<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM 10-Q
Quarterly Report Under Section 13 or 15 (d)
of the Securities Exchange Act of 1934
For 39 Weeks Ended: November 3, 1994 Commission File Number: 1-6187
ALBERTSON'S, INC.
______________________________________________________
(Exact name of Registrant as specified in its charter)
Delaware 82-0184434
_______________________________ ____________________________________
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
250 Parkcenter Blvd., P.O. Box 20, Boise, Idaho 83726
_______________________________________________ __________
(Address) (Zip Code)
Registrant's telephone number, including area code: (208) 385-6200
______________
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 X No
_____ _____
Number of Registrant's $1.00 par value
common shares outstanding at December 9, 1994: 253,784,150
<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
<CAPTION>
ALBERTSON'S, INC.
CONSOLIDATED EARNINGS
(in thousands except per share data)
(unaudited)
13 WEEKS ENDED 39 WEEKS ENDED
________________________ ________________________
November 3, October 28, November 3, October 28,
1994 1993 1994 1993
____________ ___________ ____________ ___________
<S> <C> <C> <C> <C>
Sales $2,928,012 $2,733,773 $8,825,500 $8,221,648
Cost of sales 2,187,602 2,065,716 6,611,423 6,219,527
__________ __________ __________ __________
Gross profit 740,410 668,057 2,214,077 2,002,121
Selling, general and
administrative expenses 569,744 528,368 1,720,913 1,594,765
__________ __________ __________ __________
Operating profit 170,666 139,689 493,164 407,356
Other (expenses) income:
Interest, net (15,384) (4,579) (46,857) (34,037)
Other, net (1,906) (220) (2,143) 2,353
Nonrecurring charge (29,900) (29,900)
__________ __________ __________ __________
Earnings before income taxes
and cumulative effect of
accounting change 153,376 104,990 444,164 345,772
Income taxes 59,050 42,278 171,004 133,053
__________ __________ __________ __________
Earnings before cumulative
effect of accounting change 94,326 62,712 273,160 212,719
Cumulative effect of
accounting change:
Postemployment benefits (6,382)
__________ __________ __________ __________
NET EARNINGS $ 94,326 $ 62,712 $ 266,778 $ 212,719
Earnings per share before
cumulative effect of
accounting change $ .37 $ .25 $1.08 $ .84
Cumulative effect of accounting
change:
Postemployment benefits (.03)
__________ __________ __________ __________
EARNINGS PER SHARE $ .37 $ .25 $1.05 $ .84
DIVIDENDS DECLARED PER SHARE $ .11 $ .09 $ .33 $ .27
Average number of shares
outstanding 253,648 253,218 253,573 254,542
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
ALBERTSON'S, INC.
CONSOLIDATED BALANCE SHEETS
(dollars in thousands)
November 3, 1994 February 3,
(unaudited) 1994
________________ ____________
ASSETS
______
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 67,906 $ 62,463
Accounts and notes receivable 114,211 114,493
Inventories 929,322 871,719
Prepaid expenses 29,100 13,589
Deferred income tax benefits 64,554 59,967
__________ __________
TOTAL CURRENT ASSETS 1,205,093 1,122,231
OTHER ASSETS 119,439 90,810
LAND, BUILDINGS AND EQUIPMENT 3,377,159 3,109,172
Less accumulated depreciation and amortization 1,138,211 1,027,318
__________ __________
2,238,948 2,081,854
__________ __________
$3,563,480 $3,294,895
LIABILITIES AND STOCKHOLDERS' EQUITY
____________________________________
CURRENT LIABILITIES:
Accounts payable $ 626,719 $ 600,376
Notes payable 10,000
Salaries and related liabilities 111,619 101,443
Taxes other than income taxes 60,679 38,095
Income taxes 3,537 48,622
Self-insurance 68,179 58,436
Unearned income 20,113 19,927
Other current liabilities 36,935 30,277
Current maturities of long-term debt 201,635 76,692
Current portion of capitalized lease obligations 6,703 6,194
__________ _________
TOTAL CURRENT LIABILITIES 1,136,119 990,062
LONG-TERM DEBT 458,022 554,092
CAPITALIZED LEASE OBLIGATIONS 117,371 110,919
DEFERRED INCOME TAXES 17,454 28,766
UNEARNED INCOME 21,387 10,825
OTHER LONG-TERM LIABILITIES AND DEFERRED CREDITS 235,607 210,852
STOCKHOLDERS' EQUITY:
Preferred stock - $1 par value; authorized -
10,000,000 shares; issued - none
Common stock - $1 par value; authorized -
600,000,000 shares; issued - 253,712,438
shares and 253,406,983 shares, respectively 253,712 253,407
Capital in excess of par value 6,869 2,117
Retained earnings 1,316,939 1,133,855
__________ _________
1,577,520 1,389,379
__________ _________
$3,563,480 $3,294,895
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
ALBERTSON'S, INC.
CONSOLIDATED CASH FLOWS
(in thousands)
(unaudited)
39 WEEKS ENDED
______________________________
November 3, October 28,
1994 1993
_____________ _____________
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 266,778 $ 212,719
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 165,886 143,695
Net deferred income taxes (11,903) (2,332)
Cumulative effect of accounting change 6,382
Changes in operating assets and liabilities (22,230) (829)
__________ __________
Net cash provided by operating activities 404,913 353,253
CASH FLOWS FROM INVESTING ACTIVITIES:
Net capital expenditures excluding
noncash activities (311,604) (295,247)
Increase in other assets (28,629) (1,647)
__________ __________
Net cash used in investing activities (340,233) (296,894)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net line of credit activity (10,000) (5,000)
Proceeds from long-term borrowings 252,075
Payments on long-term borrowings (80,330) (30,216)
Net commercial paper activity 104,629 47,122
Proceeds from stock options exercised 5,057 3,133
Purchase of treasury shares (517,526)
Net proceeds from issuance of treasury shares 264,527
Cash dividends (78,593) (66,736)
__________ __________
Net cash used in financing activities (59,237) (52,621)
__________ __________
NET INCREASE IN CASH AND CASH EQUIVALENTS 5,443 3,738
CASH AND CASH EQUIVALENTS AT BEGINNING
OF PERIOD 62,463 39,541
__________ __________
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 67,906 $ 43,279
NON-CASH ACTIVITIES:
Capital lease obligations incurred $ 14,081 $ 7,900
Capital lease obligations terminated 2,658 730
Liabilities assumed in connection with
acquisition 112
CASH PAYMENTS FOR:
Income taxes 226,590 163,351
Interest, net of amounts capitalized 37,294 26,579
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
ALBERTSON'S, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Basis of Presentation
_____________________
The accompanying unaudited consolidated financial statements include
the results of operations, account balances and cash flows of the
Company and its wholly-owned subsidiaries. All material intercompany
balances have been eliminated.
In the opinion of management, the accompanying unaudited
consolidated financial statements include all adjustments necessary to
present fairly, in all material respects, the results of operations of
the Company for the periods presented. Such adjustments consisted only
of normal recurring items, except for the cumulative effect adjustment
associated with the adoption of Statement of Financial Accounting
Standards No. 112 recorded in 1994 and a nonrecurring charge for a
lawsuit settlement recorded in 1993. The statements have been prepared
by the Company pursuant to the rules and regulations of the Securities
and Exchange Commission. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. It is suggested that these
consolidated financial statements be read in conjunction with the
consolidated financial statements and the accompanying notes included in
the Company's 1993 Annual Report.
The balance sheet at February 3, 1994 has been taken from the
audited financial statements at that date.
Cumulative Effect of Accounting Change
______________________________________
At the beginning of the 1994 fiscal year, the Company adopted the
provisions of Statement of Financial Accounting Standard (SFAS) No. 112,
"Employers' Accounting for Postemployment Benefits." This statement
requires employers to recognize the obligation for benefits provided to
former or inactive employees after employment but before retirement.
The Company is self-insured for its employees' short-term and long-term
disability plans which are the primary benefits paid to inactive
employees prior to retirement. In prior years, disability benefits have
been charged to expenses under the pay-as-you-go method. The total
cumulative effect of this accounting change (net of $4.0 million in tax
benefits) was to decrease net earnings by $6.4 million or $.03 per
share. As of November 3, 1994, approximately $9.7 million of the
obligation for postemployment benefits is included with other long-term
liabilities and deferred credits and approximately $2.6 million is
included with current salaries and related liabilities.
<PAGE>
Indebtedness
____________
In October 1994, the Company entered into a new revolving credit
agreement with several banks, whereby the Company may borrow principal
amounts up to $400 million at varying interest rates any time prior to
October 5, 1999. A previous $200 million revolving credit agreement was
terminated in conjunction with the new agreement. The current agreement
contains certain covenants, the most restrictive of which requires the
Company to maintain consolidated tangible net worth, as defined, of at
least $750 million.
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
_____________________
Results for the quarter:
Sales for the 13 weeks ended November 3, 1994 increased by
$194,239,000 (7.1%) over sales for the 13 weeks ended October 28, 1993.
This increase was due to improved identical store sales, inflation and
the continued expansion of net retail square footage. Identical store
sales, sales in stores that have been in operation for the equivalent 13
week periods of both years, increased 1.6% and comparable store sales
(which include replacement stores) increased 1.8%. Management estimates
that inflation accounted for approximately 1.0% of the identical store
sales increase. During the quarter six stores were opened, two stores
were closed and six store remodels were completed. Net retail square
footage increased 6.6% from October 28, 1993.
The following table sets forth certain income statement components
expressed as a percent to sales and the year-to-year percentage changes
in the amounts of such components:
Percent To Sales Percentage Incr. (Decr.)
____________________ _________________________
13 Weeks Ended Third Quarter
____________________ _________________________
11-03-94 10-28-93 1994/1993 1993/1992
________ ________ ___________ __________
Sales 100.00% 100.00% 7.1% 5.7%
Gross profit 25.29 24.44 10.8 7.3
Selling, general &
administrative
expenses 19.46 19.33 7.8 5.8
Operating profit 5.83 5.11 22.2 13.7
Net interest
expense 0.53 0.17 236.0 (59.5)
Nonrecurring charge 1.09 N/A
Earnings before
income taxes 5.24 3.84 46.1 (7.7)
Net earnings 3.22 2.29 50.4 (12.3)
Gross profit, as a percent to sales, increased due primarily to the
expansion and increased utilization of the Company's distribution
system. Utilization of the Company's distribution system has enabled
the Company to better control product costs and product distribution.
The pre-tax LIFO charge reduced gross profit by $2,700,000 (0.09% to
sales) for the 13 weeks ended November 3, 1994 as compared to a zero
LIFO charge for the 13 weeks ended October 28, 1993.
Selling, general and administrative expenses, as a percent to sales,
increased due primarily to increased costs associated with the Company's
workers' compensation self-insurance program.
Net interest expense for the 13 weeks ended October 28, 1993
included a reduction of approximately $9.7 million due to the successful
resolution of a tax issue for which interest expense had previously been
<PAGE>
accrued. Excluding the prior year adjustment, net interest expense for
the 13 weeks ended November 3, 1994 would have increased 8.0% over the
same quarter last year as a result of increased interest on capitalized
lease obligations and increased interest rates associated with the
Company's commercial paper program.
Net earnings for the 13 weeks ended October 28, 1993 included a
nonrecurring charge for a lawsuit settlement, a decrease in interest
expense due to the resolution of a tax issue (discussed above) and a
retroactive increase in the Federal income tax rate. Those adjustments
decreased last year's third quarter net earnings by $14.4 million or
$.05 per share.
Year-to-date results:
Sales for the 39 weeks ended November 3, 1994 increased by
$603,852,000 (7.3%) over sales for the 39 weeks ended October 28, 1993.
This increase was due to improved identical store sales, inflation and
the continued expansion of net retail square footage. Identical store
sales, sales in stores that have been in operation for the equivalent 39
week periods of both years, increased 2.6% and comparable store sales
(which include replacement stores) increased 2.9%. Management estimates
that inflation accounted for approximately 1.0% of the identical store
sales increase. During the 39 weeks 26 stores were opened, nine stores
were closed and 23 store remodels were completed.
The following table sets forth certain income statement components
expressed as a percent to sales and the year-to-year percentage changes
in the amounts of such components:
Percent To Sales Percentage Increase
____________________ _________________________
39 Weeks Ended Year-To-Date
____________________ _________________________
11-03-94 10-28-93 1994/1993 1993/1992
________ ________ ___________ __________
Sales 100.00% 100.00% 7.3% 9.8%
Gross profit 25.09 24.35 10.6 12.6
Selling, general &
administrative
expenses 19.50 19.40 7.9 8.1
Operating profit 5.59 4.95 21.1 34.5
Net interest
expense 0.53 0.41 37.7 7.8
Nonrecurring charge 0.36 N/A
Earnings before
income taxes & cum-
ulative effect of
accounting change 5.03 4.21 28.5 25.6
Net earnings 3.02 2.59 25.4 30.1
Gross profit, as a percent to sales, increased due primarily to
expansion and increased utilization of the Company's distribution
system. Utilization of the Company's distribution system has enabled
the Company to better control product costs and product distribution.
The pre-tax LIFO charge reduced gross profit by $24,400,000 (0.28% to
<PAGE>
sales) for the 39 weeks ended November 3, 1994 and $21,600,000 (0.26% to
sales) for the 39 weeks ended October 28, 1993.
Selling, general and administrative expenses for the 39 weeks ended
November 3, 1994 increased due primarily to increased costs associated
with the Company's workers' compensation self-insurance program.
Net interest expense for the 39 weeks ended October 28, 1993
included a reduction of approximately $9.7 million due to the successful
resolution of a tax issue for which interest expense had previously been
accrued. Excluding this adjustment, net interest expense for the 39
weeks ended November 3, 1994 would have increased 7.2% over the prior
year as a result of increased interest on capitalized lease obligations
and increased interest rates associated with the Company's commercial
paper program.
Net earnings for the 39 weeks ended November 3, 1994 included a
cumulative effect for the adoption of Statement of Financial Accounting
Standards No. 112, "Employers' Accounting for Postemployment Benefits"
which reduced net earnings by $.03 per share. Net earnings for the 39
weeks ended October 28, 1993 included a nonrecurring charge for a
lawsuit settlement and a decrease in interest expense due to the
resolution of a tax issue (discussed above) which decreased last year's
net earnings by $.05 per share.
Liquidity and Capital Resources
_______________________________
The Company's operating results continue to enhance its financial
position and ability to fund its capital expansion program from
operating activities. Cash provided by operating activities during the
39 weeks ended November 3, 1994 was $405 million as compared to $353
million in the prior year. During the 39 weeks ended November 3, 1994
the Company spent $312 million for net capital expenditures and $79
million for the payment of dividends. The Company's commercial paper
program is utilized to supplement cash requirements resulting from
seasonal fluctuations created by the Company's capital expenditure
program and changes in working capital. Accordingly, commercial paper
borrowings will fluctuate between the Company's quarterly reporting
periods. In conjunction with its new revolving credit agreement, the
Company's commercial paper program was expanded from $200 million to
$400 million in October, 1994. The revolving credit agreement serves as
alternative funding for the Company's commercial paper program.
Since 1987 the Board of Directors has continuously adopted or
renewed plans under which the Company is authorized, but not required,
to purchase shares of its common stock on the open market. The current
plan was adopted by the Board on March 7, 1994 and authorizes the
Company to purchase up to 2.5 million shares through March 31, 1995.
During the 39 weeks ended November 3, 1994 no shares were purchased
pursuant to this program.
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
__________________________
There have not been any material developments in the Super Food
Services, Inc. lawsuit or the routine litigation referred to in the Form
10-K for the fiscal year ended February 3, 1994.
Item 2. Changes in Securities
______________________________
In October 1994, the Company entered into a revolving credit
agreement with several banks, whereby the Company may borrow, from time
to time, principal amounts up to $400 million at any time prior to
October 5, 1999. In accordance with this revolving credit agreement,
the Company's consolidated tangible net worth, as defined, shall not be
less than $750 million.
Item 3. Defaults upon Senior Securities
________________________________________
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
____________________________________________________________
Not applicable.
Item 5. Other Information
__________________________
Not applicable.
Item 6. Exhibits and Reports on Form 8-K
_________________________________________
a. Exhibits
4.1.4 Fourth Amendment to Stockholders Rights Plan Agreement
(dated September 6, 1994)
10.14 Credit Agreement (dated October 5, 1994)
27 Financial data schedule for the 39 weeks ended
November 3, 1994
b. The following reports on Form 8-K were filed during the
quarter:
None.
<PAGE>
SIGNATURE
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.
ALBERTSON'S, INC.
_________________________________
(Registrant)
Date: December 12, 1994 A. Craig Olson
_____________________ _________________________________
A. Craig Olson
Senior Vice President, Finance
and Chief Financial Officer
FORM 10-Q
1
FOURTH AMENDMENT TO STOCKHOLDER RIGHTS PLAN AGREEMENT
This Fourth Amendment to the STOCKHOLDER RIGHTS PLAN
AGREEMENT, dated as of March 2, 1987, as amended as of August 31, 1987,
November 28, 1988 and September 6, 1989 (the "Rights Agreement"), between
Albertson's, Inc., a Delaware corporation (the "Company") and Chemical Trust
Company
of California as Rights Agent (the "Rights Agent") is dated as of September 6,
1994.
WHEREAS, the Rights Agreement specifies the terms of the Rights (as defined
therein);
WHEREAS, on May 25, 1990, the Company declared a two-for-one stock split on
its common stock, par value $1.00 per share, in the form of a 100% stock
dividend
(collectively referred to with the stock split described in the paragraph below
as the
"Stock Splits") which, pursuant to the provisions of Section 11 of the Rights
Agreement,
caused certain adjustments to occur under the Rights Agreement, including,
among others,
a change in the Purchase Price (as defined in the Rights Agreement) from
$130.00 per
share to $65.00 per share;
WHEREAS, on November 27, 1991, Chemical Trust Company of California was
appointed the Rights Agent in connection with its appointment as Transfer Agent
for the
Company;
WHEREAS, on August 30, 1993, the Company declared a two-for-one stock split
on its common stock, par value $1.00 per share, in the form of a 100% stock
dividend
(collectively referred to with the stock split described in the paragraph above
as the "Stock
Splits") which, pursuant to the provisions of Section 11 of the Rights
Agreement, caused
certain adjustments to occur under the Rights Agreement, including, among
others, a
change in the Purchase Price (as defined in the Rights Agreement) from $65.00
per share
to $32.50 per share;
WHEREAS, the Company and the Rights Agent desire to effect this fourth
amendment (the "Fourth Amendment") to the Rights Agreement in accordance with
Section 27 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Fourth Amendment, the parties hereby
agree as
follows:
1. Section 7(b) of the Rights Agreement is hereby amended in its entirety to
read as follows:
(b) From and after September 6, 1994, the Purchase Price for each share of
Common Stock pursuant to the exercise of a Right shall be $60.00, shall be
subject
to adjustment from time to time as provided in Section 11 hereof and shall be
<PAGE>
payable in lawful money of the United States of America in accordance with
paragraph (c) below.
2. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended hereby.
3. Chemical Trust Company of California agrees to faithfully perform the
duties of the Rights Agent under the Rights Agreement.
4. The foregoing amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full force and
effect and
shall be otherwise unaffected hereby.
5. This Fourth Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed as of September 6, 1994.
ALBERTSON'S, INC.
By: Thomas R. Saldin
Name: Thomas R. Saldin
Title: Executive Vice President,
Administration & General Counsel
CHEMICAL TRUST COMPANY
OF CALIFORNIA
By: Asa Drew
Name: Asa Drew
Title: Assistant Vice President
<PAGE>
EXECUTION COPY
$400,000,000
CREDIT AGREEMENT
dated as of
October 5, 1994
among
ALBERTSON'S, INC.
THE BANKS LISTED HEREIN
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Co-Agent
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.......................... 1
1.02 Accounting Terms and Determinations.. 12
1.03 Types of Borrowings.................. 13
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend.................. 13
2.02 Notice of Committed Borrowings....... 14
2.03 Money Market Borrowings.............. 14
2.04 Notice to Banks; Funding of Loans.... 19
2.05 Notes................................ 20
2.06 Maturity of Loans.................... 21
2.07 Interest Rates....................... 21
2.08 Facility Fees........................ 25
2.09 Optional Termination or
Reduction of Commitments........... 25
2.10 Scheduled Termination
of Commitments..................... 25
2.11 Optional Prepayments................. 26
2.12 General Provisions as to Payments.... 26
2.13 Funding Losses....................... 27
2.14 Computation of Interest and Fees..... 27
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness........................ 28
3.02 Borrowings........................... 29
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence & Power......... 30
4.02 Corporate and Governmental
Authorization; Contravention...... 30
4.03 Binding Effect...................... 30
4.04 Financial Information............... 30
4.05 Litigation.......................... 31
4.06 Compliance with ERISA............... 31
4.07 Taxes............................... 31
4.08 Subsidiaries........................ 32
4.09 Not an Investment Company........... 32
4.10 Environmental Matters............... 32
4.11 Full Disclosure..................... 32
ARTICLE V
COVENANTS
SECTION 5.01 Information......................... 33
5.02 Payment of Obligations.............. 35
5.03 Maintenance of Property; Insurance.. 35
5.04 Conduct of Business and
Maintenance of Existence.......... 36
5.05 Compliance with Laws................ 36
5.06 Inspection of Property,
Books and Records................. 36
5.07 Minimum Consolidated Tangible
Net Worth......................... 37
5.08 Negative Pledge..................... 37
5.09 Consolidations, Mergers and
Sales of Assets................... 39
5.10 Use of Proceeds..................... 39
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default................... 40
6.02 Notice of Default................... 42
<PAGE>
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization....... 42
7.02 Agent and Affiliates................ 43
7.03 Action by Agent..................... 43
7.04 Consultation with Experts........... 43
7.05 Liability of Agent.................. 43
7.06 Indemnification..................... 44
7.07 Credit Decision..................... 44
7.08 Successor Agent..................... 44
7.09 Agent's Fee......................... 45
7.10 Co-Agent............................ 45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair......... 45
8.02 Illegality.......................... 46
8.03 Increased Cost and Reduced Return... 47
8.04 Base Rate Loans Substituted for
Affected Fixed Rate Loans......... 49
8.05 Substitution of Bank................ 49
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices............................. 50
9.02 No Waivers.......................... 50
9.03 Expenses; Documentary Taxes......... 50
9.04 Sharing of Set-Offs................. 51
9.05 Amendments and Waivers.............. 51
9.06 Successors and Assigns.............. 52
9.07 Collateral.......................... 53
9.08 New York Law........................ 54
9.09 Counterparts; Integration........... 54
<PAGE>
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Special Counsel for
the Agent
Exhibit G - Assignment and Assumption Agreement
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of October 5, 1994 among
ALBERTSON'S, INC., the BANKS listed on the signature pages
hereof, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-Agent, and MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a
copy to the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New
York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
<PAGE>
Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
"Base Rate Loan" means a Committed Loan to be made
by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to
Article VIII.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of
the ERISA Group.
"Borrower" means Albertson's, Inc., a Delaware
corporation, and its successors.
"Borrower's 1993 Form 10-K" means the Borrower's
annual report on Form 10-K for 1993, as filed with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
<PAGE>
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable Notice
of Committed Borrowing.
"CD Margin" has the meaning set forth in Section
2.07(b).
"CD Reference Banks" means Bank of America
National Trust and Savings Association and Morgan Guaranty
Trust Company of New York and such additional or alternative
banks as the Borrower and the Agent may mutually agree upon.
"Co-Agent" means Bank of America National Trust
and Savings Association, in its capacity as Co-Agent
hereunder.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.09.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements as of such date.
"Consolidated Tangible Net Worth" means at any
date (x) the consolidated stockholders' equity of the
Borrower and its Consolidated Subsidiaries plus their
consolidated deferred investment tax credits as reflected on
the Borrower's consolidated balance sheet less (y) their
consolidated Intangible Assets, all determined as of such
date. For purposes of this definition, "Intangible Assets"
means the amount (to the extent reflected in determining
such consolidated stockholders' equity) of (i) all write-ups
(other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of
such business) subsequent to August 4, 1994 in the book
<PAGE>
value of any asset owned by the Borrower or a Consolidated
Subsidiary, (ii) all Investments in unconsolidated
Subsidiaries and all equity investments in Persons which are
not Subsidiaries and (iii) all unamortized debt discount and
expense, unamortized deferred charges (except deferred
income taxes), goodwill, patents, trademarks, service marks,
trade names, copyrights, organization or developmental
expenses and other intangible items (except leasehold
improvements and liquor licenses).
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, (iv) all obligations of such
Person as lessee under capital leases, (v) all obligations
to purchase securities (or other property) which arise out
of or in connection with the sale of the same or
substantially similar securities or property, (vi) all
non-contingent obligations (and, for purposes of Section
5.08 and the definition of Material Debt all contingent
obligations) of such Person to reimburse any bank or other
person in respect of amounts paid under a letter of credit
or similar instrument, (vii) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt
is assumed by such Person (viii) all Debt of others
Guaranteed by such Person and (ix) all preferred stock of
such Person redeemable at the option of the holder during
the Facility Period. Insurance reserves, tax reserves and
interest thereon, salaries payable, taxes payable, dividends
payable, trade accounts payable arising in the ordinary
course of business, deferred investment tax credits,
deferred compensation and deferred rents payable under
non-capital leases shall not constitute "Debt".
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close.
<PAGE>
"Domestic Lending Office" means, as to each Bank,
its office, branch or affiliate located at its address set
forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending
Office) or such other office, branch or affiliate as such
Bank may hereafter designate as its Domestic Lending Office
by notice to the Borrower and the Agent; provided that any
Bank may from time to time by notice to the Borrower and the
Agent designate separate Domestic Lending Offices for its
Base Rate Loans, on the one hand, and its CD Loans, on the
other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to
refer to either or both of such offices, as the context may
require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment
or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower and all members
of a controlled group of corporations and all trades or
<PAGE>
businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a
single employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each
Bank, its office, branch or affiliate located at its address
set forth in its Administrative Questionnaire (or identified
in its Administrative Questionnaire as its Euro-Dollar
Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth in
Section 2.07(c).
"Euro-Dollar Reference Banks" means the respective
London offices of Union Bank of Switzerland and Morgan
Guaranty Trust Company of New York and such additional or
alternative banks as the Borrower and the Agent may mutually
agree upon.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Event of Default" has the meaning set forth in
Section 6.01.
"Existing Credit Agreement" means the Amended and
Restated Credit Agreement dated as of March 31, 1992 among
the Borrower, the banks parties thereto and Morgan Guaranty
Trust Company of New York, as agent, as amended to the
Effective Date.
"Facility Period" means the period from the
Effective Date to and including the Termination Date, or if
earlier, the date of the termination of the Commitments in
<PAGE>
their entirety.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person and,
without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such
Debt of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has
a corresponding meaning.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of
<PAGE>
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would
otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month
(or on a day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause
(c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would
otherwise end after the Termination Date shall end
on the Termination Date.
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would
<PAGE>
otherwise end on a day which is not a Euro-Dollar
Business Day shall, subject to clause (b) below,
be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would
otherwise end after the Termination Date shall end
on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 90 days
thereafter; provided that:
(a) any Interest Period which would
otherwise end on a day which is not a Euro-Dollar
Business Day shall, subject to clause (b) below,
be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would
otherwise end after the Termination Date shall end
on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would
otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month
(or on a day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause
(c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would
otherwise end after the Termination Date shall end
on the Termination Date.
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but not
less than 30 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would
otherwise end on a day which is not a Euro-Dollar
Business Day shall, subject to clause (b) below,
be extended to the next succeeding Euro-Dollar
<PAGE>
Business Day; and
(b) any Interest Period which would
otherwise end after the Termination Date shall end
on the Termination Date.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution,
loan, time deposit or otherwise.
"Kathryn Albertson Stock Agreement" means the
agreement dated December 31, 1979 between the Borrower and
Kathryn Albertson, as amended from time to time, and any
successor agreement.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Debt" means Debt (other than the Notes)
of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in
an aggregate outstanding principal amount exceeding
$10,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$10,000,000.
<PAGE>
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a Loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent
designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case
all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make
contributions or has within the preceding five plan years
made contributions, including for these purposes any Person
which ceased to be a member of the ERISA Group during such
five year period.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
<PAGE>
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
"Parent" means, with respect to any Bank, any
Person of which such Bank is a Subsidiary.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.
"Pricing Schedule" means the Schedule attached
hereto identified as such.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Quarterly Date" means, with respect to any fiscal
quarter of the Borrower, the last day of such fiscal
quarter.
<PAGE>
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require.
"Refunding Borrowing" means a Borrowing which,
after application of the proceeds thereof, results in no net
increase in the outstanding principal amount of Loans made
by any Bank.
"Regulation G" means Regulation G of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Regulation T" means Regulation T of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower
(or, if such term is used with reference to another Person,
by such other Person).
"Termination Date" means October 5, 1999 or, if
such day is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day, unless such Euro-Dollar
Business Day falls in another calendar month, in which case
the Termination Date shall be the next preceding Euro-Dollar
Business Day.
<PAGE>
"Theo Albrecht Stiftung Stock Agreement" means the
agreement dated February 15, 1980 among the Borrower, Theo
Albrecht Stiftung (now known as Markus Stiftung) and Theo
Albrecht, as amended by the First Amendment thereto dated as
of April 11, 1984 and as further amended from time to time,
and any successor agreement.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
present value of all benefits under such Plan exceeds (ii)
the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of
ERISA.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock
or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly
owned by the Borrower.
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred
in by the Borrower's independent public accountants) with
the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to
the Banks, except that accounting terms used in Sections
5.07 and 5.08 shall be interpreted, and all accounting
determinations and calculations required to establish
whether the Borrower is or was in compliance with the
requirements of Sections 5.07 and 5.08 shall be prepared in
accordance with generally accepted accounting principles as
in effect on the date hereof, applied on a basis consistent
with the audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries referred to in
<PAGE>
Section 4.04(a).
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of the same
type of one or more Banks to be made to the Borrower
pursuant to Article II on a single date and for a single
Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which all
Banks participate in proportion to their Commitments, while
a "Money Market Borrowing" is a Borrowing under Section 2.03
in which the Bank participants are determined by the Agent
in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the
Facility Period each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to lend to the
Borrower pursuant to this Section from time to time amounts
such that the aggregate principal amount of Committed Loans
by such Bank at any one time outstanding shall not exceed
the amount of its Commitment. Each Borrowing under this
Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02(b)) and shall be
made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.11, prepay Loans and reborrow
at any time during the Facility Period under this Section.
SECTION 2.02. Notice of Committed Borrowing. The
Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 11:00 A.M. (New York City time)
<PAGE>
on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the
third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall
be a Domestic Business Day in the case of a
Domestic Borrowing or a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such
Borrowing are to be CD Loans, Base Rate Loans or
Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing,
the duration of the Interest Period applicable
thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks during
the Facility Period to make offers to make Money Market
Loans to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by telex
or telecopier a Money Market Quote Request substantially in
the form of Exhibit B hereto so as to be received no later
than 11:00 A.M. (New York City time) on (x) the fifth
Euro-Dollar Business Day prior to the date of Borrowing
proposed therein, in the case of a LIBOR Auction or (y) the
Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower
and the Agent shall have mutually agreed and shall have
<PAGE>
notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which
shall be a Euro-Dollar Business Day in the case of
a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing,
which shall be $5,000,000 or a larger multiple of
$1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of
the definition of Interest Period, and
(iv) whether the Money Market Quotes
requested are to set forth a Money Market Margin
or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans
for more than one Interest Period in a single Money Market
Quote Request. No Money Market Quote Request shall be given
within five Euro-Dollar Business Days (or such other number
of days as the Borrower and the Agent may agree) of any
other Money Market Quote Request, unless no Bank shall have
timely submitted a Money Market Quote in response to such
proposed Borrowing or the Borrower shall not have accepted
any of the offers with respect to such proposed Borrowing
notified to it pursuant to 2.03(e).
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission
an Invitation for Money Market Quotes substantially in the
form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
<PAGE>
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 10:00 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the
Agent or such affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than (x)
1:00 P.M. (New York City time) the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the
case of a LIBOR Auction or (y) 9:45 A.M. (New York City
time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction. Subject to Articles III and VI, any
Money Market Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions
of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made,
which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x)
must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal
amount of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate
limitation as to the principal amount of Money
Market Loans for which offers being made by such
<PAGE>
quoting Bank may be accepted,
(C) the duration of the Interest Period
applicable to each Money Market Loan for which
each such offer is being made, subject to the
provisions of the definition of Interest Period,
(D) in the case of a LIBOR Auction, the
margin above or below the applicable London
Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed
as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted
from such base rate,
(E) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the
nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market
Loan, and
(F) the identity of the quoting Bank.
A Money Market Quote may set forth up to five
separate offers by the quoting Bank with respect to each
Interest Period specified in the related Invitation for
Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded
that:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii) of this
Section;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation
for Money Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i) of this Section.
<PAGE>
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) of this Section and (y) of any Money Market
Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request;
provided that any such subsequent Money Market Quote shall
be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error
in such former Money Market Quote. The Agent's notice to
the Borrower shall specify (A) the aggregate principal
amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal
amounts and Money Market Margins or Money Market Absolute
Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market
Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than 11:00 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e) of this Section. In the case of
acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each
Money Market Borrowing may not exceed the
applicable amount set forth in the related Money
Market Quote Request,
<PAGE>
(ii) the principal amount of each Money
Market Borrowing must be $5,000,000 or a larger
multiple of $1,000,000,
(iii) acceptance of offers for each Interest
Period may only be made on the basis of ascending
Money Market Margins or Money Market Absolute
Rates, as the case may be, and
(iv) the Borrower may not accept any offer
that is described in subsection (d)(iii) of this
Section or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which offers are accepted for the related
Interest Period (after giving effect to the acceptance of
all lower Money Market Margins or Money Market Absolute
Rates, as the case may be, properly offered for such
Interest Period), the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may deem
appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower, except pursuant to Section 8.01.
(b) Not later than 12:00 Noon (New York City
time) on the date of each Borrowing, each Bank participating
therein shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York
<PAGE>
City, to the Agent at its address specified in or pursuant
to Section 9.01. Unless the Agent determines that any
applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from
the Banks available to the Borrower at the Agent's aforesaid
address and shall thereafter transfer the funds at the
request of the Borrower.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in
subsection (b) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.12 as the case may be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this
Section 2.04 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank
shall not have so made such share available to the Agent,
such Bank and (if such Bank shall not have repaid such
amount within five Domestic Business Days of demand by the
Agent therefor) the Borrower severally agree to repay to the
Agent within one Domestic Business Day of demand such
corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent,
at the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes.
(a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the
account of its Applicable Lending Office in an amount equal
<PAGE>
to the aggregate unpaid principal amount of such Bank's
Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A with
appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such
Loan then outstanding; provided that the failure of any Bank
to make, and any error or omission in making, any such
recordation or endorsement shall not affect the obligations
of the Borrower hereunder or under the Notes. Each Bank is
hereby irrevocably authorized by the Borrower so to endorse
its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Except as
provided in Section 8.02, each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such
day. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal
<PAGE>
to the sum of 1% plus the rate otherwise applicable to Base
Rate Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum
equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period;
provided that if any CD Loan shall, as a result of clause
(2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such portion shall
bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such
interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 1% plus
the higher of (i) the sum of the CD Margin for such day plus
the Adjusted CD Rate applicable to the Interest Period for
such Loan and (ii) the rate applicable to Base Rate Loans
for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
<PAGE>
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be
the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the unpaid principal amount of the CD
Loan of such CD Reference Bank to which such Interest Period
applies and having a maturity comparable to such Interest
Period. The CD Base Rate calculation will be provided by
the Agent to the Borrower.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Adjusted
CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. ' 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
<PAGE>
the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100 of 1%) by dividing (i)
the applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply for
a period of time comparable to such Interest Period. The
London Interbank Offered Rate calculation will be provided
by the Agent to the Borrower.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
<PAGE>
United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid, at a rate per annum equal to the higher
of (i) the sum of 1% plus the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate
applicable to the Interest Period for such Loan and (ii) the
sum of 1% plus the Euro-Dollar Margin for such day plus the
quotient obtained (rounded upwards, if necessary, to the
next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may elect)
deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Euro-Dollar Reference
Banks are offered to such Euro-Dollar Reference Bank in the
London interbank market for the applicable period determined
as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 1% plus the rate determined in
accordance with Section 8.01 for such day).
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
<PAGE>
intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the
rate applicable to Base Rate Loans for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated
by this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if
none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Facility Fees. During the Facility
Period, the Borrower shall pay to the Agent for the account
of the Banks ratably in proportion to their Commitments a
facility fee at the Facility Fee Rate (determined daily in
accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to
but excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on the
daily aggregate amount of the Commitments (whether used or
unused) and (ii) from and including the Termination Date or
such earlier date of termination to but excluding the date
the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
Accrued fees under this Section shall be payable quarterly
on each Quarterly Date during the Facility Period and upon
the date of termination of the Commitments in their entirety
(and, if later, the date the Loans shall be repaid in their
entirety).
SECTION 2.09. Optional Termination or Reduction
of Commitments. During the Facility Period, the Borrower
may, upon at least three Domestic Business Days' notice to
the Agent, (i) terminate the Commitments at any time, if no
<PAGE>
Loans are outstanding at such time or (ii) ratably reduce
from time to time by an aggregate amount of $5,000,000 or
any larger multiple thereof, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal
amount of the Loans.
SECTION 2.10. Scheduled Termination of
Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. Optional Prepayments. (a) The
Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) in whole at any time by paying
the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.02, the
Borrower may not prepay all or any portion of the principal
amount of any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees and other amounts
payable hereunder, not later than 5:00 P.M. (New York City
time) on the date when due, in Federal or other funds
immediately available in New York City, to the Agent at its
address referred to in Section 9.01 and shall provide to the
Agent, at its request, by 12:00 Noon (New York City time) on
such date the confirmation number for the wire transfer of
such funds through the Federal Reserve System's wire
transfer system to the Agent. The Agent will promptly
distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks.
<PAGE>
Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees or other amounts payable shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan (pursuant to Article VI or VIII or otherwise
(except pursuant to Section 8.02)) on any day other than the
last day of the Interest Period applicable thereto, or the
end of an applicable period fixed pursuant to Section
2.07(d), or if the Borrower fails to borrow any Fixed Rate
Loans after notice has been given to any Bank in accordance
with Section 2.04(a), the Borrower shall reimburse each Bank
on demand for any resulting loss or expense incurred by it
(or by an existing or prospective Participant in the related
<PAGE>
Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after
any such payment or failure to borrow, provided that such
Bank shall have delivered to the Borrower a certificate as
to the amount of such loss or expense, which certificate
shall set forth in reasonable detail the basis for
requesting such amount and shall be conclusive in the
absence of manifest error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement
shall become effective on the date that each of the
following conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof
signed by each of the parties hereto (or, in the case
of any party as to which an executed counterpart shall
not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Agent of a duly executed Note
for the account of each Bank dated on or before the
Effective Date complying with the provisions of Section
2.05;
(c) receipt by the Agent of an opinion of the
<PAGE>
General Counsel or Assistant General Counsel of the
Borrower, substantially in the form of Exhibit E hereto
and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(d) receipt by the Agent of an opinion of Davis
Polk & Wardwell, special counsel for the Agent,
substantially in the form of Exhibit F hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(e) receipt by the Agent of all documents the
Agent may reasonably request relating to the existence
of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other
matters relevant hereto, all in form and substance
satisfactory to the Agent; and
(f) receipt by the Agent of evidence satisfactory
to it of the payment of all principal of and interest
on any loans outstanding under, and of all other
amounts payable under, the Existing Credit Agreement;
provided that this Agreement shall not become effective or
be binding on any party hereto unless all of the foregoing
conditions are satisfied not later than October 12, 1994.
The Agent shall promptly notify the Borrower and the Banks
of the Effective Date, and such notice shall be conclusive
and binding on all parties hereto. The Banks that are
parties to the Existing Credit Agreement, comprising the
"Required Banks" as defined therein, and the Borrower agree
that the commitments under the Existing Credit Agreement
shall terminate in their entirety simultaneously with and
subject to the effectiveness of this Agreement, that the
Borrower shall be obligated to pay the accrued commitment
and facility fees thereunder to but excluding the date of
such effectiveness and that upon and subject to such
effectiveness, all obligations of the Borrower under the
Existing Credit Agreement (other than its obligations under
Sections 8.03 and 9.03 thereof) shall terminate. The notes
issued by the Borrower pursuant to the Existing Credit
Agreement shall be void on and after the Effective Date, and
each Bank which is a party to the Existing Credit Agreement
<PAGE>
hereby agrees promptly to return the note issued to it to
the Borrower.
SECTION 3.02. Borrowings. The obligation of any
Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as
the case may be;
(b) the fact that, immediately after such
Borrowing, the aggregate outstanding principal
amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately after such
Borrowing, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and
warranties of the Borrower contained in this
Agreement (except, in the case of a Refunding
Borrowing, the representation and warranty set
forth in Section 4.04(c) as to any material
adverse change which has theretofore been
disclosed in writing by the Borrower to the Banks)
shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (b), (c)
and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
<PAGE>
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; Contravention. The execution, delivery and
performance by the Borrower of this Agreement and the Notes
are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
the Borrower or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
and each Note, when executed and delivered in accordance
with this Agreement, will constitute a valid and binding
obligation of the Borrower, in each case enforceable in
accordance with its terms.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of February 3,
1994 and the related consolidated statements of earnings,
cash flows and stockholders' equity for the fiscal year then
ended, reported on by Deloitte & Touche and set forth or as
incorporated by reference in the Borrower's 1993 Form 10-K,
a copy of which has been delivered to each of the Banks,
fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position
of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash
flows for such fiscal year.
(b) The unaudited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of August
<PAGE>
4, 1994 and the related unaudited consolidated statements of
earnings and cash flows for the twenty-six weeks then ended,
set forth in the Borrower's quarterly report for the twenty-
six weeks ended August 4, 1994 filed with the Securities and
Exchange Commission on Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles
applied on a basis consistent with the financial statements
referred to in paragraph (a) of this Section, the
consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such
twenty-six week period (subject to normal year-end
adjustments).
(c) Since August 4, 1994 there has been no
material adverse change in the business, financial position,
results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as disclosed in
the Borrower's 1993 Form 10-K, there is no action, suit or
proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or
any of its Subsidiaries before any court or arbitrator or
any governmental body, agency or official in which there is
a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries, considered
as a whole, or which in any manner draws into question the
validity of this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Code with respect to each Plan.
SECTION 4.07. Taxes. The Borrower and its
Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns which are
required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment
<PAGE>
received by the Borrower or any Subsidiary. The charges,
accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate.
SECTION 4.08. Subsidiaries. Each of the
Borrower's corporate Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
SECTION 4.09. Not an Investment Company. The
Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.10. Environmental Matters. In the
ordinary course of its business, the Borrower considers the
effect of Environmental Laws on the business, operations and
properties of the Borrower and its Subsidiaries as such
business, operations and properties exist at the time. On
this basis, the Borrower has reasonably concluded that
Environmental Laws at the time in effect are unlikely to
have a material adverse effect on the business, financial
condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or any
Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent
or any Bank will be, true and accurate in all material
respects on the date as of which such information is stated
or certified.
ARTICLE V
COVENANTS
<PAGE>
The Borrower agrees that, so long as any Bank has
any Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks:
(a) as soon as available and in any event
within 120 days after the end of each fiscal year
of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related
consolidated statements of earnings, cash flows
and stockholders' equity for such fiscal year,
setting forth in each case in comparative form the
figures for the previous fiscal year, all reported
on in a manner acceptable to the Securities and
Exchange Commission by Deloitte & Touche or other
independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event
within 60 days after the end of each of the first
three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of
the end of such quarter and the related
consolidated statements of earnings for such
quarter and for the portion of the Borrower's
fiscal year ended at the end of such quarter and
the related consolidated statement of cash flows
for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in
comparative form the corresponding statements for
the corresponding portions of the Borrower's
previous fiscal year, all certified (subject to
normal year-end adjustments) as to fairness of
presentation, generally accepted accounting
principles and consistency by the chief financial
officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each
set of financial statements referred to in clauses
(a) and (b) above, a certificate of the chief
<PAGE>
financial officer or the chief accounting officer
of the Borrower (i) setting forth in reasonable
detail the calculations required to establish
whether the Borrower was in compliance with the
requirements of Section 5.07 on the date of such
financial statements; (ii) stating whether the
Borrower was in compliance with Section 5.08 on
the date of such financial statements and (iii)
stating whether any Default exists on the date of
such certificate and, if any Default then exists,
setting forth the details thereof and the action
which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each
set of financial statements referred to in clause
(a) above, a statement of the firm of independent
public accountants which reported on such
statements (i) whether anything has come to their
attention to cause them to believe that any
Default existed on the date of such statements and
(ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default,
a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth
the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of
all financial statements, reports and proxy
statements so mailed and not previously delivered
to each Bank pursuant to this Section 5.01;
(g) promptly upon the filing thereof, copies
of all registration statements (other than the
exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Borrower shall have filed with the
Securities and Exchange Commission and not
previously delivered to each Bank pursuant to this
<PAGE>
Section 5.01;
(h) if and when any member of the ERISA
Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given
or is required to give notice of any such
reportable event, a copy of the notice of such
reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of
ERISA, or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under
Section 412 of the Code, a copy of such
application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA,
a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the
chief financial officer or the chief accounting
officer of the Borrower setting forth details as
to such occurrence and action, if any, which the
Borrower or applicable member of the ERISA Group
is required or proposes to take; and
(i) from time to time such additional
information regarding the consolidated financial
position of the Borrower as the Agent, at the
<PAGE>
request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The
Borrower will pay and discharge, and will cause each
Subsidiary to pay and discharge, at or before maturity, all
their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where
the same may be contested in good faith by appropriate
proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally
accepted accounting principles, appropriate reserves for the
accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each
Subsidiary to keep, all property useful and necessary in its
business in good working order and condition, ordinary wear
and tear excepted; provided that, subject to the
requirements of Section 5.09, the Borrower and each of its
Subsidiaries may discontinue operations and dispose of
property in the normal conduct of its business.
(b) The Borrower will maintain, and will cause
each Subsidiary to maintain with financially sound and
reputable insurance companies, insurance on all their real
and personal property in at least such amounts and against
at least such risks (and with such risk retention) as are
usually insured against by companies of established repute
engaged in the same or similar business as the Borrower or
such Subsidiary, and the Borrower will promptly furnish to
the Banks such information as to insurance carried as may be
reasonably requested in writing by the Agent.
SECTION 5.04. Conduct of Business and Maintenance
of Existence. The Borrower will continue, and will cause
each Subsidiary to continue, to engage in business of the
same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full
force and effect, and will cause each Subsidiary to
preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the
normal conduct of business; provided that, subject to the
requirements of Section 5.09, the Borrower may (a)
<PAGE>
discontinue operations or dispose of property in the normal
conduct of its business and (b) cause the dissolution of
Subsidiaries as it may from time to time reasonably deem
necessary or desirable in the conduct of its business.
SECTION 5.05. Compliance with Laws. The Borrower
will comply, and cause each Subsidiary to comply, in all
material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder)
except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each
Subsidiary to keep, proper books of record and account in
which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and
activities. Upon the occurrence and during the continuance
of a Default, the Borrower will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such
Bank's expense, to examine any of their respective books and
records (except as they relate to the Borrower's trade
secrets or other proprietary information of the Borrower
other than any information required to be delivered to the
Banks by the Borrower under Section 5.01) and to discuss
their respective finances and accounts with their respective
officers, employees and independent public accountants, all
at such reasonable times and as often as may reasonably be
desired. The Agent and each of the Banks agree to keep
confidential any information obtained pursuant to this
Section 5.06 or Section 5.01 (i) which the Borrower clearly
indicates in writing to be confidential information;
provided that nothing herein shall prevent the Agent or any
Bank from disclosing such information (i) to the Agent or
any Bank, (ii) to any affiliate of the Agent or any Bank or
the independent auditors of the Agent or any Bank or any
actual or potential purchaser, participant, assignee or
transferee of any Bank's rights or obligations hereunder or
under any Note that agrees in writing to be bound by the
confidentiality provisions of this Section 5.06, (iii) upon
the order of any court or administrative agency, (iv) upon
the request or demand of any regulatory agency or authority
having jurisdiction over such party, (v) which has been
<PAGE>
publicly disclosed by the Borrower or published in any
newspaper or periodical, (vi) which has been obtained from
any Person that is not a party hereto or an affiliate of any
such party, (vii) in connection with the exercise of any
remedy hereunder or under any Note or (viii) as otherwise
expressly contemplated by this Agreement or required by law.
SECTION 5.07. Minimum Consolidated Tangible Net
Worth. Consolidated Tangible Net Worth shall at no time be
less than $750,000,000; provided that upon either (a) the
purchase from time to time of common stock of the Borrower
by the Borrower from one or more of Kathryn Albertson, her
estate or donees pursuant to the terms of the Kathryn
Albertson Stock Agreement, or (b) the purchase from time to
time of common stock of the Borrower by the Borrower from
Theo Albrecht or from Theo Albrecht Stiftung (now known as
Markus Stiftung) pursuant to the terms of the Theo Albrecht
Stiftung Stock Agreement, whichever of (a) or (b) first
occurs, Consolidated Tangible Net Worth shall be increased,
for purposes of subsequent calculations hereunder, by an
amount equal to the excess (if any) of (i) the amount by
which the purchase price of such common stock reduces
Consolidated Tangible Net Worth over (ii) the amount by
which Consolidated Tangible Net Worth has been increased
through the sale of common stock subsequent to the date of
such purchase, excluding the effect of the exercise of
employee stock options, all as determined in accordance with
generally accepted accounting principles.
SECTION 5.08. Negative Pledge. Neither the
Borrower nor any Consolidated Subsidiary will create, assume
or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this
Agreement securing Debt outstanding on the date of
this Agreement in an aggregate principal amount
not exceeding $275,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Consolidated Subsidiary and not created in
contemplation of such event;
<PAGE>
(c) any Lien on any asset securing Debt
incurred or assumed for the purpose of financing
all or any part of the cost of acquiring such
asset, provided that (i) in the case of land
acquired for the purpose of constructing new
business or operating facilities thereon, (x) such
Lien attaches to such land within 24 months after
the acquisition thereof and (y) construction of
such new business or operating facilities thereon
is substantially complete within 24 months after
the acquisition of such land and (ii) in the case
of any asset other than an asset of the type
described in the preceding clause (i), such Lien
attaches to such asset concurrently with or within
180 days after the acquisition thereof;
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any asset prior to
the acquisition thereof by the Borrower or a
Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that
such Debt is not increased and is not secured by
any additional assets;
(g) Liens arising in the ordinary course of
its business which (i) do not secure Debt and (ii)
do not in the aggregate materially detract from
the value of its assets or materially impair the
use thereof in the operation of its business;
(h) Liens arising from the Borrower's
pledging of equipment, not otherwise permitted by
the foregoing clauses of this Section, securing
Debt in an aggregate principal amount at any time
outstanding not to exceed $100,000,000; and
<PAGE>
(i) Liens on real property; provided that
the aggregate value of real property owned by the
Borrower (not including for purposes of this
proviso any real property acquired or held by the
Borrower subject to the interest of a lessor under
a capital lease relating to such real property),
as determined on a lower of cost or Fair Market
Value basis, exceeds the aggregate principal
amount of Debt secured by Liens on such real
property in an amount not less than $250,000,000.
For the purposes of Section 5.08(i), "Fair Market Value"
means with respect to any real property of the Borrower or
any Subsidiary at any date the open market cash purchase
price that an informed and willing purchaser would pay for
such real property in an arm's length transaction to a
willing and informed owner under no compulsion to sell, all
as determined (1) if no Default has occurred and is
continuing, at the option of the Required Banks either (i)
in good faith by the Board of Directors of the Borrower or
(ii) by an appraisal conducted by an independent appraiser
satisfactory to the Agent and the Borrower, the cost of such
appraisal to be shared equally by the Borrower and the
Banks, and (2) if a Default has occurred and is continuing,
by an appraisal conducted by an independent appraiser
satisfactory to the Agent and the Borrower, the cost of such
appraisal to be borne solely by the Borrower.
SECTION 5.09. Consolidations, Mergers and Sales
of Assets. The Borrower will not (i) consolidate or merge
with or into any other Person or (ii) directly or indirectly
sell, lease or otherwise transfer all or any substantial
part of the assets of the Borrower and its Consolidated
Subsidiaries, considered as a whole, to any other Person;
provided that the Borrower may merge with another person if
(A) the Borrower is the corporation surviving such merger
and (B) immediately after giving effect to such merger, no
Default shall have occurred and be continuing.
SECTION 5.10. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for general corporate purposes. None of such
proceeds will be used in violation of Regulation G,
Regulation T, Regulation U or Regulation X.
<PAGE>
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due
any principal of any Loan, or shall fail to pay
within ten days of the due date thereof any
interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or
perform any covenant contained in Sections 5.07 to
5.10, inclusive;
(c) the Borrower shall fail to observe or
perform any covenant or agreement contained in
this Agreement (other than those covered by clause
(a) or (b) above) for 15 Euro-Dollar Business Days
after notice thereof has been given to the
Borrower by the Agent at the request of any Bank;
(d) any representation, warranty,
certification or statement made by the Borrower in
this Agreement or in any certificate, financial
statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect
in any material respect when made (or deemed
made);
(e) the Borrower or any Subsidiary shall
fail to make any payment of principal, premium or
interest in respect of any Material Debt when due
or within any applicable grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt or enables (or, with the giving of
notice or lapse of time or both, would enable) the
holder of such Debt or any Person acting on such
<PAGE>
holder's behalf to accelerate the maturity
thereof;
(g) the Borrower or any Subsidiary shall
commence a voluntary case or other proceeding
seeking liquidation, reorganization or other
relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, or shall consent
to any such relief or to the appointment of or
taking possession by any such official in an
involuntary case or other proceeding commenced
against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally
to pay its debts as they become due, or shall take
any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding
shall be commenced against the Borrower or any
Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, and such
involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against
the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess
of $10,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for
<PAGE>
premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current payment
obligation in excess of $10,000,000;
(j) a judgment or order for the payment of
money in excess of $10,000,000 shall be rendered
against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 40% or more
of the outstanding shares of common stock of the
Borrower; or, during any period of 12 consecutive
calendar months, individuals who were directors of
the Borrower on the first day of such period shall
cease to constitute a majority of the board of
directors of the Borrower;
then, and in every such event, the Agent shall (i) if
requested by Banks having more than 50% in aggregate amount
of the Commitments, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the
Borrower declare the Notes (together with accrued interest
thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by the Borrower; provided that in the case of any of
the Events of Default specified in clause (g) or (h) above
with respect to the Borrower, without any notice to the
Borrower or any other act by the Agent or the Banks, the
<PAGE>
Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon) shall become
immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same
rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though
it were not the Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower
as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
(i) the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI and (ii) the Agent shall not have and shall not
be deemed to have any fiduciary relationship with any Bank.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
<PAGE>
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness
or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The
Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent, the Co-Agent or any other Bank, and based on
<PAGE>
such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent, the Co-
Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and
the Borrower. Upon any such resignation, the Required Banks
shall have the right to appoint a successor Agent with the
consent of the Borrower, which consent shall not be
unreasonably withheld or delayed; provided that no such
consent shall be required if the successor Agent so
appointed is a Bank or if an Event of Default has occurred
and is continuing. If no successor Agent shall have been so
appointed, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Banks, and without the Borrower's consent, appoint a
successor Agent, which shall be either a Bank or a
commercial bank organized under the laws of the United
States of America or of any State thereof and having a
combined capital and surplus of at least $1,000,000,000.
Upon the acceptance of its appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder
accruing after the date of such acceptance. After any
retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Borrower shall
pay to the Agent for its own account fees in the amounts and
at the times previously agreed upon between the Borrower and
the Agent.
SECTION 7.10. Co-Agent. Bank of America National
Trust and Savings Association as Co-Agent shall have no
right, power, obligation, liability, responsibility or duty
<PAGE>
under this Agreement other than those applicable to all
Banks as such. Without limiting the foregoing, Bank of
America National Trust and Savings Association shall not
have and shall not be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it
has not relied, and will not rely, on Bank of America
National Trust and Savings Association in deciding to enter
this Agreement or in taking or not taking action hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing (other than
a Money Market Absolute Rate Borrowing):
(a) the Agent is advised by the Reference
Banks that deposits in dollars (in the applicable
amounts) are not being offered to the Reference
Banks in the relevant market for such Interest
Period, or
(b) in the case of a Committed Borrowing,
Banks having 50% or more of the aggregate amount
of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank
Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect
the cost to such Banks of funding their CD Loans
or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the Agent
at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
<PAGE>
previously been given that it elects not to borrow on such
date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base
Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
Money Market LIBOR Borrowing, the Money Market LIBOR Loans
comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base
Rate for such day. Nothing in this Section 8.01 shall
affect the right of the Borrower pursuant to (and in
accordance with) Article II to borrow Loans of a type not
affected by the circumstances giving rise to the application
of this Section 8.01.
SECTION 8.02. Illegality. If, on or after the
date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change in any applicable law,
rule or regulation or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or
its Euro-Dollar Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant
to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully
continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon, without
penalty. Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal
<PAGE>
principal amount from such Bank (which shall bear interest
at a rate equal to the Prime Rate plus or minus a percentage
such that the interest rate borne by such Base Rate Loan
shall equal the interest rate borne by the related
Euro-Dollar Loans of the other Banks and on which interest
and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and such Bank
shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If, on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable
law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(i) shall subject any Bank (or its
Applicable Lending Office) to any tax, duty or
other charge with respect to its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate
Loans, or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending
Office) of the principal of or interest on its
Fixed Rate Loans or any other amounts due under
this Agreement in respect of its Fixed Rate Loans
or its obligation to make Fixed Rate Loans (except
for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending
Office imposed by the jurisdiction in which such
Bank's principal executive office or Applicable
Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding (A) with respect
to any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage and (B) with
<PAGE>
respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve
Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate)
or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Bank
(or its Applicable Lending Office) or shall impose on
any Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the
London interbank market any other condition affecting
its Fixed Rate Loans, its Note or its obligation to
make Fixed Rate Loans;
and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of
making or maintaining any Fixed Rate Loan, or to reduce the
amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under
its Note with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, on or
after the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change
in any such law, rule or regulation or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such bank (or its
Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration such Bank's
policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time,
within 15 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its
<PAGE>
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation
will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts
to be paid to it hereunder and in reasonable detail the
basis for requesting such amount or amounts shall be
conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and
attribution methods. Notwithstanding the foregoing
subsections (a) and (b) of this Section 8.03, the Borrower
shall only be obligated to compensate any Bank for any
amount arising or accruing during (i) any time or period
commencing not more than 30 days prior to the date on which
such Bank notifies the Agent and the Borrower that it
proposes to demand such compensation and identifies to the
Agent and the Borrower the statute, regulation or other
basis upon which the claimed compensation is or will be
based and (ii) any time or period during which, because of
the retroactive application of such statute, regulation or
other such basis, such Bank did not know that such amount
would arise or accrue.
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least
five Euro-Dollar Business Days' prior notice to such Bank
through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made
by such Bank as CD Loans or Euro-Dollar Loans, as
the case may be, shall be made instead as Base
<PAGE>
Rate Loans (on which interest and principal shall
be payable contemporaneously with the related
Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or
Euro-Dollar Loans, as the case may be, has been
repaid, all payments of principal which would
otherwise be applied to repay such Fixed Rate
Loans shall be applied to repay its Base Rate
Loans instead.
SECTION 8.05. Substitution of Bank. If (i) the
obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03, the Borrower shall
have the right, with the assistance of the Agent, to seek a
substitute bank or banks (which may be one or more of the
Banks) satisfactory to the Borrower and the Agent to
purchase the Notes and assume the Commitment of such Bank.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, telecopy or similar
writing) and shall be given to such party: (x) in the case
of the Borrower or the Agent, at its address or telex or
telecopier number set forth on the signature pages hereof,
(y) in the case of any Bank, at its address or telex or
telecopier number set forth in its Administrative
Questionnaire or (z) in the case of any party, at such other
address or telex or telecopier number as such party may
hereafter specify for the purpose by notice to the Agent and
the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received,
(ii) if given by mail, upon the earlier of five days after
such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or actual
<PAGE>
receipt thereof, (iii) if given by telecopier, when such
communication is transmitted to the telecopier number
specified in this Section 9.01 and the sender of such
communication has received verbal confirmation of its
receipt or (iv) if given by any other means, when delivered
at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall
not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by
the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The
Borrower shall pay (i) all out-of-pocket expenses of the
Agent, including fees and disbursements of special counsel
for the Agent, in connection with the preparation of this
Agreement, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder and (ii)
if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent or any Bank, including (without
duplication) the fees and disbursements of outside counsel
and the reasonable allocated cost of internal counsel, in
connection with such Event of Default and collection and
other enforcement proceedings resulting therefrom. The
Borrower shall indemnify each Bank against any transfer
taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and
delivery of this Agreement or the Notes.
SECTION 9.04. Sharing of Setoffs. Each Bank
agrees that if it shall, by exercising any right of setoff
or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest
due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other
<PAGE>
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest
with respect to the Notes held by the Banks shall be shared
by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of
setoff or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Notes.
The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such
participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal
of or rate of interest on any Loan or any fees hereunder,
(iii) postpone the date fixed for any payment of principal
of or interest on any Loan or any fees hereunder or (iv)
change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of
Banks, which shall be required for the Banks or any of them
to take any action under this Section or any other provision
of this Agreement.
SECTION 9.06. 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, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
<PAGE>
participating interests in its Commitment or any or all of
its Loans. Each Bank shall promptly notify the Borrower of
any participating interest granted by it in its Commitment.
In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the
Borrower and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such
participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) Section
9.05 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided
in its participation agreement, be entitled to the benefits
of Article VIII with respect to its participating interest.
An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a
participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or a proportionate part (equivalent to an initial Commitment
of not less than $10,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially
the form of Exhibit G hereto executed by such Assignee and
such transferor Bank, with (and subject to) the prior
written consent of the Borrower and the Agent; provided that
if an Assignee is the Parent of such transferor Bank, or a
Subsidiary of such transferor Bank or of its Parent, or was
a Bank immediately prior to such assignment, no such consent
shall be required; and provided further that such assignment
may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans. Upon execution
<PAGE>
and delivery of such instrument and payment by such Assignee
to such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee,
such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption,
and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 than such Bank would have
been entitled to receive with respect to the rights
transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Applicable Lending Office under
certain circumstances.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. New York Law. This Agreement and
each Note shall be construed in accordance with and governed
by the law of the State of New York.
SECTION 9.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
<PAGE>
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
<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.
ALBERTSON'S, INC.
By
Title:
250 Parkcenter Blvd.
Box 20
Boise, ID 83726
Attention: Finance Department
Telecopier: (208) 385-6539
Commitments
$75,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
Title:
$75,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Title:
$50,000,000 NATIONSBANK OF TEXAS, N.A.
By
Title:
<PAGE>
$35,000,000 UNION BANK OF SWITZERLAND
By
Title:
By
Title:
$35,000,000 WACHOVIA BANK OF GEORGIA, NATIONAL
ASSOCIATION
By
Title:
$30,000,000 CREDIT SUISSE
By
Title:
By
Title:
$30,000,000 FIRST INTERSTATE BANK OF OREGON,
N.A.
By
Title:
<PAGE>
$25,000,000 SUN BANK, NATIONAL ASSOCIATION
By
Title:
$15,000,000 FIRST SECURITY BANK OF IDAHO,
N.A.
By
Title:
$15,000,000 U.S. BANK OF WASHINGTON, N.A.
By
Title:
$15,000,000 WEST ONE BANK, IDAHO
By
Title:
Total Commitments
$400,000,000
============
<PAGE>
BANK OF AMERICA NATIONAL TRUST
and SAVINGS ASSOCIATION,
as Co-Agent
By
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
Title:
60 Wall Street
New York, New York 10260-0060
Attention:___________________
Telex number: 177615
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin", and
"Facility Fee Rate" for any day are the respective
percentages set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
Status
Level
I
Level
II
Level
III
Euro-Dollar
Margin
0.17%
0.20%
0.30%
CD Margin
0.295%
0.325%
0.425%
Facility Fee
<PAGE>
Rate
0.08%
0.10%
0.15%
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Status" exists at any date if, at such
date, the Borrower's long-term debt is rated AA- or higher
by S&P and Aa3 or higher by Moody's.
"Level II Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated A- or
higher by S&P and A3 or higher by Moody's and (ii) Level I
Status does not exist.
"Level III Status" exists at any date if, at such
date, neither Level I Status nor Level II Status exists.
"Moody's" means Moody's Investors Service, Inc.,
and its successors.
"S&P" means Standard & Poor's Ratings Group, and
its successors.
"Status" refers to the determination of which of
Level I Status, Level II Status or Level III Status exists
at any date.
The credit ratings to be utilized for purposes of
this Schedule are those assigned to the senior unsecured
long-term debt securities of the Borrower without third-
party credit enhancement, and any rating assigned to any
other debt security of the Borrower shall be disregarded.
The rating in effect at any date is that in effect at the
close of business on such date.
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19__
For value received, Albertson's, Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order
of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on
the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States
in Federal or other immediately available funds at the
office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types
and maturities thereof and all repayments of the principal
thereof shall be recorded by the Bank and, if the Bank so
elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding
may be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make,
and any error or omission in making, any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of October 5, 1994 among the
Borrower, the Banks parties thereto, Bank of America
National Trust and Savings Association, as Co-Agent, and
Morgan Guaranty Trust Company of New York, as Agent (as the
same may be amended from time to time, the "Credit
<PAGE>
Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof
and the acceleration of the maturity hereof.
ALBERTSON'S, INC.
By____________________
Title:
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of
Type of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York, as
Agent (the "Agent")
From: Albertson's, Inc. (the "Borrower")
Re: Credit Agreement (the "Credit Agreement") dated as
of October 5, 1994 among the Borrower, the Banks
parties thereto, Bank of America National Trust
and Savings Association, as Co-Agent, and the
Agent
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to
them in the Credit Agreement.
ALBERTSON'S, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Albertson's, Inc. (the
"Borrower")
Pursuant to Section 2.03 of the Credit Agreement
dated as of October 5, 1994 among the Borrower, the Banks
parties thereto, Bank of America National Trust and Savings
Association, as Co-Agent, and the undersigned, as Agent, we
are pleased on behalf of the Borrower to invite you to
submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money
Market [Margin] [Rate]. [The applicable base rate is the
London Interbank Offered Rate.]
Please respond to this invitation by no later than
[2:00 P.M.] [10:00 A.M.] (New York City time) on [date].
Capitalized terms used herein have the meanings
assigned to them in the Credit Agreement.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Agent
By______________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
60 Wall Street
New York, New York 10260-0060
Attention: Funding Services - Loan Sale Group
Re: Money Market Quote to
Albertson's, Inc. (the "Borrower")
In response to your invitation on behalf of the
Borrower dated _____________, 19__, we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market [Absolute
Amount Period [Margin] Rate]
$
$
[provided that the aggregate principal amount of Money Market Loans
for which the
above offers may be
accepted shall
not exceed $____________.]**
<PAGE>
We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the applicable
conditions set forth in the Credit Agreement dated as of
October 5, 1994 (the "Credit Agreement") among the Borrower,
the Banks parties thereto, Bank of America National Trust
and Savings Association, as Co-Agent, and yourselves, as
Agent, irrevocably obligates us to make the Money Market
Loan(s) for which any offer(s) are accepted, in whole or in
part.
Capitalized terms used herein have the meanings
assigned to them in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I have acted as counsel for Albertson's, Inc. (the
"Borrower") in connection with the Credit Agreement (the
"Credit Agreement") dated as of October 5,1994 among the
Borrower, the banks parties thereto, Bank of America
National Trust and Savings Association, as Co-Agent, and
Morgan Guaranty Trust Company of New York, as Agent. Terms
defined in the Credit Agreement are used herein as therein
defined.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the
opinion that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of Delaware, and has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
<PAGE>
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrower or result in the
creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes constitute
valid and binding obligations of the Borrower, in each case
enforceable in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and by
general principles of equity.
4. Except as disclosed in the Borrower's 1993
Form 10-K, there is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against
or affecting, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Credit Agreement or
the Notes.
5. Each of the Borrower's corporate Subsidiaries
is a corporation validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
I am a member of the Bar of the State of Idaho and
the foregoing opinion is limited to the laws of the State of
Idaho, the federal laws of the United States of America and
<PAGE>
the General Corporation Law of the State of Delaware. In so
far as the opinion in paragraph 3 above addresses
instruments expressed to be governed by New York law, it is
my opinion (i) that an Idaho court would give affect to such
choice of New York law and (ii) in any event, the conclusion
stated in paragraph 3 would be correct as a matter of Idaho
law.
Very truly yours,
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL,
SPECIAL COUNSEL FOR THE AGENT
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of
October 5, 1994 among Albertson's Inc., a Delaware
corporation (the "Borrower"), the banks parties thereto (the
"Banks"), Bank of America National Trust and Savings
Association, as Co-Agent, and Morgan Guaranty Trust Company
of New York, as Agent (the "Agent"), and have acted as
special counsel for the Agent for the purpose of rendering
this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used
herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate powers and have been duly
authorized by all necessary corporate action.
<PAGE>
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes constitute
valid and binding obligations of the Borrower, in each case
enforceable in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by
general principles of equity.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
ALBERTSON'S, INC. (the "Borrower") and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement dated as
of October 5, 1994 among the Borrower, the Assignor and the
other Banks party thereto, as Banks, Bank of America
National Trust and Savings Association, as Co-Agent, and the
Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Loans to the Borrower
in an aggregate principal amount at any time outstanding not
to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by
the Assignor under the Credit Agreement in the aggregate
principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its
outstanding Committed Loans, and the Assignee proposes to
accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings
set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee[, the Borrower
and the Agent] and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under
the Credit Agreement with a Commitment in an amount equal to
the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount
and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein
shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds the amount heretofore agreed between them.
It is understood that commitment and/or facility fees
accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives
any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the
same to such other party.
<PAGE>
[SECTION 4. Consent of the Borrower and the
Agent. This Agreement is conditioned upon the consent of
the Borrower and the Agent pursuant to Section 9.06(c) of
the Credit Agreement. The execution of this Agreement by
the Borrower and the Agent is evidence of this consent.
Pursuant to Section 9.06(c) the Borrower agrees to execute
and deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_________________________
Title:
<PAGE>
[ASSIGNEE]
By__________________________
Title:
ALBERTSON'S, INC.
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ALBERTSON'S
QUARTERLY REPORT TO STOCKHOLDERS FOR THE QUARTER ENDED NOVEMBER 3, 1994 AND IS
QUALIFED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> QTR-3
<FISCAL-YEAR-END> FEB-02-1995
<PERIOD-START> FEB-04-1994
<PERIOD-END> NOV-03-1994
<CASH> 67,906
<SECURITIES> 0
<RECEIVABLES> 115,626
<ALLOWANCES> 1,415
<INVENTORY> 929,322
<CURRENT-ASSETS> 1,205,093
<PP&E> 3,377,159
<DEPRECIATION> 1,138,211
<TOTAL-ASSETS> 3,563,480
<CURRENT-LIABILITIES> 1,136,119
<BONDS> 575,393
<COMMON> 253,712
0
0
<OTHER-SE> 1,323,808
<TOTAL-LIABILITY-AND-EQUITY> 3,563,480
<SALES> 8,825,500
<TOTAL-REVENUES> 8,825,500
<CGS> 6,611,423
<TOTAL-COSTS> 6,611,423
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 46,857
<INCOME-PRETAX> 444,164
<INCOME-TAX> 171,004
<INCOME-CONTINUING> 273,160
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (6,382)
<NET-INCOME> 266,778
<EPS-PRIMARY> 1.05
<EPS-DILUTED> 1.05
</TABLE>
