereby
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any statute, bylaw, agreement, vote of shareholders or
directors or otherwise, both as to action in any official capacity and as to
action in another capacity while holding an office, and shall continue as to a
person who has ceased to be a director or officer and shall inure to the benefit
of the heirs, executors and administrators of such person. The foregoing right
to indemnification shall not apply in respect of actions, suits or proceedings
(or parts thereof) against the Corporation unless such action, suit or
proceeding shall have been approved by the Board of Directors.
Any person other than a director or officer who is or was an employee or
agent of the Corporation, or fiduciary within the meaning of the Employee
Retirement Income Security Act of 1974 with respect to any employee benefit plan
of the Corporation, or is or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, may be indemnified to such extent as the Board of Directors in
its discretion at any time or from time to time may authorize.
B. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the Corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal.
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<PAGE>
ARTICLE VIII
A. The number of directors constituting the entire Board of Directors of
the Corporation shall be not less than three nor more than 15 as fixed from time
to time by the Board of Directors, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any director at the
time in office, and provided further, that the number of directors constituting
the entire Board of Directors shall be eleven until otherwise fixed by a
majority of the entire Board of Directors.
B. The Board of Directors, other than those who may be elected by the
holders of any class or series of stock having a preference over the Common
Stock as to dividend or upon liquidation, shall be divided into three classes,
as nearly equal in number as the then total number of directors constituting the
entire Board of Directors permits with the term of office of one class expiring
each year. Directors of the first class shall be elected to hold office for a
term expiring at the 1998 annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the 1999 annual meeting and
directors of the third class shall be elected to hold office for a term expiring
at the 2000 annual meeting. Any vacancies in the Board of Directors for any
reason, and any directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors shall be elected and
qualified. Subject to the foregoing, at each annual meeting of stockholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Despite the expiration of a director's term, the director shall
continue to serve until the director's successor is elected and qualified or the
number of directors is decreased. Directors need not be residents of the State
of Delaware or stockholders of the Corporation.
C. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Restated Certificate
of Incorporation or the Bylaws of the Corporation), any director or the entire
Board of Directors of the Corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of 75% or more of the
voting power of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for that
purpose.
D. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Restated Certificate
of Incorporation or the Bylaws of the Corporation), the provisions set forth in
this Article VIII may not be amended, altered, changed or repealed in any
respect, nor may any provision be adopted which is inconsistent with this
Article VIII, unless such action is approved by the affirmative vote of the
holders of not less than 75% of the voting power of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
4
<PAGE>
E. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Restated Certificate
of Incorporation or the Bylaws of the Corporation), the provisions set forth in
Section 1.11 of the Bylaws of the Corporation may not be amended, altered,
changed or repealed in any respect, nor may any provision be adopted which is
inconsistent with Section 1.11 of the Bylaws, unless such action is approved by
the Board of Directors or by the affirmative vote of the holders of not less
than 75% of the voting power of the outstanding shares of capital stock of the
Corporation entitled to vote generally at an annual or special meeting of
stockholders (considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates, integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation, and which has been duly adopted in accordance
with Sections 242 and 245 of the Delaware General Corporation Law, has been
executed by a duly authorized officer of the Corporation this 9th day of
September, 1997.
MEYER-SMITH HOLDCO, INC.
By ROGER A. COOKE
--------------------------------------
Roger A. Cooke, Senior Vice President
5
BYLAWS
OF
FRED MEYER, INC.
ARTICLE I
STOCKHOLDERS
1.1 Annual Meeting. The annual meeting of the stockholders shall be held at
a date and time fixed by the Board of Directors and stated in the notice of the
meeting. Failure to hold an annual meeting an the designated date shall not
affect the validity of any corporate action.
1.2 Special Meetings. Special meetings of the stockholders, for any
purposes, unless otherwise prescribed by statute, may be called by the Chairman
of the Board or the President and shall be called by the Chairman of the Board,
the President or the Secretary upon direction by the Board of Directors.
1.3 Place of Meetings. Meetings of the stockholders shall be hold at any
place in or out of the State of Delaware designated by the Board of Directors.
If a meeting place is not designated by the Board of Directors, the meeting
shall be held at the Corporation's principal office.
1.4 Notice of Meetings. Written or printed notice stating the date, time
and place of the meeting of the stockholders and, in the case of a special
meeting or a meeting for which special notice is required by law, the purposes
for which the meeting is called shall be given by the corporation to each
stockholder entitled to vote at the meeting and, if required by law, to any
other stockholders entitled to receive notice, not more than 60 days nor less
than 10 days before the meeting date. If mailed, the notice shall be deemed
given when deposited in the United States mail, postage prepaid, directed to
each stockholder at the stockholder's address shown in the Corporation's record
of stockholders. Any previously scheduled meeting of the shareholders may be
postponed and any special meeting of the shareholders may be canceled by
resolution of the Board of Directors upon public announcement given prior to the
date previously scheduled for such meeting of shareholders.
1.5 Waiver of Notice. A stockholder may at any time waive any notice
required by law, these Bylaws or the Certificate of Incorporation. The waiver
shall be in writing, be signed by the stockholder entitled to the notice and be
delivered to the Corporation for inclusion in the minutes for filing with the
corporate records. A stockholder's attendance at a meeting constitutes a waiver
of notice of such meeting, except when the person attends for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
<PAGE>
1.6 Fixing of Record Date.
(1) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be (i) more than 60 nor less than 10 days before the date of
such meeting nor (ii) more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors nor (iii) more than
60 days prior to any other action.
(2) If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of the stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is hold.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(3) A determination of stockholders of record entitled to notice of or
to vote at a meeting of the stockholders shall apply to any adjournment of the
meeting, provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
1.7 List of Stockholders for Meeting. After a record date for a meeting of
the stockholders is fixed and at least 10 days before any such meeting, the
Corporation shall prepare an alphabetical list of all stockholders entitled to
vote at the meeting of the stockholders showing the address of each stockholder
and the number of shares registered in the name of each stockholder. The list of
stockholders shall be available for inspection by any stockholder, upon proper
demand as may be required by law, for any purpose germane to the meeting, during
ordinary business hours for a period of at least 10 days prior to the meeting,
at the Corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held. The Corporation shall make
the list of stockholders available at the meeting, and any stockholder or the
stockholder's agent or attorney shall be entitled to inspect the list at any
time during the meeting or any adjournment. Refusal or failure to prepare or
make available the list of stockholders does not affect the validity of action
taken at the meeting except that upon the willful neglect or refusal of the
directors to produce such a list at any meeting for the election of directors
they shall be ineligible for election to any office at such meeting.
2
<PAGE>
1.8 Quorum; Adjournment.
(1) A majority of the voting power present in person or represented by
proxy, shall constitute a quorum at a meeting of stockholders.
(2) The chair of the meeting or a majority of voting power represented
at the meeting, may adjourn the meeting from time to time to a different time
and place without further notice to any stockholder of any adjournment, except
that notice is required if a new record date is or must be set for the adjourned
meeting or if the adjournment is for more than 30 days. At an adjourned meeting
at which a quorum is present, any business may be transacted that might have
been transacted at the meeting originally hold.
(3) Once a share is represented for any purpose at a meeting, it shall
be present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting.
1.9 Voting Requirements. If a quorum exists, action on a matter, other than
the election of directors, is approved by the affirmative vote of a majority of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the matter. Unless otherwise provided in the Certificate of
Incorporation, directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present.
1.10 Proxies. A stockholder may vote shares in person or by proxy. A
stockholder may appoint a proxy either by personally executing an appointment
form or by causing the stockholder's agent or attorney-in-fact to execute such
form, or by such other means as is specifically authorized by law. An
appointment of a proxy is effective when received by the Secretary or other
officer of the Corporation authorized to tabulate votes, but no proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. An appointment is revocable by the stockholder unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest sufficient in law to support an irrevocable power.
1.11 Notice of Stockholder Business and Nominations.
(1) Annual Meetings of Stockholders.
(a) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (i) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice as provided for in this Section 1.11 and
on the date of the annual meeting, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 1.11.
3
<PAGE>
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to this Section 1.11, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (ii) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (a) the name
and address of such stockholder, as they appear on the Corporation's books, and
of such beneficial owner and (b) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner.
(c) Notwithstanding anything in this Section 1.11 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation is increased and there is no public announcement
by the Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 1.11 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
(2) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to
4
<PAGE>
be elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board of Directors or (b) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 1.11, who shall be entitled to
vote at the meeting and who complies with the notice procedures set forth in
this Section 1.11. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder's notice required by this Section 1.11
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(3) General.
(a) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.11. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 1.11, and, if
any proposed nomination or business is not in compliance with this Section 1.11,
to declare that such defective proposal or nomination shall be disregarded.
(b) For the purposes of these Bylaws, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission.
(c) Notwithstanding the foregoing provisions of Section 1.11, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in Section 1.11. Nothing in Section 1.11 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
5
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
2.1 Duties of Board of Directors. All corporate powers of the Corporation
shall be exercised by or under the authority of its Board of Directors; the
business and affairs of the Corporation shall be managed under the direction of
its Board of Directors. The Board of Directors shall appoint a Chairman, who
shall preside at meetings of the Board of Directors and of the stockholders and
who shall exercise the usual powers pertaining to that office. The Chairman of
the Board shall not be an officer of the Corporation.
2.2 Number, Term, Qualification and Classification. The number, term,
qualification and classification of the directors of the Board of Directors
shall be as set forth in the Corporation's Certificate of Incorporation.
2.3 Regular Meetings. A regular meeting of the Board of Directors may be
held without notice other than this Bylaw immediately after, and at the same
place as, the annual meeting of the stockholders. Regular meetings of the Board
of Directors shall be held at such times and places as may be from time to time
fixed by the Board of Directors or as may be specified in a notice of meeting.
Notice need not be given of regular meetings of the Board of Directors.
2.4 Special Meetings. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board, the President or a majority of
the directors then serving and shall be called by the Chairman of the Board, the
President or the Secretary upon direction by the Board of Directors.
2.5 Notice. Notice of the date, time and place of any special meeting of
the Board of Directors shall be given at least 24 hours prior to the meeting by
notice communicated in person, by telephone, telegraph, teletype, facsimile
transmission, other form of wire or wireless communication, mail or courier
service sent to director's business or home address. If mailed, notice shall be
effective at the earliest of (a) when received, (b) five days after its deposit
in the United States mail, as evidenced by the postmark, if mailed postpaid and
correctly addressed, (c) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested and the receipt is signed
by or on behalf of the addresses, (d) if given by teletype or facsimile, upon
transmission of the message, or (e) if given by overnight mail or courier, one
day after delivery to the overnight mail or courier service company. Notice by
all other means shall be deemed effective when received by or on behalf of the
director. Notice or waiver of notice of any regular or special meeting need not
describe the purposes of, or the business to be transacted at, the meeting
unless required by law or the Certificate of Incorporation.
2.6 Waiver of Notice. A director may at any time waive any notice required
by law, these Bylaws or the Certificate of Incorporation. Except as set forth
below, the waiver
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<PAGE>
must be in writing, be signed by the director entitled to the notice, specify
the meeting for which notice is waived and be filed with the minutes or
corporate records. A director's attendance at or participation in a meeting
waives any required notice to the director of the meeting unless the director at
the beginning of the meeting, or promptly upon the director's arrival, objects
to holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
2.7 Quorum. One-third of the total number of directors fixed in accordance
with the Certificate of Incorporation shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, except that,
if the total number of directors fixed in accordance with the provisions of the
Certificate of Incorporation is one, then one director shall constitute a
quorum. If less than a quorum is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice.
2.8 Manner of Acting. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors,
unless a different number is provided by law, the Certificate of Incorporation
or these Bylaws.
2.9 Meeting by Telephone Conference; Action Without Meeting.
(1) Directors may participate in a regular or special meeting by, or
conduct the meeting through, use of any means of communications by which all
directors participating may simultaneously hear each other during the meeting.
Participation in a meeting by this means shall constitute presence in person at
the meeting.
(2) Any action that is required or permitted to be taken at a meeting
of the Board of Directors may be taken without a meeting if one or more written
consents describing the action taken are signed by all of the directors entitled
to vote on the matter and included in the minutes of proceedings of the Board of
Directors. The action shall be effective when the last director signs the
consent, unless the consent specifies an earlier or liter effective date.
2.10 Vacancies. Any vacancy on the Board of Directors may be filled by the
Board of Directors as set forth in the Corporation's Certificate of
Incorporation. Any vacancy not filled by the directors shall be filled by
election at an annual meeting or at a special meeting of stockholders called for
that purpose. A vacancy that will occur at a specified later date, by reason of
a resignation or otherwise, may be filled before the vacancy occurs, but the new
director may not take office until the vacancy occurs.
2.11 Compensation. By resolution of the Board of Directors, the directors
may be paid reasonable compensation for services as directors and their expenses
of attending meetings of the Board of Directors.
2.12 Presumption of Assent. A director who is present at a meeting of the
Board of Directors or a committee of the Board of Directors shall be deemed to
have assented to the
7
<PAGE>
action taken at the meeting unless (a) the director's dissent or abstention from
the action is entered in the minutes of the meeting, (b) the director delivers a
written notice of dissent or abstention to the action to the presiding officer
of the meeting before any adjournment or to the Corporation immediately after
the adjournment of the meeting or (c) the director objects at the beginning of
the meeting or promptly upon the director's arrival to the holding of the
meeting or transacting business at the meeting. The right to dissent or abstain
is not available to a director who voted in favor of the action.
2.13 Resignation. Any director may resign by delivering written notice to
the Board of Directors, the Chairman of the Board or the Corporation. Unless the
notice specifies a later effective date, a resignation notice shall be effective
upon the earlier of (a) receipt, (b) five days after its deposit in the United
States mail, if mailed postpaid and correctly addressed, or (c) on the date
shown on the return receipt, if sent by registered or certified mail, return
receipt requested, and the receipt is signed by addressee. once delivered, a
resignation notice is irrevocable unless revocation is permitted by the Board of
Directors.
ARTICLE III
COMMITTEES OF THE BOARD
3.1 Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board, create one or more committees and appoint members
of the Board of Directors to serve on them. Each committee shall have one or
more members. The creation of a committee and appointment of members to it must
be approved by a majority of all directors in office when the action is taken.
Subject to any limitation imposed by the Board of Directors or by law, each
committee may exercise all the authority of the Board of Directors in the
management of the Corporation. A committee may not take any action that a
committee is prohibited from taking by the General Corporation Law of Delaware.
3.2 Changes of Size and Function. Subject to the provisions of the General
Corporation Law of Delaware, the Board of Directors shall have the power at any
time to change the number of committee members, fill committee vacancies, change
any committee members and change the functions and terminate the existence of a
committee.
3.3 Conduct of Meetings. Each committee shall conduct its meetings in
accordance with the applicable provisions of these Bylaws relating to meetings
and action without meetings of the Board of Directors. Each committee shall
adopt any further rules regarding its conduct, keep minutes and other records
and appoint subcommittees and assistants as it deems appropriate.
3.4 Compensation. By resolution of the Board of Directors, Committee
members may be paid reasonable compensation for services on committees and their
expenses of attending committee meetings.
8
<PAGE>
ARTICLE IV
OFFICERS
4.1 Appointment. The Board of Directors shall appoint a President and Chief
Executive Officer, such Vice Presidents as the Board of Directors may determine,
a Secretary and a Treasurer. The Board of Directors may appoint such other
officers, assistant officers and agents as the Board of Directors may determine.
Any two or more offices may be held by the same person.
4.2 Term. The term of office of all officers commences upon their
appointment and continues until their successors are appointed or until their
resignation or removal.
4.3 Removal. Any officer or agent appointed by the Board of Directors may
be removed by the Board of Directors at any time with or without cause.
4.4 President. The President shall be the Chief Executive Officer and
exercise the usual powers pertaining to that office. Subject to the control of
the Board of Directors, the President shall be in general charge of the
Corporation's business and affairs. The President shall report to and consult
with the Board of Directors. Unless otherwise determined by the Board of
Directors, the President shall have authority to vote any shares of stock of
another corporation owned by the Corporation and to delegate this authority to
any other officer. The President shall have such other powers and duties as the
Board of Directors may from time to time prescribe. In the absence of the
Chairman of the Board, the President shall preside at meetings of the Board of
Directors and the stockholders.
4.5 Vice Presidents. Each Vice President shall perform the duties and
responsibilities prescribed by the Board of Directors or as may be assigned from
time to time by the President. The Board of Directors may confer a special title
upon a Vice President.
4.6 Secretary.
(1) The Secretary shall record and keep the minutes of all meetings of
the directors and the stockholders in one or more books provided for that
purpose and perform any other duties prescribed by the Board of Directors.
(2) Any assistant secretary shall have the duties prescribed from time
to time by the Board of Directors or the secretary. In the absence or disability
of the Secretary, the Secretary's duties shall be performed by an assistant
secretary.
4.7 Treasurer. The Treasurer shall be responsible for such financial
matters of the Corporation and shall have such other duties as are prescribed
from time to time by the Board of Directors.
9
<PAGE>
ARTICLE V
INDEMNIFICATION
The Corporation shall indemnify any current or former director or officer
and may indemnify any current or former employee or agent of the Corporation to
the fullest extent not prohibited by law who is made, or threatened to be made,
a party to an action, suit or proceeding, whether civil, criminal,
administrative, investigative or other (including an action, suit or proceeding
by or in the right of the Corporation), by reason of the fact that such person
is or was a director, officer, employee or agent of the Corporation, or serves
or served at the request of the Corporation as a director, officer, employee or
agent of another corporation partnership, joint venture, trust or other
enterprise. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
such action, suit or proceeding, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith. The
corporation shall pay for or reimburse the reasonable expenses incurred by any
such current or former director or officer and may pay for or reimburse the
reasonable expenses of any such current or former employee or agent in any such
proceeding in advance of the final disposition of the proceeding if such person
sets forth in writing (i) the person's good faith belief that the person is
entitled to indemnification under this Article and (ii) the person's agreement
to repay all advances if it is ultimately determined that the person is not
entitled to indemnification under this Article. No amendment to these Bylaws
that limits the corporation's obligation to indemnify any person shall have any
effect on such obligation for any act or omission that occurs prior to the later
to occur of the effective date of the amendment or the date notice of the
amendment is given to the person. This Article shall not be deemed exclusive of
any other provisions for indemnification or advancement of expenses of
directors, officers, employees, agents and fiduciaries that may be included in
the Certificate of incorporation or any statute, Bylaw, agreement, general or
specific action of the Board of Directors, vote of stockholders or other
document or arrangement. The foregoing right to indemnification shall not apply
in respect of actions, suits or proceedings (or parts thereof) against the
Corporation unless such action, suit or proceeding shall have been approved by
the Board of Directors.
ARTICLE VI
ISSUANCE OF SHARES
6.1 Adequacy of Consideration. Before the Corporation issues shares, the
Board of Directors shall determine that the consideration received or to be
received for the shares to be issued is adequate. The authorization by the Board
of Directors of the issuance of shares for stated consideration shall evidence a
determination by the Board that such consideration is adequate.
10
<PAGE>
6.2 Certificates for Shares.
(1) Certificates representing shares of the Corporation shall be in
any form determined by the Board of Directors consistent with the requirements
of the General Corporation Law of Delaware and these Bylaws. The certificates
shall be signed, either manually or in facsimile, by two officers of the
corporation, who shall be the Chairman of the Board, the President or a Vice
President and the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, and may be sealed with the seal of the Corporation, if any,
or a facsimile thereof. All certificates for shares shall be consecutively
numbered or otherwise identified. Any or all of the signatures upon a
certificate may be facsimiles.
(2) Every certificate for shares of stock that are subject to any
restriction on transfer or registration of transfer pursuant to the Certificate
of Incorporation, the Bylaws, securities laws, a stockholders' agreement or any
agreement to which the Corporation is a party shall have conspicuously noted on
the face or back of the certificate either the full text of the restriction or a
statement of the existence of the restriction and that the corporation retains a
copy of the full text. Every certificate issued when the corporation is
authorized to issue more than one class or series within a class of shares shall
set forth on its face or back either (a) a summary of the designations, relative
rights, preferences and limitations of the shares of each class and the
variations in rights, preferences and limitations for each series authorized to
be issued and the authority of the Board of Directors to determine variations
for future series or (b) a statement of the existence of those designations,
relative rights, preferences and limitations and a statement that the
Corporation will furnish a copy thereof to the holder of the certificate upon
written request and without charge.
(3) All certificates surrendered to the Corporation for transfer shall
be canceled. The Corporation shall not issue a new certificate for previously
issued shares until the former certificate or certificates for those shares are
surrendered and canceled, except that in case of a lost, destroyed or mutilated
certificate a new certificate may be issued upon receipt by the Corporation of
security against loss (by bond, indemnity or otherwise) to the extent deemed
necessary by the Board of Directors.
6.3 Transfer of Shares. Transfer of shares of the Corporation shall be made
only on the stock transfer books of the Corporation by the holder of record
thereof or by the holder's legal representative, who shall furnish proper
evidence of authority to transfer, or by the holder's attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation. The person in whose name shares stand on the books of the
Corporation shall be deemed by the corporation to the owner thereof for all
purposes.
6.4 Transfer Agent and Registrar. The Board of Directors may from time to
time appoint one or more transfer agents and one or more registrars for the
shares of the Corporation, with powers and duties determined by the Board of
Directors.
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6.5 Officer Ceasing to Act. If the person who signed a share certificate,
either manually or in facsimile, no longer holds office when the certificate is
issued, the certificate is nevertheless valid.
6.6 Fractional Shares. The Corporation shall not issue certificates for
fractional shares.
ARTICLE VII
CONTRACTS, CHECKS AND OTHER INSTRUMENTS
7.1 Contracts. Except as otherwise provided by law, the Board of Directors
may authorize any officers or agents to execute and deliver any contract or
other instrument in the name of and on behalf of the Corporation, and this
authority may be general or confined to specific instances.
7.2 Checks, Drafts, Etc. All checks, drafts or other orders for the payment
of money and notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed in the manner and by the officers or agents of the
Corporation designated by the Board of Directors, the Chairman of the Board or
the President.
7.3 Deposits. All funds of the Corporation not otherwise employed shall be
deposited to the credit of the Corporation in those banks, trust companies or
other depositories as the Board of Directors or officers of the Corporation
designated by the Board of Directors select, or be invested as authorized by the
Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Severability. A determination that any provision of these Bylaws is for
any reason inapplicable, invalid, illegal or otherwise ineffective shall not
affect or invalidate any other provision of these Bylaws.
8.2 Amendments. Subject to the provisions of the Certificate of
Incorporation, these Bylaws may be amended or repealed and new Bylaws may be
adopted by the Board of Directors or the stockholders of the Corporation.
Adopted: July 14, 1997
12
================================================================================
$1,030,000,000
CREDIT AGREEMENT
dated as of
September 9, 1997
among
MEYER-SMITH HOLDCO, INC.,
as Borrower
and
The Lenders Party Hereto
BANKERS TRUST COMPANY,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
---------------------------
CHASE SECURITIES INC. and BT SECURITIES CORPORATION,
as Arrangers
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Defined Terms................................................. 1
SECTION 1.2. Classification of Loans and Borrowings........................18
SECTION 1.3. Terms Generally...............................................19
SECTION 1.4. Accounting Terms; GAAP........................................19
SECTION 1.5. Change of Names...............................................19
ARTICLE II
The Credits
SECTION 2.1. Commitments...................................................20
SECTION 2.2. Loans and Borrowings..........................................20
SECTION 2.3. Requests for Revolving Borrowings.............................21
SECTION 2.4. Competitive Bid Procedure.....................................22
SECTION 2.5. Letters of Credit.............................................24
SECTION 2.6. Funding of Borrowings.........................................29
SECTION 2.7. Interest Elections............................................30
SECTION 2.8. Termination and Reduction of Commitments......................31
SECTION 2.9. Repayment of Loans; Evidence of Debt..........................32
SECTION 2.10. Prepayment of Loans...........................................33
SECTION 2.11. Fees..........................................................33
SECTION 2.12. Interest......................................................34
SECTION 2.13. Alternate Rate of Interest....................................35
SECTION 2.14. Increased Costs...............................................36
SECTION 2.15. Break Funding Payments........................................37
SECTION 2.16. Taxes.........................................................38
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...........................................40
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders....................................................41
SECTION 2.19. Extension of Maturity Date....................................42
i
<PAGE>
ARTICLE III
Representations and Warranties
SECTION 3.1. Organization; Powers..........................................45
SECTION 3.2. Authorization; Enforceability.................................45
SECTION 3.3. Governmental Approvals; No Conflicts..........................46
SECTION 3.4. Financial Condition; No Material
Adverse Change................................................46
SECTION 3.5. Properties....................................................46
SECTION 3.6. Litigation and Environmental Matters..........................47
SECTION 3.7. Compliance with Laws and Agreements...........................47
SECTION 3.8. Investment and Holding Company Status.........................47
SECTION 3.9. Taxes.........................................................47
SECTION 3.10. ERISA.........................................................47
SECTION 3.11. Disclosure....................................................48
SECTION 3.12. Solvency......................................................48
SECTION 3.13. Use of Proceeds; Margin Regulations...........................48
SECTION 3.14. No Default....................................................48
SECTION 3.15. Subsidiaries..................................................48
ARTICLE IV
Conditions
SECTION 4.1. Effective Date................................................49
SECTION 4.2. Each Credit Event.............................................50
ARTICLE V
Affirmative Covenants
SECTION 5.1. Financial Statements and Other Information....................51
SECTION 5.2. Notices of Material Events....................................52
SECTION 5.3. Existence; Conduct of Business................................53
SECTION 5.4. Payment of Obligations........................................53
SECTION 5.5. Maintenance of Properties; Insurance..........................53
SECTION 5.6. Books and Records; Inspection Rights..........................53
SECTION 5.7. Compliance with Laws..........................................53
SECTION 5.8. Use of Proceeds and Letters of Credit.........................54
SECTION 5.9. Subsidiary Guaranties.........................................54
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<PAGE>
ARTICLE VI
Negative Covenants
SECTION 6.1. Material Subsidiary Debt......................................54
SECTION 6.2. Liens.........................................................55
SECTION 6.3. Modifications of Merger Document..............................56
SECTION 6.4. Fundamental Changes...........................................56
SECTION 6.5. Investments, Loans, Advances, Suretyship
Liabilities and Acquisitions..................................57
SECTION 6.6. Hedging Agreements............................................58
SECTION 6.7. Restricted Payments...........................................58
SECTION 6.8. Transactions with Affiliates..................................58
SECTION 6.9. Restrictive Agreements........................................58
SECTION 6.10. Financial Covenants...........................................59
SECTION 6.11. Unconditional Purchase Obligations............................60
SECTION 6.12. Sale of Assets; Sale and Leaseback Transactions...............60
SECTION 6.13. Fiscal Year; Fiscal Quarter...................................61
ARTICLE VII
Events of Default...................................................62
ARTICLE VIII
The Administrative Agent
SECTION 8.1. Appointment...................................................64
SECTION 8.2. Delegation of Duties..........................................65
SECTION 8.3. Exculpatory Provisions........................................65
SECTION 8.4. Reliance by Administrative Agent..............................65
SECTION 8.5. Notice of Default.............................................66
SECTION 8.6. Non-Reliance on Administrative Agent and Other Lenders........66
SECTION 8.7. Indemnification ..............................................66
SECTION 8.8. Administrative Agent in Its Individual Capacity ..............67
SECTION 8.9. Successor Administrative Agent................................67
SECTION 8.10. Syndication Agent.............................................67
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<PAGE>
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices.......................................................68
SECTION 9.2. Waivers; Amendments...........................................69
SECTION 9.3. Expenses; Indemnity; Damage Waiver............................70
SECTION 9.4. Successors and Assigns........................................71
SECTION 9.5. Survival......................................................74
SECTION 9.6. Counterparts; Integration; Effectiveness......................74
SECTION 9.7. Severability..................................................75
SECTION 9.8. Right of Setoff...............................................75
SECTION 9.9. Governing Law; Jurisdiction; Consent
to Service of Process.........................................75
SECTION 9.10. WAIVER OF JURY TRIAL..........................................76
SECTION 9.11. Headings......................................................76
SECTION 9.12. Confidentiality...............................................76
SECTION 9.13. OREGON LEGAL NOTICE...........................................77
SCHEDULES AND EXHIBITS
Schedule 2.1 Lenders and Commitments
Schedule 3.6 Disclosed Matters
Schedule 3.15 Subsidiaries
Schedule 4.1 Refinancing of Existing Debt
Schedule 6.1 Debt
Schedule 6.2 Liens
Schedule 6.10 Restrictive Agreements
Exhibit A Assignment and Acceptance
Exhibit B Note
Exhibit C Opinion of Stoel Rives, Counsel to the Borrower
Exhibit D Subsidiary Guaranty
iv
<PAGE>
CREDIT AGREEMENT dated as of September 9, 1997, among MEYER-SMITH
HOLDCO., INC., as Borrower, the LENDERS party hereto, BANKERS TRUST COMPANY, as
Administrative Agent and THE CHASE MANHATTAN BANK, as Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR" means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the rate of interest
per annum publicly announced from time to time by the Administrative Agent as
its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors); each
change in the Prime Rate shall be effective on the date such change is publicly
announced as effective. "Federal Funds Effective Rate" means, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized national
standing selected by it. If for any reason the Administrative Agent shall have
determined that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the ABR shall
be determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the ABR due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Adjusted Interest Coverage Ratio" means the ratio of (a) Consolidated
EBITDAR to (b) the sum of (i) the Borrower's Consolidated Interest Expense for
such period plus (ii) except as included in Consolidated Interest Expense, the
Borrower's consolidated rental expense on operating leases, computed as of the
last day of a fiscal quarter for the period consisting of such fiscal quarter
and the immediately preceding three fiscal quarters.
<PAGE>
CREDIT AGREEMENT
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bankers Trust Company, in its capacity as
administrative agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Syndication Agent.
"Applicable Level" means the level determined with reference to the
following chart:
Level Ratio Rating
- ----- ----- ------
I greater than or equal to 7.5x greater than or equal to A-/A3
II greater than 6.5x BBB+/Baa1
III greater than 5.5x BBB/Baa2
IV greater than 4.5x BBB-/Baa3
V greater than or equal to 3.5x BB+/Ba1
VI lesser than 3.5x lesser than BB+/Ba1
For purposes of the foregoing, (i) for the six month period following from and
after the Closing Date, the Applicable Level shall be Level IV; (ii) on the date
that is six months after the Closing Date, the Borrower shall provide the
Administrative Agent with a Compliance Certificate showing the ratio of
Applicable EBITDA to Applicable Interest Expense of the Borrower for the fiscal
quarter ended January 31, 1998 (and in the event the Borrower fails timely to
provide such Compliance Certificate, the Applicable Level shall be Level V until
such Compliance Certificate is provided), and from such date until May 23, 1998,
the Applicable Level shall be the Level corresponding to such ratio; (iii)
except as provided in (i) and (ii) above, at any time of determination, the
Applicable Level shall be the Level corresponding to the ratio of Applicable
EBITDA to Applicable Interest Expense (for the most recent four consecutive
fiscal quarters; provided that for the periods ended May 23, 1998 and August 15,
1998, Applicable EBITDA and Applicable Interest Expense shall be calculated by
reference to the full fiscal quarters then ended since the Closing Date) as set
forth in the most recently delivered Compliance Certificate (it being understood
and agreed that if the Borrower shall not have delivered the most recently due
Compliance Certificate within the time period specified in Section 5.1(c), the
Applicable Level shall be Level V until
2
<PAGE>
CREDIT AGREEMENT
such Compliance Certificate is delivered) (for purposes of this definition, the
"Ratio") and the senior unsecured long term debt rating of the Borrower from S&P
and Moody's (for purposes of this definition, the "Rating"); (iv) in the event
the Ratio and the Rating do not fall within the same Level, the Applicable Level
shall be the higher (Level I being the highest) of the two Levels; and (v) in
the event the rating from S&P and the rating from Moody's do not fall within the
same Level, the applicable Rating will be based upon the higher (Level I being
the highest) of the two ratings, except that, in the event one of the two
ratings is two or more Levels higher than the other, the applicable Rating shall
be determined by reference to the Level next lower than the higher of the two
ratings. If any rating established or deemed to be established by Moody's or S&P
shall be changed (other than as a result of a change in the rating system of
Moody's or S&P), such change shall be effective as of the date on which such
change is first announced by the rating agency making such change. Each such
change shall take effect on the effective date of such change and shall end on
the date immediately preceding the effective date of the next such change. If
the rating system of S&P or Moody's shall change prior to the Maturity Date, the
Borrower and the Lenders shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such changed rating system,
and pending agreement on another Applicable Level the Rating shall be determined
by reference to the rating provided by the non-changing rating agency. If the
Borrower does not have a senior long term unsecured debt rating or implied
rating from either Moody's or S&P, the Applicable Level shall be determined by
reference to the Ratio only. For purposes of this definition, "Applicable
EBITDA" of the Borrower and its Subsidiaries means "A" minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi) non-cash LIFO reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains;
and "Applicable Interest Expense" means the consolidated interest expense of the
Borrower and its Subsidiaries.
"Applicable Margin" means, with respect to any facility fee or
Eurodollar Loan, the applicable number of basis points per annum as set forth
below based on the Applicable Level:
Applicable Margin for
Applicable Level Facility Fee Eurodollar Loans
- ---------------- ------------ ----------------
I 7.5 12.5
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<PAGE>
CREDIT AGREEMENT
II 8.5 14.0
III 9.0 16.0
IV 10.0 20.0
V 12.5 25.0
VI 17.5 32.5
"Applicable Percentage" means, at any time and with respect to any
Lender, the percentage of the total Commitments represented by such Lender's
Commitment (or after the termination thereof, the percentage of the total
outstanding Loans represented by such Lender's outstanding Loans at such time).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Meyer-Smith Holdco, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.3.
"Bridge Facility" means the $500,000,000 Bridge Credit Agreement, of
even date herewith, among Meyer-Smith Holdco, Inc. as Borrower, the Lenders
identified therein, Bankers Trust Company as Administrative Agent and The Chase
Manhattan Bank as Syndication Agent.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the New York interbank market.
4
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CREDIT AGREEMENT
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 33 1/3% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Closing Date" means September 9, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.8 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.4. The initial amount of each Lender's Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. Each
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<PAGE>
CREDIT AGREEMENT
Lender's Commitment shall not be affected by any Competitive Loans made by such
Lender; provided that such Competitive Loans shall be included in any
calculation of the aggregate amount of Loans outstanding hereunder for purposes
of determining whether the aggregate of the Commitments has been or would be
exceeded by outstanding Loans. The initial aggregate amount of the Lenders'
Commitments is $1,030,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Compliance Certificate" means a certificate signed by a Responsible
Officer of the Borrower certifying as to the matters set forth in Section
5.1(c).
"Consenting Lender" has the meaning specified in Section 2.19(b).
"Consolidated EBITDA" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, including the interest component of
rent expense under all Synthetic Lease Facilities for which the
Borrower or any of its Subsidiaries has Suretyship Liability, (iii)
amortization, (iv) depreciation, (v) income taxes, (vi) non-cash LIFO
reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated EBITDAR" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expense, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi)
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<PAGE>
CREDIT AGREEMENT
non-cash LIFO reserve charges and (vii) consolidated rental expense on
operating leases (including rent paid pursuant to any Synthetic Lease
Facility); and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated Interest Expense" means the consolidated interest
expense of the Borrower, including the interest component of rent expense under
all Synthetic Lease Facilities for which the Borrower or any of its Subsidiaries
has Suretyship Liability.
"Consolidated Total Assets" means the total consolidated assets of the
Borrower and its Subsidiaries as shown on the most recent consolidated balance
sheet of the Borrower and its Subsidiaries referred to in Section 3.4 or
delivered to the Administrative Agent and each Lender pursuant to Section 5.1.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Current Synthetic Lease Facility" means the transactions contemplated
by the Participation Agreement, dated the date hereof, among FMI, the Borrower,
Wilmington Trust Company, as owner trustee, FMS Trust 1997-1, as lessor, the
investors named therein, the Administrative Agent, the Syndication Agent, and
the lenders named therein.
"Debt" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all Capital Lease Obligations of
such Person, (c) all obligations of such Person to pay the deferred purchase
price of property or services (other than current accounts payable in the
ordinary course of business), (d) all indebtedness secured by a Lien on the
property of such Person, whether or not such indebtedness shall have been
assumed by such Person (it being understood that if such Person has not assumed
or otherwise become personally liable for any such indebtedness, the amount of
the Debt of such Person in connection therewith shall be limited to the lesser
of the face amount of such indebtedness or the fair market value of all property
of such Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or
not drawn) and banker's acceptances issued for the account of such Person, (f)
all obligations of such Person in respect of Hedging Agreements, (g) all
Suretyship Liabilities of such Person, (h) all other obligations of such Person
upon which interest charges are customarily paid (other than current accounts
payable in the ordinary course of business), (i) all obligations of such Person
under conditional sale or other title retention agreements
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<PAGE>
CREDIT AGREEMENT
relating to property acquired by such Person and (j) all Debt (as defined above)
of any partnership in which such Person is a general partner. The amount of the
Debt of any Person in respect of Hedging Agreements shall be deemed to be the
unrealized net loss position of such Person thereunder (determined for each
counterparty individually, but netted for all Hedging Agreements maintained with
such counterparty).
"Debt for Borrowed Money" of any Person means all Debt of such Person
described in (without duplication) clauses (a), (b), (c), (d), (h) and, to the
extent constituting a Suretyship Liability in respect of Debt for Borrowed Money
of another Person, (g), of the definition of Debt. A Suretyship Liability
arising under a Synthetic Lease Facility shall be deemed to be a Debt for
Borrowed Money.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Defaulting Lenders" has the meaning set forth in Section 2.6(b).
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.6.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.1 are satisfied (or waived in accordance with Section 9.2).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
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CREDIT AGREEMENT
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any
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<PAGE>
CREDIT AGREEMENT
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.16(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16(a).
"Extension Date" has the meaning specified in Section 2.19(b).
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"FMI" means Fred Meyer, Inc. and its successors and assigns.
"Foreign Lender" has the meaning provided in Section 2.16(e).
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
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CREDIT AGREEMENT
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.7.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means Bankers Trust Company, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.5(i). The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term "Issuing Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"LC Deposit" has the meaning set forth in Section 2.5(j).
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<PAGE>
CREDIT AGREEMENT
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the offered quotation to first-class banks in the New York
interbank eurodollar market by the Administrative Agent for dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the applicable Eurodollar Loan, with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" shall have the meaning provided such term in Regulation
U and Regulation G of the Federal Reserve Board.
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CREDIT AGREEMENT
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement.
"Material Debt" means Debt (other than the Loans and Letters of
Credit) of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount equal to or exceeding $5,000,000.
"Material Subsidiary" means a Subsidiary which either (a) has assets
which constitute 5% or more of the consolidated assets of the Borrower and its
Subsidiaries or (b) has revenues as of the end of the Borrower's most
recently-ended fiscal year which constitute more than 5% of the consolidated
revenues of the Borrower and its Subsidiaries during the Borrower's most
recently ended fiscal year.
"Maturity Date" means September 9, 2002 or a later date determined in
accordance with Section 2.19.
"Merger" means the merger of FMI and Smith's as contemplated by the
Merger Document.
"Merger Document" means that certain Agreement and Plan of
Reorganization and Merger, dated as of May 11, 1997, by and between FMI and
Smith's.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Non-Consenting Lender" has the meaning specified in Section 2.19(b).
"Non-Defaulting Lender" has the meaning specified in Section 2.6(b).
"Other Corporate Loan Documents" means the following documents, as
such documents are amended, supplemented or otherwise modified from time to
time: (i) all of the documents contemplated to be executed in connection with
the Current Synthetic Lease Facility; (ii) the $500,000,000 364-day Credit
Agreement, of even date herewith, among Meyer-Smith Holdco, Inc. as Borrower,
the Lenders identified therein, Bankers Trust Company as Administrative Agent
and The Chase Manhattan Bank as Syndication Agent; and (iii) the Bridge
Facility.
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CREDIT AGREEMENT
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.4;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.4;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt for Borrowed Money.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
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<PAGE>
CREDIT AGREEMENT
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, the two
highest credit ratings obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause (c)
above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Register" has the meaning set forth in Section 9.4.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Non-Defaulting Lenders the sum
of whose Commitments (or after the termination thereof, outstanding Revolving
Loans and LC Exposures at such time) represents an amount greater than 50% of
the sum of (i) the aggregate Commitments of all Lenders less (ii) the aggregate
Commitments of all Defaulting Lenders (or after the termination thereof, the sum
of the then total outstanding Revolving Loans and LC Exposures of Defaulting
Lenders at such time).
"Responsible Officer" means the Chairman or Vice Chairman of the Board
of Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Senior Vice President or Executive Vice
President, the Chief Financial Officer, the Chief Operating Officers, the Chief
Accounting Officer, the Vice
15
<PAGE>
CREDIT AGREEMENT
President/Treasurer or any Assistant Treasurer responsible for compliance with
this Agreement.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.3.
"Sale and Leaseback Transaction" has the meaning given in Section 6.12
hereof.
"Smith's" means Smith's Food and Drug Centers Inc. and its successors
and assigns.
"Solvent" as to any Person means (i) the sum of the assets of such
Person, both at a fair valuation and at present fair salable value, will exceed
its liabilities, including contingent liabilities, (ii) such Person will have
sufficient capital with which to conduct its business as presently conducted and
(iii) such Person has not incurred debts, and does not intend to incur debts,
beyond its ability to pay such debts as they mature. For purposes of this
definition, "debt" means any liability on a claim, and "claim" means (x) a right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (y) a right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured. With respect to
any contingent liabilities, such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Corporation.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one
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<PAGE>
CREDIT AGREEMENT
minus the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are required to be consolidated with those of
the parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as,
with respect to any Person, any Person of which such Person and/or its
subsidiaries own, directly or indirectly, such number of outstanding shares (or
similar equity interest) as have more than 50% of the ordinary voting power for
the election of directors.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranty" shall have the meaning set forth in Section
4.1(h).
"Supermajority Lenders" means, at any time, Non-Defaulting Lenders the
sum of whose Commitments (or after the termination thereof, outstanding
Revolving Loans and LC Exposures at such time) represents an amount greater than
66 2/3% of the sum of (i) the aggregate Commitments of all Lenders less (ii) the
aggregate Commitments of all Defaulting Lenders (or after the termination
thereof, the sum of the then total outstanding Revolving Loans and LC Exposures
of Defaulting Lenders at such time).
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, guaranties, shipside bonds, surety bonds
and similar instruments under which Suretyship Liabilities arise.
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss)
any indebtedness, obligation or other liability (including accounts payable) of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. Suretyship Liability shall include any liability
or contingent
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CREDIT AGREEMENT
liability of a Person under or in connection with a Synthetic Lease Facility.
The amount of any Person's obligation under any Suretyship Liability shall
(subject to any limitation set forth therein) be deemed to be the principal
amount of the indebtedness, obligation or other liability guaranteed thereby. As
of any date, the amount of any Person's obligations under any Synthetic Lease
Facility shall be equal to the amount which such Person would be obligated to
pay if such Synthetic Lease Facility was accelerated on such date (disregarding
accrued scheduled lease payments which would be characterized as interest if
such Synthetic Lease Facility were treated as a capital lease under GAAP).
"Syndication Agent" means The Chase Manhattan Bank.
"Synthetic Lease Facility" means any synthetic lease, tax ownership
operating lease, tax retention operating lease, off balance sheet lease or
similar lease transaction where the lessee is treated as owner of the leased
property for U.S. federal income tax purposes while the lease is accounted for
on the financial statements of the lessee, prepared in accordance with GAAP, as
an operating lease, including the Current Synthetic Lease Facility.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the ABR or, in
the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
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CREDIT AGREEMENT
Section 1.3 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 1.4 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided that
for purposes of determining compliance with any covenant set forth in Article
VI, such terms shall be construed in accordance with GAAP as in effect on the
date of this Agreement applied on a basis consistent with the application used
in preparing the Borrower's audited financial statements referred to in Section
5.1. If any change in accounting principles from those used in the preparation
of the audited financial statements referred to in Section 5.1 hereafter
occasioned by the promulgation of any rule, regulation, pronouncement or opinion
by or required by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Article 1 or Article VI, the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the Borrower's financial condition shall be the same
after such change as if such change had not been made.
Section 1.5 Change of Names. It is understood and agreed that
following the consummation of the Merger, Meyer-Smith Holdco, Inc. will change
its corporate name to "Fred Meyer, Inc." and FMI will change its corporate name
to "Fred Meyer Stores, Inc." From and after the time at which such changes take
effect all references to "Meyer-Smith Holdco, Inc." or the "Borrower" contained
herein shall be construed to refer to "Fred
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CREDIT AGREEMENT
Meyer, Inc.," and all references to "FMI" shall be construed to refer to "Fred
Meyer Stores, Inc."
ARTICLE II
The Credits
Section 2.1 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
Section 2.2 Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.4. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $10,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$10,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.5(e). Each Competitive Borrowing shall be in an
aggregate
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CREDIT AGREEMENT
amount that is an integral multiple of $1,000,000 and not less than $5,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 8 Eurodollar
Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
Section 2.3 Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m.
(noon), New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m.
(noon), New York City time, on the day of the proposed Borrowing; provided that
any such notice of an ABR Revolving Borrowing to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.5(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.6.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following
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CREDIT AGREEMENT
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
Section 2.4 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) 5 Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.6.
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CREDIT AGREEMENT
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower
by telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with
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CREDIT AGREEMENT
the amount of each such Competitive Bid, and (v) except pursuant to clause (iv)
above, no Competitive Bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $5,000,000 and an integral
multiple of $1,000,000; provided further that if a Competitive Loan must be in
an amount less than $5,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Borrower. A notice given by the
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
Section 2.5 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in dollars and on a sight basis and in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability Period (but in no event later
than 30 days prior to the Maturity Date). In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment or extension of
an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended or extended, the date of
issuance, amendment or extension, the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit,
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CREDIT AGREEMENT
the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended or extended
only if (and upon issuance, amendment or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment or extension (i) the LC Exposure shall not exceed
$25,000,000 and (ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans shall not exceed the
total Commitments.
(c) Expiration Date. Each standby Letter of Credit shall have an
expiry date occurring not later than one year from the date of issuance,
provided that any standby Letter of Credit may be extended for successive
periods of up to one year, so long as no such period ends later than five
Business Days prior to the Maturity Date, on terms acceptable to the Issuing
Bank. Each trade Letter of Credit shall have an expiry date occurring not later
than the earlier of (i) 180 days from the date of issuance and (ii) the date
which is 30 days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon,
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CREDIT AGREEMENT
New York City time, on the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided that the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.3 that such
payment be financed with an ABR Revolving Borrowing in an equivalent amount and,
to the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting ABR Revolving Borrowing. If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.6 with respect to Loans
made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
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CREDIT AGREEMENT
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank, (as finally determined by a court of competent jurisdiction) the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(e) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall
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CREDIT AGREEMENT
notify the Lenders of any such replacement of the Issuing Bank. At the time any
such replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing greater than
50% of the total LC Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon (the "LC Deposit"); provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
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(k) Reporting of Outstanding LC Exposure. Each Issuing Bank
(unless the Issuing Bank is also serving as Administrative Agent) shall provide
written notice to the Administrative Agent: (i) promptly after the issuance of
or amendment to any standby Letter of Credit, of such issuance or amendment,
which notice shall be accompanied by a copy of such standby Letter of Credit or
amendment thereof; (ii) if any trade Letters of Credit are outstanding, on the
first Business Day of each week, by facsimile, a report of the aggregate daily
amount available to be drawn under such trade Letters of Credit during the
previous week; and (iii) on or before the fifth Business Day of each month, a
report setting forth, for each type of Letter of Credit outstanding, the daily
aggregate outstanding amounts for the previous month.
Section 2.6 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.5(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
(b) The failure of any Lender (such Lender, a "Defaulting
Lender") to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender (each such other Lender, a "Non-Defaulting Lender")
of its obligation to make its Loans on such date, but neither any Non-Defaulting
Lender nor the Administrative Agent shall be responsible for the failure of any
Defaulting Lender to make a Loan to be made by such Defaulting Lender, and no
Defaulting Lender shall have any obligation to the Administrative Agent or any
Non-Defaulting Lender (without prejudicing the rights of the Borrower against
such Defaulting Lender). Notwithstanding anything set forth herein to the
contrary, so long as a Lender remains a Defaulting Lender, such Lender shall not
have any voting or consent rights under or with respect to this Agreement or
constitute a "Lender" (or be included in the calculation of "Required Lenders"
hereunder) for any voting or consent rights under or with respect to this
Agreement.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender is a Defaulting Lender, then
such Defaulting Lender and the Borrower severally agree to pay to
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CREDIT AGREEMENT
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Defaulting Lender, the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Defaulting Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing and such
Lender shall cease to be a Defaulting Lender.
Section 2.7 Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.3 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
Section 2.8 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the
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Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date). Any termination or reduction of the Commitments shall be
permanent. Except as provided in Section 2.19 hereof, each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
Section 2.9 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender thereof the then unpaid principal amount of each
Revolving Loan on the Maturity Date and (ii) to the Administrative Agent for the
account of each Lender thereof the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in the form of Exhibit B. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 9.4) be represented by one or more promissory notes in
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CREDIT AGREEMENT
such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
Section 2.10 Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 12:00 p.m.
(noon), New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later than
12:00 p.m. (noon), New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.8, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.8. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.2. Except as provided in Section 2.19, each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.
Section 2.11 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Margin on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the Closing
Date to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender's Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall
be payable in arrears on the last Business Day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand. All facility fees shall be computed
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CREDIT AGREEMENT
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day for the period
covered).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue, at a rate equal to the
Applicable Margin on Eurodollar Revolving Loans, on the daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of 0.10% per annum
on the daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees (other than the fronting
fee described above) with respect to the issuance, amendment or extension of any
Letter of Credit or payment of drawings thereunder. Participation fees and
fronting fees accrued through and including the last Business Day of March,
June, September and December of each year shall be payable on such day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day of the period covered).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees, to the Lenders. Fees paid shall not be refundable under any
circumstances.
Section 2.12 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the ABR.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin, or (ii) in the case of
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CREDIT AGREEMENT
a Eurodollar Competitive Loan, at the LIBO Rate for the Interest Period in
effect for such Borrowing plus (or minus, as applicable) the Margin applicable
to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, the greater of (A) 2% plus the rate otherwise applicable to such Loan
as provided in the preceding paragraphs of this Section and (B) 2% plus the rate
applicable to ABR Loans or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the ABR at times
when the ABR is based on the Prime Rate shall be computed on the basis of a year
of 365 days (or 366 days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). The applicable ABR, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
Section 2.13 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
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CREDIT AGREEMENT
(b) the Administrative Agent is advised by the Required Lenders
(or, in the case of a Eurodollar Competitive Loan, the Lender that is required
to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowing, then the other Type of Borrowings shall be permitted.
Section 2.14 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
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CREDIT AGREEMENT
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the basis of the calculations and the amount or amounts necessary to compensate
such Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
Section 2.15 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c)
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the failure to borrow, convert, continue or prepay any Revolving Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.10(b) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurodollar Loan
or Fixed Rate Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.18, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event (excluding loss of Applicable Margin
after the date of such event). In the case of a Eurodollar Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate (excluding loss of Applicable Margin) that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
Section 2.16 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) to the Administrative Agent, Lender
or Issuing Bank (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other
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Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. The Borrower shall also indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of Excluded Taxes as the Administrative Agent, such Lender or
the Issuing Bank, as the case may be, shall determine are payable in respect of
amounts paid to or on behalf of the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, pursuant to this Section 2.16. A certificate
as to the amount of such payment or liability delivered to the Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is not incorporated under the United States
of America or a state thereof (each a "Foreign Lender") shall:
(i) on the date it becomes a Lender, deliver to the
Administrative Agent (A) two completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, and shall certify that it is entitled to receive payments
under this Agreement without deduction or withholding (or at a reduced rate
of deduction or withholding) of any United States Federal income taxes and
(B) an Internal Revenue Services Form W-8 or W-9, or successor applicable
form, as the case may be and shall certify that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to the Administrative Agent two further copies
of any such form or certification on or before the date that any such
certification described above expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered to it; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Administrative Agent;
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CREDIT AGREEMENT
except that the forms and certificates described in clauses (ii) and (iii) above
shall not be required if any Change in Law has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Administrative Agent.
Section 2.17 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 130 Liberty Street,
New York, New York, 10006, except payments to be made directly to the Issuing
Bank as expressly provided herein and except that payments pursuant to Sections
2.14, 2.15, 2.16 and 9.3 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of
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CREDIT AGREEMENT
principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.5(d) or (e), 2.6(a) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
Section 2.18 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of
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CREDIT AGREEMENT
such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.14,
or (ii) the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.16, or (iii) any Lender defaults in its obligation to fund Loans hereunder, or
(iv) any Lender refuses to consent to certain proposed changes, waivers,
discharges or termination with respect to this Agreement which require the
consent of all Lenders and have been approved by the Required Lenders as (and to
the extent) provided in Section 9.2(b), then the Borrower may, at its sole
expense and effort, if no Default then exists (or, in the case of preceding
clause (iv), no Default will exist immediately upon giving effect to such
replacement), upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.4), all its interests, rights
and obligations under this Agreement (other than any outstanding Competitive
Loans held by it) to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment) (such
Assignee a "Replacement Lender"); provided that (x) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (y) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans) and participations in LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the Replacement Lender
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (z) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
Section 2.19 Extension of Maturity Date. (a) Not less than sixty (60)
but not more than ninety (90) days prior to the first anniversary of the Closing
Date, and each anniversary thereafter, the Borrower may deliver to the
Administrative Agent and the Lenders a written request for a one year extension
of the Maturity Date together with a certificate of a Financial Official on
behalf of the Borrower stating that the representations and warranties contained
in Article 3 (other than (i) representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result of a
change which is not a violation of this Agreement and (ii) as otherwise
disclosed by the
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CREDIT AGREEMENT
Borrower and approved in writing by the Required Lenders) are true and correct
on and as of the date of such certificate; provided that no such request shall
be effective unless (A) in the case of each such request other than with respect
to the first anniversary of the Closing Date, a request shall have been approved
pursuant to this Section 2.19 in respect of the previous anniversary of the
Closing Date, and (B) no Default shall have occurred and be continuing. Each
Lender shall, on or prior to the date that is thirty (30) days after receipt of
such written request, notify in writing the Administrative Agent whether (in its
sole and absolute discretion) it consents to such request and the Administrative
Agent shall, after receiving the notifications from all of the Lenders or the
expiration of such period, whichever is earlier, notify the Borrower and the
Lenders of the results thereof. If any Lender shall fail to notify the
Administrative Agent and the Borrower in writing of its consent to any such
request for extension of the Maturity Date within thirty (30) days after the
date of such extension request, such Lender shall be deemed to be a
Non-Consenting Lender (as defined below) with respect to such request. Any
Non-Consenting Lender shall be deemed to be a Non-Consenting Lender with respect
to all subsequent requests as well.
(b) If all of the Lenders consent in writing to any such request
in accordance with Section 2.19(a), the Maturity Date in effect at such time
(the "Extension Date") shall be extended pursuant to a written agreement among
the Borrower and the Lenders satisfactory to the Administrative Agent for one
calendar year; provided that on each Extension Date, no Default shall have
occurred and be continuing or shall occur as a consequence thereof. If the
Supermajority Lenders but not all Lenders consent in writing to any such request
in accordance with Section 2.19(a), the Maturity Date in effect at such time
shall, effective as at the applicable Extension Date, be extended as to those
Lenders that so consented (each a "Consenting Lender") pursuant to a written
agreement among the Borrower and the Consenting Lenders satisfactory to the
Administrative Agent but shall not be extended as to any other Lender (each a
"Non-Consenting Lender"). To the extent that the Maturity Date is not so
extended as to any Lender pursuant to this Section 2.19(b) and the Commitment of
such Lender is not assumed in accordance with Section 2.19(c) on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Maturity Date (and all
amounts due at such Non-Consenting Lender shall be due and owing on such
unextended Maturity Date in accordance with the terms hereof) without any
further notice or other action by the Borrower, such Lender or any other Person;
provided that such Non-Consenting Lender's rights under Section 2.14, 2.15, 2.16
and 9.3, and its obligations under Section 8.7, shall survive the Maturity Date
for such Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to agree to any
request made by the Borrower for any requested extension of the Maturity Date.
(c) If less than all of the Lenders consent to any such request
pursuant to Section 2.19(a), the Borrower may arrange for one or more Consenting
Lenders or other assignees (in accordance with Section 9.4(b)) (x) to assume,
effective as of the Extension
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CREDIT AGREEMENT
Date (or such other date as may be agreed among the Borrower, the Non-Consenting
Lender, such Consenting Lenders or assignees and the Administrative Agent) any
Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender and (y) to accept,
effective as of the Extension Date or such later date as any assignee executes
and delivers an Assignment and Acceptance, the Maturity Date applicable to the
Consenting Lenders; provided, however, that the amount of the Commitment of any
such assignee as a result of such substitution shall in no event be less than
$5,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $5,000,000, in which case such assignee shall assume all of such
lesser amount; and provided further that:
(i) any such Consenting Lender or assignee shall have paid
to such Non-Consenting Lender (A) the aggregate principal amount of, and
any interest accrued and unpaid to the effective date of the assignment on,
the outstanding Loans, if any, owing to such Non-Consenting Lender plus (B)
any accrued but unpaid facility fees owing to such Non-Consenting Lender as
of the effective date of such assignment;
(ii) all additional costs, expenses and indemnities payable
to such Non-Consenting Lender, and all other accrued and unpaid amounts
owing to such Non-Consenting Lender hereunder, as of the effective date of
such assignment shall have been paid to such Non-Consenting Lender; and
(iii) with respect to any such assignee, the applicable
recordation fee required under Section 9.4(b) shall have been paid;
provided further that such Non-Consenting Lender's rights under Section 2.14,
2.15, 2.16 and 9.3, and its obligations under Section 8.7, shall survive
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such assignee, if any,
shall have delivered to the Borrower and the Administrative Agent an Assignment
and Acceptance, duly executed by such assignee, the Non-Consenting Lender, the
Borrower and the Administrative Agent, (B) any such Consenting Lender shall have
delivered confirmation in writing satisfactory to the Borrower and the
Administrative Agent as to the increase in the amount of its Commitment and (C)
each Non-Consenting Lender being replaced pursuant to this Section 2.19 shall
have delivered to the Administrative Agent the Note or Notes (if any) held by
such Non-Consenting Lender. Upon the payment of all amounts payable by the
assignee to the Non-Consenting Lender and the processing recordation fee set
forth in Section 9.04(b), each such Consenting Lender or assignee, as of the
Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgement by or the consent of the other Lenders,
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CREDIT AGREEMENT
and the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If the Supermajority Lenders (before giving effect to any
assignments pursuant to Section 2.19(c)) consent in writing to the
Administrative Agent to a requested extension not later than one Business Day
prior to such Extension Date, the Administrative Agent shall so notify the
Borrower, and, so long as no Default shall have occurred and be continuing as of
such Extension Date, or shall occur as a consequence thereof, the Maturity Date
then in effect shall be extended for the additional one-year period as described
in Section 2.19(a), and all references in this Agreement and in the Notes (if
any) to the "Maturity Date" shall, with respect to each Consenting Lender and
each assignee for such Extension Date, refer to the Maturity Date as so
extended. Promptly following each Extension Date, the Administrative Agent shall
notify the Lenders of the extension of the scheduled Maturity Date in effect
immediately prior thereto and shall thereupon record in the Register the
relevant information with respect to each such Consenting Lender, Non-Consenting
Lender and each such assignee.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
Section 3.1 Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.2 Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action, and the use of proceeds of the
Loans will be, in each instance, within the Borrower's corporate powers and will
have been duly authorized by all necessary corporate and, if required,
stockholder action, as of the time of such use. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
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CREDIT AGREEMENT
Section 3.3 Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or any of their respective assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
Section 3.4 Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders consolidated balance sheets and
statements of income, stockholders equity and cash flows for (i) FMI and its
subsidiaries, as of and for the fiscal year ended February 1, 1997, reported on
by Deloitte & Touche, independent public accountants of FMI, and the fiscal
quarter and the portion of the fiscal year ended May 24, 1997, certified by the
chief financial officer of FMI and (ii) Smith's and its subsidiaries, as of and
for the fiscal year ended December 28, 1996, reported on by Ernst & Young LLP,
independent public accountants of Smith's, and the fiscal quarter and the
portion of the fiscal year ended April 5, 1997, certified by the chief financial
officer of Smith's. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of
FMI, Smith's and their respective subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements for the fiscal quarters.
(b) There has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of (i) FMI
and its subsidiaries, taken as a whole, since February 1, 1997, or (ii) Smith's
or its subsidiaries, taken as a whole, since December 28, 1996.
Section 3.5 Properties. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes, subject to no Lien of any
kind except Liens permitted hereby.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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CREDIT AGREEMENT
Section 3.6 Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, neither the Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 3.7 Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 3.8 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 3.9 Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which
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CREDIT AGREEMENT
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
Section 3.11 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
Section 3.12 Solvency. On the Closing Date and after giving effect to
the Transactions, the Borrower and each of its Material Subsidiaries will be
Solvent.
Section 3.13 Use of Proceeds; Margin Regulations. All proceeds of each
of the Loans will be used by the Borrower only in accordance with the provisions
of Section 5.8. No part of the proceeds of any of the Loans will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any of the Loans nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, T, U or X of the Federal
Reserve Board.
Section 3.14 No Default. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound in any respect which could result in a
Material Adverse Effect. No Default or Event of Default exists.
Section 3.15 Subsidiaries. After giving effect to the Merger, the
Persons listed on Schedule 3.15 are the only Subsidiaries of the Borrower.
Schedule 3.15 correctly sets forth, after giving effect to the Merger, the
percentage ownership (direct and indirect) of the Borrower in each class of
capital stock of each of its Subsidiaries and also identifies the direct owner
thereof and identifies each Material Subsidiary as of the Closing Date..
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CREDIT AGREEMENT
ARTICLE IV
Conditions
Section 4.1 Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto (A) either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement and
(B) such other documents, in form and substance satisfactory to the
Administrative agent, as the Administrative Agent may reasonably request.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Stoel Rives LLP, counsel for the Borrower, substantially
in the form of Exhibit C, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver such
opinion.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (b) and (c) of Section 4.2.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Merger shall have been completed in accordance with the
Merger Document, or on other terms reasonably satisfactory to the Lenders.
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(g) The Other Corporate Loan Documents shall have been executed
and delivered and shall be in full force and effect.
(h) Each Material Subsidiary shall have executed and delivered to
the Administrative Agent a guaranty substantially in the form set forth as
Exhibit D (each such guaranty, as amended, supplemented or otherwise modified, a
"Subsidiary Guaranty").
(i) The Administrative Agent shall have received evidence
satisfactory to it of prior or simultaneous repayment or refinancing of the Debt
of the Borrower and its Subsidiaries set forth on Schedule 4.1 hereto (except as
otherwise agreed to the satisfaction of the Agents).
(j) The Administrative Agent shall have received the financial
information required under Section 3.4(a), including a pro forma balance sheet
giving effect to the Merger, in form and substance satisfactory to the
Administrative Agent.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.2) at
or prior to 3:00 p.m., New York City time, on September 30, 1997 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
Section 4.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The Administrative Agent shall have received a fully executed
Borrowing Request in respect of the Loans to be made on such date.
(b) The representations and warranties of the Borrower set forth
in this Agreement (other than the representations and warranties set forth in
Sections 3.4 and 3.6) shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable.
(c) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
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CREDIT AGREEMENT
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (b) and
(c) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
Section 5.1 Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP.
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or
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CREDIT AGREEMENT
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations (x) demonstrating compliance with Section 6.10(a) and (b)
and (y) establishing the Applicable Margin, and (iii) stating whether any change
in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.4 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default upon actual knowledge of a
Responsible Officer of the Borrower;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in material liability of the Borrower and its Subsidiaries; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
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CREDIT AGREEMENT
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.5.
Section 5.4 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.5 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
(and having such deductibles and self-insurance) as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or
similar locations.
Section 5.6 Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
Section 5.7 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, including
without limitation ERISA and all Environmental Laws, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
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CREDIT AGREEMENT
Section 5.8 Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used only to finance certain costs and expenses associated with
the Merger, refinance existing indebtedness (including related prepayment
premiums) and for general corporate purposes. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations G, U
and X. Standby Letters of Credit will be issued only to support on a standby
basis, liabilities relating to worker's compensation, judgments pending appeal,
construction or similar liabilities in the ordinary course of business, and (ii)
trade Letters of Credit will be issued only to support liabilities for the
purchase of goods upon delivery or against invoice.
Section 5.9 Subsidiary Guaranties. The Borrower shall cause each
Material Subsidiary, now or hereafter in existence, to execute and deliver to
the Administrative Agent a Subsidiary Guaranty together with such officer's
certificates, resolutions and other assurances related thereto as the
Administrative Agent shall reasonably request upon the earlier of (i) with
respect to any Subsidiary on the date hereof that becomes a Material Subsidiary
after the date hereof, or as to any Person which, when it becomes a Subsidiary
after the date hereof, is not then a Material Subsidiary, as soon as possible
after the end of the fiscal quarter in which such Subsidiary becomes a Material
Subsidiary, and (ii) with respect to any Material Subsidiary acquired after the
date hereof not currently a Subsidiary, within 10 days of becoming a Material
Subsidiary.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
Section 6.1 Material Subsidiary Debt. The Borrower will not permit any
Material Subsidiary to create, incur, assume or permit to exist any Debt,
except:
(a) Debt owed to the Borrower or to another Material Subsidiary;
(b) Debt existing on the date hereof; provided that to the extent
any item of such Debt exceeds $5,000,000, or the aggregate of all such Debt
exceeds $25,000,000, such Debt shall be identified in Schedule 6.1;
(c) Debt secured by Permitted Encumbrances;
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CREDIT AGREEMENT
(d) Capital Lease Obligations not to exceed $100,000,000;
(e) Debt outstanding when such Person becomes a Material
Subsidiary or is merged or consolidated with another Material Subsidiary,
provided that such Debt exists at the time such Person becomes a Material
Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Material Subsidiary;
(f) Debt in respect of commercial letters of credit issued to
support the purchase of goods by the applicable Material Subsidiary in the
ordinary course of business;
(g) Debt in respect of commercial letters of credit issued to
support liabilities of a Material Subsidiary relating to worker's compensation,
judgments pending appeal (and as to which there is no Event of Default under
clause (k) of Article VII), construction or similar liabilities in the ordinary
course of business;
(h) Debt in respect of Synthetic Lease Facilities entered into by
any Material Subsidiary as lessee thereunder;
(i) Suretyship Liabilities constituting guarantees of the
Borrower's unsecured Debt; provided such Debt is pari passu with the obligations
of the Borrower hereunder; and
(j) Debt not otherwise permitted by the foregoing clauses of this
Section 6.1 so long as the sum, without duplication, of (x) all such Debt and
(y) all Debt secured by Liens permitted solely by clause (f) of Section 6.2 does
not exceed 10% of Consolidated Total Assets.
Section 6.2 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof (including Liens created pursuant to the
Current Synthetic Lease Facility) and set forth in Schedule 6.2; provided that
(i) such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person
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CREDIT AGREEMENT
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be; and
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (ii) the Debt secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iii) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(e) Liens on assets acquired after the date hereof under
Synthetic Lease Facilities; and
(f) Liens not otherwise permitted by the foregoing clauses of
this Section 6.2, securing Debt of the Borrower or its Subsidiaries, so long as
the sum, without duplication, of (i) all such Debt and (ii) all Debt permitted
solely by clause (j) of Section 6.1 does not exceed 10% of Consolidated Total
Assets
Section 6.3 Modifications of Merger Document. The Borrower shall not,
and shall not permit any of its Subsidiaries to amend, modify or waive, or
permit the amendment, modification or waiver of, any provision of the Merger
Document.
Section 6.4 Fundamental Changes. (a) The Borrower will not, and will
not permit any Material Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
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CREDIT AGREEMENT
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
Section 6.5 Investments, Loans, Advances, Suretyship Liabilities and
Acquisitions. The Borrower will not, and will not permit any of its Material
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, incur Suretyship Liabilities in
respect of any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower and its Subsidiaries in its
Material Subsidiaries, or any Subsidiary which is not a Material Subsidiary so
long as such non-Material Subsidiary executes and delivers a Subsidiary Guaranty
in favor of the Administrative Agent;
(c) loans or advances made, or Suretyship Liabilities incurred,
by the Borrower to or in respect of any Subsidiary and made or incurred by any
Subsidiary to or in respect of the Borrower or any other Subsidiary;
(d) Suretyship Liabilities with respect to Hedging Agreements
permitted by Section 6.6;
(e) Suretyship Liabilities constituting Debt permitted by Section
6.1;
(f) Suretyship Liabilities created under the Other Corporate Loan
Documents;
(g) Suretyship Liabilities with respect to Surety Instruments
incurred in the ordinary course of business; and
(h) investments by the Borrower and its Material Subsidiaries not
otherwise permitted by the foregoing clauses of this Section 6.5, so long as
such additional investments made in reliance on this clause (h) do not exceed
$100,000,000 in the aggregate at any time.
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CREDIT AGREEMENT
Section 6.6 Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
Section 6.7 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that, so long as no Event
of Default has occurred and is continuing, (a) the Borrower may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (b) the Borrower may make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for management
or employees of the Borrower and its Subsidiaries, (c) any Subsidiary may
declare and pay Restricted Payments to the Borrower or any other Subsidiary, and
(d) from and after the fiscal year ending January 31, 1998, the Borrower and its
Subsidiaries may pay cash dividends and repurchase their respective stock from
any Person which is not the Borrower or another Subsidiary so long as on the
date of payment or repurchase (i) such cash dividends and stock repurchases do
not exceed $100,000,000 in any single fiscal year, and (ii) the total of such
cash dividends and stock repurchases in all such fiscal years (beginning with
the fiscal year ending January 31, 1998) does not exceed an aggregate amount of
$200,000,000 plus 40% of the Borrower's and its Subsidiaries' aggregate net
income earned commencing with the fiscal year ending January 31, 1998, and each
fiscal year thereafter.
Section 6.8 Transactions with Affiliates. Except during the
continuance of an Event of Default, the Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Borrower and its
wholly owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.7.
Section 6.9 Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to incur
Suretyship Liabilities in respect of Debt of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions (x) contained in the Other Corporate Loan
Documents or (y) existing on the date
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CREDIT AGREEMENT
hereof and identified on Schedule 6.9 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition) and (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder
and provided further that such restrictions and conditions cannot be imposed at
any time that a Default has occurred and is continuing.
Section 6.10 Financial Covenants.
(a) Debt for Borrowed Money to Consolidated EBITDA Ratio. The
Borrower shall not permit the ratio of its Debt for Borrowed Money to
Consolidated EBITDA (for the most recent four consecutive quarters) to exceed,
at the end of any fiscal quarter ending on or during any period listed below,
the ratio set forth opposite such period:
Period Ratio
------ -----
From and including January 31, 1998, 4.00:1
to and including January 29, 1999
From and including January 30, 1999 3.75:1
to and including January 28, 2000
From and including January 29, 2000 3.35:1
to and including February 2, 2001
From and including February 3, 2001, 3.00:1
and thereafter
provided, however, that Consolidated EBITDA of the Borrower and its Subsidiaries
for the four quarter periods ended January 31, 1998, May 23, 1998 and August 15,
1998 shall be calculated by reference to (i) for each fiscal quarter ended after
the Closing Date, the actual Consolidated EBITDA for such fiscal quarter, and
(ii) for each fiscal quarter ended prior to the Closing Date, Consolidated
EBITDA reflected in a pro-forma income statement for such fiscal quarter
prepared by the Borrower in good faith using reasonable assumptions consistent
with all facts known to the Borrower.
(b) Adjusted Interest Coverage Ratio. The Borrower shall not
permit the Adjusted Interest Coverage Ratio (for the most recent four
consecutive quarters, except as specified below) to be less than, at the end of
any fiscal quarter ending on or during any period listed below, the Adjusted
Interest Coverage Ratio set forth opposite such period:
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Period Ratio
------ -----
From and including January 31, 1998 2.25:1
to and including January 29, 1999
From and including January 30, 1999 2.50:1
and thereafter
provided, however, that for the periods ended January 31, 1998, May 23, 1998 and
August 15, 1998 the Adjusted Interest Coverage Ratio for such period shall be
calculated by reference to the full fiscal quarters then ended since the Closing
Date.
Section 6.11 Unconditional Purchase Obligations. The Borrower shall
not, and shall not permit any Material Subsidiary to, enter into or be a party
to any contract for the purchase of materials, supplies or other property or
services, if such contract requires that payments be made by it regardless of
whether or not delivery is ever made of such materials, supplies or other
property or services.
Section 6.12 Sale of Assets; Sale and Leaseback Transactions. (a)
Except as provided in Section 6.12(d), subject to the terms and conditions of
this Agreement, the Borrower and its Subsidiaries may convey, sell, transfer or
otherwise dispose of (or agree to do so at any future time) its property or
assets, provided that to the extent the sum of the fair market value of such
property or assets (i) conveyed, sold, transferred or otherwise disposed of and
(ii) all transactions pursuant to Section 6.12(b) exceeds $350,000,000 at any
time, the Borrower shall comply with the provisions of Section 6.12(c). The
foregoing limitations shall not apply to the conveyance, sale, transfer or other
disposal of property or assets in the case of sales of inventory in the ordinary
course of business and sales of equipment which is uneconomic, obsolete or no
longer useful in its business.
(b) Except as provided in Section 6.12(d), the Borrower and its
Subsidiaries may become liable, directly or indirectly, with respect to any
lease, whether an operating lease or a capital lease, of any property (whether
real or personal or mixed) whether now owned or hereafter acquired, (i) which
the Borrower or such Subsidiary has sold or transferred or is to sell or
transfer to any other Person, or (ii) which the Borrower or such Subsidiary
intends to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by the Borrower or such Subsidiary to
any other Person in connection with such lease (such transaction a "Sale and
Leaseback Transaction"), provided that to the extent the sum of the fair market
value of the property or assets (i) conveyed, sold, transferred or otherwise
disposed of pursuant to Section 6.12(a) and (ii) all transactions pursuant to
Section 6.12(b) exceeds $350,000,000 at any time, the Borrower shall comply with
the provisions of Section 6.12(c).
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(c) In the event that the aggregate fair market value of all
assets sold in all transactions undertaken in reliance upon Sections 6.12(a) and
(b) exceeds $350,000,000, (i) the Borrower shall prepay the outstanding Loans in
accordance with Section 2.10, together with any breakage fees and other costs
and expenses incurred hereunder in connection therewith, in an amount equal to
50% of such excess minus (x) reasonable expenses incurred or reasonably expected
to be incurred in connection with such transaction and (y) any income,
franchise, transfer or other tax payable in connection with such transaction and
(ii) the Commitments of the Lenders hereunder shall be permanently reduced on a
pro-rata basis by an amount equal to the payment made pursuant to this Section
6.12(c). The Borrower shall provide the Administrative Agent prompt written
notice of any transaction entered into in reliance upon this Section 6.12(c),
and shall provide evidence of compliance herewith reasonably satisfactory to the
Administrator Agent on or prior to the closing date of any such transaction.
(d) Notwithstanding the provisions of Section 6.12(a), (b) and
(c) above, Smith's and any subsidiary of Smith's may convey, sell, transfer or
dispose of, or enter into Sale and Leaseback Transactions in connection with,
assets owned as of the Closing Date by Smith's or any of its subsidiaries;
provided that (i) on each date on which Smith's or any such subsidiary of
Smith's receives any proceeds from any such transaction, the Borrower shall
prepay the outstanding Loans in accordance with Section 2.10, together with any
breakage fees and other costs and expenses incurred hereunder in connection
therewith, in an amount equal to 50% of the cash proceeds obtained in such
transaction by Smith's or such subsidiary of Smith's minus (x) reasonable
expenses incurred or reasonably expected to be incurred in connection with such
transaction, (y) any income, franchise, transfer or other tax payable by Smith's
or such subsidiary of Smith's in connection with such transaction and (z) any
Debt secured by a Lien on such property or assets and required to be repaid as a
result of such transaction, and (ii) the Commitments of the Lenders hereunder
shall be permanently reduced on a pro-rata basis by an amount equal to the
payment made pursuant to clause (i) above. The Borrower shall provide the
Administrative Agent prompt written notice of any transaction entered into in
reliance upon this Section 6.12(d), and shall provide evidence of compliance
herewith reasonably satisfactory to the Administrator Agent on or prior to the
closing date of any such transaction.
Section 6.13 Fiscal Year; Fiscal Quarter. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its fiscal year or any of
its fiscal quarters.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made; or
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.2(a), 5.3 (with respect to the
Borrower's existence) or 5.8 or in Sections 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.9,
6.10, 6.11 or 6.12; or
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clauses (a), (b), (c) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender); or
(f) the Borrower or any Material Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Debt, when and as the same shall become due and payable
or within any applicable grace period provided in connection with such Material
Debt; or
(g) the Borrower or any Material Subsidiary shall default in any
other obligation that results in any Debt of $10,000,000 or more in the
aggregate becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Debt of $10,000,000 or more
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in the aggregate or any trustee or agent on its or their behalf to cause any
such Debt to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or their
respective debts, or of a substantial part of their respective assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of their respective assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered; or
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of their respective assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing; or
(j) the Borrower or any Material Subsidiary shall become unable,
admit in writing or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment; or
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $5,000,000; or
(m) a Change in Control shall occur; or
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(n) any Subsidiary Guaranty shall cease to be in full force and
effect, or any guarantor under any Subsidiary Guaranty or any Person acting by
or on behalf of such guarantor shall deny or disaffirm all or any portion of the
guarantor's obligation under such Subsidiary Guaranty;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, (ii)
terminate any Letter of Credit that may be terminated under its terms, (iii)
direct the Borrower to make (and the Borrower agrees that upon receipt of such
notice it will make) the LC Deposit and (iv) declare the Loans then outstanding
to be due and payable in whole or in part (in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, the LC Deposit and all fees
and other obligations of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Section 8.1 Appointment. Each Lender hereby irrevocably designates and
appoints Bankers Trust Company as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes Bankers Trust
Company as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Administrative Agent shall be read into this
Agreement or otherwise exist against the Administrative Agent. The provisions of
this Article 8 are solely for the benefit of the
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Administrative Agent and the Lenders and the Borrower shall have no rights as a
third party beneficiary or otherwise under any of the provisions hereof. In
performing its functions and duties hereunder, the Administrative Agent shall
act solely as the agent of the Lenders and does not assume nor shall be deemed
to have assumed any obligation or relationship of trust or agency with or for
the Borrower or any of its successors and assigns.
Section 8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct or any agents or attorneys-in-fact selected by it with
reasonable care.
Section 8.3 Exculpatory Provisions. The Administrative Agent shall not
be (i) liable for any action lawfully taken or omitted to be taken by it or any
Person described in Section 8.2 under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received under or in connection with, this Agreement or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrower. This
Section is intended solely to govern the relationship between the Administrative
Agent, on the one hand, and the Lenders, on the other.
Section 8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
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Section 8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default as shall be directed by the Required Lenders; provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as the
Administrative Agent shall deem advisable and in the best interests of the
Lenders.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent, nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including, without limitation, any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent. Each Lender represents
and warrants to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required under this Agreement to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, prospects, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent, the Syndication Agent and each of their respective
officers, directors, employees, representatives and agents (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their Applicable Percentage, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
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whatsoever (including, without limitation, the fees and disbursements of counsel
for the Administrative Agent, Syndication Agent or such Person in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Administrative Agent or such Person shall be
designated a party thereto) that may at any time (including, without limitation,
at any time following the payment of the Obligations) be imposed on, incurred by
or asserted against the Administrative Agent, Syndication Agent or such Person
as a result of, or arising out of, or in any way related to or by reason of, any
of the Transactions or the execution, delivery or performance of this Agreement
(but excluding any such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the gross negligence or willful misconduct of the Administrative Agent,
Syndication Agent or such Person as finally determined by a court of competent
jurisdiction).
Section 8.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
Section 8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Borrower and the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, then the Required Lenders during such 30-day period shall
appoint from among the Lenders a successor agent, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent and
the term "Administrative Agent" shall mean such successor agent, effective upon
its appointment, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section 8 and Section 9.3 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 8.10 Syndication Agent. Without limiting any provision
contained in this Section 8, the Syndication Agent shall not have, except as to
and to the limited extent expressly provided herein, any obligation,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Each Lender acknowledges that it has not relied, and will not
rely, on the Syndication Agent in deciding to enter into this Agreement or in
taking or not taking action hereunder.
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ARTICLE IX
Miscellaneous
Section 9.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at:
Fred Meyer, Inc.
P.O. Box 42121
3800 SE 22nd Avenue
Portland, Oregon 97242-0121
Telecopy: (503) 797-5299
Attn: Mr. James C. Aalberg;
with a copy of notices pursuant to Article VII to:
Stoel Rives LLP
700 NE Multnomah, Ste 9504
Portland, Oregon 97232
Telecopy: (503) 230-1907
Attn: Mr. Gary R. Barnum
(b) if to the Administrative Agent, to it at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Telecopy: (212) 250-7351
Attn: Deal Administrator
(c) if to the Issuing Bank, to it at
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Telecopy: (212) 250-5817
Attn: Letter of Credit Unit
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(d) if to any other Lender, to it at its address (or telecopy
number) set forth opposite its signature below.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt. It
is understood and agreed that the delivery of copies of notices to counsel as
set forth above is for courtesy purposes only and any failure to deliver such
copy shall not constitute failure with respect to any obligation to provide
notices hereunder.
Section 9.2 Waivers; Amendments. (a) Neither this Agreement nor any
terms hereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the Required
Lenders, provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than a Defaulting Lender), (i) extend
the final scheduled maturity of any Loan or extend the stated expiration date of
any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the
time of payment of interest of fees thereon, or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) amend, modify or waive any
provision of this Section 9.2, (iii) reduce the percentage specified in the
definition of Required Lenders, (iv) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement or (v)
release any Subsidiary which is party to a Subsidiary Guaranty form its
obligations under such Subsidiary Guaranty; provided further that no such
change, waiver, discharge or termination shall (w) increase the Commitment of
any Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
shall not constitute an increase of the Commitment of such Lender), (x) without
the consent of any Issuing Bank, amend, modify or waive any provision of Section
2.5 or alter its rights or obligations with respect to Letters of Credit, or (y)
without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 8 or any other provision as the same relates to the
Administrative Agent. No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the
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generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) If, in connection with any proposed change, waiver, discharge
or termination to any of the provisions of this Agreement contemplated by
clauses (i) through (v), inclusive, of the first proviso of Section 9.2(a), the
consent of the Required Lenders is obtained but the consent of one or more of
such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders with one or
more Replacement Lenders pursuant to Section 2.18(b) so long as at the time of
such replacement each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Lender's
Commitment and/or repay the outstanding Loans of such Lender and cash
collateralize its applicable LC Exposure in accordance with Section 2.5(j),
provided that, unless the Commitment that is terminated and Loans repaid
pursuant to preceding clause (B) 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 preceding clause
(B) the Required Lenders (determined after giving effect to the proposed action)
shall specifically consent thereto, provided further, that in any event the
Borrower shall not have the right to replace a Lender, terminate its Commitment
or repay its Loans 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 proviso to Section 9.2(a).
Section 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement after the occurrence of an Event of Default, including its rights
under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
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(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(d) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
Section 9.4 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the
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Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans and a corresponding amount of its LC
Exposure at the time owing to it); provided that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, each of the Borrower, the
Administrative Agent and the Issuing Bank must give its prior written consent to
such assignment (which consent shall not be unreasonably withheld), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not apply to rights in
respect of outstanding Competitive Loans and (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500; and
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if a Default has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 9.3). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive (absent manifest error), and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each
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Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower,
the Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; and provided further that no Lender shall
transfer or grant any participation under which the Participants shall have
rights to approve any amendment to or waiver of this Agreement except to the
extent that such amendment or waiver would (i) extend the final scheduled
maturity of any Revolving Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Maturity Date) in which the Participant is
participating, or reduce the rate or extend the time of payment of interest or
fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the Participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or of a
mandatory reduction in the aggregate Commitments shall not constitute a change
in the terms of such participation and that an increase in any Commitment or
Revolving Loan shall be permitted without the consent of any participant if the
Participant's participation is not increased as a result thereof), or (ii)
consent to the assignment by the Borrower of any of its rights and obligations
under this Agreement.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive
73
<PAGE>
CREDIT AGREEMENT
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower's prior written
consent. A Participant that, subject to the foregoing, would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 9.5 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.3 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
Section 9.6 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.1, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto,
74
<PAGE>
CREDIT AGREEMENT
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
Section 9.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.8 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
Section 9.9 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
75
<PAGE>
CREDIT AGREEMENT
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12 Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights
76
<PAGE>
CREDIT AGREEMENT
hereunder, (f) to any participant or prospective participant in or assignee or
prospective assignee of any of the rights and obligations under this Agreement,
provided that such participant, prospective participant, assignee or prospective
assignee agrees to be bound by the confidentiality provisions contained in this
Section 9.12, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Section 9.13 OREGON LEGAL NOTICE. WITHOUT LIMITING THE VALIDITY OF THE
CHOICE OF NEW YORK LAW PROVIDED HEREIN, UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES AND COMMITMENTS MADE BY THE LENDERS AFTER THE RESTATEMENT DATE OF THE
ACT SPECIFIED HEREIN CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDERS
TO BE ENFORCEABLE. THE ACT SPECIFIED HEREIN MEANS CHAPTER 967 OREGON LAWS 1989,
THE EFFECTIVE DATE OF WHICH WAS OCTOBER 3, 1989.
77
<PAGE>
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MEYER-SMITH HOLDCO, INC.
as Borrower
By: JAMES C. AALBERG
-------------------------------------
Name: James C. Aalberg
Title: Vice President, Treasurer
S-1
<PAGE>
CREDIT AGREEMENT
BANKERS TRUST COMPANY,
as Administrative Agent and as a Lender
By: MARY KAY COYLE
-------------------------------------
Name: Mary Kay Coyle
Title: Managing Director
S-2
<PAGE>
CREDIT AGREEMENT
THE CHASE MANHATTAN BANK,
as Syndication Agent and as a Lender
By: ELLEN L. GERTZOG
-------------------------------------
Name: Ellen L. Gertzog
Title: Vice President
S-3
<PAGE>
CREDIT AGREEMENT
BANK OF AMERICA NT & SA,
as a Lender
By: JAY R. ALLEN
-------------------------------------
Name: Jay R. Allen
Title: SVP
S-4
<PAGE>
CREDIT AGREEMENT
THE BANK OF NEW YORK,
as a Lender
By: CHARLOTTE SOHN
-------------------------------------
Name: Charlotte Sohn
Title: Vice President
S-5
<PAGE>
CREDIT AGREEMENT
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
as a Lender
By: ANTHONY ROCK
-------------------------------------
Name: Anthony Rock
Title: Vice President
By: BRIAN O'LEARY
-------------------------------------
Name: Brian O'Leary
Title: Vice President
S-6
<PAGE>
CREDIT AGREEMENT
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED,
as a Lender
By: JOHN C. HOLSEY
-------------------------------------
Name: John C. Holsey
Title: Executive Vice President
S-7
<PAGE>
CREDIT AGREEMENT
COOPERATIVE CENTRALE RAIFFESISEN-
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND"
NEW YORK BRANCH
as a Lender
By: DANA W. HEMENWAY
-------------------------------------
Name: Dana W. Hemenway
Title: Vice President
By: W. PIETER C. KODDE
-------------------------------------
Name: W. Pieter C. Kodde
Title: Vice President
S-8
<PAGE>
CREDIT AGREEMENT
CAISSE NATIONALE DE
CREDIT AGRICOLE,
as a Lender
By: DEAN BALICE
-------------------------------------
Name: Dean Balice
Title: Senior Vice President
Branch Manager
S-9
<PAGE>
CREDIT AGREEMENT
THE DAI-ICHI KANGYO BANK, LIMITED,
as a Lender
By: TAKUO YOSHIDA
-------------------------------------
Name: Takuo Yoshida
Title: General Manager & Agent
S-10
<PAGE>
CREDIT AGREEMENT
THE FUJI BANK, LIMITED,
as a Lender
By: KAZUO KAMIO
-------------------------------------
Name: Kazuo Kamio
Title: General Manager
S-11
<PAGE>
CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: TIMOTHY P. STREB
-------------------------------------
Name: Timothy P. Streb
Title: Vice President
S-12
<PAGE>
CREDIT AGREEMENT
SOCIETE GENERALE,
as a Lender
By: J. BLAINE SHAUM
-------------------------------------
Name: J. Blaine Shaum
Title: Regional Manager
S-13
<PAGE>
CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: CHRISTINA ZAUTCKE
-------------------------------------
Name: Christina Zautcke
Title: First Vice President
S-14
<PAGE>
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: KEVIN P. MCBRIDE
-------------------------------------
Name: Kevin P. McBride
Title: Vice President
S-15
<PAGE>
CREDIT AGREEMENT
U.S. NATIONAL BANK ASSOCIATION,
as a Lender
By: STEVEN T. WILLIAMS
-------------------------------------
Name: Steven T. Williams
Title: Vice President
S-16
<PAGE>
CREDIT AGREEMENT
WELLS FARGO BANK, N.A.,
as a Lender
By: W.L. HAUCK
-------------------------------------
Name: W.L. Hauck
Title: VP
S-17
<PAGE>
CREDIT AGREEMENT
ZIONS FIRST NATIONAL BANK,
as a Lender
By: RICHARD P. JACKSON
-------------------------------------
Name: Richard P. Jackson
Title: V.P.
S-18
<PAGE>
CREDIT AGREEMENT
FIRST SECURITY BANK,
as a Lender
By: JUDY CALLISTER
-------------------------------------
Name: Judy Callister
Title: Vice President
S-19
<PAGE>
CREDIT AGREEMENT
Schedule 2.1
Lenders and Commitments
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
Bankers Trust Company $286,279,888.90
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Telecopier No.: (212) 250-7351
Attn: Deal Administrator
The Chase Manhattan Bank $286,279,888.90
270 Park Avenue
New York, New York 10017
Telecopier No.: (212)
Attn:
Wells Fargo Bank, N.A. $114,961,772.42
1300 SW Fifth Avenue
13th Floor
Portland, Oregon 97201
Telecopier No.: (503) 225-3162
Attn: William Hauck
Union Bank of California, N.A., $63,228,974.83
a Member of the Bank of Tokyo,
Mitsubishi Bank Group
350 California Street
11th Floor
San Francisco, California 94104
Telecopier No.: (415) 705-7085
Attn: Timothy P. Streb
U.S. Bank National Association $57,480,886.21
555 S.W. Oak St., PL-4
Portland, Oregon 97204
Telecopier No.: (503-275-5428
Attn: Steven T. Williams
The HongKong and Shanghai Banking
Corporation Limited $28,740,443.11
140 Broadway, 4th Floor
New York, New York 10005-1196
Telecopier No.: (212) 658-2813
Attn: Adriana Collins
1
<PAGE>
CREDIT AGREEMENT
First Security Bank, N.A. $28,740,443.11
15 East 100 South, 2nd Floor
Salt Lake City, Utah 84111
Telecopier No.: (801) 246-5532
Attn: Judy Callister
The Bank of New York $28,740,443.11
One Wall Street, 19th Floor
New York, New York 10286
Telecopier No.: (212)
Attn:
The Fuji Bank, Limited $14,837,398.37
601 California Street
San Francisco, California 94111
Telecopier No.: (415)
Attn:
Compagnie Financiere de CIC et de
L'Union Europeenne $14,370,221.55
520 Madison Ave.
37th Floor
New York, New York 10022
Telecopier No.: (212) 715-4535
Attn: Anthony Rock
The First National Bank of Chicago $14,370,221.55
777 South Figueroa St.
4th Floor
Los Angeles, California 90017
Telecopier No.: (213) 683-4999
Attn: James P. Moore
Cooperative Centrale Raiffesisen-Boerenleenbank
B.A., "Rabobank Nederland," New York Branch $14,370,221.55
Four Embarcadero Center
Suite 3200
San Francisco, California 94111
Telecopier No.: (415) 986-8349
Attn: Hunter Holding
Bank of America NT & SA $14,370,221.55
335 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 503-7502
Attn: Linda Carper
2
<PAGE>
CREDIT AGREEMENT
The Dai-ichi Kangyo Bank, Limited $14,370,221.55
101 California Street, Suite 4000
San Francisco, California 94111
Telecopier No.: (415) 788-7868
Attn: Mark Dirsa
Keybank National Association $14,370,221.55
700 5th Avenue, 48th Floor
Seattle, Washington 98125
Telecopier No.: (206) 684-6035
Attn: Mary Young
Caisse Nationale de Credit Agricole $14,370,221.55
101 California Street
San Francisco, California 94111
Telecopier No.: (415) 996-4116
Attn: Karen Kokame
Societe Generale $11,496,177.24
One Montgomery Street
San Francisco, California 94104
Telecopier No.: (415)
Attn:
Zions First National Bank $8,622,132.93
Commercial Loans
185-K2
One South Main Street
Salt Lake City, Utah 84111
Telecopier No.: (801) 524-2136
Attn: Richard P. Jackson
3
================================================================================
$500,000,000
364-DAY CREDIT AGREEMENT
dated as of
September 9, 1997
among
MEYER-SMITH HOLDCO, INC.,
as Borrower
and
The Lenders Party Hereto
BANKERS TRUST COMPANY,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
---------------------------
CHASE SECURITIES INC. and BT SECURITIES CORPORATION,
as Arrangers
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Defined Terms................................................. 1
SECTION 1.2. Classification of Loans and Borrowings........................17
SECTION 1.3. Terms Generally...............................................17
SECTION 1.4. Accounting Terms; GAAP........................................18
SECTION 1.5. Change of Names...............................................18
ARTICLE II
The Credits
SECTION 2.1. Commitments...................................................18
SECTION 2.2. Loans and Borrowings..........................................19
SECTION 2.3. Requests for Revolving Borrowings.............................19
SECTION 2.4. Competitive Bid Procedure.....................................20
SECTION 2.5. Term Loan Conversion..........................................22
SECTION 2.6. Funding of Borrowings.........................................23
SECTION 2.7. Interest Elections............................................24
SECTION 2.8. Termination and Reduction of Commitments......................25
SECTION 2.9. Repayment of Loans; Evidence of Debt..........................26
SECTION 2.10. Prepayment of Loans...........................................27
SECTION 2.11. Fees..........................................................27
SECTION 2.12. Interest......................................................28
SECTION 2.13. Alternate Rate of Interest....................................29
SECTION 2.14. Increased Costs...............................................29
SECTION 2.15. Break Funding Payments........................................30
SECTION 2.16. Taxes.........................................................31
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...........................................32
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders....................................................34
SECTION 2.19. Extension of Revolver Termination Date........................35
i
<PAGE>
ARTICLE III
Representations and Warranties
SECTION 3.1. Organization; Powers..........................................36
SECTION 3.2. Authorization; Enforceability.................................36
SECTION 3.3. Governmental Approvals; No Conflicts..........................36
SECTION 3.4. Financial Condition; No Material
Adverse Change................................................36
SECTION 3.5. Properties....................................................37
SECTION 3.6. Litigation and Environmental Matters..........................37
SECTION 3.7. Compliance with Laws and Agreements...........................38
SECTION 3.8. Investment and Holding Company Status.........................38
SECTION 3.9. Taxes.........................................................38
SECTION 3.10. ERISA.........................................................38
SECTION 3.11. Disclosure....................................................38
SECTION 3.12. Solvency......................................................38
SECTION 3.13. Use of Proceeds; Margin Regulations...........................39
SECTION 3.14. No Default....................................................39
SECTION 3.15. Subsidiaries..................................................39
ARTICLE IV
Conditions
SECTION 4.1. Effective Date................................................39
SECTION 4.2. Each Credit Event.............................................40
ARTICLE V
Affirmative Covenants
SECTION 5.1. Financial Statements and Other Information....................41
SECTION 5.2. Notices of Material Events....................................42
SECTION 5.3. Existence; Conduct of Business................................43
SECTION 5.4. Payment of Obligations........................................43
SECTION 5.5. Maintenance of Properties; Insurance..........................43
SECTION 5.6. Books and Records; Inspection Rights..........................43
SECTION 5.7. Compliance with Laws..........................................44
SECTION 5.8. Use of Proceeds...............................................44
SECTION 5.9. Subsidiary Guaranties.........................................44
ii
<PAGE>
ARTICLE VI
Negative Covenants
SECTION 6.1. Material Subsidiary Debt......................................44
SECTION 6.2. Liens.........................................................45
SECTION 6.3. Modifications of Merger Document..............................46
SECTION 6.4. Fundamental Changes...........................................46
SECTION 6.5. Investments, Loans, Advances, Suretyship
Liabilities and Acquisitions..................................47
SECTION 6.6. Hedging Agreements............................................47
SECTION 6.7. Restricted Payments...........................................48
SECTION 6.8. Transactions with Affiliates..................................48
SECTION 6.9. Restrictive Agreements........................................48
SECTION 6.10. Financial Covenants...........................................49
SECTION 6.11. Unconditional Purchase Obligations............................50
SECTION 6.12. Fiscal Year; Fiscal Quarter...................................50
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
SECTION 8.1. Appointment...................................................52
SECTION 8.2. Delegation of Duties..........................................53
SECTION 8.3. Exculpatory Provisions........................................53
SECTION 8.4. Reliance by Administrative Agent..............................53
SECTION 8.5. Notice of Default.............................................54
SECTION 8.6. Non-Reliance on Administrative Agent and Other Lenders........54
SECTION 8.7. Indemnification ..............................................54
SECTION 8.8. Administrative Agent in Its Individual Capacity ..............55
SECTION 8.9. Successor Administrative Agent................................55
SECTION 8.10. Syndication Agent.............................................55
iii
<PAGE>
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices.......................................................56
SECTION 9.2. Waivers; Amendments...........................................57
SECTION 9.3. Expenses; Indemnity; Damage Waiver............................58
SECTION 9.4. Successors and Assigns........................................59
SECTION 9.5. Survival......................................................61
SECTION 9.6. Counterparts; Integration; Effectiveness......................62
SECTION 9.7. Severability..................................................62
SECTION 9.8. Right of Setoff...............................................62
SECTION 9.9. Governing Law; Jurisdiction; Consent
to Service of Process.........................................62
SECTION 9.10. WAIVER OF JURY TRIAL..........................................63
SECTION 9.11. Headings......................................................63
SECTION 9.12. Confidentiality...............................................63
SECTION 9.13. OREGON LEGAL NOTICE...........................................64
SCHEDULES AND EXHIBITS
Schedule 2.1 Lenders and Commitments
Schedule 3.6 Disclosed Matters
Schedule 3.15 Subsidiaries
Schedule 4.1 Refinancing of Existing Debt
Schedule 6.1 Debt
Schedule 6.2 Liens
Schedule 6.10 Restrictive Agreements
Exhibit A Assignment and Acceptance
Exhibit B Note
Exhibit C Opinion of Stoel Rives, Counsel to the Borrower
Exhibit D Subsidiary Guaranty
iv
<PAGE>
364-DAY CREDIT AGREEMENT dated as of September 9, 1997, among
MEYER-SMITH HOLDCO., INC., as Borrower, the LENDERS party hereto, BANKERS TRUST
COMPANY, as Administrative Agent and THE CHASE MANHATTAN BANK, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR" means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the rate of interest
per annum publicly announced from time to time by the Administrative Agent as
its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors); each
change in the Prime Rate shall be effective on the date such change is publicly
announced as effective. "Federal Funds Effective Rate" means, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized national
standing selected by it. If for any reason the Administrative Agent shall have
determined that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the ABR shall
be determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the ABR due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Adjusted Interest Coverage Ratio" means the ratio of (a) Consolidated
EBITDAR to (b) the sum of (i) the Borrower's Consolidated Interest Expense for
such period plus (ii) except as included in Consolidated Interest Expense, the
Borrower's consolidated rental expense on operating leases, computed as of the
last day of a fiscal quarter for the period consisting of such fiscal quarter
and the immediately preceding three fiscal quarters.
<PAGE>
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bankers Trust Company, in its capacity as
administrative agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Syndication Agent.
"Applicable Level" means the level determined with reference to the
following chart:
Level Ratio Rating
- ----- ----- ------
I greater than or equal to 7.5x greater than or equal to A-/A3
II greater than 6.5x BBB+/Baa1
III greater than 5.5x BBB/Baa2
IV greater than 4.5x BBB-/Baa3
V greater than or equal to 3.5x BB+/Ba1
VI lesser than 3.5x lesser than BB+/Ba1
For purposes of the foregoing, (i) for the six month period following from and
after the Closing Date, the Applicable Level shall be Level IV; (ii) on the date
that is six months after the Closing Date, the Borrower shall provide the
Administrative Agent with a Compliance Certificate showing the ratio of
Applicable EBITDA to Applicable Interest Expense of the Borrower for the fiscal
quarter ended January 31, 1998 (and in the event the Borrower fails timely to
provide such Compliance Certificate, the Applicable Level shall be Level V until
such Compliance Certificate is provided), and from such date until May 23, 1998,
the Applicable Level shall be the Level corresponding to such ratio; (iii)
except as provided in (i) and (ii) above, at any time of determination, the
Applicable Level shall be the Level corresponding to the ratio of Applicable
EBITDA to Applicable Interest Expense (for the most recent four consecutive
fiscal quarters; provided that for the periods ended May 23, 1998 and August 15,
1998, Applicable EBITDA and Applicable Interest Expense shall be calculated by
reference to the full fiscal quarters then ended since the Closing Date) as set
forth in the most recently delivered Compliance Certificate (it being understood
and agreed that if the Borrower shall not have delivered the most recently due
Compliance Certificate within the time period specified in Section 5.1(c), the
Applicable Level shall be Level V until such Compliance Certificate is
delivered) (for purposes of this definition, the "Ratio") and the senior
unsecured long term debt rating of the Borrower from S&P and Moody's (for
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purposes of this definition, the "Rating"); (iv) in the event the Ratio and the
Rating do not fall within the same Level, the Applicable Level shall be the
higher (Level I being the highest) of the two Levels; and (v) in the event the
rating from S&P and the rating from Moody's do not fall within the same Level,
the applicable Rating will be based upon the higher (Level I being the highest)
of the two ratings, except that, in the event one of the two ratings is two or
more Levels higher than the other, the applicable Rating shall be determined by
reference to the Level next lower than the higher of the two ratings. If any
rating established or deemed to be established by Moody's or S&P shall be
changed (other than as a result of a change in the rating system of Moody's or
S&P), such change shall be effective as of the date on which such change is
first announced by the rating agency making such change. Each such change shall
take effect on the effective date of such change and shall end on the date
immediately preceding the effective date of the next such change. If the rating
system of S&P or Moody's shall change prior to the Maturity Date, the Borrower
and the Lenders shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system, and
pending agreement on another Applicable Level the Rating shall be determined by
reference to the rating provided by the non-changing rating agency. If the
Borrower does not have a senior long term unsecured debt rating or implied
rating from either Moody's or S&P, the Applicable Level shall be determined by
reference to the Ratio only. For purposes of this definition, "Applicable
EBITDA" of the Borrower and its Subsidiaries means "A" minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi) non-cash LIFO reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains;
and "Applicable Interest Expense" means the consolidated interest expense of the
Borrower and its Subsidiaries.
"Applicable Margin" means, with respect to any facility fee or
Eurodollar Loan, the applicable number of basis points per annum as set forth
below based on the Applicable Level:
Applicable Margin for
Applicable Level Facility Fee Eurodollar Loans
- ---------------- ------------ ----------------
I 5.5 14.5
II 6.5 16.0
III 7.0 18.0
IV 8.0 22.0
V 10.0 27.5
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VI 15.0 35.0
"Applicable Percentage" means, at any time and with respect to any
Lender, the percentage of the total Commitments represented by such Lender's
Commitment (or after the termination thereof, the percentage of the total
outstanding Loans represented by such Lender's outstanding Loans at such time).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Revolver Termination Date and
the Maturity Date.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Meyer-Smith Holdco, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) the Term Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the New York interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission
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thereunder as in effect on the date hereof), of shares representing more than
33 1/3% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower; or (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Closing Date" means September 9, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.8 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.4. The initial amount
of each Lender's Commitment is set forth on Schedule 2.1, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Commitment,
as applicable. Each Lender's Commitment shall not be affected by any Competitive
Loans made by such Lender; provided that such Competitive Loans shall be
included in any calculation of the aggregate amount of Loans outstanding
hereunder for purposes of determining whether the aggregate of the Commitments
has been or would be exceeded by outstanding Loans. The initial aggregate amount
of the Lenders' Commitments is $500,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
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<PAGE>
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Compliance Certificate" means a certificate signed by a Responsible
Officer of the Borrower certifying as to the matters set forth in Section
5.1(c).
"Consolidated EBITDA" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, including the interest component of
rent expense under all Synthetic Lease Facilities for which the
Borrower or any of its Subsidiaries has Suretyship Liability, (iii)
amortization, (iv) depreciation, (v) income taxes, (vi) non-cash LIFO
reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated EBITDAR" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expense, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi) non-cash LIFO reserve charges and (vii)
consolidated rental expense on operating leases (including rent paid
pursuant to any Synthetic Lease Facility); and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated Interest Expense" means the consolidated interest
expense of the Borrower, including the interest component of rent expense under
all Synthetic Lease Facilities for which the Borrower or any of its Subsidiaries
has Suretyship Liability.
"Consolidated Total Assets" means the total consolidated assets of the
Borrower and its Subsidiaries as shown on the most recent consolidated balance
sheet of the Borrower and its Subsidiaries referred to in Section 3.4 or
delivered to the Administrative Agent and each Lender pursuant to Section 5.1.
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<PAGE>
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Conversion Date" means the date on which the Term Loan Conversion is
effected.
"Current Synthetic Lease Facility" means the transactions contemplated
by the Participation Agreement, dated the date hereof, among FMI, the Borrower,
Wilmington Trust Company, owner trustee, FMS Trust 1997-1, as lessor, the
investors named therein, the Administrative Agent, the Syndication Agent, and
the lenders named therein.
"Debt" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all Capital Lease Obligations of
such Person, (c) all obligations of such Person to pay the deferred purchase
price of property or services (other than current accounts payable in the
ordinary course of business), (d) all indebtedness secured by a Lien on the
property of such Person, whether or not such indebtedness shall have been
assumed by such Person (it being understood that if such Person has not assumed
or otherwise become personally liable for any such indebtedness, the amount of
the Debt of such Person in connection therewith shall be limited to the lesser
of the face amount of such indebtedness or the fair market value of all property
of such Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or
not drawn) and banker's acceptances issued for the account of such Person, (f)
all obligations of such Person in respect of Hedging Agreements, (g) all
Suretyship Liabilities of such Person, (h) all other obligations of such Person
upon which interest charges are customarily paid (other than current accounts
payable in the ordinary course of business), (i) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person and (j) all Debt (as defined above) of any partnership
in which such Person is a general partner. The amount of the Debt of any Person
in respect of Hedging Agreements shall be deemed to be the unrealized net loss
position of such Person thereunder (determined for each counterparty
individually, but netted for all Hedging Agreements maintained with such
counterparty).
"Debt for Borrowed Money" of any Person means all Debt of such Person
described in (without duplication) clauses (a), (b), (c), (d), (h) and, to the
extent constituting a Suretyship Liability in respect of Debt for Borrowed Money
of another Person, (g), of the definition of Debt. A Suretyship Liability
arising under a Synthetic Lease Facility shall be deemed to be a Debt for
Borrowed Money.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
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<PAGE>
"Defaulting Lenders" has the meaning set forth in Section 2.6(b).
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.6.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.1 are satisfied (or waived in accordance with Section 9.2).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any
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<PAGE>
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.16(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).
"Extension Date" has the meaning specified in Section 2.19(b).
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"FMI" means Fred Meyer, Inc. and its successors and assigns.
"Foreign Lender" has the meaning provided in Section 2.16(e).
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"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.7.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request;
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provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the offered quotation to first-class banks in the New York
interbank eurodollar market by the Administrative Agent for dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the applicable Eurodollar Loan, with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" shall have the meaning provided such term in Regulation
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its
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obligations under this Agreement or (c) the rights of or benefits available to
the Lenders under this Agreement.
"Material Debt" means Debt of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount equal to or exceeding $5,000,000.
"Material Subsidiary" means a Subsidiary which either (a) has assets
which constitute 5% or more of the consolidated assets of the Borrower and its
Subsidiaries or (b) has revenues as of the end of the Borrower's most
recently-ended fiscal year which constitute more than 5% of the consolidated
revenues of the Borrower and its Subsidiaries during the Borrower's most
recently ended fiscal year.
"Maturity Date" means the later of (a) September 9, 1998, (b) if the
Revolver Termination Date has been extended pursuant to Section 2.19, such
extended Revolver Termination Date or (c) if the Term Loan Conversion has then
been effected pursuant to Section 2.5, the date that is one year subsequent to
the Conversion Date.
"Merger" means the merger of FMI and Smith's as contemplated by the
Merger Document.
"Merger Document" means that certain Agreement and Plan of
Reorganization and Merger, dated as of May 11, 1997, by and between FMI and
Smith's.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Non-Defaulting Lender" has the meaning specified in Section 2.6(b).
"Other Corporate Loan Documents" means the following documents, as
such documents are amended, supplemented or otherwise modified from time to
time: (i) all of the documents contemplated to be executed in connection with
the Current Synthetic Lease Facility; (ii) the $1,030,000,000 Credit Agreement,
of even date herewith, among Meyer-Smith Holdco, Inc. as Borrower, the Lenders
identified therein, Bankers Trust Company as Administrative Agent and The Chase
Manhattan Bank as Syndication Agent; and (iii) the $500,000,000 Bridge Credit
Agreement, of even date herewith, among Meyer-Smith Holdco, Inc. as Borrower,
the Lenders identified therein, Bankers Trust Company as Administrative Agent
and The Chase Manhattan Bank as Syndication Agent.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
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"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.4;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.4;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt for Borrowed Money.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, the two
highest credit ratings obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or
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guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause (c)
above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Register" has the meaning set forth in Section 9.4.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Non-Defaulting Lenders the sum
of whose Commitments (or after the termination thereof, outstanding Loans at
such time) represents an amount greater than 50% of the sum of (i) the aggregate
Commitments of all Lenders less (ii) the aggregate Commitments of all Defaulting
Lenders (or after the termination thereof, the sum of the then total outstanding
Loans of Defaulting Lenders at such time).
"Responsible Officer" means the Chairman or Vice Chairman of the Board
of Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Senior Vice President or Executive Vice
President, the Chief Financial Officer, the Chief Operating Officers, the Chief
Accounting Officer, the Vice President/Treasurer or any Assistant Treasurer
responsible for compliance with this Agreement.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital
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stock of the Borrower or any option, warrant or other right to acquire any such
shares of capital stock of the Borrower.
"Revolver Termination Date" means the later of (a) September ___,
1998, (b) if the Revolver Termination Date has then been extended pursuant to
Section 2.19, such extended Revolver Termination Date or (c) if the Term Loan
Conversion has been effected pursuant to Section 2.5, the Conversion Date.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.3.
"Smith's" means Smith's Food and Drug Centers Inc. and its successors
and assigns.
"Solvent" as to any Person means (i) the sum of the assets of such
Person, both at a fair valuation and at present fair salable value, will exceed
its liabilities, including contingent liabilities, (ii) such Person will have
sufficient capital with which to conduct its business as presently conducted and
(iii) such Person has not incurred debts, and does not intend to incur debts,
beyond its ability to pay such debts as they mature. For purposes of this
definition, "debt" means any liability on a claim, and "claim" means (x) a right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (y) a right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured. With respect to
any contingent liabilities, such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Corporation.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory
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Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are required to be consolidated with those of
the parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as,
with respect to any Person, any Person of which such Person and/or its
subsidiaries own, directly or indirectly, such number of outstanding shares (or
similar equity interest) as have more than 50% of the ordinary voting power for
the election of directors.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranty" shall have the meaning set forth in Section
4.1(h).
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, guaranties, shipside bonds, surety bonds
and similar instruments under which Suretyship Liabilities arise.
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss)
any indebtedness, obligation or other liability (including accounts payable) of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. Suretyship Liability shall include any liability
or contingent liability of a Person under or in connection with a Synthetic
Lease Facility. The amount of any Person's obligation under any Suretyship
Liability shall (subject to any limitation set forth therein) be deemed to be
the principal amount of the indebtedness, obligation or other liability
guaranteed thereby. As of any date, the amount of any Person's obligations under
any Synthetic Lease Facility shall be equal to the amount which such Person
would be obligated to pay if such Synthetic Lease Facility was accelerated on
such date (disregarding accrued scheduled lease payments which would be
characterized as interest if such Synthetic Lease Facility were treated as a
capital lease under GAAP).
"Syndication Agent" means The Chase Manhattan Bank.
"Synthetic Lease" and "Synthetic Lease Facility" means any synthetic
lease, tax ownership operating lease, tax retention operating lease, off balance
sheet lease or similar lease transaction where the lessee is treated as owner of
the leased property for U.S. federal income tax purposes while the lease is
accounted for on the financial statements of the lessee,
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prepared in accordance with GAAP, as an operating lease, including the Current
Synthetic Lease Facility.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" has the meaning provided in Section 2.5.
"Term Loan Conversion" means the conversion of all then outstanding
Revolving Loans to a Term Loan pursuant to Section 2.5.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the ABR or, in
the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
Section 1.3 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
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Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 1.4 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided that
for purposes of determining compliance with any covenant set forth in Article
VI, such terms shall be construed in accordance with GAAP as in effect on the
date of this Agreement applied on a basis consistent with the application used
in preparing the Borrower's audited financial statements referred to in Section
5.1. If any change in accounting principles from those used in the preparation
of the audited financial statements referred to in Section 5.1 hereafter
occasioned by the promulgation of any rule, regulation, pronouncement or opinion
by or required by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Article 1 or Article VI, the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the Borrower's financial condition shall be the same
after such change as if such change had not been made.
Section 1.5 Change of Names. It is understood and agreed that
following the consummation of the Merger, Meyer-Smith Holdco, Inc. will change
its corporate name to "Fred Meyer, Inc." and FMI will change its corporate name
to "Fred Meyer Stores, Inc." From and after the time at which such changes take
effect all references to "Meyer-Smith Holdco, Inc." or the "Borrower" contained
herein shall be construed to refer to "Fred Meyer, Inc.," and all references to
"FMI" shall be construed to refer to "Fred Meyer Stores, Inc."
ARTICLE II
The Credits
Section 2.1 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans during the Availability Period.
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Section 2.2 Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.4. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $10,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$10,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments. Each
Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of 8 Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
Section 2.3 Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m.
(noon), New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m.
(noon), New York City time, on the day of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
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(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.6.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.4 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) 5 Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
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(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.6.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower
by telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the
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case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York
City time, three Business Days before the date of the proposed Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30 a.m.,
New York City time, on the proposed date of the Competitive Borrowing; provided
that (i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by the Borrower. A notice given
by the Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
Section 2.5 Term Loan Conversion. Except as otherwise provided in
Section 2.19, no less than 30 and no more than 60 days prior to the scheduled
Revolver Termination Date, the Borrower may elect to convert the Revolving Loans
to a term loan (the "Term Loan") by delivery of a written notice to that effect
to the Administrative Agent, which notice shall specify the initial Type of Loan
of the Term Loan and, if the Term Loan is to be a Eurodollar Loan, the initial
Interest Period for the Term Loan, together with a certificate of a Financial
Official on behalf of the Borrower stating that the representations and
warranties contained in Article 3 (other than (i) representations and warranties
which expressly speak as of a particular date or are no longer true and correct
as a result of a change which
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is not a violation of this Agreement and (ii) as otherwise disclosed by the
Borrower and approved in writing by the Required Lenders) are true and correct
on and as of the date of such certificate. So long as (i) no Default or Event of
Default has occurred and is continuing and (ii) the Borrower has repaid all
outstanding Competitive Loans in full, on such Revolving Termination Date the
Revolving Loans shall automatically convert into the Term Loan. The Term Loan
shall commence on the Conversion Date and the aggregate principal balance
thereof shall be payable in full on the Maturity Date. The Borrower may make no
further Borrowings after the Conversion Date, regardless of any prepayments made
with respect to the Term Loan pursuant to Section 2.10 or otherwise.
Section 2.6 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) The failure of any Lender (such Lender, a "Defaulting
Lender") to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender (each such other Lender, a "Non-Defaulting Lender")
of its obligation to make its Loans on such date, but neither any Non-Defaulting
Lender nor the Administrative Agent shall be responsible for the failure of any
Defaulting Lender to make a Loan to be made by such Defaulting Lender, and no
Defaulting Lender shall have any obligation to the Administrative Agent or any
Non-Defaulting Lender (without prejudicing the rights of the Borrower against
such Defaulting Lender). Notwithstanding anything set forth herein to the
contrary, so long as a Lender remains a Defaulting Lender, such Lender shall not
have any voting or consent rights under or with respect to this Agreement or
constitute a "Lender" (or be included in the calculation of "Required Lenders"
hereunder) for any voting or consent rights under or with respect to this
Agreement.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender is a Defaulting Lender, then
such Defaulting Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Defaulting Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on
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interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Defaulting Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing and such Lender shall cease to be a Defaulting
Lender.
Section 2.7 Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request, and the Term Loan shall be of the Type
and, if a Eurodollar Loan, shall have the Interest Period, set forth in the
notice delivered by the Borrower pursuant to Section 2.5; provided that no
Interest Period for any Revolving Borrowing may end on a date that is later than
the Revolver Termination Date in effect at the time of such election. Thereafter
and until (i) the Conversion Date, in the case of Revolving Borrowings, and (ii)
the Maturity Date, in the case of the Term Loan, the Borrower may elect to
convert such Borrowing or the Term Loan to a different Type or to continue such
Borrowing or the Term Loan and, in the case of a Eurodollar Revolving Borrowing
or a Eurodollar Term Loan, may elect Interest Periods therefor, all as provided
in this Section. Except in the case of the Term Loan, the Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.3 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
(i) except in the case of the Term Loan, the Borrowing to
which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing or Eurodollar Term Loan
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing or Eurodollar Term
Loan shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
Section 2.8 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the earlier of the
Conversion Date and the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the
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Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date). Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
Section 2.9 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender thereof the then unpaid principal amount of each
Revolving Loan or the Term Loan, as the case may be, on the Maturity Date and
(ii) to the Administrative Agent for the account of each Lender thereof the then
unpaid principal amount of each Competitive Loan on the last day of the Interest
Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in the form of Exhibit B. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 9.4) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
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Section 2.10 Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing or Eurodollar Term Loan, not
later than 12:00 p.m. (noon), New York City time, three Business Days before the
date of prepayment or (ii) in the case of prepayment of an ABR Revolving
Borrowing or ABR Term Loan, not later than 12:00 p.m. (noon), New York City
time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.8, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.8. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing or the Term
Loan shall be in an amount that would be permitted in the case of an advance of
a Revolving Borrowing of the same Type as provided in Section 2.2. Each
prepayment of a Revolving Borrowing or the Term Loan shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.
Section 2.11 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Margin on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the Closing
Date to but excluding the date on which such Commitment terminates; provided
that from and after the Term Loan Conversion (if any) until the Maturity Date,
the Borrower shall pay a facility fee on the amount of the Term Loan
outstanding. Accrued facility fees shall be payable in arrears on the last
Business Day of March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof; provided that any facility fees accruing after the date
on which the Commitments terminate or the Maturity Date, as the case may be,
shall be payable on demand. All facility fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day for the period covered).
(b) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
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(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
Section 2.12 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the ABR.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan or Eurodollar Term Loan,
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin, or (ii) in the case of a Eurodollar Competitive
Loan, at the LIBO Rate for the Interest Period in effect for such Borrowing plus
(or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, the greater of (A) 2% plus the rate otherwise applicable to such Loan
as provided in the preceding paragraphs of this Section and (B) 2% plus the rate
applicable to ABR Loans or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Revolving Loan or Eurodollar Term Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion, and (iv) in the case of the Term Loan, all interest
accrued and unpaid prior to the Maturity Date shall be payable on the Maturity
Date.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the ABR at times
when the ABR is based on the Prime Rate shall be computed on the basis of a year
of 365 days (or 366 days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). The applicable ABR, Adjusted LIBO
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Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
Section 2.13 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
(or, in the case of a Eurodollar Competitive Loan, the Lender that is required
to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowing, then the other Type of Borrowings shall be permitted.
Section 2.14 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such
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Lender (whether of principal, interest or otherwise), then the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the basis of the
calculations and the amount or amounts necessary to compensate such Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
Section 2.15 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Eurodollar Term Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.10(b) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make
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such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.18, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event (excluding loss of Applicable Margin after the date
of such event). In the case of a Eurodollar Loan, such loss, cost or expense to
any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate (excluding loss of Applicable Margin) that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
Section 2.16 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) to the Administrative Agent or any
Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. The Borrower shall also indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of
Excluded Taxes as the Administrative Agent or such Lender, as the case may be,
shall determine are payable in
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respect of amounts paid to or on behalf of the Administrative Agent or such
Lender, as the case may be, pursuant to this Section 2.16. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is not incorporated under the United States
of America or a state thereof (each a "Foreign Lender") shall:
(i) on the date it becomes a Lender, deliver to the
Administrative Agent (A) two completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, and shall certify that it is entitled to receive payments
under this Agreement without deduction or withholding (or at a reduced rate
of deduction or withholding) of any United States Federal income taxes and
(B) an Internal Revenue Services Form W-8 or W-9, or successor applicable
form, as the case may be and shall certify that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to the Administrative Agent two further copies
of any such form or certification on or before the date that any such
certification described above expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered to it; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Administrative Agent;
except that the forms and certificates described in clauses (ii) and (iii) above
shall not be required if any Change in Law has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Administrative Agent.
Section 2.17 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.14, 2.15 or 2.16, or
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otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 130 Liberty Street,
New York, New York, 10006, except that payments pursuant to Sections 2.14, 2.15,
2.16 and 9.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Term Loan resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans or Term Loan, as the case may be, and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans or Term Loan, as the case may be, of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans or the Term Loan, as the
case may be; provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
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(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.6(a) or 2.17(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
Section 2.18 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.14,
or (ii) the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.16, or (iii) any Lender defaults in its obligation to fund Loans hereunder, or
(iv) any Lender refuses to consent to certain proposed changes, waivers,
discharges or termination with respect to this Agreement which require the
consent of all Lenders and have been approved by the Required Lenders as (and to
the extent) provided in Section 9.2(b), then the Borrower may, at its sole
expense and effort, if no Default then exists (or, in the case of preceding
clause (iv), no Default will exist immediately upon giving effect to such
replacement), upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.4), all its interests, rights
and obligations under this Agreement (other than any outstanding Competitive
Loans held by it) to an assignee that shall assume such obligations (which
assignee may be another
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Lender, if a Lender accepts such assignment) (such Assignee a "Replacement
Lender"); provided that (x) the Borrower shall have received the prior written
consent of the Administrative Agent which consent shall not unreasonably be
withheld, (y) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans) accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the Replacement Lender (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (z) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
Section 2.19 Extension of Revolver Termination Date. (a) Not more than
sixty (60) nor less than thirty (30) days prior to the scheduled Revolver
Termination Date, and provided that no Default has occurred and is continuing,
the Borrower may deliver to the Administrative Agent and the Lenders a written
request for a 364 day extension of the Revolver Termination Date together with a
certificate of a Financial Official on behalf of the Borrower stating that the
representations and warranties contained in Article 3 (other than (i)
representations and warranties which expressly speak as of a particular date or
are no longer true and correct as a result of a change which is not a violation
of this Agreement and (ii) as otherwise disclosed by the Borrower and approved
in writing by the Required Lenders) are true and correct on and as of the date
of such certificate. Each Lender shall, on or prior to the date that is ten (10)
Business Days after receipt of such written request, notify in writing the
Administrative Agent whether (in its sole and absolute discretion) it consents
to such request and the Administrative Agent shall, after receiving the
notifications from all of the Lenders or the expiration of such period,
whichever is earlier, notify the Borrower and the Lenders of the results
thereof. If any Lender shall fail to notify the Administrative Agent and the
Borrower in writing of its consent to any such request for extension of the
Revolver Termination Date within ten (10) days after the date of such extension
request, such Lender shall be deemed not to have consented with respect to such
request.
(b) If all of the Lenders consent in writing to any such request
in accordance with Section 2.19(a), the Revolver Termination Date in effect at
such time (the "Extension Date") shall be extended for 364 days, and all
references in this Agreement and in the Notes (if any) to the "Revolver
Termination Date" shall refer to the Revolver Termination Date as so extended.
If all of the Lenders do not consent to such request in writing in accordance
with Section 2.19(a), the Revolver Termination Date in effect at such time shall
be the final Revolver Termination Date and the Availability Period shall end on
such date. Upon notice from the Administrative Agent that all of the Lenders
have not consented to the Borrower's request for extension, the Borrower may,
within ten (10) days of receipt of such notice, elect the Term Loan Conversion
as of the final Revolver Termination Date in accordance with the provisions of
Section 2.5 (but notwithstanding the notice provisions included therein). In the
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event the Borrower does not elect the Term Loan Conversion within such ten-day
period, such Revolver Termination Date shall be the Maturity Date.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
Section 3.1 Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.2 Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action, and the use of proceeds of the
Loans will be, in each instance, within the Borrower's corporate powers and will
have been duly authorized by all necessary corporate and, if required,
stockholder action, as of the time of such use. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
Section 3.3 Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or any of their respective assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
Section 3.4 Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders consolidated balance sheets and
statements of income, stockholders equity and cash flows for (i) FMI and its
subsidiaries, as of and for the fiscal year ended February 1, 1997, reported on
by Deloitte & Touche, independent public accountants of FMI, and the fiscal
quarter and the portion of the fiscal year ended
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May 24, 1997, certified by the chief financial officer of FMI and (ii) Smith's
and its subsidiaries, as of and for the fiscal year ended December 28, 1996,
reported on by Ernst & Young LLP, independent public accountants of Smith's, and
the fiscal quarter and the portion of the fiscal year ended April 5, 1997,
certified by the chief financial officer of Smith's. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of FMI, Smith's and their respective subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements for
the fiscal quarters.
(b) There has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of (i) FMI
and its subsidiaries, taken as a whole, since February 1, 1997, or (ii) Smith's
or its subsidiaries, taken as a whole, since December 28, 1996.
Section 3.5 Properties. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes, subject to no Lien of any
kind except Liens permitted hereby.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 3.6 Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, neither the Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
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(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 3.7 Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 3.8 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 3.9 Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
Section 3.11 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
Section 3.12 Solvency. On the Closing Date and after giving effect to
the Transactions, the Borrower and each of its Material Subsidiaries will be
Solvent.
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Section 3.13 Use of Proceeds; Margin Regulations. All proceeds of each
of the Loans will be used by the Borrower only in accordance with the provisions
of Section 5.8. No part of the proceeds of any of the Loans will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any of the Loans nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, T, U or X of the Federal
Reserve Board.
Section 3.14 No Default. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound in any respect which could result in a
Material Adverse Effect. No Default or Event of Default exists.
Section 3.15 Subsidiaries. After giving effect to the Merger, the
Persons listed on Schedule 3.15 are the only Subsidiaries of the Borrower.
Schedule 3.15 correctly sets forth, after giving effect to the Merger, the
percentage ownership (direct and indirect) of the Borrower in each class of
capital stock of each of its Subsidiaries and also identifies the direct owner
thereof and identifies each Material Subsidiary as of the Closing Date.
ARTICLE IV
Conditions
Section 4.1 Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto (A) either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement and
(B) such other documents, in form and substance satisfactory to the
Administrative agent, as the Administrative Agent may reasonably request.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Stoel Rives LLP, counsel for the Borrower, substantially
in the form of Exhibit C, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver such
opinion.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the
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organization, existence and good standing of the Borrower, the authorization of
the Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (b) and (c) of Section 4.2.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Merger shall have been completed in accordance with the
Merger Document, or on other terms reasonably satisfactory to the Lenders.
(g) The Other Corporate Loan Documents shall have been executed
and delivered and shall be in full force and effect.
(h) Each Material Subsidiary shall have executed and delivered to
the Administrative Agent a guaranty substantially in the form set forth as
Exhibit D (each such guaranty, as amended, supplemented or otherwise modified, a
"Subsidiary Guaranty").
(i) The Administrative Agent shall have received evidence
satisfactory to it of prior or simultaneous repayment or refinancing of the Debt
of the Borrower and its Subsidiaries set forth on Schedule 4.1 hereto (except as
otherwise agreed to the satisfaction of the Agents).
(j) The Administrative Agent shall have received the financial
information required under Section 3.4(a), including a pro forma balance sheet
giving effect to the Merger, in form and substance satisfactory to the
Administrative Agent.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.2) at or prior to 3:00 p.m., New York City time, on
September 30, 1997 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
Section 4.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
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(a) The Administrative Agent shall have received a fully executed
Borrowing Request in respect of the Loans to be made on such date.
(b) The representations and warranties of the Borrower set forth
in this Agreement (other than the representations and warranties set forth in
Sections 3.4 and 3.6) shall be true and correct on and as of the date of such
Borrowing;
(c) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing; and
(d) At the time of and immediately after giving effect to such
Borrowing, the undrawn and available Commitments of the Lenders under this
Agreement shall be not less than the aggregate outstanding amount of commercial
paper of the Borrower.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (b),
(c) and (d) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
Section 5.1 Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP.
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such
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fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Financial Officers as presenting fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations (x) demonstrating compliance with
Section 6.10(a) and (b) and (y) establishing the Applicable Margin, and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.4
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default upon actual knowledge of a
Responsible Officer of the Borrower;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any
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Affiliate thereof that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in material liability of the Borrower and its Subsidiaries; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.5.
Section 5.4 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.5 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
(and having such deductibles and self-insurance) as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or
similar locations.
Section 5.6 Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
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records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
Section 5.7 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, including
without limitation ERISA and all Environmental Laws, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 5.8 Use of Proceeds. The proceeds of the Loans will be used
only to finance certain costs and expenses associated with the Merger, refinance
existing indebtedness (including related prepayment premiums) and for general
corporate purposes. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations G, U and X.
Section 5.9 Subsidiary Guaranties. The Borrower shall cause each
Material Subsidiary, now or hereafter in existence, to execute and deliver to
the Administrative Agent a Subsidiary Guaranty together with such officer's
certificates, resolutions and other assurances related thereto as the
Administrative Agent shall reasonably request upon the earlier of (i) with
respect to any Subsidiary on the date hereof that becomes a Material Subsidiary
after the date hereof, or as to any Person which, when it becomes a Subsidiary
after the date hereof, is not then a Material Subsidiary, as soon as possible
after the end of the fiscal quarter in which such Subsidiary becomes a Material
Subsidiary, and (ii) with respect to any Material Subsidiary acquired after the
date hereof not currently a Subsidiary, within 10 days of becoming a Material
Subsidiary.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
Section 6.1 Material Subsidiary Debt. The Borrower will not permit any
Material Subsidiary to create, incur, assume or permit to exist any Debt,
except:
(a) Debt owed to the Borrower or to another Material Subsidiary;
(b) Debt existing on the date hereof; provided that to the extent
any item of such Debt exceeds $5,000,000, or the aggregate of all such Debt
exceeds $25,000,000, such Debt shall be identified in Schedule 6.1;
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(c) Debt secured by Permitted Encumbrances;
(d) Capital Lease Obligations not to exceed $100,000,000;
(e) Debt outstanding when such Person becomes a Material
Subsidiary or is merged or consolidated with another Material Subsidiary,
provided that such Debt exists at the time such Person becomes a Material
Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Material Subsidiary;
(f) Debt in respect of commercial letters of credit issued to
support the purchase of goods by the applicable Material Subsidiary in the
ordinary course of business;
(g) Debt in respect of commercial letters of credit issued to
support liabilities of a Material Subsidiary relating to worker's compensation,
judgments pending appeal (and as to which there is no Event of Default under
clause (k) of Article VII), construction or similar liabilities in the ordinary
course of business;
(h) Suretyship Liabilities constituting guarantees of the
Borrower's unsecured Debt; provided such Debt is pari passu with the obligations
of the Borrower hereunder; and
(i) Debt in respect of Synthetic Lease Facilities entered into by
any Material Subsidiary as lessee thereunder; and
(j) Debt not otherwise permitted by the foregoing clauses of this
Section 6.1 so long as the sum, without duplication, of (x) all such Debt and
(y) all Debt secured by Liens permitted solely by clause (f) of Section 6.2 does
not exceed 10% of Consolidated Total Assets.
Section 6.2 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof (including Liens created pursuant to the
Current Synthetic Lease Facility) and set forth in Schedule 6.2; provided that
(i) such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person
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that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be; and
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (ii) the Debt secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iii) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(e) Liens on assets acquired after the date hereof under
Synthetic Lease Facilities; and
(f) Liens not otherwise permitted by the foregoing clauses of
this Section 6.2, securing Debt of the Borrower or its Subsidiaries, so long as
the sum, without duplication, of (i) all such Debt and (ii) all Debt permitted
solely by clause (j) of Section 6.1 does not exceed 10% of Consolidated Total
Assets
Section 6.3 Modifications of Merger Document. The Borrower shall not,
and shall not permit any of its Subsidiaries to amend, modify or waive, or
permit the amendment, modification or waiver of, any provision of the Merger
Document.
Section 6.4 Fundamental Changes. (a) The Borrower will not, and will
not permit any Material Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted
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by the Borrower and its Subsidiaries on the date of execution of this Agreement
and businesses reasonably related thereto.
Section 6.5 Investments, Loans, Advances, Suretyship Liabilities and
Acquisitions. The Borrower will not, and will not permit any of its Material
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, incur Suretyship Liabilities in
respect of any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower and its Subsidiaries in its
Material Subsidiaries, or any Subsidiary which is not a Material Subsidiary so
long as such non-Material Subsidiary executes and delivers a Subsidiary Guaranty
in favor of the Administrative Agent;
(c) loans or advances made, or Suretyship Liabilities incurred,
by the Borrower to or in respect of any Subsidiary and made or incurred by any
Subsidiary to or in respect of the Borrower or any other Subsidiary;
(d) Suretyship Liabilities with respect to Hedging Agreements
permitted by Section 6.6;
(e) Suretyship Liabilities constituting Debt permitted by Section
6.1;
(f) Suretyship Liabilities created under the Other Corporate Loan
Documents;
(g) Suretyship Liabilities with respect to Surety Instruments
incurred in the ordinary course of business; and
(h) investments by the Borrower and its Material Subsidiaries not
otherwise permitted by the foregoing clauses of this Section 6.5, so long as
such additional investments made in reliance on this clause (h) do not exceed
$100,000,000 in the aggregate at any time.
Section 6.6 Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to
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which the Borrower or any Subsidiary is exposed in the conduct of its business
or the management of its liabilities.
Section 6.7 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that, so long as no Event
of Default has occurred and is continuing, (a) the Borrower may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (b) the Borrower may make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for management
or employees of the Borrower and its Subsidiaries, (c) any Subsidiary may
declare and pay Restricted Payments to the Borrower or any other Subsidiary, and
(d) from and after the fiscal year ending January 31, 1998, the Borrower and its
Subsidiaries may pay cash dividends and repurchase their respective stock from
any Person which is not the Borrower or another Subsidiary so long as on the
date of payment or repurchase (i) such cash dividends and stock repurchases do
not exceed $100,000,000 in any single fiscal year, and (ii) the total of such
cash dividends and stock repurchases in all such fiscal years (beginning with
the fiscal year ending January 31, 1998) does not exceed an aggregate amount of
$200,000,000 plus 40% of the Borrower's and its Subsidiaries' aggregate net
income earned commencing with the fiscal year ending January 31, 1998, and each
fiscal year thereafter.
Section 6.8 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and its wholly owned Subsidiaries not involving any other Affiliate and
(c) any Restricted Payment permitted by Section 6.7.
Section 6.9 Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to incur
Suretyship Liabilities in respect of Debt of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions (x) contained in the Other Corporate Loan
Documents or (y) existing on the date hereof and identified on Schedule 6.9 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition) and (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted
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hereunder and provided further that such restrictions and conditions cannot be
imposed at any time that a Default has occurred and is continuing..
Section 6.10 Financial Covenants.
(a) Debt for Borrowed Money to Consolidated EBITDA Ratio. The
Borrower shall not permit the ratio of its Debt for Borrowed Money to
Consolidated EBITDA (for the most recent four consecutive quarters) to exceed,
at the end of any fiscal quarter ending on or during any period listed below,
the ratio set forth opposite such period:
Period Ratio
------ -----
From and including January 31, 1998, 4.00:1
to and including January 29, 1999
From and including January 30, 1999 3.75:1
to and including January 28, 2000
From and including January 29, 2000 3.35:1
to and including February 2, 2001
From and including February 3, 2001, 3.00:1
and thereafter
provided, however, that Consolidated EBITDA of the Borrower and its Subsidiaries
for the four quarter periods ended January 31, 1998, May 23, 1998 and August 15,
1998 shall be calculated by reference to (i) for each fiscal quarter ended after
the Closing Date, the actual Consolidated EBITDA for such fiscal quarter, and
(ii) for each fiscal quarter ended prior to the Closing Date, Consolidated
EBITDA reflected in a pro-forma income statement for such fiscal quarter
prepared by the Borrower in good faith using reasonable assumptions consistent
with all facts known to the Borrower.
(b) Adjusted Interest Coverage Ratio. The Borrower shall not
permit the Adjusted Interest Coverage Ratio (for the most recent four
consecutive quarters, except as specified below) to be less than, at the end of
any fiscal quarter ending on or during any period listed below, the Adjusted
Interest Coverage Ratio set forth opposite such period:
Period Ratio
------ -----
From and including January 31, 1998 2.25:1
to and including January 29, 1999
From and including January 30, 1999 2.50:1
and thereafter
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provided, however, that for the periods ended January 31, 1998, May 23, 1998 and
August 15, 1998 the Adjusted Interest Coverage Ratio for such period shall be
calculated by reference to the full fiscal quarters then ended since the Closing
Date.
Section 6.11 Unconditional Purchase Obligations. The Borrower shall
not, and shall not permit any Material Subsidiary to, enter into or be a party
to any contract for the purchase of materials, supplies or other property or
services, if such contract requires that payments be made by it regardless of
whether or not delivery is ever made of such materials, supplies or other
property or services.
Section 6.12 Fiscal Year; Fiscal Quarter. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its fiscal year or any of
its fiscal quarters.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made; or
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.2(a), 5.3 (with respect to the
Borrower's existence) or 5.8 or in Sections 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.9,
6.10, 6.11 or 6.12; or
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clauses (a), (b), (c) or (d) of this Article), and such failure shall
continue unremedied for a period of
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30 days after notice thereof from the Administrative Agent to the Borrower
(which notice will be given at the request of any Lender); or
(f) the Borrower or any Material Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Debt, when and as the same shall become due and payable
or within any applicable grace period provided in connection with such Material
Debt; or
(g) the Borrower or any Material Subsidiary shall default in any
other obligation that results in any Debt of $10,000,000 or more in the
aggregate becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Debt of $10,000,000 or more in the aggregate or any
trustee or agent on its or their behalf to cause any such Debt to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or their
respective debts, or of a substantial part of their respective assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of their respective assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered; or
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of their respective assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing; or
(j) the Borrower or any Material Subsidiary shall become unable,
admit in writing or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action
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shall be legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment; or
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $5,000,000; or
(m) a Change in Control shall occur; or
(n) any Subsidiary Guaranty shall cease to be in full force and
effect, or any guarantor under any Subsidiary Guaranty or any Person acting by
or on behalf of such guarantor shall deny or disaffirm all or any portion of the
guarantor's obligation under such Subsidiary Guaranty;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately and (ii)
declare the Loans then outstanding to be due and payable in whole or in part (in
which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon, and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Section 8.1 Appointment. Each Lender hereby irrevocably designates and
appoints Bankers Trust Company as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes Bankers Trust
Company as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Agreement, together with such other powers as
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are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the
Administrative Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent. The provisions of this Article 8 are solely
for the benefit of the Administrative Agent and the Lenders and the Borrower
shall have no rights as a third party beneficiary or otherwise under any of the
provisions hereof. In performing its functions and duties hereunder, the
Administrative Agent shall act solely as the agent of the Lenders and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Borrower or any of its successors and assigns.
Section 8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct or any agents or attorneys-in-fact selected by it with
reasonable care.
Section 8.3 Exculpatory Provisions. The Administrative Agent shall not
be (i) liable for any action lawfully taken or omitted to be taken by it or any
Person described in Section 8.2 under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received under or in connection with, this Agreement or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrower. This
Section is intended solely to govern the relationship between the Administrative
Agent, on the one hand, and the Lenders, on the other.
Section 8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of
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taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders.
Section 8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default as shall be directed by the Required Lenders; provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as the
Administrative Agent shall deem advisable and in the best interests of the
Lenders.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent, nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including, without limitation, any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent. Each Lender represents
and warrants to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required under this Agreement to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, prospects, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent, the Syndication Agent and each of their respective
officers, directors, employees, representatives and agents (to the extent not
reimbursed by the Borrower and
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without limiting the obligation of the Borrower to do so), ratably according to
their Applicable Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, the fees and disbursements of counsel for the Administrative Agent,
Syndication Agent or such Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
the Administrative Agent or such Person shall be designated a party thereto)
that may at any time (including, without limitation, at any time following the
payment of the Obligations) be imposed on, incurred by or asserted against the
Administrative Agent, Syndication Agent or such Person as a result of, or
arising out of, or in any way related to or by reason of, any of the
Transactions or the execution, delivery or performance of this Agreement (but
excluding any such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the gross negligence or willful misconduct of the Administrative Agent,
Syndication Agent or such Person as finally determined by a court of competent
jurisdiction).
Section 8.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
Section 8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Borrower and the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, then the Required Lenders during such 30-day period shall
appoint from among the Lenders a successor agent, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent and
the term "Administrative Agent" shall mean such successor agent, effective upon
its appointment, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section 8 and Section 9.3 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 8.10 Syndication Agent. Without limiting any provision
contained in this Section 8, the Syndication Agent shall not have, except as to
and to the limited extent expressly provided herein, any obligation,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Each Lender acknowledges that it has not
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relied, and will not rely, on the Syndication Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE IX
Miscellaneous
Section 9.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at:
Fred Meyer, Inc.
P.O. Box 42121
3800 SE 22nd Avenue
Portland, Oregon 97242-0121
Telecopy: (503) 797-5299
Attn: Mr. James C. Aalberg;
with a copy of notices pursuant to Article VII to:
Stoel Rives LLP
700 NE Multnomah, Ste 9504
Portland, Oregon 97232
Telecopy: (503) 230-1907
Attn: Mr. Gary R. Barnum
(b) if to the Administrative Agent, to it at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Telecopy: (212) 250-7351
Attn: Deal Administrator
(c) if to any other Lender, to it at its address (or telecopy
number) set forth opposite its signature below.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this
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Agreement shall be deemed to have been given on the date of receipt. It is
understood and agreed that the delivery of copies of notices to counsel as set
forth above is for courtesy purposes only and any failure to deliver such copy
shall not constitute failure with respect to any obligation to provide notices
hereunder.
Section 9.2 Waivers; Amendments. (a) Neither this Agreement nor any
terms hereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the Required
Lenders, provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than a Defaulting Lender), (i) extend
the final scheduled maturity of any Loan beyond the Maturity Date, or reduce the
rate or extend the time of payment of interest or fees thereon, or reduce the
principal amount thereof (except to the extent repaid in cash), (ii) amend,
modify or waive any provision of this Section 9.2, (iii) reduce the percentage
specified in the definition of Required Lenders, (iv) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement or (v) release any Subsidiary which is party to a Subsidiary Guaranty
from its obligations under such Subsidiary Guaranty; provided further that no
such change, waiver, discharge or termination shall (x) increase the Commitment
of any Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
shall not constitute an increase of the Commitment of such Lender) or (y)
without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 8 or any other provision as the same relates to the
Administrative Agent. No failure or delay by the Administrative Agent or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) If, in connection with any proposed change, waiver, discharge
or termination to any of the provisions of this Agreement contemplated by
clauses (i) through (v), inclusive, of the first proviso of Section 9.2(a), the
consent of the Required Lenders is obtained but the consent of one or more of
such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders with one or
more
57
<PAGE>
Replacement Lenders pursuant to Section 2.18(b) so long as at the time of such
replacement each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Lender's
Commitment and/or repay the outstanding Loans of such Lender; provided that,
unless the Commitment that is terminated and Loans repaid pursuant to preceding
clause (B) 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 preceding clause (B) the Required Lenders
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrower shall not have
the right to replace a Lender, terminate its Commitment or repay its Loans
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 proviso to
Section 9.2(a).
Section 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement after the occurrence of an Event of Default, including its rights
under this Section, or in connection with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are
58
<PAGE>
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
Section 9.4 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans); provided that (i) except in the case
of an assignment to a Lender or an Affiliate of a Lender, each of the Borrower
and the Administrative Agent must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not apply to rights in
respect of outstanding Competitive Loans and (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500; and
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if a Default has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the
59
<PAGE>
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 9.3). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; and provided further
that no Lender shall transfer or grant any participation under which the
Participants shall have rights to approve
60
<PAGE>
any amendment to or waiver of this Agreement except to the extent that such
amendment or waiver would (i) extend the final scheduled maturity of any
Revolving Loan or Note in which the Participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the Participant's participation over the amount thereof then in effect (it
being understood that a waiver of any Default or of a mandatory reduction in the
aggregate Commitments shall not constitute a change in the terms of such
participation and that an increase in any Commitment or Revolving Loan shall be
permitted without the consent of any participant if the Participant's
participation is not increased as a result thereof), or (ii) consent to the
assignment by the Borrower of any of its rights and obligations under this
Agreement.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that, subject to the foregoing,
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.16 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 9.5 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.3 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
61
<PAGE>
Section 9.6 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.1, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 9.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.8 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
Section 9.9 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in
62
<PAGE>
such New York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that
63
<PAGE>
the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) to any participant or prospective participant in or assignee or prospective
assignee of any of the rights and obligations under this Agreement, provided
that such participant, prospective participant, assignee or prospective assignee
agrees to be bound by the confidentiality provisions contained in this Section
9.12, (g) with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Section 9.13 OREGON LEGAL NOTICE. WITHOUT LIMITING THE VALIDITY OF THE
CHOICE OF NEW YORK LAW PROVIDED HEREIN, UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES AND COMMITMENTS MADE BY THE LENDERS AFTER THE RESTATEMENT DATE OF THE
ACT SPECIFIED HEREIN CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDERS
TO BE ENFORCEABLE. THE ACT SPECIFIED HEREIN MEANS CHAPTER 967 OREGON LAWS 1989,
THE EFFECTIVE DATE OF WHICH WAS OCTOBER 3, 1989.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MEYER-SMITH HOLDCO, INC.,
as Borrower
by JAMES C. AALBERG
--------------------------------------
Name: James C. Aalberg
Title: Vice President, Treasurer
S-1
<PAGE>
BANKERS TRUST COMPANY,
as Administrative Agent and as a Lender
by MARY KAY COYLE
--------------------------------------
Name: Mary Kay Coyle
Title: Managing Director
S-2
<PAGE>
THE CHASE MANHATTAN BANK,
as Syndication Agent and as a Lender
by ELLEN L. GERTZOG
--------------------------------------
Name: Ellen L. Gertzog
Title: Vice President
S-3
<PAGE>
BANK OF AMERICA NT & SA,
as a Lender
by JAY R. ALLEN
--------------------------------------
Name: Jay R. Allen
Title: SVP
S-4
<PAGE>
THE BANK OF NEW YORK,
as a Lender
by CHARLOTTE SOHN
--------------------------------------
Name: Charlotte Sohn
Title: Vice President
S-5
<PAGE>
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
as a Lender
by ANTHONY ROCK
--------------------------------------
Name: Anthony Rock
Title: Vice President
by BRIAN O'LEARY
--------------------------------------
Name: Brian O'Leary
Title: Vice President
S-6
<PAGE>
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED,
as a Lender
by JOHN C. HOLSEY
--------------------------------------
Name: John C. Holsey
Title: Executive Vice President
S-7
<PAGE>
COOPERATIVE CENTRALE RAIFFESISEN-
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND"
NEW YORK BRANCH
as a Lender
by DANA W. HEMENWAY
--------------------------------------
Name: Dana W. Hemenway
Title: Vice President
by W. PIETER C. KODDE
--------------------------------------
Name: W. Pieter C. Kodde
Title: Vice President
S-8
<PAGE>
CAISSE NATIONALE DE
CREDIT AGRICOLE,
as a Lender
by DEAN BALICE
--------------------------------------
Name: Dean Balice
Title: Senior Vice President
Branch Manager
S-9
<PAGE>
THE DAI-ICHI KANGYO BANK, LIMITED,
as a Lender
by TAKUO YOSHIDA
--------------------------------------
Name: Takuo Yoshida
Title: General Manager & Agent
S-10
<PAGE>
THE FUJI BANK, LIMITED,
as a Lender
by KAZUO KAMIO
---------------------------------------
Name: Kazuo Kamio
Title: General Manager
S-11
<PAGE>
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
by TIMOTHY P. STREB
---------------------------------------
Name: Timothy P. Streb
Title: Vice President
S-12
<PAGE>
SOCIETE GENERALE,
as a Lender
by J. BLAINE SHAUM
---------------------------------------
Name: J. Blaine Shaum
Title: Regional Manager
S-13
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
by CHRISTINA ZAUTCKE
--------------------------------------
Name: Christina Zautcke
Title: First Vice President
S-14
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
as a Lender
by KEVIN P. MCBRIDE
---------------------------------------
Name: Kevin P. McBride
Title: Vice President
S-15
<PAGE>
U.S. NATIONAL BANK ASSOCIATION,
as a Lender
by STEVEN T. WILLIAMS
---------------------------------------
Name: Steven T. Williams
Title: Vice President
S-16
<PAGE>
WELLS FARGO BANK, N.A.,
as a Lender
by W.L. HAUCK
---------------------------------------
Name: W.L. Hauck
Title: VP
S-17
<PAGE>
ZIONS FIRST NATIONAL BANK,
as a Lender
by RICHARD P. JACKSON
---------------------------------------
Name: Richard P. Jackson
Title: V.P.
S-18
<PAGE>
FIRST SECURITY BANK,
as a Lender
by JUDY CALLISTER
---------------------------------------
Name: Judy Callister
Title: Vice President
S-19
<PAGE>
Schedule 2.1
Lenders and Commitments
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
Bankers Trust Company $137,490,829.33
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Telecopier No.: (212) 250-7351
Attn: Deal Administrator
The Chase Manhattan Bank $137,490,829.33
270 Park Avenue
New York, New York 10017
Telecopier No.: (212)
Attn:
Wells Fargo Bank, N.A. $55,806,685.64
1300 SW Fifth Avenue
13th Floor
Portland, Oregon 97201
Telecopier No.: (503) 225-3162
Attn: William Hauck
Union Bank of California, N.A., $30,693,677.10
a Member of the Bank of Tokyo,
Mitsubishi Bank Group
350 California Street
11th Floor
San Francisco, California 94104
Telecopier No.: (415) 705-7085
Attn: Timothy P. Streb
U.S. Bank National Association $27,903,342.82
555 S.W. Oak St., PL-4
Portland, Oregon 97204
Telecopier No.: (503-275-5428
Attn: Steven T. Williams
The HongKong and Shanghai Banking
Corporation Limited $13,951,671.41
140 Broadway, 4th Floor
New York, New York 10005-1196
Telecopier No.: (212) 658-2813
Attn: Adriana Collins
1
<PAGE>
First Security Bank, N.A. $13,951,671.41
15 East 100 South, 2nd Floor
Salt Lake City, Utah 84111
Telecopier No.: (801) 246-5532
Attn: Judy Callister
The Bank of New York $13,951,671.41
One Wall Street, 19th Floor
New York, New York 10286
Telecopier No.: (212)
Attn:
The Fuji Bank, Limited $10,162,601.63
601 California Street
San Francisco, California 94111
Telecopier No.: (415)
Attn:
Compagnie Financiere de CIC et de
L'Union Europeenne $6,975,835.71
520 Madison Ave.
37th Floor
New York, New York 10022
Telecopier No.: (212) 715-4535
Attn: Anthony Rock
The First National Bank of Chicago $6,975,835.71
777 South Figueroa St.
4th Floor
Los Angeles, California 90017
Telecopier No.: (213) 683-4999
Attn: James P. Moore
Cooperative Centrale Raiffesisen-Boerenleenbank
B.A., "Rabobank Nederland," New York Branch $6,975,835.71
Four Embarcadero Center
Suite 3200
San Francisco, California 94111
Telecopier No.: (415) 986-8349
Attn: Hunter Holding
Bank of America NT & SA $6,975,835.71
335 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 503-7502
Attn: Linda Carper
2
<PAGE>
The Dai-ichi Kangyo Bank, Limited $6,975,835.71
101 California Street, Suite 4000
San Francisco, California 94111
Telecopier No.: (415) 788-7868
Attn: Mark Dirsa
Keybank National Association $6,975,835.71
700 5th Avenue, 48th Floor
Seattle, Washington 98125
Telecopier No.: (206) 684-6035
Attn: Mary Young
Caisse Nationale de Credit Agricole $6,975,835.71
101 California Street
San Francisco, California 94111
Telecopier No.: (415) 996-4116
Attn: Karen Kokame
Societe Generale $5,580,668.56
One Montgomery Street
San Francisco, California 94104
Telecopier No.: (415)
Attn:
Zions First National Bank $4,185,501.42
Commercial Loans
185-K2
One South Main Street
Salt Lake City, Utah 84111
Telecopier No.: (801) 524-2136
Attn: Richard P. Jackson
3
================================================================================
$500,000,000
BRIDGE CREDIT AGREEMENT
dated as of
September 9, 1997
among
MEYER-SMITH HOLDCO, INC.,
as Borrower
and
The Lenders Party Hereto
BANKERS TRUST COMPANY,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
---------------------------
CHASE SECURITIES INC. and BT SECURITIES CORPORATION,
as Arrangers
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Defined Terms................................................. 1
SECTION 1.2. Classification of Loans.......................................15
SECTION 1.3. Terms Generally...............................................15
SECTION 1.4. Accounting Terms; GAAP........................................16
SECTION 1.5. Change of Names...............................................16
ARTICLE II
The Loans
SECTION 2.1. Loans.........................................................16
SECTION 2.2. Loan Request..................................................17
SECTION 2.3. Funding of Loans..............................................17
SECTION 2.4. Interest Elections............................................17
SECTION 2.5. Repayment of Loans; Evidence of Debt..........................18
SECTION 2.6. Prepayment of Loans...........................................19
SECTION 2.7. Fees..........................................................20
SECTION 2.8. Interest......................................................20
SECTION 2.9. Alternate Rate of Interest....................................21
SECTION 2.10. Increased Costs...............................................21
SECTION 2.11. Break Funding Payments........................................22
SECTION 2.12. Taxes.........................................................23
SECTION 2.13. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...........................................24
SECTION 2.14. Mitigation Obligations; Replacement
of Lenders....................................................26
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ARTICLE III
Representations and Warranties
SECTION 3.1. Organization; Powers..........................................27
SECTION 3.2. Authorization; Enforceability.................................27
SECTION 3.3. Governmental Approvals; No Conflicts..........................27
SECTION 3.4. Financial Condition; No Material
Adverse Change................................................27
SECTION 3.5. Properties....................................................28
SECTION 3.6. Litigation and Environmental Matters..........................28
SECTION 3.7. Compliance with Laws and Agreements...........................28
SECTION 3.8. Investment and Holding Company Status.........................29
SECTION 3.9. Taxes.........................................................29
SECTION 3.10. ERISA.........................................................29
SECTION 3.11. Disclosure....................................................29
SECTION 3.12. Solvency......................................................29
SECTION 3.13. Use of Proceeds; Margin Regulations...........................29
SECTION 3.14. No Default....................................................30
SECTION 3.15. Subsidiaries..................................................30
ARTICLE IV
Conditions
SECTION 4.1. Closing Date..................................................30
ARTICLE V
Affirmative Covenants
SECTION 5.1. Financial Statements and Other Information....................31
SECTION 5.2. Notices of Material Events....................................33
SECTION 5.3. Existence; Conduct of Business................................33
SECTION 5.4. Payment of Obligations........................................33
SECTION 5.5. Maintenance of Properties; Insurance..........................34
SECTION 5.6. Books and Records; Inspection Rights..........................34
SECTION 5.7. Compliance with Laws..........................................34
SECTION 5.8. Use of Proceeds...............................................34
SECTION 5.9. Subsidiary Guaranties.........................................34
SECTION 5.10. Syndication...................................................34
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ARTICLE VI
Negative Covenants
SECTION 6.1. Material Subsidiary Debt......................................35
SECTION 6.2. Liens.........................................................36
SECTION 6.3. Modifications of Merger Document..............................37
SECTION 6.4. Fundamental Changes...........................................37
SECTION 6.5. Investments, Loans, Advances, Suretyship
Liabilities and Acquisitions..................................37
SECTION 6.6. Hedging Agreements............................................38
SECTION 6.7. Restricted Payments...........................................38
SECTION 6.8. Transactions with Affiliates..................................39
SECTION 6.9. Restrictive Agreements........................................39
SECTION 6.10. Financial Covenants...........................................39
SECTION 6.11. Unconditional Purchase Obligations............................40
SECTION 6.12. Sale of Assets; Sale and Leaseback Transaction................40
SECTION 6.13. Fiscal Year; Fiscal Quarter...................................42
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
SECTION 8.1. Appointment...................................................44
SECTION 8.2. Delegation of Duties..........................................45
SECTION 8.3. Exculpatory Provisions........................................45
SECTION 8.4. Reliance by Administrative Agent..............................45
SECTION 8.5. Notice of Default.............................................45
SECTION 8.6. Non-Reliance on Administrative Agent and Other Lenders........46
SECTION 8.7. Indemnification ..............................................46
SECTION 8.8. Administrative Agent in Its Individual Capacity ..............47
SECTION 8.9. Successor Administrative Agent................................47
SECTION 8.10. Syndication Agent.............................................47
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ARTICLE IX
Miscellaneous
SECTION 9.1. Notices.......................................................48
SECTION 9.2. Waivers; Amendments...........................................49
SECTION 9.3. Expenses; Indemnity; Damage Waiver............................50
SECTION 9.4. Successors and Assigns........................................51
SECTION 9.5. Survival......................................................53
SECTION 9.6. Counterparts; Integration; Effectiveness......................53
SECTION 9.7. Severability..................................................54
SECTION 9.8. Right of Setoff...............................................54
SECTION 9.9. Governing Law; Jurisdiction; Consent
to Service of Process.........................................54
SECTION 9.10. WAIVER OF JURY TRIAL..........................................55
SECTION 9.11. Headings......................................................55
SECTION 9.12. Confidentiality...............................................55
SECTION 9.13. OREGON LEGAL NOTICE...........................................56
SCHEDULES AND EXHIBITS
Schedule 2.1 Lenders and Commitments
Schedule 3.6 Disclosed Matters
Schedule 3.15 Subsidiaries
Schedule 4.1 Refinancing of Existing Debt
Schedule 6.1 Debt
Schedule 6.2 Liens
Schedule 6.10 Restrictive Agreements
Exhibit A Assignment and Acceptance
Exhibit B Note
Exhibit C Opinion of Stoel Rives, Counsel to the Borrower
Exhibit D Subsidiary Guaranty
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<PAGE>
BRIDGE CREDIT AGREEMENT dated as of September 9, 1997, among
MEYER-SMITH HOLDCO., INC., as Borrower, the LENDERS party hereto, BANKERS TRUST
COMPANY, as Administrative Agent and THE CHASE MANHATTAN BANK, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR" means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the rate of interest
per annum publicly announced from time to time by the Administrative Agent as
its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors); each
change in the Prime Rate shall be effective on the date such change is publicly
announced as effective. "Federal Funds Effective Rate" means, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized national
standing selected by it. If for any reason the Administrative Agent shall have
determined that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the ABR shall
be determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the ABR due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Adjusted Interest Coverage Ratio" means the ratio of (a) Consolidated
EBITDAR to (b) the sum of (i) the Borrower's Consolidated Interest Expense for
such period plus (ii) except as included in Consolidated Interest Expense, the
Borrower's consolidated rental expense on operating leases, computed as of the
last day of a fiscal quarter for the period consisting of such fiscal quarter
and the immediately preceding three fiscal quarters.
<PAGE>
"Adjusted LIBO Rate" means, with respect to any Eurodollar Loan for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bankers Trust Company, in its capacity as
administrative agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Syndication Agent.
"Applicable Level" means the level determined with reference to the
following chart:
Level Ratio Rating
- ----- ----- ------
I greater than or equal to 7.5x greater than or equal to A-/A3
II greater than 6.5x BBB+/Baa1
III greater than 5.5x BBB/Baa2
IV greater than 4.5x BBB-/Baa3
V greater than or equal to 3.5x BB+/Ba1
VI lesser than 3.5x lesser than BB+/Ba1
For purposes of the foregoing, (i) for the six month period following from and
after the Closing Date, the Applicable Level shall be Level IV; (ii) on the date
that is six months after the Closing Date, the Borrower shall provide the
Administrative Agent with a Compliance Certificate showing the ratio of
Applicable EBITDA to Applicable Interest Expense of the Borrower for the fiscal
quarter ended January 31, 1998 (and in the event the Borrower fails timely to
provide such Compliance Certificate, the Applicable Level shall be Level V until
such Compliance Certificate is provided), and from such date until May 23, 1998,
the Applicable Level shall be the Level corresponding to such ratio; (iii)
except as provided in (i) and (ii) above, at any time of determination, the
Applicable Level shall be the Level corresponding to the ratio of Applicable
EBITDA to Applicable Interest Expense (for the most recent four consecutive
fiscal quarters; provided that for the periods ended May 23, 1998 and August 15,
1998, Applicable EBITDA and Applicable Interest Expense shall be calculated by
reference to the full fiscal quarters then ended since the Closing Date) as set
forth in the most recently delivered Compliance Certificate (it being understood
and agreed that if the Borrower shall not have delivered the most recently due
Compliance Certificate within the time period specified in Section 5.1(c), the
Applicable Level shall be Level V until such Compliance Certificate is
delivered) (for purposes of this definition, the "Ratio") and the senior
unsecured long term debt rating of the Borrower from S&P and Moody's (for
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purposes of this definition, the "Rating"); (iv) in the event the Ratio and the
Rating do not fall within the same Level, the Applicable Level shall be the
higher (Level I being the highest) of the two Levels; and (v) in the event the
rating from S&P and the rating from Moody's do not fall within the same Level,
the applicable Rating will be based upon the higher (Level I being the highest)
of the two ratings, except that, in the event one of the two ratings is two or
more Levels higher than the other, the applicable Rating shall be determined by
reference to the Level next lower than the higher of the two ratings. If any
rating established or deemed to be established by Moody's or S&P shall be
changed (other than as a result of a change in the rating system of Moody's or
S&P), such change shall be effective as of the date on which such change is
first announced by the rating agency making such change. Each such change shall
take effect on the effective date of such change and shall end on the date
immediately preceding the effective date of the next such change. If the rating
system of S&P or Moody's shall change prior to the Maturity Date, the Borrower
and the Lenders shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system, and
pending agreement on another Applicable Level the Rating shall be determined by
reference to the rating provided by the non-changing rating agency. If the
Borrower does not have a senior long term unsecured debt rating or implied
rating from either Moody's or S&P, the Applicable Level shall be determined by
reference to the Ratio only. For purposes of this definition, "Applicable
EBITDA" of the Borrower and its Subsidiaries means "A" minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi) non-cash LIFO reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains;
and "Applicable Interest Expense" means the consolidated interest expense of the
Borrower and its Subsidiaries.
"Applicable Margin" means, with respect to any Eurodollar Loan, the
applicable number of basis points per annum as set forth below based on the
Applicable Level:
Applicable Margin for
Applicable Level Eurodollar Loans
---------------- ----------------
I 20.0
II 22.5
III 25.0
IV 30.0
V 37.5
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<PAGE>
VI 50.0
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total outstanding Loans represented by such Lender's Loan.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Meyer-Smith Holdco, Inc., a Delaware corporation.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the New York interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 33 1/3% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
4
<PAGE>
"Closing Date" means September 9, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Compliance Certificate" means a certificate signed by a Responsible
Officer of the Borrower certifying as to the matters set forth in Section
5.1(c).
"Consolidated EBITDA" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expenses, including the interest component of
rent expense under all Synthetic Lease Facilities for which the
Borrower or any of its Subsidiaries has Suretyship Liability, (iii)
amortization, (iv) depreciation, (v) income taxes, (vi) non-cash LIFO
reserve charges; and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated EBITDAR" of the Borrower and its Subsidiaries means "A"
minus "B"; where:
"A" equals the sum of consolidated net income plus, to the extent deducted
in determining consolidated pre-tax net income (i) extraordinary
losses, (ii) interest expense, (iii) amortization, (iv) depreciation,
(v) income taxes, (vi) non-cash LIFO reserve charges and (vii)
consolidated rental expense on operating leases (including rent paid
pursuant to any Synthetic Lease Facility); and
"B" equals, to the extent included in determining consolidated pre-tax
income, extraordinary gains.
"Consolidated Interest Expense" means the consolidated interest
expense of the Borrower, including the interest component of rent expense under
all Synthetic Lease Facilities for which the Borrower or any of its Subsidiaries
has Suretyship Liability.
"Consolidated Total Assets" means the total consolidated assets of the
Borrower and its Subsidiaries as shown on the most recent consolidated balance
sheet of the Borrower and its Subsidiaries referred to in Section 3.4 or
delivered to the Administrative Agent and each Lender pursuant to Section 5.1.
5
<PAGE>
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Current Synthetic Lease Facility" means the transactions contemplated
by the Participation Agreement, dated the date hereof, among FMI, the Borrower,
Wilmington Trust Company, owner trustee, FMS Trust 1997-1, as lessor, the
investors named therein, the Administrative Agent, the Syndication Agent, and
the lenders named therein.
"Debt" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all Capital Lease Obligations of
such Person, (c) all obligations of such Person to pay the deferred purchase
price of property or services (other than current accounts payable in the
ordinary course of business), (d) all indebtedness secured by a Lien on the
property of such Person, whether or not such indebtedness shall have been
assumed by such Person (it being understood that if such Person has not assumed
or otherwise become personally liable for any such indebtedness, the amount of
the Debt of such Person in connection therewith shall be limited to the lesser
of the face amount of such indebtedness or the fair market value of all property
of such Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or
not drawn) and banker's acceptances issued for the account of such Person, (f)
all obligations of such Person in respect of Hedging Agreements, (g) all
Suretyship Liabilities of such Person, (h) all other obligations of such Person
upon which interest charges are customarily paid (other than current accounts
payable in the ordinary course of business), (i) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person and (j) all Debt (as defined above) of any partnership
in which such Person is a general partner. The amount of the Debt of any Person
in respect of Hedging Agreements shall be deemed to be the unrealized net loss
position of such Person thereunder (determined for each counterparty
individually, but netted for all Hedging Agreements maintained with such
counterparty).
"Debt for Borrowed Money" of any Person means all Debt of such Person
described in (without duplication) clauses (a), (b), (c), (d), (h) and, to the
extent constituting a Suretyship Liability in respect of Debt for Borrowed Money
of another Person, (g), of the definition of Debt. A Suretyship Liability
arising under a Synthetic Lease Facility shall be deemed to be a Debt for
Borrowed Money.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.6.
6
<PAGE>
"dollars" or "$" refers to lawful money of the United States of
America.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
7
<PAGE>
"Eurodollar", when used in reference to any Loan refers to whether
such Loan is bearing interest at a rate determined by reference to the Adjusted
LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.16(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"FMI" means Fred Meyer, Inc. and its successors and assigns.
"Foreign Lender" has the meaning provided in Section 2.16(e).
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
8
<PAGE>
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to convert
or continue a Loan in accordance with Section 2.7.
"Interest Payment Date" means (a) with respect to ABR Loans, the last
day of each March, June, September and December and (b) with respect to
Eurodollar Loans, the last day of the Interest Period applicable to such Loans
and, in the case of Eurodollar Loans with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period.
"Interest Period" means, with respect to Eurodollar Loans, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to Eurodollar
Loans that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period.
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to Eurodollar Loans for any Interest
Period, the offered quotation to first-class banks in the New York interbank
eurodollar market by the Administrative Agent for dollar deposits of amounts in
immediately available funds comparable to the outstanding principal amount of
such Eurodollar Loans, with maturities comparable to the Interest Period
applicable to such Eurodollar Loans commencing two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic
9
<PAGE>
effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"Loan" and "Loans" have the meaning provided in Section 2.1.
"Loan Amount" means, with respect to each Lender, the amount set forth
opposite such Lender's name in Schedule 2.1.
"Loan Request" means the request for Loans delivered by the Borrower
pursuant to Section 2.2.
"Margin Stock" shall have the meaning provided such term in Regulation
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement.
"Material Debt" means Debt of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount equal to or exceeding $5,000,000.
"Material Subsidiary" means a Subsidiary which either (a) has assets
which constitute 5% or more of the consolidated assets of the Borrower and its
Subsidiaries or (b) has revenues as of the end of the Borrower's most
recently-ended fiscal year which constitute more than 5% of the consolidated
revenues of the Borrower and its Subsidiaries during the Borrower's most
recently ended fiscal year.
"Maturity Date" means the earlier of (a) September __, 2002 and (b)
the date on which the Loan is repaid in full pursuant to Section 2.6 and/or
Section 6.12.
"Merger" means the merger of FMI and Smith's as contemplated by the
Merger Document.
"Merger Document" means that certain Agreement and Plan of
Reorganization and Merger, dated as of May 11, 1997, by and between FMI and
Smith's.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
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"Other Corporate Loan Documents" means the following documents, as
such documents are amended, supplemented or otherwise modified from time to
time: (i) all of the documents contemplated to be executed in connection with
the Current Synthetic Lease Facility; (ii) the $1,030,000,000 Credit Agreement,
of even date herewith, among Meyer-Smith Holdco, Inc. as Borrower, the Lenders
identified therein, Bankers Trust Company as Administrative Agent and The Chase
Manhattan Bank as Syndication Agent; and (iii) the $500,000,000 364-Day Credit
Agreement, of even date herewith, among Meyer-Smith Holdco, Inc. as Borrower,
the Lenders identified therein, Bankers Trust Company as Administrative Agent
and The Chase Manhattan Bank as Syndication Agent.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.4;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.4;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt for Borrowed Money.
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"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, the two
highest credit ratings obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause (c)
above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Public Debt Offering" means any public offering pursuant to a
registration with the Securities and Exchange Commission or any offering
pursuant to Rule 144A promulgated under the Securities Act of 1933 for the sale
of debt instruments (whether senior or subordinated, secured or unsecured,
convertible or not) of the Borrower or any of its Subsidiaries entered into by
the Borrower or any of its Subsidiaries for the purposes of raising cash, or any
other similar transaction which the Borrower and the Administrative Agent shall
deem to be a "Public Debt Offering."
"Register" has the meaning set forth in Section 9.4.
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"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders the sum of whose
outstanding Loans at such time represents an amount greater than 50% of the
aggregate outstanding Loans of all Lenders.
"Responsible Officer" means the Chairman or Vice Chairman of the Board
of Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Senior Vice President or Executive Vice
President, the Chief Financial Officer, the Chief Operating Officers, the Chief
Accounting Officer, the Vice President/Treasurer or any Assistant Treasurer
responsible for compliance with this Agreement.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Smith's" means Smith's Food and Drug Centers Inc. and its successors
and assigns.
"Solvent" as to any Person means (i) the sum of the assets of such
Person, both at a fair valuation and at present fair salable value, will exceed
its liabilities, including contingent liabilities, (ii) such Person will have
sufficient capital with which to conduct its business as presently conducted and
(iii) such Person has not incurred debts, and does not intend to incur debts,
beyond its ability to pay such debts as they mature. For purposes of this
definition, "debt" means any liability on a claim, and "claim" means (x) a right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (y) a right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured. With respect to
any contingent liabilities, such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Corporation.
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"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are required to be consolidated with those of
the parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as,
with respect to any Person, any Person of which such Person and/or its
subsidiaries own, directly or indirectly, such number of outstanding shares (or
similar equity interest) as have more than 50% of the ordinary voting power for
the election of directors.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranty" shall have the meaning set forth in Section
4.1(h).
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, guaranties, shipside bonds, surety bonds
and similar instruments under which Suretyship Liabilities arise.
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss)
any indebtedness, obligation or other liability (including accounts payable) of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. Suretyship Liability shall include any liability
or contingent liability of a Person under or in connection with a Synthetic
Lease Facility. The amount of any Person's obligation under any Suretyship
Liability shall (subject to any limitation set forth therein) be deemed to be
the principal amount of the indebtedness, obligation or other liability
guaranteed thereby. As of any date, the amount of any Person's obligations under
any Synthetic Lease Facility shall be equal to the amount which such Person
would be obligated to pay if such Synthetic Lease Facility was accelerated on
such date (disregarding
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accrued scheduled lease payments which would be characterized as interest if
such Synthetic Lease Facility were treated as a capital lease under GAAP).
"Syndication Agent" means The Chase Manhattan Bank.
"Synthetic Lease" and "Synthetic Lease Facility" means any synthetic
lease, tax ownership operating lease, tax retention operating lease, off balance
sheet lease or similar lease transaction where the lessee is treated as owner of
the leased property for U.S. federal income tax purposes while the lease is
accounted for on the financial statements of the lessee, prepared in accordance
with GAAP, as an operating lease, including the Current Synthetic Lease
Facility.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan, refers to whether the rate
of interest on such Loan is determined by reference to the Adjusted LIBO Rate or
the ABR.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans. For purposes of this Agreement,
Loans may be classified and referred to by Type (e.g., a "Eurodollar Loan").
Section 1.3 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all
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tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.4 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided that
for purposes of determining compliance with any covenant set forth in Article
VI, such terms shall be construed in accordance with GAAP as in effect on the
date of this Agreement applied on a basis consistent with the application used
in preparing the Borrower's audited financial statements referred to in Section
5.1. If any change in accounting principles from those used in the preparation
of the audited financial statements referred to in Section 5.1 hereafter
occasioned by the promulgation of any rule, regulation, pronouncement or opinion
by or required by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Article 1 or Article VI, the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the Borrower's financial condition shall be the same
after such change as if such change had not been made.
Section 1.5 Change of Names. It is understood and agreed that
following the consummation of the Merger, Meyer-Smith Holdco, Inc. will change
its corporate name to "Fred Meyer, Inc." and FMI will change its corporate name
to "Fred Meyer Stores, Inc." From and after the time at which such changes take
effect all references to "Meyer-Smith Holdco, Inc." or the "Borrower" contained
herein shall be construed to refer to "Fred Meyer, Inc.," and all references to
"FMI" shall be construed to refer to "Fred Meyer Stores, Inc."
ARTICLE II
The Loans
Section 2.1 Loans. (a) Subject to the terms and conditions set forth
herein, each Lender hereby agrees to make a loan to the Borrower on the Closing
Date (each a "Loan" and collectively the "Loans") in an amount equal to such
Lender's Loan Amount. The Borrower may make no further borrowings after the
Closing Date, regardless of any prepayments made pursuant to Section 2.6 or
otherwise.
(b) Subject to Section 2.8, the Loans shall be comprised entirely
of either ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make its Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
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(c) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to elect to convert or continue any Loan if the
Interest Period requested with respect thereto would end after the Maturity
Date.
Section 2.2 Loan Request. To request the Loans, the Borrower shall
notify the Administrative Agent of such request by telephone (a) if the Loans
are to be Eurodollar Loans, not later than 12:00 p.m. (noon), New York City
time, three Business Days before the Closing Date or (b) if the Loans are to be
ABR Loans, not later than 12:00 p.m. (noon), New York City time, on the Closing
Date. The Loan Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of the written Loan
Request in a form approved by the Administrative Agent and signed by the
Borrower. The telephonic and written Loan Request shall specify the following
information:
(i) whether the Loans are to be ABR Loans or Eurodollar
Loans;
(ii) in the case of Eurodollar Loans, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(iii) the location and number of the Borrower's account to
which funds are to be disbursed.
If no election as to the Type of Loan is specified, then the Loans shall be ABR
Loans. If no Interest Period is specified with respect to Eurodollar Loans, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of the Loan Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof.
Section 2.3 Funding of Loans. Each Lender shall make its Loan
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 2:00 p.m., New York City time, to the account of the Administrative
Agent designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the Loan Request.
Section 2.4 Interest Elections. (a) The Loans initially shall be of
the Type specified in the Loan Request and, in the case of Eurodollar Loans,
shall have an initial Interest Period as specified in the Loan Request.
Thereafter and until the Maturity Date, the Borrower may elect to convert the
Loans to a different Type or to continue the Loans and, in the case of
Eurodollar Loans, may elect Interest Periods therefor, all as provided in this
Section; provided that no Interest Period for any Loan may end on a date that is
later than the Maturity Date in effect at the time of such election.
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(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that the Loan Request would be required under Section 2.3 if the Borrower were
requesting a Loan of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
(i) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(ii) whether the Loans are to be ABR Loans or Eurodollar
Loans; and
(iii) if the Loans are to be Eurodollar Loans, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a conversion to Eurodollar Loans
but does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(c) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof.
(d) If the Borrower fails to deliver a timely Interest Election
Request with respect to Eurodollar Loans prior to the end of the Interest Period
applicable thereto, then, unless such Loans are repaid as provided herein, at
the end of such Interest Period the Loans shall be converted to ABR Loans.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Loan may be converted to or continued as a
Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan shall be converted
to an ABR Loan at the end of the Interest Period applicable thereto.
Section 2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender thereof the then unpaid principal amount of each Loan on
the Maturity Date.
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(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of the Loans made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that the Loan made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in the form of Exhibit B. Thereafter, the Loan evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant to
Section 9.4) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
Section 2.6 Prepayment of Loans. (a) The Borrower shall have the right
at any time and from time to time to prepay the Loans in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of the Eurodollar Loans, not later than 12:00 p.m. (noon), New York
City time, three Business Days before the date of prepayment or (ii) in the case
of prepayment of the ABR Loans, not later than 12:00 p.m. (noon), New York City
time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
the Loans to be prepaid. Promptly following receipt of any such notice the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of the Loans shall be in an amount that is an integral
multiple of $1,000,000 and not less than $1,000,000. Each Prepayment of the
Loans shall be applied ratably to the Loans. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.8.
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(c) On any date on which the Borrower or any of its Subsidiaries
receives any proceeds from a Public Debt Offering, the Borrower shall prepay the
outstanding Loans in accordance with Section 2.6(b), together with any breakage
fees and other costs and expenses incurred hereunder in connection therewith, in
an amount equal to 100% of the cash proceeds obtained from such Public Debt
Offering by the Borrower or such Subsidiary minus (x) reasonable expenses
incurred or reasonably expected to be incurred in connection with such Public
Debt Offering and (y) any income, franchise, transfer or other tax payable by
the Borrower or such Subsidiary in connection with such transaction. The
Borrower shall provide the Administrative Agent prompt written notice of any
proposed Public Debt Offering and shall provide evidence of compliance herewith
reasonably satisfactory to the Administrative Agent on or prior to the closing
date of any such Public Debt Offering.
Section 2.7 Fees. (a) The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative Agent.
(b) All fees payable hereunder shall be paid on the dates due, in
immediately available funds. Fees paid shall not be refundable under any
circumstances.
Section 2.8 Interest. (a) ABR Loans shall bear interest at the ABR.
(b) Eurodollar Loans shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Loans plus the Applicable
Margin.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, the greater of (A) 2% plus the rate otherwise applicable to such Loan
as provided in the preceding paragraphs of this Section and (B) 2% plus the rate
applicable to ABR Loans or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion, and (iv)
all interest accrued and unpaid prior to the Maturity Date shall be payable on
the Maturity Date.
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(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the ABR at times
when the ABR is based on the Prime Rate shall be computed on the basis of a year
of 365 days (or 366 days in a leap year), and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). The applicable ABR or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
Section 2.9 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Loan:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of maintaining their Loans
(or its Loan) for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of the Loans to, or continuation
of the Loans as Eurodollar Loans shall be ineffective and (ii) if the Loan
Request requests Eurodollar Loans, such Loans shall be made as ABR Loans.
Section 2.10 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
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(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the basis of the
calculations and the amount or amounts necessary to compensate such Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
Section 2.11 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.6(b) and is revoked in accordance therewith), (d) the assignment
of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.14, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event (excluding loss of Applicable
Margin after the date of such event). In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate (excluding loss of Applicable
Margin) that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest
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which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
Section 2.12 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) to the Administrative Agent or any
Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. The Borrower shall also indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of
Excluded Taxes as the Administrative Agent or such Lender, as the case may be,
shall determine are payable in respect of amounts paid to or on behalf of the
Administrative Agent or such Lender, as the case may be, pursuant to this
Section 2.12. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender, or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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(e) Any Lender that is not incorporated under the United States
of America or a state thereof (each a "Foreign Lender") shall:
(i) on the date it becomes a Lender, deliver to the
Administrative Agent (A) two completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, and shall certify that it is entitled to receive payments
under this Agreement without deduction or withholding (or at a reduced rate
of deduction or withholding) of any United States Federal income taxes and
(B) an Internal Revenue Services Form W-8 or W-9, or successor applicable
form, as the case may be and shall certify that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to the Administrative Agent two further copies
of any such form or certification on or before the date that any such
certification described above expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered to it; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Administrative Agent;
except that the forms and certificates described in clauses (ii) and (iii) above
shall not be required if any Change in Law has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Administrative Agent.
Section 2.13 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.10, 2.11 or 2.12, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 130
Liberty Street, New York, New York, 10006, except that payments pursuant to
Sections 2.10, 2.11, 2.12 and 9.3 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest
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thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its Loan resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loan and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
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(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.3 or 2.13(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
Section 2.14 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.10, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.12, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.10 or 2.12, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.10,
or (ii) the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.12, or (iii) any Lender defaults in its obligation to fund Loans hereunder, or
(iv) any Lender refuses to consent to certain proposed changes, waivers,
discharges or termination with respect to this Agreement which require the
consent of all Lenders and have been approved by the Required Lenders as (and to
the extent) provided in Section 9.2(b), then the Borrower may, at its sole
expense and effort, if no Default then exists (or, in the case of preceding
clause (iv), no Default will exist immediately upon giving effect to such
replacement), upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.4), all its interests, rights
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment) (such Assignee a "Replacement Lender"); provided that (x) the
Borrower shall have received the prior written consent of the Administrative
Agent which consent shall not unreasonably be withheld, (y) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the Replacement Lender (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (z) in the case of any such assignment resulting from a claim
for compensation under Section 2.10 or payments required to be made pursuant to
Section 2.12, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
Section 3.1 Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.2 Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action, and the use of proceeds of the
Loans will be, in each instance, within the Borrower's corporate powers and will
have been duly authorized by all necessary corporate and, if required,
stockholder action, as of the time of such use. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
Section 3.3 Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or any of their respective assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
Section 3.4 Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders consolidated balance sheets and
statements of income, stockholders equity and cash flows for (i) FMI and its
subsidiaries, as of and for the fiscal year ended February 1, 1997, reported on
by Deloitte & Touche, independent public accountants of FMI, and the fiscal
quarter and the portion of the fiscal year ended May 24, 1997, certified by the
chief financial officer of FMI and (ii) Smith's and its subsidiaries, as of and
for the fiscal year ended December 28, 1996, reported on by Ernst & Young LLP,
independent public accountants of Smith's, and the fiscal quarter and the
portion of the fiscal year ended April 5, 1997, certified by the chief financial
officer of Smith's.
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Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of FMI, Smith's and
their respective subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements for the fiscal quarters.
(b) There has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of (i) FMI
and its subsidiaries, taken as a whole, since February 1, 1997, or (ii) Smith's
or its subsidiaries, taken as a whole, since December 28, 1996.
Section 3.5 Properties. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes, subject to no Lien of any
kind except Liens permitted hereby.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 3.6 Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, neither the Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 3.7 Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any
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Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 3.8 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 3.9 Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
Section 3.11 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
Section 3.12 Solvency. On the Closing Date and after giving effect to
the Transactions, the Borrower and each of its Material Subsidiaries will be
Solvent.
Section 3.13 Use of Proceeds; Margin Regulations. All proceeds of each
of the Loans will be used by the Borrower only in accordance with the provisions
of Section 5.8. No part of the proceeds of any of the Loans will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any of the Loans nor the use of the
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proceeds thereof will violate or be inconsistent with the provisions of
Regulations G, T, U or X of the Federal Reserve Board.
Section 3.14 No Default. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound in any respect which could result in a
Material Adverse Effect. No Default or Event of Default exists.
Section 3.15 Subsidiaries. After giving effect to the Merger, the
Persons listed on Schedule 3.15 are the only Subsidiaries of the Borrower.
Schedule 3.15 correctly sets forth, after giving effect to the Merger, the
percentage ownership (direct and indirect) of the Borrower in each class of
capital stock of each of its Subsidiaries, identifies the direct owner thereof
and identifies each Material Subsidiary as of the Closing Date.
ARTICLE IV
Conditions
Section 4.1 Closing Date. The obligations of the Lenders to make Loans
hereunder are subject to the satisfaction (or waiver in accordance with Section
9.2) of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto (A) either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement and
(B) such other documents, in form and substance satisfactory to the
Administrative agent, as the Administrative Agent may reasonably request.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Closing Date) of Stoel Rives LLP, counsel for the Borrower, substantially in
the form of Exhibit C, and covering such other matters relating to the Borrower,
this Agreement or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
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(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming that (i) the representations and
warranties contained in Article III are true and correct and (ii) at the time of
and immediately after giving effect to the Loans, no Default shall have occurred
and be continuing.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(f) The Merger shall have been completed in accordance with the
Merger Document, or on other terms reasonably satisfactory to the Lenders.
(g) The Other Corporate Loan Documents shall have been executed
and delivered and shall be in full force and effect.
(h) Each Material Subsidiary shall have executed and delivered to
the Administrative Agent a guaranty substantially in the form set forth as
Exhibit D (each such guaranty, as amended, supplemented or otherwise modified, a
"Subsidiary Guaranty").
(i) The Administrative Agent shall have received evidence
satisfactory to it of prior or simultaneous repayment or refinancing of the Debt
of the Borrower and its Subsidiaries set forth on Schedule 4.1 hereto (except as
otherwise agreed to the satisfaction of the Agents).
(j) The Administrative Agent shall have received the financial
information required under Section 3.4(a), including a pro forma balance sheet
giving effect to the Merger, in form and substance satisfactory to the
Administrative Agent.
(k) The Administrative Agent shall have received a fully executed
Loan Request in respect of the Loans to be made on such date.
ARTICLE V
Affirmative Covenants
Until the principal of and interest on the Loans and all fees payable
hereunder shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
Section 5.1 Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
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(a) within 100 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP.
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations (x) demonstrating compliance with
Section 6.10(a) and (b) and (y) establishing the Applicable Margin, and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.4
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
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(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default upon actual knowledge of a
Responsible Officer of the Borrower;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in material liability of the Borrower and its Subsidiaries; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.5.
Section 5.4 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
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Section 5.5 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
(and having such deductibles and self-insurance) as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or
similar locations.
Section 5.6 Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
Section 5.7 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, including
without limitation ERISA and all Environmental Laws, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 5.8 Use of Proceeds. The proceeds of the Loans will be used
only to finance certain costs and expenses associated with the Merger, refinance
existing indebtedness (including related prepayment premiums) and for general
corporate purposes. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations G, U and X.
Section 5.9 Subsidiary Guaranties. The Borrower shall cause each
Material Subsidiary, now or hereafter in existence, to execute and deliver to
the Administrative Agent a Subsidiary Guaranty together with such officer's
certificates, resolutions and other assurances related thereto as the
Administrative Agent shall reasonably request upon the earlier of (i) with
respect to any Subsidiary on the date hereof that becomes a Material Subsidiary
after the date hereof, or as to any Person which, when it becomes a Subsidiary
after the date hereof, is not then a Material Subsidiary, as soon as possible
after the end of the fiscal quarter in which such Subsidiary becomes a Material
Subsidiary, and (ii) with respect to any Material Subsidiary acquired after the
date hereof not currently a Subsidiary, within 10 days of becoming a Material
Subsidiary.
Section 5.10 Syndication. The Borrower acknowledges and agrees that
the initial Lenders may, but shall have no obligation to, assign portions of the
outstanding Loans to a syndicate of lenders in accordance with the terms of
Section 9.4. In such case, the
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Borrower shall actively assist the Lenders in completing a syndication
reasonably satisfactory to the Lenders. In furtherance of such syndication, the
Borrower shall (i) use commercially reasonable efforts to ensure that the
syndication efforts benefit materially from the Borrower's existing lending
relationships, (ii) cooperate in establishing direct contact between senior
management and advisors of the Borrower and its Material Subsidiaries and the
proposed lenders, (iii) assist in the preparation of one or more confidential
information memoranda and other marketing materials to be used in connection
with such syndication and (iv) cooperate in hosting, with the Lenders, one or
more meetings of prospective lenders.
ARTICLE VI
Negative Covenants
Until the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
Section 6.1 Material Subsidiary Debt. The Borrower will not permit any
Material Subsidiary to create, incur, assume or permit to exist any Debt,
except:
(a) Debt owed to the Borrower or to another Material Subsidiary;
(b) Debt existing on the date hereof; provided that to the extent
any item of such Debt exceeds $5,000,000, or the aggregate of all such Debt
exceeds $25,000,000, such Debt shall be identified in Schedule 6.1;
(c) Debt secured by Permitted Encumbrances;
(d) Capital Lease Obligations not to exceed $100,000,000;
(e) Debt outstanding when such Person becomes a Material
Subsidiary or is merged or consolidated with another Material Subsidiary,
provided that such Debt exists at the time such Person becomes a Material
Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Material Subsidiary;
(f) Debt in respect of commercial letters of credit issued to
support the purchase of goods by the applicable Material Subsidiary in the
ordinary course of business;
(g) Debt in respect of commercial letters of credit issued to
support liabilities of a Material Subsidiary relating to worker's compensation,
judgments pending appeal (and as to which there is no Event of Default under
clause (k) of Article VII), construction or similar liabilities in the ordinary
course of business;
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(h) Suretyship Liabilities constituting guarantees of the
Borrower's unsecured Debt; provided such Debt is pari passu with the obligations
of the Borrower hereunder; and
(i) Debt in respect of Synthetic Lease Facilities entered into by
any Material Subsidiary as lessee thereunder; and
(j) Debt not otherwise permitted by the foregoing clauses of this
Section 6.1 so long as the sum, without duplication, of (x) all such Debt and
(y) all Debt secured by Liens permitted solely by clause (f) of Section 6.2 does
not exceed 10% of Consolidated Total Assets.
Section 6.2 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof (including Liens created pursuant to the
Current Synthetic Lease Facility) and set forth in Schedule 6.2; provided that
(i) such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be; and
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (ii) the Debt secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iii) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(e) Liens on assets acquired after the date hereof under
Synthetic Lease Facilities; and
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(f) Liens not otherwise permitted by the foregoing clauses of
this Section 6.2, securing Debt of the Borrower or its Subsidiaries, so long as
the sum, without duplication, of (i) all such Debt and (ii) all Debt permitted
solely by clause (j) of Section 6.1 does not exceed 10% of Consolidated Total
Assets
Section 6.3 Modifications of Merger Document. The Borrower shall not,
and shall not permit any of its Subsidiaries to amend, modify or waive, or
permit the amendment, modification or waiver of, any provision of the Merger
Document.
Section 6.4 Fundamental Changes. (a) The Borrower will not, and will
not permit any Material Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
Section 6.5 Investments, Loans, Advances, Suretyship Liabilities and
Acquisitions. The Borrower will not, and will not permit any of its Material
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, incur Suretyship Liabilities in
respect of any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower and its Subsidiaries in its
Material Subsidiaries, or any Subsidiary which is not a Material Subsidiary so
long as such non-
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Material Subsidiary executes and delivers a Subsidiary Guaranty in favor of the
Administrative Agent;
(c) loans or advances made, or Suretyship Liabilities incurred,
by the Borrower to or in respect of any Subsidiary and made or incurred by any
Subsidiary to or in respect of the Borrower or any other Subsidiary;
(d) Suretyship Liabilities with respect to Hedging Agreements
permitted by Section 6.6;
(e) Suretyship Liabilities constituting Debt permitted by Section
6.1;
(f) Suretyship Liabilities created under the Other Corporate Loan
Documents;
(g) Suretyship Liabilities with respect to Surety Instruments
incurred in the ordinary course of business; and
(h) investments by the Borrower and its Material Subsidiaries not
otherwise permitted by the foregoing clauses of this Section 6.5, so long as
such additional investments made in reliance on this clause (h) do not exceed
$100,000,000 in the aggregate at any time.
Section 6.6 Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
Section 6.7 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that, so long as no Event
of Default has occurred and is continuing, (a) the Borrower may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (b) the Borrower may make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for management
or employees of the Borrower and its Subsidiaries, (c) any Subsidiary may
declare and pay Restricted Payments to the Borrower or any other Subsidiary, and
(d) from and after the fiscal year ending January 31, 1998, the Borrower and its
Subsidiaries may pay cash dividends and repurchase their respective stock from
any Person which is not the Borrower or another Subsidiary so long as on the
date of payment or repurchase (i) such cash dividends and stock repurchases do
not exceed $100,000,000 in any single fiscal year, and (ii) the total of such
cash dividends and stock repurchases in all such fiscal years (beginning with
the fiscal year ending January 31, 1998) does not exceed an aggregate amount of
$200,000,000 plus 40% of the Borrower's and its Subsidiaries' aggregate net
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income earned commencing with the fiscal year ending January 31, 1998, and each
fiscal year thereafter.
Section 6.8 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and its wholly owned Subsidiaries not involving any other Affiliate and
(c) any Restricted Payment permitted by Section 6.7.
Section 6.9 Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to incur
Suretyship Liabilities in respect of Debt of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions (x) contained in the Other Corporate Loan
Documents or (y) existing on the date hereof and identified on Schedule 6.9 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition) and (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder and provided further that such restrictions and
conditions cannot be imposed at any time that a Default has occurred and is
continuing.
Section 6.10 Financial Covenants.
(a) Debt for Borrowed Money to Consolidated EBITDA Ratio. The
Borrower shall not permit the ratio of its Debt for Borrowed Money to
Consolidated EBITDA (for the most recent four consecutive quarters) to exceed,
at the end of any fiscal quarter ending on or during any period listed below,
the ratio set forth opposite such period:
Period Ratio
------ -----
From and including January 31, 1998, 4.00:1
to and including January 29, 1999
From and including January 30, 1999 3.75:1
to and including January 28, 2000
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From and including January 29, 2000 3.35:1
to and including February 2, 2001
From and including February 3, 2001, 3.00:1
and thereafter
provided, however, that Consolidated EBITDA of the Borrower and its Subsidiaries
for the four quarter periods ended January 31, 1998, May 23, 1998 and August 15,
1998 shall be calculated by reference to (i) for each fiscal quarter ended after
the Closing Date, the actual Consolidated EBITDA for such fiscal quarter, and
(ii) for each fiscal quarter ended prior to the Closing Date, Consolidated
EBITDA reflected in a pro-forma income statement for such fiscal quarter
prepared by the Borrower in good faith using reasonable assumptions consistent
with all facts known to the Borrower.
(b) Adjusted Interest Coverage Ratio. The Borrower shall not
permit the Adjusted Interest Coverage Ratio (for the most recent four
consecutive quarters, except as specified below) to be less than, at the end of
any fiscal quarter ending on or during any period listed below, the Adjusted
Interest Coverage Ratio set forth opposite such period:
Period Ratio
------ -----
From and including January 31, 1998 2.25:1
to and including January 29, 1999
From and including January 30, 1999 2.50:1
and thereafter
provided, however, that for the periods ended January 31, 1998, May 23, 1998 and
August 15, 1998 the Adjusted Interest Coverage Ratio for such period shall be
calculated by reference to the full fiscal quarters then ended since the Closing
Date.
Section 6.11 Unconditional Purchase Obligations. The Borrower shall
not, and shall not permit any Material Subsidiary to, enter into or be a party
to any contract for the purchase of materials, supplies or other property or
services, if such contract requires that payments be made by it regardless of
whether or not delivery is ever made of such materials, supplies or other
property or services.
Section 6.12 Sale of Assets; Sale and Leaseback Transactions. (a)
Except as provided in Section 6.12(d), subject to the terms and conditions of
this Agreement, the Borrower and its Subsidiaries may convey, sell, transfer or
otherwise dispose of (or agree to do so at any future time) its property or
assets, provided that to the extent the sum of the fair market value of such
property or assets (i) conveyed, sold, transferred or otherwise disposed of and
(ii) all transactions pursuant to Section 6.12(b), exceeds $350,000,000 at any
time, the Borrower shall comply with the provisions of Section 6.12(c). The
foregoing limitations shall
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not apply to the conveyance, sale, transfer or other disposal of property or
assets in the case of sales of inventory in the ordinary course of business and
sales of equipment which is uneconomic, obsolete or no longer useful in its
business.
(b) Except as provided in Section 6.12(d), the Borrower and its
Subsidiaries may become liable, directly or indirectly, with respect to any
lease, whether an operating lease or a capital lease, of any property (whether
real or personal or mixed) whether now owned or hereafter acquired, (i) which
the Borrower or such Subsidiary has sold or transferred or is to sell or
transfer to any other Person, or (ii) which the Borrower or such Subsidiary
intends to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by the Borrower or such Subsidiary to
any other Person in connection with such lease (such transaction a "Sale and
Leaseback Transaction"), provided that to the extent the sum of the fair market
value of the property or assets (i) conveyed, sold, transferred or otherwise
disposed of pursuant to Section 6.12(a) and (ii) all transactions pursuant to
Section 6.12(b) exceeds $350,000,000 at any time, the Borrower shall comply with
the provisions of Section 6.12(c).
(c) In the event that the aggregate fair market value of all
assets sold in all transactions undertaken in reliance upon Sections 6.12(a) and
(b) exceeds $350,000,000, the Borrower shall prepay the outstanding Loans in
accordance with Section 2.6, together with any breakage fees and other costs and
expenses incurred hereunder in connection therewith, in an amount equal to 50%
of such excess minus (x) reasonable expenses incurred or reasonably expected to
be incurred in connection with such transaction and (y) any income, franchise,
transfer or other tax payable in connection with such transaction. The Borrower
shall provide the Administrative Agent prompt written notice of any transaction
entered into in reliance upon this Section 6.12(c), and shall provide evidence
of compliance herewith reasonably satisfactory to the Administrator Agent on or
prior to the closing date of any such transaction.
(d) Notwithstanding the provisions of Section 6.12(a), (b) and
(c) above, Smith's and any subsidiary of Smith's may convey, sell, transfer or
dispose of, or enter into Sale and Leaseback Transactions in connection with,
assets owned as of the Closing Date by Smith's or any of its subsidiaries;
provided that on each date on which Smith's or any such subsidiary of Smith's
receives any proceeds from any such transaction, the Borrower shall prepay the
outstanding Loans in accordance with Section 2.6, together with any breakage
fees and other costs and expenses incurred hereunder in connection therewith, in
an amount equal to 50% of the cash proceeds obtained in such transaction by
Smith's or such subsidiary of Smith's minus (x) reasonable expenses incurred or
reasonably expected to be incurred in connection with such transaction, (y) any
income, franchise, transfer or other tax payable by Smith's or such subsidiary
of Smith's in connection with such transaction and (z) any Debt secured by a
Lien on such property or assets and required to be repaid as a result of such
transaction. The Borrower shall provide the Administrative Agent prompt written
notice of any transaction entered into in reliance upon this Section 6.12(d),
and shall provide evidence
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of compliance herewith reasonably satisfactory to the Administrator Agent on or
prior to the closing date of any such transaction.
Section 6.13 Fiscal Year; Fiscal Quarter. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change its fiscal year or any of
its fiscal quarters.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made; or
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.2(a), 5.3 (with respect to the
Borrower's existence) or 5.8 or in Sections 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.9,
6.10, 6.11 or 6.12; or
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clauses (a), (b), (c) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender); or
(f) the Borrower or any Material Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Debt, when and as the same shall become due and payable
or within any applicable grace period in connection with such Material Debt; or
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(g) the Borrower or any Material Subsidiary shall default in any
other obligation that results in any Debt of $10,000,000 or more in the
aggregate becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Debt of $10,000,000 or more in the aggregate or any
trustee or agent on its or their behalf to cause any such Debt to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or their
respective debts, or of a substantial part of their respective assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of their respective assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered; or
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of their respective assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing; or
(j) the Borrower or any Material Subsidiary shall become unable,
admit in writing or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment; or
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $5,000,000; or
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(m) a Change in Control shall occur; or
(n) any Subsidiary Guaranty shall cease to be in full force and
effect, or any guarantor under any Subsidiary Guaranty or any Person acting by
or on behalf of such guarantor shall deny or disaffirm all or any portion of the
guarantor's obligation under such Subsidiary Guaranty;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) declare the
Loans then outstanding to be due and payable in whole or in part (in which case
any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; and in case of any event
with respect to the Borrower described in clause (h) or (i) of this Article, the
principal of the Loans then outstanding, together with accrued interest thereon,
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Section 8.1 Appointment. Each Lender hereby irrevocably designates and
appoints Bankers Trust Company as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes Bankers Trust
Company as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Administrative Agent shall be read into this
Agreement or otherwise exist against the Administrative Agent. The provisions of
this Article 8 are solely for the benefit of the Administrative Agent and the
Lenders and the Borrower shall have no rights as a third party beneficiary or
otherwise under any of the provisions hereof. In performing its functions and
duties hereunder, the Administrative Agent shall act solely as the agent of the
Lenders and
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does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Borrower or any of its
successors and assigns.
Section 8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct or any agents or attorneys-in-fact selected by it with
reasonable care.
Section 8.3 Exculpatory Provisions. The Administrative Agent shall not
be (i) liable for any action lawfully taken or omitted to be taken by it or any
Person described in Section 8.2 under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received under or in connection with, this Agreement or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrower. This
Section is intended solely to govern the relationship between the Administrative
Agent, on the one hand, and the Lenders, on the other.
Section 8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
Section 8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default". In the event that
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the Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default as shall be directed by the Required
Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as the Administrative Agent shall deem advisable and in the best
interests of the Lenders.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent, nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including, without limitation, any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent. Each Lender represents
and warrants to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required under this Agreement to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, prospects, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent, the Syndication Agent and each of their respective
officers, directors, employees, representatives and agents (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their Applicable Percentage, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for the Administrative Agent, Syndication Agent or such Person in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Administrative Agent or such Person shall be
designated a party thereto) that may at any time (including, without limitation,
at any time following the payment of the Obligations) be imposed on, incurred by
or asserted against the Administrative Agent, Syndication Agent or
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such Person as a result of, or arising out of, or in any way related to or by
reason of, any of the Transactions or the execution, delivery or performance of
this Agreement (but excluding any such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the gross negligence or willful misconduct of the
Administrative Agent, Syndication Agent or such Person as finally determined by
a court of competent jurisdiction).
Section 8.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
Section 8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Borrower and the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, then the Required Lenders during such 30-day period shall
appoint from among the Lenders a successor agent, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent and
the term "Administrative Agent" shall mean such successor agent, effective upon
its appointment, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section 8 and Section 9.3 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 8.10 Syndication Agent. Without limiting any provision
contained in this Section 8, the Syndication Agent shall not have, except as to
and to the limited extent expressly provided herein, any obligation,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Each Lender acknowledges that it has not relied, and will not
rely, on the Syndication Agent in deciding to enter into this Agreement or in
taking or not taking action hereunder.
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ARTICLE IX
Miscellaneous
Section 9.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at:
Fred Meyer, Inc.
P.O. Box 42121
3800 SE 22nd Avenue
Portland, Oregon 97242-0121
Telecopy: (503) 797-5299
Attn: Mr. James C. Aalberg;
with a copy of notices pursuant to Article VII to:
Stoel Rives LLP
700 NE Multnomah, Ste 9504
Portland, Oregon 97232
Telecopy: (503) 230-1907
Attn: Mr. Gary R. Barnum
(b) if to the Administrative Agent, to it at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Telecopy: (212) 250-7351
Attn: Deal Administrator
(c) if to any other Lender, to it at its address (or telecopy
number) set forth opposite its signature below.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt. It
is understood and agreed that the delivery of copies of notices to counsel as
set forth above is for courtesy purposes only and any failure to deliver such
copy shall not constitute failure with respect to any obligation to provide
notices hereunder.
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Section 9.2 Waivers; Amendments. (a) Neither this Agreement nor any
terms hereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the Required
Lenders, provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender, (i) extend the final scheduled maturity of
any Loan beyond the Maturity Date, or reduce the rate or extend the time of
payment of interest or fees thereon, or reduce the principal amount thereof
(except to the extent repaid in cash), (ii) amend, modify or waive any provision
of this Section 9.2, (iii) reduce the percentage specified in the definition of
Required Lenders, (iv) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement or (v) release any
Subsidiary which is party to a Subsidiary Guaranty form its obligations under
such Subsidiary Guaranty; provided further that no such change, waiver,
discharge or termination shall (x) increase the Loan Amount of any Lender (it
being understood that waivers or modifications of conditions precedent,
covenants, Defaults or of a mandatory reduction in the Loan Amounts shall not
constitute an increase in the Loan Amount of any Lender) or (y) without the
consent of the Administrative Agent, amend, modify or waive any provision of
Section 8 or any other provision as the same relates to the Administrative
Agent. No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
(b) If, in connection with any proposed change, waiver, discharge
or termination to any of the provisions of this Agreement contemplated by
clauses (i) through (v), inclusive, of the first proviso of Section 9.2(a), the
consent of the Required Lenders is obtained but the consent of one or more of
such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders with one or
more Replacement Lenders pursuant to Section 2.14(b) so long as at the time of
such replacement each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) repay the outstanding Loans of such
Lender; provided that, unless the Loans repaid pursuant to preceding clause (B)
are immediately replaced in full at such time through the addition of new
Lenders or the increase of outstanding Loans of existing Lenders (who in each
case must specifically consent thereto), then in the case of any action pursuant
to preceding clause (B) the Required Lenders (determined after giving effect to
the proposed action) shall specifically consent thereto, provided further, that
in any event the Borrower shall not have the right to replace a Lender or repay
its Loans solely as a result of the
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exercise of such Lender's rights (and the withholding of any required consent by
such Lender) pursuant to the second proviso to Section 9.2(a).
Section 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement after the occurrence of an Event of Default, including its rights
under this Section, or in connection with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or the use of the proceeds thereof.
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(d) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
Section 9.4 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Loan); provided that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender, the Borrower must give its prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's Loan,
the amount of the Loan of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500; and provided further that any
consent of the Borrower otherwise required under this paragraph shall not be
required if a Default has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.10, 2.11, 2.12 and 9.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
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(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and principal amount of
the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of the Loan owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; and provided further
that no Lender shall transfer or grant any participation under which the
Participants shall have rights to approve any amendment to or waiver of this
Agreement except to the extent that such amendment or waiver would (i) extend
the final scheduled maturity of any Loan or Note in which the Participant is
participating, or reduce the rate or extend the time of payment of interest or
fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the Participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or of a
mandatory reduction in the aggregate Loan Amounts shall not constitute a change
in the terms of such participation or (ii) consent to the assignment by the
Borrower of any of its rights and obligations under this Agreement.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.10 or 2.12 than the applicable Lender would have been
entitled to receive
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with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower's prior written
consent. A Participant that, subject to the foregoing, would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.12 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.12(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 9.5 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid. The provisions of Sections 2.10, 2.11, 2.12 and 9.3 and Article VIII
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans or the
termination of this Agreement or any provision hereof.
Section 9.6 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.1, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
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Section 9.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.8 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
Section 9.9 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) to any participant or prospective participant in or
assignee or prospective assignee of any of the rights and obligations under this
Agreement, provided that such participant, prospective participant, assignee or
prospective assignee agrees to be bound by the confidentiality provisions
contained in this Section 9.12, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the
55
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Borrower; provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Section 9.13 OREGON LEGAL NOTICE. WITHOUT LIMITING THE VALIDITY OF THE
CHOICE OF NEW YORK LAW PROVIDED HEREIN, UNDER OREGON LAW, MOST AGREEMENTS,
PROMISES AND COMMITMENTS MADE BY THE LENDERS AFTER THE EFFECTIVE DATE OF THE ACT
SPECIFIED HEREIN CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDERS
TO BE ENFORCEABLE. THE ACT SPECIFIED HEREIN MEANS CHAPTER 967 OREGON LAWS 1989,
THE EFFECTIVE DATE OF WHICH WAS OCTOBER 3, 1989.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MEYER-SMITH HOLDCO, INC.
as Borrower
By: JAMES C. AALBERG
-------------------------------------
Name: James C. Aalberg
Title: Vice President, Treasurer
S-1
<PAGE>
BANKERS TRUST COMPANY,
as Administrative Agent and as a Lender
By: MARY KAY COYLE
-------------------------------------
Name: May Kay Coyle
Title: Managing Director
S-2
<PAGE>
THE CHASE MANHATTAN BANK,
as Syndication Agent and as a Lender
By: ELLEN GERTZOG
-------------------------------------
Name: Ellen Gertzog
Title: Vice President
S-3
<PAGE>
Schedule 2.1
Lenders and Commitments
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
Bankers Trust Company $250,000,000.00
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Telecopier No.: (212) 250-7351
Attn: Deal Administrator
The Chase Manhattan Bank $250,000,000.00
270 Park Avenue
New York, New York 10017
Telecopier No.: (212)
Attn:
1
EXECUTIVE SEVERANCE AGREEMENT
[DATE]
[Name and Address of Executive]
__________________________________
__________________________________ Executive
Fred Meyer, Inc.
(formerly named Meyer-Smith Holdco, Inc.),
a Delaware corporation
PO Box 42121
Portland, OR 97242 FMI
1. Employment Relationship. Executive is currently employed by FMI or a
subsidiary or other affiliate of FMI (collectively hereinafter referred to with
FMI as "FMI") as [Title] . Executive and FMI acknowledge that either party may
terminate this employment relationship in any "Employment Termination" (as
defined in Section 8.1) at any time and for any or no reason, subject to the
obligation of FMI to provide the severance benefits specified in this Agreement
in accordance with the terms hereof in the event of a Qualifying Termination (as
defined in Section 3) occurring during the term of this Agreement commencing on
the date hereof and ending on the fifth anniversary of the date of this
Agreement (the "Term").
2. Release of Claims. In consideration for and as a condition precedent to
receiving the severance benefits outlined in this Agreement in connection with a
Qualifying Termination, Executive agrees to execute a Release of Claims in the
form attached as Exhibit A, as the same may be revised at the recommendation of
counsel to FMI to reflect changes in applicable law occurring between the date
of this Agreement and any Qualifying Termination (subject only to any such
revisions, the "Release of Claims"). Executive promises to execute and deliver
the Release of Claims to FMI within the later of (a) 45 days from the date
Executive receives the Release of Claims or (b) the date of any Qualifying
Termination.
3. Compensation Upon Qualifying Termination. In the event of (a) an
Employment Termination by FMI without "Cause" (as defined in Section 8.3) or (b)
an Employment Termination by Executive for "Good Reason" (as defined in Section
8.2) occurring during the Term (any Employment Termination described in either
Section 3(a) or 3(b) during the Term being a "Qualifying Termination"), but not
upon any other Employment Termination, whether by reason of death or
"Disability" (as defined in Section 8.5) or by FMI for Cause, and contingent
upon Executive's execution of the Release of Claims and compliance with Section
10, Executive shall be entitled to the following benefits:
<PAGE>
3.1 As severance pay, and in lieu of any other compensation for
periods subsequent to the date of the Qualifying Termination, FMI shall pay
Executive, commencing after the Qualifying Termination and the passage of eight
days following execution of the Release of Claims without revocation, an amount
in cash equal to:
(a) the product of Executive's annual base pay at the rate in effect
immediately prior to the date of the Qualifying Termination multiplied by
the Applicable Multiplier (as defined below in this Section 3.1) (the
"Severance Amount"), which aggregate amount shall be divided by the
aggregate number of months in the number of years equal to the relevant
Applicable Multiplier and be paid in such number of monthly payments on a
monthly payment date consistent with FMI's compensation payment schedule;
plus
(b) if the Severance Amount, plus the amount or value of any other
benefit to which Executive is entitled under this Section 3, is subject to
the tax imposed by ss. 4999 of the Internal Revenue Code of 1986, as
amended (the "Golden Parachute Tax"), such additional amount (an
"Additional Payment") as will equal the amount of the Golden Parachute Tax
incurred by Executive on a net basis after the deduction from the
Additional Payment of all federal, state and local income taxes that will
be imposed on Executive by reason of Executive's receipt of the Additional
Payment (for purposes of which it will be assumed the Additional Payment
will be taxed at the highest combined marginal rate provided for in the
Internal Revenue Code and any applicable state income tax laws, assuming
full deduction of state income taxes from federal taxable income). All
determinations required to be made under this Section 3.1(b), including,
without limitation, whether this Section 3.1(b) is applicable or
inapplicable and when an Additional Payment is required and the amount of
such Additional Payment and the assumptions to be utilized in arriving at
such determination, shall be made by a certified public accounting firm
designated by Executive which shall provide detailed supporting
calculations both to FMI and to Executive within 15 business days after the
receipt of notice from Executive that there has been a Qualifying
Termination or such earlier time as is requested by FMI. The calculations
prepared by such firm shall be reviewed on behalf of FMI by FMI's
independent auditors. In the event of a dispute between the firm designated
by Executive and FMI's independent auditors, such firms shall jointly
select a third nationally recognized certified public accounting firm (the
"Accounting Firm") to resolve the dispute and the decision of such third
firm shall be final, binding and conclusive upon Executive and FMI. All
fees and expenses of accounting firms shall be borne solely by FMI. Any
Additional Payment shall be paid by FMI to Executive within five business
days after the earlier of acceptance by FMI of the calculations prepared by
the firm designated by Executive or FMI's receipt of the Accounting Firm's
determination. Notwithstanding any other provision of this Section 3.1(b)
apparently to the contrary, FMI shall have the right to require that any
and all disputes between FMI and any other executives of FMI or any
affiliate of FMI party to any similar agreement either with FMI or an
affiliate arising at substantially the same time be submitted together for
uniform
2
<PAGE>
determination (other than with respect to the effect of individual tax
rates and the like) by the Accounting Firm.
The "Applicable Multiplier" will be three if the Qualifying Termination occurs
on or prior to the first anniversary of the date of this Agreement and two if
the Qualifying Termination occurs after the first anniversary and on or prior to
the second anniversary of the date of this Agreement. The Applicable Multiplier
will otherwise be one unless the Qualifying Termination occurs after or in
connection with a "Change of Control" (as defined in Section 8.4) that occurs
after the second anniversary of the date of this Agreement, in which case the
Applicable Multiplier will instead be two.
3.2 Executive shall be entitled, under any annual cash incentive plans
in effect at the time of any Qualifying Termination, to a prorated portion of
the benefits for the plan year in which the Qualifying Termination occurs (the
"applicable plan year"). Such prorated amount shall be determined based on the
portion of the applicable plan year during which Executive was a participant.
For purposes of this Agreement, Executive's participation in any such plan will
be considered to have ended on the date of the Qualifying Termination. The
prorated amount will be calculated, first, by calculating an annual award as
though Executive were a participant for the entire applicable plan year, second,
dividing such award by the total number of days in the applicable plan year and,
third, multiplying the daily award so calculated by the actual number of days
during the applicable plan year prior to the Qualifying Termination. The
prorated amount will be calculated following the end of the applicable plan year
and the amount will not be due and payable by FMI to Executive until the date
other awards for the applicable plan year are payable to other eligible
employees under the relevant plan.
3.3 All outstanding stock options, restricted stock, stock bonuses or
other stock awards shall be governed by the terms of the applicable agreement or
plan except that a portion of outstanding stock options held by Executive under
all stock option and stock incentive plans of FMI that would vest during the
12-month period following the date of the Qualifying Termination shall become
immediately exercisable on a prorated basis (based on the portion of the vesting
period during which Executive was an employee) as of the date of the Qualifying
Termination and shall thereafter be exercisable in accordance with the
applicable provisions of the relevant option agreement. However, if the
Qualifying Termination occurs after or in connection with a Change of Control,
such options shall become immediately exercisable in full as of the date of the
Qualifying Termination and shall thereafter be exercisable in accordance with
the applicable provisions of the relevant option agreement.
3.4 Under the Fred Meyer Supplemental Income Plan (the "Plan") if not
terminated under Section 8.2 of the Plan at the time of the Qualifying
Termination, Executive's severance benefit under Section 5.2 of the Plan will be
calculated as though a notice of termination of the Plan were given under
Section 8.2(a) of the Plan immediately prior to the Qualifying Termination and
Executive continued to be a qualifying participant under Section 8.2(a) of the
Plan for the remaining term of the Plan. The effect will be that contributions
will be made to the Plan and Executive's Severance Benefit under the Plan will
be calculated, without regard to the provisions of Sections 5.2(a) and 5.2(b) of
the Plan and notwithstanding the Qualifying Termination, as though Executive's
employment continued up
3
<PAGE>
to but not including the first day of the third calendar year after the calendar
year in which the notice of termination was given.
3.5 Executive will, during the period Executive is eligible under
COBRA, be treated as having elected COBRA coverage for Executive and Executive's
dependents, and FMI will pay the resulting monthly premium or premiums as
additional severance compensation to Executive.
4. Other Employment Terminations. In the event that Executive's employment
with FMI terminates in any Employment Termination that does not constitute a
Qualifying Termination, Executive shall not be entitled to benefits under
Section 3.
5. Tax Withholding. Payments and other benefits provided for in this
Agreement may be subject to tax withholding obligations imposed by federal,
state and local laws and regulations. Subject to applicable law, FMI will
satisfy any and all withholding obligations of FMI with respect to any amount
that is compensation to Executive out of any such amounts payable to or for the
benefit of Executive in cash or, if not then payable in cash or if subject to
additional withholding for any reason, either from amounts that Executive shall
promptly deposit with FMI upon any demand therefor or by withholding any such
amount from any other amounts payable by FMI to Executive.
6. Subsequent Employment. The amount of any payment provided for in this
Agreement shall not be reduced, offset or subject to recovery by FMI by reason
of any compensation earned by Executive as the result of employment by another
employer after a Qualifying Termination.
7. Other Agreements. In the event that severance benefits are payable to
Executive under any other agreement with FMI in effect at the time of a
Qualifying Termination (including but not limited to any employment agreement,
but excluding for this purpose any stock option agreement or stock bonus
agreement or stock appreciation right agreement that may provide for accelerated
vesting or related benefits upon the occurrence of a change in control), the
benefits provided in this Agreement shall not be payable to Executive. Executive
may, however, elect to receive all of the benefits provided for in this
Agreement in lieu of all of the benefits provided in all such other agreements.
Any such election shall be made with respect to the agreements as a whole, and
Executive cannot select some benefits from one agreement and other benefits from
this Agreement. Executive acknowledges that Executive will not be entitled upon
a Qualifying Termination to any benefit under the Fred Meyer, Inc. Severance Pay
Plan.
8. Definitions. For purposes of this Agreement:
8.1 An "Employment Termination" shall mean that Executive's employment
with FMI (including each subsidiary or other entity affiliate of FMI, or any
successor to FMI or any of the foregoing, that may be Executive's employer) has
terminated either by action by FMI or Executive, as the case may be, or by
reason of the death or Disability of Executive.
4
<PAGE>
8.2 "Good Reason" for an Employment Termination by Executive shall
mean (including in respect of a surviving company following a Change of
Control):
(a) the assignment to Executive of a different title, job or
responsibilities that results in a decrease in the level of responsibility
of Executive with respect to FMI operations when compared to Executive's
level of responsibility for FMI operations prior to the such assignment;
provided that Good Reason shall not exist if Executive continues to have
the same or a greater general level of responsibility for FMI operations
after such assignment as Executive had prior to the assignment even if the
operations for which Executive is responsible are of a subsidiary or
division or other affiliate different from that for which Executive was
previously responsible, including without limitation a subsidiary, division
or affiliate of a surviving company;
(b) a reduction by FMI or a surviving company in Executive's base
compensation except for across-the-board salary reductions similarly
affecting all management personnel of FMI or a surviving company and all
management personnel of any person in control of FMI;
(c) a significant reduction by FMI or a surviving company in total
benefits available to Executive under cash incentive, stock incentive and
other employee benefit plans compared to the total package of such benefits
previously in effect for the benefit of Executive;
(d) requirement by FMI or a surviving company that Executive be based
more than 25 miles from where Executive's office is located immediately
prior to such change of location except for required travel on company
business to an extent substantially consistent with the business travel
obligations that Executive undertook on behalf of FMI prior to such change
of location; or
(e) the failure by FMI to obtain from any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of FMI, the assent to this
Agreement contemplated by Section 10.
8.3 "Cause" for an Employment Termination by FMI shall mean acts or
omissions on the part of Executive involving:
(a) material dishonesty or misappropriation adversely affecting FMI or
its property or funds;
(b) extreme misconduct, including reckless or willful destruction of
company property, unauthorized disclosure of confidential information or
sexual, racial or other actionable harassment;
5
<PAGE>
(c) conviction of or a plea of nolo contendere to any felony or any
crime involving moral turpitude; or
(d) illegal, immoral, dishonest, fraudulent or other similar conduct
tending to place Executive, or FMI by reason of association with Executive,
in disrepute or to subject FMI to material financial loss or loss of
business.
8.4 A "Change of Control" shall mean that one of the following events has
taken place:
(a) The shareholders of FMI approve: (i) any merger or statutory plan
of exchange involving FMI ("Merger") in which FMI is not the continuing or
surviving company or pursuant to which Common Stock would be converted into
cash, securities or other property, other than a Merger involving FMI in
which the holders of Common Stock immediately prior to the Merger have the
same proportionate ownership of Common Stock or substantially identical
securities of the surviving company after the Merger, or (ii) any sale,
lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of FMI or
the adoption of any plan or proposal for the liquidation or dissolution;
(b) A tender or exchange offer (other than one made by FMI) is made
for Common Stock (or securities convertible into Common Stock) and such
offer results in a portion of those securities being purchased and the
offeror after the consummation of the offer is the beneficial owner (as
determined pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), directly or indirectly, of
securities representing at least 20 percent of the voting power of
outstanding securities of FMI;
(c) FMI receives a report on Schedule 13D of the Exchange Act
reporting the beneficial ownership by any person of securities representing
20 percent or more of the voting power of outstanding securities of FMI,
except that if such receipt shall occur during a tender offer or exchange
offer described in Section 8.4(b), a Change of Control shall not take place
until the conclusion of such offer; or
(d) During any period of 12 months or less, individuals who at the
beginning of such period constituted a majority of the Board of Directors
cease for any reason to constitute a majority thereof unless the nomination
or election of such new directors was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such period.
Notwithstanding anything in the foregoing to the contrary, no Change of Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transaction which results in Executive, or a group of persons which includes
Executive, acquiring, directly or
6
<PAGE>
indirectly, securities representing 20 percent or more of the voting power of
outstanding securities of FMI.
8.5 An Employment Termination based on "Disability" shall mean
termination without further compensation under this Agreement, due to
Executive's absence from Executive's full-time duties with FMI for 180
consecutive days as a result of Executive's incapacity due to physical or mental
illness, unless within 30 days after notice of termination by FMI following such
absence Executive shall have returned to the full-time performance of
Executive's duties.
9. Confidentiality. Executive acknowledges that, by reason of Executive's
employment with FMI, he or she will learn or has learned trade secrets and will
obtain or has obtained other confidential information concerning the business
and policies of FMI. Executive agrees that during Executive's employment by FMI
and at any time thereafter, he or she will not divulge or otherwise disclose to
anyone outside of FMI, or use in any activity or business (other than FMI's
business), directly or indirectly, any such trade secrets or other confidential
information concerning the business or policies of FMI or any of its affiliates
which he or she may learn as a result of Executive's employment or may have
learned prior thereto, except to the extent such information is lawfully
obtainable from public sources or such use or disclosure is (a) necessary to the
performance of this Agreement and in furtherance of FMI's best interests, (b)
required by applicable law or (c) authorized in writing by FMI. The provisions
of this Section 9 shall survive the termination of this Agreement for any
reason.
10. Successors; Binding Agreement. This Agreement shall be binding on and
inure to the benefit of FMI and its successors and assigns. Upon Executive's
written request, FMI will seek to have any successor by agreement, assent to the
fulfillment by FMI of its obligations under this Agreement. If such a request is
made, failure of FMI to obtain such assent prior to or at the time a company
becomes a successor shall constitute Good Reason for termination by Executive of
his or her employment. This Agreement shall inure to the benefit of and be
enforceable by Executive and Executive's legal representatives, executors,
administrators and heirs.
11. Resignation of Corporate Offices. Executive will resign Executive's
office, if any, as a director, officer or trustee of FMI, its subsidiaries or
affiliates and of any other corporation or trust of which Executive serves as
such at the request of FMI, effective as of the date of any Employment
Termination. Executive agrees to provide FMI such written resignation(s) upon
request and that no benefits otherwise payable in connection with a Qualifying
Termination will be paid under this Agreement until after such resignation(s)
are provided.
12. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Oregon.
13. Arbitration. Except as set forth in Section 3.1(b) or in Section 14,
any dispute or controversy arising under this Agreement shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. The determination and findings of such
7
<PAGE>
arbitrators shall be final and binding on all parties. If any arbitration or
other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief that may be granted.
14. Remedies of FMI. Executive acknowledges that Executive's agreements set
forth in this Agreement are of a special, unique, unusual and extraordinary
character, which gives this Agreement peculiar value to FMI. The loss of the
benefit of these agreements cannot be reasonably or adequately compensated in
damages in action at law and it would be difficult (if not impossible) to make
FMI whole if these agreements were not honored. By reason thereof, Executive
agrees and consents that if he or she violates any of the material provisions of
this Agreement (including, without limitation, Section 9), FMI, in addition to
any other rights and remedies available under this Agreement or under applicable
law, shall be entitled to seek injunctive relief from a tribunal of competent
jurisdiction, restraining Executive from committing or continuing any violation
of this Agreement. The provisions of this Section 14 shall survive the
termination of this Agreement for any reason.
15. Amendment. No provision of this Agreement may be modified unless such
modification is agreed to in a writing signed by Executive and FMI.
16. Severability. If any of the provisions or terms of this Agreement shall
for any reason be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other terms of this Agreement, and this
Agreement shall be construed as if such unenforceable term had never been
contained in this Agreement.
FRED MEYER, INC.
By:
------------------------------ -----------------------------------------
Title: Executive
8
<PAGE>
EXHIBIT A
RELEASE OF CLAIMS
1. PARTIES. The parties to this Release of Claims (hereinafter this
"Release") are __________________________________________________________ and
Fred Meyer, Inc., a Delaware corporation formerly known as Meyer-Smith Holdco,
Inc., as each is hereinafter defined.
1.1 EXECUTIVE. For the purposes of this Release, "Executive" means
__________________________________________________, and his or her attorneys,
heirs, executors, administrators, assigns, and spouse.
1.2 COMPANY. For purposes of this Release, "Company" means Fred Meyer,
Inc., a Delaware corporation, its predecessors and successors, its subsidiaries
and other entity affiliates, and all of each corporation's or other entity's
officers, directors, employees, insurers, shareholders, agents, or assigns, in
their individual and representative capacities.
2. BACKGROUND AND PURPOSE. Executive has been employed by Company or an
affiliate and is party to an Executive Severance Agreement with Company (the
"Agreement"). Executive's employment is ending effective __________. The purpose
of this Release is to settle, and the parties hereby settle, fully and finally,
any and all claims Executive may have against Company, whether asserted or not,
known or unknown, including, but not limited to, claims arising out of or
related to Executive's employment, any claim for reemployment, or any other
claims whether asserted or not, known or unknown, past or future, that relate to
Executive's employment, reemployment, or application for reemployment.
3. RELEASE. Except as reserved in this Paragraph 3 or below in Paragraph
3.1, Executive waives, acquits and forever discharges Company from any
obligations Company has and all claims Executive may have including but not
limited to obligations and/or claims arising from the Agreement or any other
document or oral agreement relating to employment, compensation, benefits,
severance or post-employment issues. Except as reserved in Paragraph 3.1,
Executive hereby releases Company from any and all claims, demands, actions, or
causes of action, whether known or unknown, arising from or related in any way
to any employment of or past or future failure or refusal to employ Executive by
Company, or any other past or future claim (except as reserved by this Release
or where expressly prohibited by law) that relates in any way to Executive's
employment, compensation, benefits, reemployment, or application for employment,
with the exception of any claim Executive may have against Company for
enforcement of this Release. This release includes any and all claims, direct or
indirect, which might otherwise be made under any applicable local, state or
federal authority, including but not limited to any claim arising under the
Oregon or other state statutes dealing with employment, discrimination in
employment, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Americans With Disabilities Act, the Family and Medical Leave Act of
1993, the Equal Pay Act of 1963, Executive Order 11246, the Rehabilitation Act
of 1973,
A-1
<PAGE>
the Uniformed Services Employment and Reemployment Rights Act of 1994, the Age
Discrimination in Employment Act, the Fair Labor Standards Act, Oregon or other
state wage and hour statutes, all as amended, any regulations under such
authorities, and any applicable contract, tort, or common law theories.
3.1 Reservations of Rights. This Release shall not affect: (a) any
rights of Executive under health and welfare plans or employee benefit plans
that Executive is prevented by law from waiving or releasing, (b) Executive's
rights to benefits under the provisions of any qualified or nonqualified
pension, retirement or savings plans except to the extent that specific express
provision is made with respect to any such benefit or plan under the Agreement
or (c) Executive's entitlement under COBRA to extend coverage for the statutory
period under any group health plan in which Executive and Executive's dependents
are enrolled.
3.2 No Admission of Liability. It is understood and agreed that the
acts done and evidenced hereby and the release granted hereunder is not an
admission of liability on the part of Executive or Company, by whom liability
has been and is expressly denied.
4. CONSIDERATION TO EXECUTIVE. After receipt of this Release fully endorsed
by Executive, and the expiration of the seven-day revocation period provided by
the Older Workers Benefit Protection Act without Executive's revocation, Company
shall pay Executive:
4.1 Payment under Section 3.1. The payment, in monthly payments
pursuant to Section 3.1(a) of the Agreement of an aggregate of __________
DOLLARS ($_________) (less proper withholding) as the "Severance Amount" and, if
applicable, any "Additional Payment" provided for under Section 3.1(b) of the
Agreement;
4.2 Payment under Section 3.2. When due, the amount of annual cash
incentive (less proper withholding) based on the terms of Section 3.2 of the
Agreement;
4.3 Payment under Section 3.4. When due, the amount of any payment
(less proper withholding) to which Executive is entitled under Section 3.4 of
the Agreement; and
4.4 Payments under Section 3.5. As payable, the amount of any premiums
to be paid by Company under Section 3.5 of the Agreement.
5. NO DISPARAGEMENT. Executive agrees that henceforth Executive will not
disparage or make false or adverse statements about Company, which as herein
defined include its predecessors and successors, its subsidiaries and other
entity affiliates, and all of each corporation's or other entity's officers,
directors, employees, insurers, shareholders, agents, or assigns, in their
individual and representative capacities. Company will use its best efforts to
report to Executive any actions or statements that are attributed to Executive
that Company believes are disparaging. If Executive has disparaged or made false
or adverse statements about Company in Company's reasonable determination,
Executive shall be in breach of this Release
A-2
<PAGE>
and Company may take actions consistent with breach of this Release. Company
agrees to follow Company's applicable policy(ies) regarding release of
employment reference information.
6. CONFIDENTIALITY, PROPRIETARY, TRADE SECRET AND RELATED INFORMATION.
Executive acknowledges the duty and agrees not to make unauthorized use or
disclosure of any confidential, proprietary or trade secret information learned
as an employee about Company, its products, customers and suppliers, and
covenants not to breach that duty. Moreover, Executive acknowledges that,
subject to the enforcement limitations of applicable law, Company reserves the
right to enforce the terms of the Agreement. Should Executive, Executive's
attorney or agents be requested in any judicial, administrative, or other
proceeding to disclose confidential, proprietary or trade secret information
Executive learned as an employee of Company, Executive shall promptly notify
Company of such request by the most expeditious means in order to enable Company
to take any reasonable and appropriate action to limit such disclosure.
7. SCOPE OF RELEASE. The provisions of this Release shall be deemed to
obligate, extend to, and inure to the benefit of the parties, including without
limitation (a) Company's shareholders, subsidiaries, affiliates, successors,
predecessors, assigns, directors, officers, employees and agents and (b) each
parties' insurers, transferees, grantees, legatees, agents and heirs, including
in each case those who may assume any and all of the above-described capacities
subsequent to the execution and effective date of this Release.
8. OPPORTUNITY FOR ADVICE OF COUNSEL. Executive acknowledges that Executive
has been encouraged to seek advice of counsel with respect to this Release and
has had the opportunity to do so.
9. ENTIRE UNDERSTANDING. This Release and the Agreement contain the entire
agreement and understanding between the parties and, except as reserved in
Paragraph 3 and Paragraph 3.1, supersede and replace all prior agreements,
written or oral, prior negotiations and proposed agreements, written or oral.
Executive and Company acknowledge that no other party, nor agent nor attorney of
any other party, has made any promise, representation, or warranty, express or
implied, not contained in this Release concerning the subject matter of this
Release to induce this Release, and Executive and Company acknowledge that they
have not executed this Release in reliance upon any such promise,
representation, or warranty not contained in this Release.
10. SEVERABILITY. Every provision of this Release is intended to be
severable. In the event any term or provision of this Release is declared to be
illegal or invalid for any reason whatsoever by a court of competent
jurisdiction or by final and unappealed order of an administrative agency of
competent jurisdiction, such illegality or invalidity shall not affect the
balance of the terms and provisions of this Release, which terms and provisions
shall remain binding and enforceable.
A-3
<PAGE>
11. BREACH; ENFORCEMENT OF RELEASE. Nothing in this Release shall operate
to release or discharge any parties to this Release or their successors,
assigns, legatees, heirs, or personal representatives from any rights, claims,
or causes of action arising out of, relating to, or connected with a breach of
any obligation of any party contained in this Release. Upon any breach, the
nonbreaching party shall be entitled to all remedies provided for under the
Agreement.
12. COSTS AND ATTORNEY'S FEES. Each party shall bear such party's own costs
and attorneys' fees which have been or may be incurred in connection with any
matters released herein or in connection with the negotiation and consummation
of this Release. In the event of any administrative or civil action to enforce
the provisions of this Release, the prevailing party shall be entitled to
attorney fees and costs through trial and/or on appeal.
13. ACKNOWLEDGMENTS. Executive acknowledges that the Release provides
severance pay and benefits which Company would otherwise have no obligation to
provide. Executive also acknowledges that Company has provided the following
information: (a) the class or group of employees offered the opportunity to
obtain severance benefits similar to those in the Agreement, (b) the eligibility
factors required to obtain severance benefits similar to those in the Agreement,
(c) the time limits required to obtain severance benefits similar to those in
the Agreement, (d) the job titles and ages of employees eligible or selected for
severance benefits similar to those in the Agreement, and (e) the ages of
employees in the same classification either not eligible or not selected.
14. REVOCATION. As provided by the Older Workers Benefit Protection Act,
Executive's is entitled to have 45 days to consider this Release. For a period
of seven days from execution of this Release, Executive may revoke this Release.
Upon receipt of Executive's signed Release and the end of the revocation period,
payment by Company as described in Paragraph 4 will be forwarded by mail in a
timely manner as provided herein.
__________________________________ Dated: __________________________________
[Name of Executive]
STATE OF OREGON )
) ss.
County of _________ )
Personally appeared the above named ____________________________________
and acknowledged the foregoing instrument to be his or her voluntary act and
deed.
Before me: _________________________________________
Notary Public for _______________________
My commission expires: __________________
A-4
<PAGE>
FRED MEYER, INC.
By: ___________________________________ Dated: _____________________________
Title:
A-5
SUPPLEMENTAL WARRANT AGREEMENT
SUPPLEMENTAL WARRANT AGREEMENT (the "Agreement") dated as of September 9,
1997 among FRED MEYER, INC., a Delaware corporation formerly known as
Meyer-Smith Holdco, Inc. (the "Company"), and THE YUCAIPA COMPANIES, a
California general partnership, or its registered permitted assigns (the
"Consultant").
WHEREAS, Smith's Food & Drug Centers, Inc., a Delaware corporation
("Smith's"), has become a wholly-owned subsidiary of the Company as a result of
the transactions (collectively, the "Merger") contemplated in the Agreement and
Plan of Reorganization and Merger dated as of May 11, 1997 (the "Merger
Agreement") between Smith's and FM Stores, Inc., a Delaware corporation and
predecessor to the Company formerly known as Fred Meyer, Inc. ("Fred Meyer
Stores").
WHEREAS, prior to the effective date of the Merger, Smith's was a party to
a Warrant Agreement dated May 23, 1996 (the "Warrant Agreement") between Smith's
and the Consultant pursuant to which Smith's issued 1,842,555 warrants to
purchase an aggregate of 1,842,555 shares of Class C Common Stock, $.01 par
value per share, of Smith's. Defined terms used herein and not otherwise defined
herein have the meanings set forth in the Warrant Agreement.
WHEREAS, pursuant to the terms of the Merger Agreement and the Warrant
Agreement, the Company is required to enter into a supplemental warrant
agreement to provide for the issuance of Common Stock, $.01 par value ("Common
Stock"), of the Company upon exercise of the warrants subject to the Warrant
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth in this Agreement, in the Warrant Agreement and in the Merger
Agreement, the parties hereto agree as follows:
SECTION 1. The Warrant Agreement is hereby amended such that, unless the
context requires otherwise, the following defined terms contained therein shall
have the meanings set forth below:
(a) "Class C Common Stock," "Class B Common Stock," or "Common Stock"
shall mean and refer to the Common Stock of the Company.
(b) "Company" shall mean and refer to Fred Meyer, Inc., a Delaware
corporation formerly known as Meyer-Smith Holdco, Inc..
(c) "Holder(s)" shall mean and refer to the registered holder(s) of
the Warrant Certificates or the New Warrant Certificates, as defined below.
<PAGE>
(d) "Merger Agreement" shall mean and refer to the Merger Agreement
dated as of May 11, 1997 by and between Smith's and Fred Meyer Stores.
(e) "Registration Rights Agreement" shall mean and refer to the
Registration Rights Agreement dated as of September 9, 1997 by and among
the Company, Consultant and certain stockholders of the Company named
therein.
(f) "Warrant Shares" shall mean and refer to the Common Stock of the
Company issuable upon exercise of the Warrants.
(g) "Warrants" shall mean and refer to the 1,934,683 warrants, as
described herein and in the Warrant Agreement, to purchase an aggregate of
1,934,683 shares (subject to adjustment) of Common Stock of the Company,
pursuant hereto and pursuant to the Merger Agreement.
SECTION 2. All references to the "Standstill Agreement" shall be deleted.
SECTION 3. Subject to the terms and conditions of the Warrant Agreement,
the Company shall issue shares of its Common Stock as set forth in Section 3
hereof to Holders of Warrants upon exercise of such Warrants.
SECTION 4. The Warrants shall be exercisable initially for an aggregate of
1,934,683 Warrant Shares at an Exercise Price of $47.61904 per share, subject in
each case to the adjustment provisions contained in the Warrant Agreement.
The following proviso shall be added to the end of the third paragraph under
Section 5 of the Warrant Agreement:
"provided further, that any period of consecutive trading
days during which the Market Price of the Smith's Class B
Common Stock equaled or exceeded the Exercise Price of the
Warrants prior to consummation of the Mergers (as defined in
the Merger Agreement) shall count toward such 60-day
period."
SECTION 5. The parties hereto acknowledge that on September 8, 1997, the
Market Price of Smith's Class B Common Stock had exceeded the Exercise Price
then in effect for at least 60 consecutive trading days and as a result thereof
and in accordance with the terms of the Warrant Agreement the Exercise Period in
the case of the Series A Warrants expires at 5:00 p.m., Los Angeles time, on May
23, 2005 and, in the case of the Series B Warrants expires at 5:00 p.m., Los
Angeles time on May 23, 2006.
2
<PAGE>
SECTION 6. On September 5, 1997, the Company announced a two-for-one stock
split of its Common Stock (the "Split"). Upon consummation of the Split, the
Exercise Price and Warrant Number shall be adjusted pursuant to the provisions
of Section 9 of the Warrant Agreement.
SECTION 7. Upon tender and delivery to the Company by any Holder of Series
A Warrant Certificates or Series B Warrant Certificates (as defined in the
Warrant Agreement) or both and upon cancellation thereof, the Company shall
issue and deliver new Series A Warrant Certificates ("New Series A Warrant
Certificates") and new Series B Warrant Certificates ("New Series B Warrant
Certificates" and together with the New Series A Warrant Certificates, the "New
Warrant Certificates"), respectively, evidencing the Warrants of such tendering
Holders. The New Warrant Certificates shall reflect the amendments to the
Warrant Agreement contained herein. Series A Warrant Certificates and Series B
Warrant Certificates shall continue to be valid evidence of the Warrants, and
shall continue to be exercisable for the Common Stock of the Company pursuant to
the terms hereof and in the Warrant Agreement. The New Warrant Certificates
shall comply with and be subject to all of the terms and conditions of the
Warrant Agreement applicable to the Warrant Certificates.
SECTION 8. Section 5 of the Warrant Agreement is hereby amended by deleting
the second paragraph thereof.
SECTION 9. Section 8 of the Warrant Agreement is hereby amended by deleting
the second sentence of the first paragraph.
SECTION 10. Section 12 of the Warrant Agreement is hereby amended so that
notices shall be made as set forth therein to the Company at 3800 SE 22nd
Avenue, Portland, Oregon 97202, Attention: President, with a copy to the General
Counsel.
SECTION 11. Section 13 of the Warrant Agreement is hereby deleted.
SECTION 12. The Company hereby assumes all obligations of Smith's under the
Warrant Agreement and agrees to be bound by all of the provisions thereof, as
amended by this Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
FRED MEYER, INC.
By: ROGER A. COOKE
-----------------------------------------
Roger A. Cooke
Senior Vice President
THE YUCAIPA COMPANIES
By: RONALD W. BURKLE
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
4
CONFORMED COPY
EMPLOYMENT AGREEMENT
(As Amended through Amendment No. 2)
DATED: August 27, 1991
BETWEEN: FRED MEYER STORES, INC.
3800 SE 22nd Avenue
Portland, OR 97202 "Company"
AND: ROBERT G. MILLER
0305 SW Montgomery # F508
Portland, OR 97201 "Employee"
The parties agree as follows:
1. General.
This Agreement sets forth the terms upon which Employee shall be
employed by the Company. Notwithstanding the foregoing, the Company may
terminate the Employee's employment at any time, and Employee's employment
hereunder will be considered "at will," subject to the Company's providing the
benefits hereinafter specified in accordance with the terms hereof.
2. Employment.
Employee shall be employed by Company on a full-time basis to perform
duties as Chief Executive Officer and Chairman of the Board of the Company.
3. Compensation and Disability Benefits.
3.1 Salary. For services performed during the term of Employee's
employment with the Company, the Company shall pay Employee an annual salary
(prorated for any portion of a year), payable in equal periodic installments not
less than monthly, of
1
<PAGE>
$500,000, subject to annual review by the Compensation Committee of the Board of
Directors of the Company.
3.2 Bonus. Employee will be eligible to participate in the Company's
bonus plan on the same basis as other executives. Employee's bonuses for the
Company's 1994 fiscal year and for fiscal years thereafter will be up to 100
percent of his annual salary, to be determined upon the achievement of financial
objectives approved in advance by the Company's Board of Directors.
3.3 Insurance/Profit Sharing. Employee shall be entitled to
participate as an executive officer in all existing Company insurance, profit
sharing and other benefit plans in which executive officers may participate,
including the Company's Excess Deferral Plan, on the same basis as other
executive officers of the Company.
3.4 Long Term Disability Benefits. The Company will provide to
Employee the long term disability benefits described in Appendix A to this
Agreement. This benefit is in addition to benefits under any group plan
purchased by the Employee. In the event of Total Disability as defined in
Appendix A, Employee's salary provided for in Paragraph 3.1, above, will be
continued during the elimination period.
3.5 Retiree Medical Benefits. After termination of Employee's
employment for any reason after reaching age 55, the Company will pay Employee
or his present spouse if she survives him, as applicable, a medical supplement
to the extent determined as follows:
(a) The supplement shall compensate for the premium value to
Employee of medical coverage comparable to that provided under the
Company's program applicable to retirees
2
<PAGE>
generally (the Fred Meyer Plan) during any period in which the
following applies:
(1) Neither Employee nor his surviving spouse is eligible
for coverage under the Fred Meyer Plan.
(2) Neither employee nor his surviving spouse is eligible
under a plan of a successor employer for medical benefits that
are reasonably comparable to benefits under the Fred Meyer Plan.
(3) Employee is at least 55 years old.
(b) The supplement shall not exceed the smallest of the following
amounts, as applicable, reduced by the employee cost applicable at the
time under the Fred Meyer Plan (references to Employee shall include
his present spouse):
(1) The cost of COBRA continuation coverage available from
the Company that Employee could have received by timely election.
(2) The cost to Employee for coverage if Employee had timely
exercised all available conversion rights under the Company's
medical program for active employees.
(3) The cost to Employee of the
3
<PAGE>
coverage actually in effect for Employee from time to time to the
extent the coverage is reasonably comparable to coverage under
the Fred Meyer Plan at the time.
(c) The supplement shall be paid only with respect to benefits
Employee would have received under the Fred Meyer Plan if Employee had
terminated when eligible under that Plan.
(d) The supplement shall be paid in cash to Employee or his
surviving spouse or, at the Company's election, by direct payment of
the appropriate portion of the cost of coverage. The amount paid shall
constitute compensation income to Employee or his surviving spouse,
shall be reported on IRS form W-2 and any applicable state form, and
shall be subject to all applicable state and federal withholding as
non-qualified deferred compensation.
4. Severance.
4.1 In the event Employee is terminated by the Company for any reason
other than for "cause," death or permanent disability, employee shall be
entitled to payment of two years of compensation at Employees last determined
salary (payable on the Company's normal payroll dates and without interest).
4.2 "Cause" is defined for the purposes of this Agreement as (a)
embezzlement or fraud against the Company; (b) conviction of a felony which in
the judgment of the Board of Directors of the Company adversely affects the
business or
4
<PAGE>
reputation of the Company; (c) conduct in wanton and knowing disregard of
corporate policy; or (d) willful and continuous failure, in the judgment of the
Board of Directors, to perform substantially the reasonably assigned duties with
the Company after written notice and reasonable opportunity to perform.
5. Pension and Benefits.
5.1 Normal Retirement Benefit. Employee's normal retirement benefit
shall be a pension starting at the end of the first month after age 62 and
continuing for Employee's life equal to $25,000 per month. The benefit shall be
reduced by 5 percent for each year by which Employee's total completed years of
employment is less than 14, as shown on the following Schedule:
Accrued Benefit
Completed Years Employment Pension Amount
of Employment Year End per month at 62
6 8/31/97 16,586
7 8/31/98 17,458
8 8/31/99 18,377
9 8/31/00 19,344
10 8/31/01 20,363
11 8/31/02 21,434
12 8/31/03 22,562
13 8/31/04 23,750
14 8/31/05 25,000
5.2 Early Retirement Benefit. If employment is terminated by Employee
or Company for any reason before normal retirement date, Employee may elect to
receive the accrued normal retirement benefit starting at the end of the month
after age 55. If benefits start before the end of the first month after age 62,
the amount from the Schedule in 5.1 shall be reduced 5/12 of one percent for
each month by which the benefit starts early.
5
<PAGE>
5.3 Spouse's Death Benefit. If Employee dies leaving a surviving
spouse to whom he is now married, the spouse shall receive a monthly pension for
her life as follows:
(a) If Employee had retired and was receiving benefits or dies
during the first month for which benefits were to be paid, one half of
Employee's monthly benefit shall continue to the spouse.
(b) If (a) does not apply, the spouse may elect to start a
benefit as of the end of any month after the later of the date of
death or the date Employee would have reached age 55. The benefit
shall be one half of the amount Employee would have received if he had
terminated just before death and elected to start benefits at the date
benefits start to the spouse.
5.4 Additional Benefit. Retirement and Spouse's death benefit under
5.1 through 5.3 shall be in addition to and shall not reduce or be reduced by
any benefits under the Supplemental Income Plan, the Excess Deferral Plan, the
Profit Sharing Plan or any other plan maintained by the Company or an affiliate.
6. Miscellaneous Benefits.
6.1 Club Membership. The Company shall pay the cost of one club
membership for Employee during the terms of Employee's employment with the
Company.
6
<PAGE>
6.2 Automobile. The Company will provide an automobile for Employee's
use while he is employed by the Company. The Company will also pay all operating
expenses associated with the automobile.
6.3 Vacation. Employee will be entitled to five weeks of vacation
annually.
6.4 Medical Expenses. Beginning on the date Employee commences
employment with the Company, the Company will provide reimbursement for medical
expenses of Employee and his dependents under the Company's medical
reimbursement plan, without any waiting or qualification period and without
exclusions for any existing conditions.
7. Successors and Assigns; Entire Agreement.
7.1 The rights and benefits of Employee under this Agreement are
personal to him and, except as may be set forth herein, may not be transferred
or assigned voluntarily or involuntarily.
7.2 This Agreement shall be binding on the Company, its successors and
assigns, including any person acquiring control of the Company's business and
operations.
7.3 This Agreement contains the entire agreement and understanding by
and between the Employee and the Company with respect to the employment of
Employee and the payments provided for in this Agreement shall be in lieu of any
other claims of Employee relating to his employment or benefits, including
claims relating to termination of employment.
7
<PAGE>
8. Applicable Law.
This Agreement shall be construed in accordance with the laws of the
State of Oregon.
AGREEMENT DATED AUGUST 27, 1991 EXECUTED AS FOLLOWS:
- ----------------------------------------------------
FRED MEYER, INC.
By: KENNETH THRASHER, SR. V.P.
-----------------------------------------
ROBERT G. MILLER
--------------------------------------------
Robert G. Miller
AMENDMENT NO. 1 DATED AUGUST 1, 1994 EXECUTED AS FOLLOWS:
- ---------------------------------------------------------
FRED MEYER, INC.
By: ROGER A. COOKE
-----------------------------------------
Executed: July 14, 1994
ROBERT G. MILLER
--------------------------------------------
Robert G. Miller
Executed: July 19, 1994
AMENDMENT NO. 2 DATED SEPTEMBER 9, 1997 EXECUTED AS FOLLOWS:
- ------------------------------------------------------------
FRED MEYER STORES, INC.
By: ROGER A. COOKE
-----------------------------------------
Executed: December 5, 1997
ROBERT G. MILLER
--------------------------------------------
Robert G. Miller
Executed: December 5, 1997
8
<PAGE>
APPENDIX A
TO EMPLOYMENT AGREEMENT
BETWEEN
FRED MEYER STORES, INC. (the "Company") and
ROBERT MILER ("Employee")
LONG TERM DISABILITY BENEFITS
1. Definition of "Total Disability".
"Total Disability" means the complete inability of an employee to
perform any and every duty of his or her regular occupation for up to 24 months.
After 24 months, the term "Total Disability" means the complete inability of an
employee to perform any and every duty of any gainful occupation for which he or
she is reasonably fitted by training, education, or experience, or may
reasonably become qualified based on his or her training, education, or
experience.
2. Long Term Disability Benefits.
2.1 Upon receipt of proof that Employee has suffered a Total
Disability as a direct result, independent of all other causes, of an injury or
illness, monthly benefits will be effective after the expiration of the
elimination period, which is the period of six consecutive months of continuous
Total Disability.
2.2 The benefit in the event of Total Disability will be $4,500 per
month.
2.3 The monthly benefit will be reduced by the following:
1. The amount available under any Worker's Compensation law or
similar law.
2. The amount of disability provided under any plan to which the
Company makes contributions on behalf of the Employee.
3. Any disability income benefits provided under an act or law.
1
<PAGE>
4. Disability income benefits provided or available from any
pension plan participated in by the Company.
5. Social Security Disability benefits provided or available.
6. Any salary, sick pay, or other income replacement benefits
provided by the employer.
7. Any retirement income provided or available from the
Employment Agreement between the Company and Employee, or from any Company
sponsored pension or retirement plan, including Social Security retirement
income.
8. Any retirement income provided or available from any prior
employer of Employee.
3. General Limitations.
3.1 No benefits shall be paid with respect to any injury or sickness:
1. Resulting from suicide, attempted suicide, or intentionally
self-inflicted injury, while sane or insane.
2. Resulting from war, whether declared or undeclared, or any act
or hazard of war.
3. Resulting from being engaged in an illegal occupation,
commission of, or attempted commission of an assault or other illegal act,
or resulting from injury caused by participation in a civil insurrection,
rebellion and/or riot.
4. Sustained while on full-time active duty in any branch of the
Armed Forces of any country, except for temporary active duty assignments
of note more than 90 days.
5. Sustained while learning to operate an aircraft, operating or
2
<PAGE>
serving as a crew member of an aircraft, while traveling or flying in any
aircraft operated by or under the direction of any military authority, or
while in any aircraft being used for test or experimental purposes.
6. Resulting from or related to alcoholism, narcotism or the
abuse of other controlled substances.
3.2 Mental Illness Limitation - No benefits are provided with respect
to disabilities due to neuroses, psychoneuroses, psychopathies, psychoses, and
emotional diseases and disorders of any type.
4. Notice and Proof of Claim.
To make a claim for benefits proof of disability must be submitted to
and received by the Company within 20 days after Employee suffers a Total
Disability.
5. Termination of Coverage.
The Long Term Disability benefits provided above will only be provided
if Employee is employed by the Company at the time he suffers a Total
Disability.
3
EXHIBIT 11
FRED MEYER, INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
12 Weeks Ended 40 Weeks Ended
----------------------- -----------------------
Nov. 8, Nov. 9, Nov. 8, Nov. 9,
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Weighted average number of
shares outstanding............................ 78,517 50,770 60,805 52,628
Weighted average number of
shares under option........................... 10,471 8,838 7,173 8,160
Shares assumed to have been
purchased under the
treasury stock method......................... (5,652) (4,222) (3,861) (4,118)
-------- ------- -------- -------
Weighted average number of
common and common equivalent
shares outstanding............................ 83,336 55,386 64,117 56,670
======== ======= ======== =======
Net income (loss) .............................. $(72,933) $ 6,292 $(40,554) $30,909
======== ======= ======== =======
Earnings (loss) per common share................ $ (.88) $ .11 $ (.63) $ .55
======== ======= ======== =======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> NOV-08-1997
<CASH> 117,375
<SECURITIES> 0
<RECEIVABLES> 109,912
<ALLOWANCES> 0
<INVENTORY> 1,200,557
<CURRENT-ASSETS> 1,561,661
<PP&E> 2,659,164
<DEPRECIATION> (717,181)
<TOTAL-ASSETS> 4,573,261
<CURRENT-LIABILITIES> 1,165,813
<BONDS> 1,900,504
0
0
<COMMON> 440
<OTHER-SE> 1,284,585
<TOTAL-LIABILITY-AND-EQUITY> 4,573,261
<SALES> 3,611,323
<TOTAL-REVENUES> 3,611,323
<CGS> 2,534,718
<TOTAL-COSTS> 945,319
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 46,440
<INCOME-PRETAX> 84,846
<INCOME-TAX> 34,190
<INCOME-CONTINUING> 50,656
<DISCONTINUED> 0
<EXTRAORDINARY> (91,210)
<CHANGES> 0
<NET-INCOME> (40,554)
<EPS-PRIMARY> (.63)
<EPS-DILUTED> (.63)
</TABLE>
