SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 28, 1996. Commission File No. 0-6080
F O O D L I O N, INC.
(Exact name of registrant as specified in its charter)
Incorporated in North Carolina 56-0660192
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 1330, 2110 Executive Drive
Salisbury, North Carolina 28145-1330
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code--
(704) 633-8250
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $.50 per share
Class B Common Stock, par value $.50 per share
(Title of Class)
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
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K ( 229.405 of this chapter)
is not contained herein, and will not be contained, to the best of
registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K.[x]
The aggregate market value of the voting stock held by non-
affiliates of the Registrant based on the price of such stock at
the close of business on March 20, 1997 was $948,475,788. For
purposes of this report and as used herein, the term "non-
affiliate" includes all shareholders of the Registrant other than
Directors, executive officers, and other senior management of the
Registrant and persons holding more than five per cent of the
outstanding voting stock of the Registrant.
Outstanding shares of common stock of the Registrant as of
March 20, 1997.
Class A Common Stock - 236,167,692
Class B Common Stock - 232,902,364
Exhibit index is located on sequential page 19 hereof.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the following documents are incorporated by reference
in this Form 10-K:
1. Annual Report to Shareholders for the year ended December 28, 1996
are incorporated by reference in Part II hereof.
2. Proxy Statement for the 1997 Annual Meeting of Shareholders of the
Company to be held on May 1, 1997, are incorporated by reference in
Part III hereof.
PART I
Item 1. Business.
Food Lion, Inc. (the "Company") engages in one line of
business, the operation of retail food supermarkets principally in
the southeastern United States. The Company was incorporated in
North Carolina in 1957 and maintains its corporate headquarters in
Salisbury, North Carolina.
The Company's stores, which are operated under the name of
"Food Lion," sell a wide variety of groceries, produce, meats,
dairy products, seafood, frozen food, deli/bakery and non-food
items such as health and beauty aids and other household and
personal products. The Company offers nationally and regionally
advertised brand name merchandise as well as products manufactured
and packaged for the Company under the private label of "Food
Lion." The Company offers over 20,000 Stock Keeping Units
(SKU's)at everyday low prices in its prototype 35,000 square foot
model.
The products sold by the Company are purchased through a
centralized buying department at the Company's headquarters. The
centralization of the buying function allows the management of the
Company to establish long-term relationships with many vendors
providing various alternatives for sources of product supply.
The business in which the Company is engaged is highly
competitive and characterized by low profit margins. The Company
competes with national, regional and local supermarket chains,
supercenters, discount food stores, single unit stores,
convenience stores and warehouse clubs. The Company will continue
to develop and evaluate new retailing strategies that will respond
to its customers' needs. Seasonal changes have no material effect
on the operation of the Company's supermarkets.
As of December 28, 1996, 1,112 supermarkets were in operation, of
which 9 were located in Delaware, 106 in Florida, 58 in Georgia,
14 in Kentucky, 5 in Louisiana, 32 in Maryland, 387 in North
Carolina, 8 in Oklahoma, 9 in Pennsylvania, 104 in South Carolina,
75 in Tennessee, 48 in Texas, 241 in Virginia and 16 in West
Virginia. As of March 20, 1997, the Company had opened 9
supermarkets since December 28, 1996, closed 15 supermarkets,
relocated 3 supermarkets and had signed leases for 16
supermarkets which are expected to open in either 1997 or 1998.
-2-
Warehousing and distribution facilities, including its
transportation fleet, are owned and operated by the Company and
are located in Green Cove Springs and Plant City, Florida;
Salisbury and Dunn, North Carolina; Greencastle,Pennsylvania;
Elloree, South Carolina; Clinton, Tennessee; Roanoke,Texas and
Disputanta, Virginia.
As of December 28, 1996, the Company employed 27,924 full-
time and 45,246 part-time employees.
The following table shows the number of stores opened, closed and
relocated and the number of stores open at the end of each year
for the past three years.
# Stores # Stores #Stores #Stores Opened
Opened Closed Relocated Year-end
1996 64 ( 3) (22) 1,112
1995 47 ( 1) (12) 1,073
1994 30 (84) ( 3) 1,039
On December 18, 1996, the Company acquired Kash n' Karry Food
Stores, Inc., which as of March 20,1997 operated 99 additional stores in West
Central Florida ("Kash n Karry"). References to the Company do not include
Kash n' Karry, unless the context otherwise requires.
Item 2. Properties.
Supermarkets operated by the Company in the southeastern
United States average 29,300 square feet in size. The Company's
current prototype retail format is a 35,000 square foot model with
a deli/bakery department. All of the Company's supermarkets are
self-service stores which have off-street parking facilities.
With the exception of 109 owned supermarkets, the Company occupies
its various supermarket premises under lease agreements providing
for initial terms of up to 25 years, with options generally
ranging from ten to twenty years.
-3-
The table below sets forth information with respect to the
expiration of leases on supermarkets and surrounding land in
operation by the Company on December 28, 1996.
Year of Number of Leases
Expiration* which expire
1997 1
1998 1
1999 2
2001 1
2004 2
2005-2010 9
2012-2016 9
2017-2021 19
2022-2026 91
2027-2031 439
2032-2036 343
2037-2041 73
2042-2047 12
2050-2051 3
2016 1
2017 3
2018 3
2019 4
2020 3
2021 6
2022 6
2023 12
2024 11
2025 19
*NOTE: Year of expiration includes renewal terms.
The following table identifies the location and square footage of
distribution centers and office space owned by the Company as of
December 28, 1996.
Location of
Property Square Footage
Distribution Center #1 Salisbury, NC 1,630,233
Distribution Center #2 Disputanta, VA 1,123,718
Distribution Center #3 Elloree, SC 1,098,612
Distribution Center #4 Dunn, NC 1,224,652
Distribution Center #5 Green Cove Springs, FL 832,109
Distribution Center #6 Clinton, TN 833,042
Distribution Center #7 Greencastle, PA 1,236,124
Distribution Center #8 Plant City, FL 758,549
Distribution Center #9 Roanoke, TX 1,254,169
Corporate Headquarters Salisbury, NC 271,592
10,262,800
-4-
Item 3. Legal Proceedings.
Longman et al. v. Food Lion, Inc. and Tom E. Smith, 4:92 CV 696 (M.D.N.C.)
(complaint filed November 12, 1992, and amended January 23, 1993)
("Longman"); and
Feinman et al. v. Food Lion, Inc. and Tom E. Smith, 4:92 CV 705 (M.D.N.C.)
(complaint filed November 13, 1992) ("Feinman").
The Longman and Feinman actions assert claims against the Company
and Tom E. Smith under Section 10(b) of the Securities Exchange
Act of 1934, as amended, and Rule 10b-5 for securities fraud and
claims of common law fraud and negligent misrepresentation. The
actions have been consolidated for discovery and trial purposes
and the court has granted class certification motions, certifying
a single class composed of those persons who purchased common
stock of the Company from May 7, 1990 through November 5, 1992 and
were damaged thereby. Merits discovery has concluded in the
actions. The Company and Mr. Smith have filed motions for summary
judgment on all claims and plaintiffs have filed a motion for
summary judgment on certain affirmative defenses asserted by the
Company and Mr. Smith. The actions seek compensatory damages,
plaintiffs' attorneys' fees and costs, punitive damages,
prejudgment interest and certain other relief. Based on currently
available information, the Company believes that any resulting
liability will not have a material adverse effect on the financial
condition or results of operations of the Company.
In re Food Lion, Inc. Fair Labor Standards Act "Effective
Scheduling" Litigation,
MDL Docket No. 929, pursuant to which a number of actions against
the Company were transferred by the Multi-District Litigation
Panel to the United States District Court for the Eastern District
of North Carolina for pretrial proceedings (the "Multi-District
Action"). Those pretrial proceedings are complete and pursuant
thereto, a number of claims were dismissed. Approximately 67
claims dismissed from the North Carolina cases were consolidated
and certified for appeal to the United States Court of Appeals for
the Fourth Circuit. The Fourth Circuit has held in abeyance its
decision on these appeals pending entry of a final order as to all
other claims previously dismissed in the Multi-District Action so
that dismissed claims from other states may be joined and
consolidated in the current appeal to the Fourth Circuit.
Approximately 123 claims dismissed from the South Carolina and
Florida cases would be eligible to join this Appeal. The
remaining cases involve the claims of approximately 111 plaintiffs
in South Carolina. Based on currently available information, the
Company believes that any resulting liability will not have a
material adverse effect on the financial condition or results of
operations of the Company.
-5-
Item 4. Submission of Matters to a Vote of Security Holders.
This item is not applicable.
Executive Officers of the Registrant
The names and ages of the current executive officers of the
Company and their positions as of March 7, 1997, are set forth
below. The footnotes following the table below include the
business experience during the past five years for each executive
officer who has been employed by the Company for fewer than five
years. Unless otherwise indicated by footnote, each of the
executive officers served in various managerial capacities with
the Company over the past five years. None of the executive
officers named below is related to any other executive officer or
director by blood, marriage or adoption. Officers serve at the
discretion of the Board of Directors.
Name and all Positions with Age Year First Year First
the Company Held at March Elected Elected to
1, 1997 Officer Present
Office
Tom E. Smith 55 1974 1981
President and Chief
Executive Officer
Joseph C. Hall, Jr. 47 1988 1995
Senior Vice President and
Chief Operating Officer
R. William McCanless 39 1993 1996
Senior Vice President,
Chief Administrative
Officer
and Secretary
Jay J. Abraham 1 40 1994 1994
Vice President of Marketing
A. Edward Benner, Jr. 55 1980 1996
Vice President and Chief
Information Officer
Robert J. Brunory 42 1994 1994
Vice President
Procurement/Category
Management
Charles C. Buckley 61 1986 1995
Vice President of
Operations/Southern
Division
-6-
Larry A. Cooper 2 48 1996 1996
Vice President of
Distribution
W.Bruce Dawson 44 1995 1995
Vice President of
Operations/Northern
Division
Laura Kendall 3 45 1997 1997
Vice President and Chief
Financial Officer
Pamela K. Kohn 32 1995 1995
Vice President of
Operations/Central Division
Eugene R. McKinley 63 1980 1980
Vice President of Human
Resources
Lester C. Nail4 36 1995 1995
Vice President Legal
Affairs
and Assistant Secretary
Edwin F. Oberle 5 56 1994 1995
Vice President of Real
Estate & Store Development
Carol Herndon 33 1991 1994
Corporate Controller and
Director of Accounting
Michael J. Price 37 1991 1991
Director of Finance and
Treasurer
_______________________
1 Prior to joining Food Lion in 1994, Mr. Abraham was Vice
President of Marketing, Weight Watchers Company, a wholly owned
subsidiary of the H.J. Heinz Company.
2 Mr.Cooper was Vice President of Distribution at Ralphs Grocery
Company prior to joining Food Lion in 1996.
3 From 1988 to 1995, Ms. Kendall served as the Chief Financial
Officer for F & M Distributors. From 1995 until March of 1997, she
was the presiding officer overseeing the liquidation process for
F&M Distributors.
4 Prior to joining Food Lion in 1995, Mr. Nail served as
Corporate Counsel to Wal-Mart Stores, Inc.
5 Prior to joining Food Lion in 1993, Mr. Oberle served as Senior
Vice President of Real Estate and Corporate Secretary of Victory
Markets, Inc. until 1993 and then as an Attorney with Brown Law
Offices.
-7-
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters.
The information pertaining to the Class A and Class B Common
Stock price range, dividends and record holders discussed beneath
the headings "Market Price of Common Stock" and "Dividends
Declared Per Share of Common Stock" in the Annual Report to
Shareholders for the year ended December 28, 1996, is hereby
incorporated by reference.
Item 6. Selected Financial Data.
The information set forth beneath the heading "Ten Year
Summary of Operations" in the Annual Report to Shareholders for
the year ended December 28, 1996, is hereby incorporated by
reference.
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
The information set forth beneath the heading "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" in the Annual Report to Shareholders for the year
ended December 28, 1996, is hereby incorporated by reference.
Item 8. Financial Statements and Supplementary Data.
The financial statements, including the accompanying notes
and results by quarter, set forth beneath the headings
"Consolidated Statements of Income", "Consolidated Balance
Sheets", "Consolidated Statements of Cash Flows", "Consolidated
Statements of Shareholders' Equity", "Notes to Consolidated
Financial Statements" and "Results by Quarter" in the Annual
Report to Shareholders for the year ended December 28, 1996, are
hereby incorporated by reference.
Item 9. Changes In and Disagreements with Accountants on
Accounting and Financial Disclosure.
This item is not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant.
The information pertaining to nominees for election as
directors set forth beneath the heading "Election of Directors" in
the proxy statement for the 1997 Annual Meeting of Shareholders to
be held May 1, 1997 is incorporated by
reference. Information concerning the Company's executive officers
is contained under the heading "Executive Officers of the
Registrant" in Part I of this report.
-8-
Item 11. Executive Compensation.
The information pertaining to executive compensation set
forth beneath the heading "Report of the Senior Management
Compensation Committee, Stock Option Committee and Board of
Directors" in the Proxy Statement for the 1997 Annual Meeting of
Shareholders to be held on May 1, 1997, is hereby incorporated by
reference.
Item 12. Security Ownership of Certain Beneficial Owners and
Management.
The information pertaining to security ownership of certain
beneficial owners and management set forth beneath the heading
"Security Ownership of Certain Beneficial Owners and Management"
in the Proxy Statement for the 1997 Annual Meeting of Shareholders
to be held on May 1, 1997, is hereby incorporated by reference.
Item 13. Certain Relationships and Related Transactions.
The information relating to certain relationships and related
transactions set forth beneath the headings "Employment Plans and
Agreements - Low Interest Loan Plan" and "Compensation Committee
Interlocks and Insider Participation" in the Proxy Statement for
the 1997 Annual Meeting of Shareholders to be held May 1, 1997, is
hereby incorporated by reference.
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K.
(a) The following documents are filed as part of this report:
1. Financial Statements:
The following financial statements are incorporated by
reference in Item 8 hereof from the Annual Report to
Shareholders for the year ended December 28, 1996:
ANNUAL REPORT
PAGE NO.
Consolidated Statements of Income for the years
ended December 28, 1996, December
30, 1995 and December 31, 1994 20
Consolidated Balance Sheets, as of December 28,
1996 and December 30, 1995 21
Consolidated Statements of Cash Flows for the
years ended December 28, 1996,December 30, 1995
and December 31, 1994 22
-9-
Consolidated Statements of Shareholders' Equity
for the years ended December 28, 1996,
December 30, 1995 and December 31, 1994 23
Notes to Consolidated Financial Statements 24-28
Results by Quarter (unaudited) 29
10-K
PAGE NO.
2. Financial Statement Schedules:
Report of Independent Accountants 17
II. Valuation and Qualifying Accounts 18
All other schedules are omitted since the required
information is not applicable or is not present in amounts
sufficient to require submission of the schedule, or because the
information required is included in the financial statements and
notes thereto.
With the exception of the financial statements listed in the
above index, the information referred to in Items 5, 6, 7 and the
supplementary quarterly financial information referred to in Item
8, all of which is included in the 1996 Annual Report to
Shareholders of Food Lion, Inc. and incorporated by reference into
this Form 10-K Annual Report, the 1996 Annual Report to
Shareholders is not to be deemed "filed" as part of this report.
3. Exhibits:
Exhibit No.
3(a) Articles of Incorporation, together with all
amendments thereto (through May 5, 1988)
(incorporated by reference to Exhibit 3(a) of the
Company's Annual Report on Form 10-K dated March
24, 1992)
3(b) Bylaws of the Company effective May 4,1995
4(a) Indenture dated as of August 15, 1991 between
the Company and the Bank of New York, Trustee,
providing for the issuance of an unlimited amount
of Debt Securities in one or more series (incorpo-
rated by reference to Exhibit 4(a) of the Company's
Annual Report on Form 10-K dated March 24, 1992)
4(b) Form of Food Lion, Inc. Medium Term Note (Global
Fixed Rate) (incorporated by reference to Exhibit
4(b) of the Company's Annual Report on Form 10-K
dated March 24, 1992)
-10-
10(a) Low Interest Loan Plan (incorporated by reference
to Exhibit 19(a) of the Company's report on Form
8-K dated October 27, 1986)
10(b) Form of Deferred Compensation Agreement
(incorporated by reference to Exhibit 19(b) of
the Company's report on Form 8-K dated October 27,
1986)
10(c) Form of Salary Continuation Agreement (incorporated
by reference to Exhibit 19(c) of the Company's
report on Form 8-K dated October 27, 1986)
10(d) 1994 Shareholders' Agreement dated as of the 15th
day of September 1994 among Etablissements Delhaize
Freres et Cie "Le Lion" S.A., Delhaize The Lion
America, Inc., and the Company (incorporated by
reference to Exhibit 10 of the Company's Report on
Form 8-K dated October 7, 1994)
10(e) Proxy Agreement dated January 4, 1991 between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and Delhaize The Lion, America, Inc.
(incorporated by reference to Exhibit 10(e) of
the Company's Annual Report on Form 10-K dated
March 25, 1991)
10(f) Annual Incentive Bonus Plan (incorporated by
reference to Exhibit 19(a) of the Company's
Annual Report on Form 10-K dated March 30, 1983)
10(g) Declaration of Amendment to the Company's Annual
Incentive Bonus Plan effective as of December 14,
1987 (incorporated by reference to Exhibit 10(h) of
the Company's Annual Report on Form 10-K dated
March 20, 1989)
10(h) Employment Agreement dated August 1, 1991 between
the Company and Tom E. Smith (incorporated by
reference to Exhibit 10(h) of the Company's Annual
Report on Form 10-K dated March 24, 1992)
10(i) Stock Purchase Agreement dated June 30, 1981
between the Company and Ralph W. Ketner
(incorporated by reference to Exhibit 10(j) of
the Company's Annual Report on Form 10-K dated
April 1, 1987)
10(j) Amended and Restated Food Lion, Inc. 1983
Employee Stock Option Plan (incorporated by
reference to Exhibit 10(k) of the Company's Annual
Report on Form 10-K dated March 24, 1992)
-11-
10(k) 1991 Employee Stock Option Plan of Food Lion,
Inc. (incorporated by reference to Exhibit 10(l) of
the Company's Annual Report on Form 10-K dated
March 24, 1992)
10(l) Split Dollar Life Insurance Agreement between the
Company and Tom E. Smith (incorporated by
reference to Exhibit 10(o) of the Company's
Annual Report on Form 10-K dated April 1, 1987)
10(m) Split Dollar Life Insurance Agreement between the
Company and Tom E. Smith issued May 25, 1988
(incorporated by reference to Exhibit 10(w) of the
Company's Annual report on Form 10-K dated March
20, 1989)
10(n) Letter Agreement dated May 10, 1990 between the
Company and Ralph W. Ketner (incorporated by
reference to Exhibit 10(q) of the Company's Annual
Report on Form 10-K dated March 25, 1991)
10(o) U.S. Distribution Agreement dated August 20, 1991
between the Company and Goldman, Sachs & Co. and
Merrill Lynch & Co. relating to the sale of up to
$300,000,000 in principal amount of the Company's
Medium-Term Notes (incorporated by reference to
Exhibit 10(p) of the Company's Annual Report on
Form 10-K dated March 24, 1992)
10(p) License Agreement between the Company and Etablissements
Delhaize Freres Et Cie "Le Lion" S.A. dated January 1, 1983
(incorporated by reference to Exhibit 10(t) of the Company's
Annual Report on Form 10-K dated March 31, 1994)
10(q) Employee Severence Agreement dated July 13, 1995 between the
Company and John P. Watkins (incorporated by reference to
Exhibit 10 of the Company's Quarterly Report on Form 10-Q
dated September 9, 1995)
10(r) 1996 Employee Stock Incentive Plan of Food Lion, Inc.
(incorporated by reference to Exhibit 10(a) of the Company's
Quarterly Report on Form 10-Q dated July 30, 1996)
10(s) Key Executive Annual Incentive Bonus Plan (incorporated by
reference to Exhibit 10(b) of the Company's Quarterly Report
on Form 10-Q dated July 30, 1996)
10(t) Profit Sharing Restoration Plan effective as of May 4, 1995
(incorporated by reference to Exhibit 10(c) of the
Company's 10-Q A dated August 13, 1996)
10(u) Supplemental Executive Retirement Plan effective as of
May 4, 1995 (incorporated by reference to
Exhibit 10(d) of the Company's 10-Q A dated August 13, 1996)
-12-
10(v) Employee Severance Agreement dated September 5, 1996 between
the Company and Dan A. Boone (incorporated by reference to
Exhibit 10 of the Company's Quarterly Report on Form 10-Q
dated October 16, 1996)
10(w) Employment Agreement dated as of February 27,1997 between
Joseph C. Hall,Jr.and the Company
10(x) Employment Agreement dated as of February 27,1997 between
R. William McCanless and the Company
10(y) Agreement and Plan of Merger dated as of October31, 1996
among the Company, KK Acquisition Corp. and Kash n' Karry Food
Stores, Inc. (incorporated by reference to Exhibit 2 of the
Company's 8-k dated October 31, 1996)
10(z) Stockholders' Agreement, dated as of October 31, 1996, among
the Company, KK Acquisition Corp., Kash n' Karry Food Stores,
Inc. and the stockholders of Kash n' Karry Food Stores, Inc.
signatory thereto (incorporated by reference to Exhibit 10 of
the Company's 8-K dated October 31,1996)
10(aa) $700,000,000 Revolving Credit Facility dated as of December 16,
1996 among the Company and various banks, and Chase Manhattan
Bank, as Administrative Agent, and Wachovia Bank of North
Carolina, N.A., as Documentation Agent.
11 Computation of Earnings Per Share
13 Annual Report to Shareholders for the year
ended December 28, 1996
23 Consent of Independent Accountants
27 Financial Data Schedule
99 Undertaking of the Company to file exhibits
pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K
-13-
(b) Reports on Form 8-K:
The Company filed a report on Form 8-K pursuant to Item 5 and Item 7
on November 4, 1996 announcing a) an agreement and plan of merger and
b) stockholders agreement and c) press release.
The Company filed a report on Form 8-K pursuant to Item 5
and Item 7 on January 6, 1997 announcing a) merger
closing and b) press release.
-14-
Pursuant to the requirements of Section 13 or 15(d) 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.
Date: 03/26/97 By Tom E. Smith
Tom E. Smith
President, Chief Executive
Officer, Principal
Executive Officer and Director
Pursuant to the requirements of the Securities Exchange Act
of 1934, this Report has been signed below by the following
persons on behalf of the Registrant in the capacities and on the
dates indicated.
Date: 03/26/97 By Tom E. Smith
Tom E. Smith
President, Chief Executive
Officer, Principal
Executive Officer and Director
Date: 03/26/97 By Pierre-Olivier Beckers
Pierre-Olivier Beckers
Director
Date:03/26/97 By Dr. Jacqueline K. Collamore
Dr. Jacqueline K. Collamore
Director
Date: 03/26/97 By Jean-Claude Coppieters t Wallant
Jean-Claude Coppieters t Wallant
Director
Date: 03/26/97 By William G. Ferguson
William G. Ferguson
Director
Date:03/26/97 By Dr. Bernard Franklin
Dr. Bernard Franklin
Director
Date: 03/26/97 By Joseph C. Hall
Joseph C. Hall
Senior Vice President of Operations
Director
Date: 03/26/97 By Margaret H. Kluttz
Margaret H. Kluttz
Director
-15-
Date: 03/26/97 By Philippe Stroobant
Philippe Stroobant
Director
Date: 03/26/97 By Gui de Vaucleroy
Gui de Vaucleroy
Director
Date:03/26/97 By R.William McCanless
R.William McCanless
Chief Administrative Officer
and Secretary
Date: 03/26/97 By Laura Kendall
Laura Kendall
Vice President of Finance,
Chief Financial Officer
Principal Financial Officer
-16-
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders of Food Lion, Inc.:
We have audited the consolidated financial statements of Food
Lion,Inc.and subsidiary as of December 28, 1996 and December 30, 1995, and for
each of the three fiscal years in the period ended December 28,
1996, which financial statements are included on pages 20 through
28 of the 1996 Annual Report to Shareholders of Food Lion, Inc.
incorporated by reference herein. We have also
audited the financial statement schedule listed in the index on
page 10 of this Form 10-K. These financial statements and
financial statement schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion
on these financial statements and financial statement schedule
based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Food Lion, Inc. and subsidiary,as of
December 28, 1996 and December 30, 1995, and the consolidated results of their
operations and their cash flows for each of the three fiscal years
in the period ended December 28, 1996, in conformity with
generally accepted accounting principles. In addition, in our
opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as
a whole, presents fairly, in all material respects, the
information required to be included therein.
Charlotte, North Carolina
February 18, 1997
COOPERS & LYBRAND, L.L.P.
-17-
<TABLE>
SCHEDULE II. VALUATION AND QUALIFYING ACCOUNTS
Column A Column B Column C Column D Column E
Balance at (1) Additions (2)
Beginning Charged to Charges to other Deductions- Balance at end
Description of Period Cost & Expenses accounts-describe describe of period
1996
Furniture, Fixtures &
<S> <C> <C> <C>
Equipment 15,407,346 ( 8,266,959) 7,140,387
Leasehold Improvements 49,346 49,346
Buildings 42,741,961 (22,872,709) 19,869,252
Other Liabilities 47,750,680 (7,072,667) 40,678,013
Accrued Expenses 20,412,592 ( 1,141,127) 19,271,465
$126,361,925 $ (39,353,462) $87,008,463
1995
Furniture, Fixtures &
Equipment $ 22,538,511 B ( 7,131,165) 15,407,346
Leasehold improvements 407,586 B ( 358,240) 49,346
Buildings 60,676,705 B (17,934,744) 42,741,961
Other liabilities 51,353,503 B ( 3,602,823) 47,750,680
Accrued expenses 22,571,672 B ( 2,159,080) 20,412,592
$157,547,977 $ (31,186,052) $126,361,925
1994
Furniture, Fixtures &
Equipment $ 24,177,600 A ( 1,639,089) $22,538,511
Leasehold improvements 1,417,007 A ( 1,009,421) 407,586
Buildings 61,500,004 A ( 823,299) 60,676,705
Other liabilities 55,100,000 A ( 3,746,497) 51,353,503
Accrued expenses 28,305,389 A ( 5,733,717) 22,571,672
$170,500,000 $ (12,952,023) $157,547,977
(A) Represents provisions against the assets of stores closed in 1994 to reflect the estimated realizable value,
the present value of remaining rent payments on leased stores and other costs associated with the store closings
such as legal expenses and relocation expenses.
(B) Certain items in the 1994 financial information have been reclassified for comparative purposes.
</TABLE>
-18-
EXHIBIT INDEX
to
ANNUAL REPORT ON FORM 10-K of
Food Lion, Inc.
For Year Ended December 28, 1996
Sequential
Page No.
Exhibit No. Description
3(a) Articles of Incorporation, together with all
amendments thereto (through May 5, 1988)
(incorporated by reference to Exhibit 3(a) of
the Company's Annual Report on Form 10-K dated
March 24, 1992)
3(b) Bylaws of the Company effective May 4, 1995
4(a) Indenture dated as of August 15, 1991 between the
Company and the Bank of New York, Trustee, providing
for the issuance of an unlimited amount of Debt
Securities in one or more series (incorporated by
reference to Exhibit 4(a) of the Company's Annual Report
on Form 10-K dated March 24, 1992)
4(b) Form of Food Lion, Inc. Medium Term Note (Global Fixed
Rate) (incorporated by reference to Exhibit 4(b) of the
Company's Annual Report on Form 10-K dated March 24,1992)
10(a) Low Interest Loan Plan (incorporated by reference to Exhibit
19(a) of the Company's report on Form 8-K dated October 27,
1986)
10(b) Form of Deferred Compensation Agreement (incorporated by
reference to Exhibit 19(b) of the Company's report on Form
8-K dated October 27, 1986)
10(c) Form of Salary Continuation Agreement (incorporated by
reference to Exhibit 19(c) of the Company's report on Form
8-K dated October 27, 1986)
10(d) 1994 Shareholders' Agreement dated as of the 15th day of
September 1994 among Etablissements Delhaize Freres et Cie
"Le Lion" S.A., Delhaize The Lion America, Inc., and the
Company (incorporated by reference to Exhibit 10 of the
Company's Report on Form 8-K dated October 7, 1994)
-1-
10(e) Proxy Agreement dated January 4, 1991 between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and Delhaize The Lion America, Inc.(incorporated
by reference to Exhibit 10(e) of the Company's Annual
Report on form 10-K dated March 25, 1991)
10(f) Annual Incentive Bonus Plan (incorporated by
reference to Exhibit 19(a) of the Company's
Annual Report on Form 10-K dated March 30, 1983)
10(g) Declaration of Amendment to the Company's Annual
Incentive Bonus Plan effective as of December 14,
1987 (incorporated by reference to Exhibit 10(h)
of the Company's Annual Report on Form 10-K dated
March 20, 1989)
10(h) Employment Agreement dated August 1, 1991 between
the Company and Tom E. Smith (incorporated by
reference to Exhibit 10(h) of the Company's Annual
Report on Form 10-K dated March 24, 1992)
10(i) Stock Purchase Agreement dated June 30, 1981 between
the Company and Ralph W. Ketner (incorporated by
reference to Exhibit 10(j) of the Company's Annual
Report on Form 10-K dated April 1, 1987)
10(j) Amended and Restated Food Lion, Inc. 1983 Employment
Stock Option Plan (incorporated by reference to
Exhibit 10(k) of the Company's Annual Report on Form
10-K dated March 24, 1992)
10(k) 1991 Employee Stock Option Plan of Food Lion, Inc.
(incorporated by reference to Exhibit 10(l) of the
Company's Annual Report on Form 10-K dated March 24,
1992)
10(l) Split Dollar Life Insurance Agreement between the
Company and Tom E. Smith (incorporated by reference
to Exhibit 10(o) of the Company's Annual Report on
Form 10-K dated April 1, 1987)
10(m) Split Dollar Life Insurance Agreement between
the Company and Tom E. Smith issued May 25, 1988
(incorporated by reference to Exhibit 10(w) of
the Company's Annual report on Form 10-K dated
March 20, 1989)
-2-
10(n) Letter Agreement dated May 10, 1990 between the
Company and Ralph W. Ketner (incorporated by
reference to Exhibit 10(q) of the Company's
Annual Report on Form 10-K dated March 25, 1991)
10(o) U.S. Distribution Agreement dated August 20, 1991
between the Company and Goldman, Sachs & Co and
Merrill Lynch & Co. relating to the sale of up to
$300,000,000 in principal amount to the Company's
Medium-Term Notes (incorporated by reference to
Exhibit 10(p) of the Company's Annual Report on
Form 10-K dated March 24, 1992)
10(p) License Agreement between the Company and Etablissements
Delhaize Freres Et Cie "Le Lion" S.A. dated January 1,
1983 (incorporated by reference to Exhibit 10(t) of the
Company's Annual Report on Form 10-K dated March 31, 1994)
10(q) Employee Severence Agreement dated July 13, 1995 between
the Company and John P. Watkins (incorporated by reference to
Exhibit 10 of the Company's Quarterly Report on Form 10-Q
dated September 9, 1995)
10(r) 1996 Employee Stock Incentive Plan of Food Lion, Inc.(incorporated
by reference to Exhibit 10(a) of the Company's
Quarterly Report on Form 10-Q dated July 30, 1996)
10(s) Key Executive Annual Incentive Bonus Plan (incorporated by
reference to Exhibit 10(b) of the Company's Quarterly
Report on Form 10-Q dated July 30, 1996)
10(t) Profit Sharing Restoration Plan effective as of May 4, 1995
(incorporated by reference to Exhibit 10(c) of the
Company's 10-Q A dated August 13, 1996)
10(u) Supplemental Executive Retirement Plan effective as
of May 4, 1995
(incorporated by reference to Exhibit 10(d) of the
Company's 10-Q A dated August 13, 1996)
10(v) Employee Severance Agreement dated September 5, 1996
between the Company and Dan A. Boone (incorporated by reference
to Exhibit 10 of the Company's Quarterly Report on Form 10-Q dated
October 16, 1996)
10(w) Employment Agreement dated as of February 27,1997
between Joseph C.Hall,Jr. and the Company.
10(x) Employment Agreement dated as of February 27,1997
between R.William McCanless and the Company.
10(y) Agreement and Plan of Merger dated as of October 31,
1996 among the Company, KK Acquisition Corp.
and Kash n' Karry Food Stores, Inc. (incorporated
by reference to Exhibit 2 of the Company's 8-K
dated October 31, 1996)
-3-
10(z) Stockholders' Agreement, dated as of October 31, 1996,
among the Company, KK Acquisition Corp., Kash
n' Karry Food Stores, Inc. and the stockholders
of Kash n' Karry Food Stores, Inc. signatory
thereto (incorporated by reference to Exhibit 10 of
the Company's 8-K dated October 31,1996)
10(aa) $700,000,000 Revolving Credit Facility dated as of
December 16,1996 among the Company and various banks,
and Chase Manhattan Bank, as Administrative Agent,
and Wachovia Bank of North Carolina, N.A., as
Documentation Agent.
11 Computation of Earnings Per Share
13 Annual Report to Shareholders for the year ended
December 28, 1996
23 Consent of Independent Accountants
27 Financial Data Schedule
99 Undertaking of the Company to file exhibits pursuant
to Item 601(b)(4)(iii)(A) of Regulation S-K
(b) Reports on Form 8-K:
The Company filed a report on Form 8-K pursuant to Item 5 and
Item 7 and Item 7 on November 4, 1996 announcing a) an
agreement and plan of merger, b) stockholders agreement and
c) press release.
The Company filed a report on Form 8-K pursuant to
Item 5 and Item 7 on January 6, 1997 announcing a)
merger closing and b) press release.
-4-
BYLAWS
OF
FOOD LION, INC.
Effective May 4, 1995
TABLE OF CONTENTS
TO
BYLAWS
OF
FOOD LION, INC.
Page
ARTICLE 1 - Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. Principal and Registered Office . . . . . . . . . . . . 4
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2 - Meetings of Shareholders . . . . . . . . . . . . . . . . . . 4
Section 1. Place of Meeting . . . . . . . . . . . . . . . . . . . 4
Section 2. Annual Meeting . . . . . . . . . . . . . . . . . . . . 4
Section 3. Substitute Annual Meeting . . . . . . . . . . . . . . 4
Section 4. Special Meetings . . . . . . . . . . . . . . . . . . . 4
Section 5. Notice of Meetings . . . . . . . . . . . . . . . . . . 4
Section 6. Advance Notice of Shareholder Proposals . . . . . . . 5
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 8. Shareholders' List . . . . . . . . . . . . . . . . . . 5
Section 9. Voting of Shares . . . . . . . . . . . . . . . . . . . 6
Section 10. Proxies . . . . . . . . . . . . . . . . . . . . . . . 6
Section 11. Action Without Meeting . . . . . . . . . . . . . . . . 6
ARTICLE 3 - Board of Directors . . . . . . . . . . . . . . . . . . . . . 6
Section 1. General Powers . . . . . . . . . . . . . . . . . . . . 6
Section 2. Number, Term and Qualification . . . . . . . . . . . . 7
Section 3. Nomination of Directors . . . . . . . . . . . . . . . . 7
Section 4. Election. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5. Removal . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6. Vacancies . . . . . . . . . . . . . . . . . . . . . . 8
Section 7. Compensation . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4 - Meetings of Directors . . . . . . . . . . . . . . . . . . . 8
Section 1. Annual and Regular Meetings . . . . . . . . . . . . . 8
Section 2. Special Meetings . . . . . . . . . . . . . . . . . . . 8
Section 3. Notice of Meetings . . . . . . . . . . . . . . . . . . 8
Section 4. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5. Manner of Acting . . . . . . . . . . . . . . . . . . . 9
Section 6. Special Vote . . . . . . . . . . . . . . . . . . . . . 9
Section 7. Presumption of Assent . . . . . . . . . . . . . . . . 9
Section 8. Action Without Meeting . . . . . . . . . . . . . . . . 10
Section 9. Meeting by Communications Device . . . . . . . . . . . 10
Section 10. Minutes of Meetings of the Board of Directors . . . . 10
ARTICLE 5 - Committees . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. General . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Nominating Committee . . . . . . . . . . . . . . . . 11
Section 3. Meetings . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Minutes . . . . . . . . . . . . . . . . . . . . . . . 11
i
Page
ARTICLE 6 - Officers . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1. Titles . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Election; Appointment . . . . . . . . . . . . . . . 12
Section 3. Removal . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Compensation . . . . . . . . . . . . . . . . . . . . 12
Section 6. Chairman and Vice Chairman of the Board of Directors 12
Section 7. President and Chief Executive Officer . . . . . . . 12
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . 13
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . 13
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . 13
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . 13
Section 12. Assistant Treasurers . . . . . . . . . . . . . . . . 13
Section 13. Voting Upon Stocks . . . . . . . . . . . . . . . . . 14
ARTICLE 7 - Capital Stock . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Certificates . . . . . . . . . . . . . . . . . . . . 14
Section 2. Transfer of Shares . . . . . . . . . . . . . . . . . 14
Section 3. Transfer Agent and Registrar . . . . . . . . . . . . 14
Section 4. Regulations . . . . . . . . . . . . . . . . . . . . 14
Section 5. Fixing Record Date . . . . . . . . . . . . . . . . . 14
Section 6. Lost Certificates . . . . . . . . . . . . . . . . . 14
ARTICLE 8 - Indemnification of Officers and Directors . . . . . . . . 15
Section 1. Indemnification Provisions . . . . . . . . . . . . . 15
Section 2. Definitions . . . . . . . . . . . . . . . . . . . . 15
Section 3. Settlements . . . . . . . . . . . . . . . . . . . . 16
Section 4. Litigation Expense Advances . . . . . . . . . . . . 16
Section 5. Approval of Indemnification Payments . . . . . . . . 16
Section 6. Suits by Claimant . . . . . . . . . . . . . . . . . 16
Section 7. Consideration; Personal Representatives
and other Remedies . . . . . . . . . . . . . . . . 16
Section 8. Scope of Indemnification Rights . . . . . . . . . . 16
ARTICLE 9 - General Provisions . . . . . . . . . . . . . . . . . . . . 16
Section 1. Dividends and Other Distributions . . . . . . . . . 16
Section 2. Seal . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3. Waiver of Notice . . . . . . . . . . . . . . . . . . 17
Section 4. Checks . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5. Contracts . . . . . . . . . . . . . . . . . . . . . 17
Section 6. Deposits . . . . . . . . . . . . . . . . . . . . . . 17
Section 7. Bond . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8. Fiscal Year . . . . . . . . . . . . . . . . . . . . 17
Section 9. Amendments . . . . . . . . . . . . . . . . . . . . . 17
BYLAWS
OF
FOOD LION, INC.
ARTICLE 1
Offices
Section 1. Principal and Registered Office. The principal
office of the corporation shall be located at 2110 Executive Drive,
Salisbury, North Carolina, which shall also be the registered office
of the corporation.
Section 2. Other Offices. The corporation may have offices
at such other places, either within or without the State of North
Carolina, as the board of directors may from time to time determine.
ARTICLE 2
Meetings of Shareholders
Section 1. Place of Meeting. Meetings of shareholders
shall be held at the principal office of the corporation, or at such
other place, either within or without the State of North Carolina, as
shall be designated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of
shareholders shall be held on such date and at such time during the
month of May of each year as shall be set by the board of directors,
for the purpose of electing directors of the corporation and the
transaction of such other business as may be properly brought before
the meeting.
Section 3. Substitute Annual Meeting. If the annual
meeting is not held on the day designated by these bylaws, a
substitute annual meeting may be called in accordance with Section 4
of this Article. A meeting so called shall be designated and treated
for all purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the
shareholders may be called at any time by the president and chief
executive officer or by any two members of the board of directors.
Section 5. Notice of Meetings. At least 10 days and no
more than 60 days prior to any annual or special meeting of the
shareholders, the corporation shall notify shareholders of the date,
time and place of the meeting and, in the case of a special or
substitute annual meeting or where otherwise required by law, shall
briefly describe the purpose or purposes of the meeting. Only
business within the purpose or purposes described in the notice may be
conducted at a special meeting. Unless otherwise required by the
articles of incorporation or by law (for example, in the event of a
meeting to consider the adoption of a plan of merger or share
exchange, a sale of assets other than in the ordinary course of
business or a voluntary dissolution), the corporation shall be
required to give notice only to shareholders entitled to vote at the
meeting. If an annual or special shareholder's meeting is adjourned
to a different date, time or place, notice thereof need not be given
if the new date, time or place is announced at the meeting before
adjournment. If a new record date for the adjourned meeting is fixed
pursuant to Article 7, Section 5 hereof, notice of the adjourned
meeting shall be given to persons who are shareholders as of the new
record date. It shall be the primary responsibility of the secretary
to give the notice, but notice may be given by or at the direction of
the president and chief executive officer or other person or persons
calling the meeting. If mailed, such notice shall be deemed to be
effective when deposited in the United States mail with postage
thereon prepaid, correctly addressed to the shareholder's address
shown in the corporation's current record of shareholders.
Section 6. Advance Notice of Shareholder Proposals. No
business shall be transacted at a meeting of shareholders, except such
business as shall be (a) specified in the notice of meeting given as
provided in Section 5 of this Article 2, (b) otherwise brought before
the meeting by or at the direction of the board of directors, or (c)
otherwise brought before the meeting by a shareholder of record
entitled to vote at the meeting, in compliance with the procedure set
forth in this Section 2. For business to be brought before a meeting
by a shareholder pursuant to (c) above, the shareholder must have
given timely notice in writing to the Secretary. To be timely, a
shareholder's notice must be delivered to, or mailed to and received
by, the Secretary of the corporation not less than 14 days nor more
than 60 days prior to the meeting; provided, however, that if fewer
than 21 days' notice of the meeting is given to shareholders, such
written notice shall be received not later than the close of the tenth
day following the date on which notice of the meeting was mailed to
shareholders. Notwithstanding the foregoing, any shareholder who
wishes the board of directors to consider taking a position with
respect to the matter must deliver such notice to, or mail it so that
it is received by, the Secretary of the corporation not less than 90
nor more than 150 days prior to the meeting. Nothing in this Section
2 shall require the board of directors to recommend for adoption by
the shareholders, or give the shareholders notice of, any matter of
which notice is provided to the corporation pursuant to this Section
or otherwise. Notice of actions to be brought before the meeting
pursuant to (c) above shall set forth as to each matter the
shareholder proposes to bring before the meeting (I) a brief
description of the business desired to be brought before the meeting,
(ii) the name and address, as they appear on the corporation's books,
of each shareholder proposing such business, (iii) the classes and
number of shares of the corporation that are owned of record and
beneficially by such shareholder of the corporation. Notwithstanding
anything in these bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the provisions set
forth in this Section 2, except as otherwise may be required by law.
Nothing in this Section 2 shall be deemed to restrict, expand or
otherwise affect any rights or obligations of any party under Rule 14a-
8 of the Securities and Exchange Commission or any successor provision
to such rule. If the chairman of the meeting determines that any
business was not properly brought before the meeting in accordance
with provisions prescribed by these bylaws, he shall so declare to the
meeting, and to the extent permitted by law any such business not
properly brought before the meeting shall not be transacted.
Section 7. Quorum. A majority of the votes entitled to be
cast by a voting group on a matter, represented in person or by proxy
at a meeting of shareholders, shall constitute a quorum for that
voting group for any action on that matter, unless quorum requirements
are otherwise fixed by a court of competent jurisdiction acting
pursuant to Section 55-7-03 of the General Statutes of North Carolina.
Once a share is represented for any purpose at a meeting, it shall be
deemed present for quorum purposes for the remainder of the meeting
and any adjournment thereof, unless a new record date is or must be
set for the adjournment. Action may be taken by a voting group at any
meeting at which a quorum of that voting group is represented,
regardless of whether action is taken at that meeting by any other
voting group. In the absence of a quorum at the opening of any
meeting of shareholders, such meeting may be adjourned from time to
time by a vote of the majority of the shares voting on the motion to
adjourn.
Section 8. Shareholders' List. After a record date is
fixed for a meeting, the secretary of the corporation shall prepare an
alphabetical list of the names of all its shareholders who are
entitled to notice of the shareholders' meeting. Such list shall be
arranged by voting group (and within each voting group by class or
series of shares) and shall show the address of and number of shares
held by each shareholder. The shareholder's list shall be made
available for inspection by any shareholder, beginning two business
days after notice of the meeting is given for which the list was
prepared and continuing through the meeting, at the corporation's
principal office or at such other place identified in the meeting
notice and the city where the meeting will be held. The corporation
shall make the shareholders' list available at the meeting, and any
shareholder or his agent or attorney is entitled to inspect the list
at any time during the meeting or any adjournment thereof.
Section 9. Voting of Shares. Except as otherwise provided
by the articles of incorporation, each outstanding share of voting
capital stock of the corporation shall be entitled to one vote on each
matter submitted to a vote at a meeting of the shareholders. Action
on a matter by a voting group for which a quorum is present is
approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the vote of a
greater number is required by law or by the articles of incorporation.
Voting on all matters shall be by voice vote or by a show of hands,
unless the holders of one-tenth of the shares represented at the
meeting shall demand a ballot vote on a particular matter. Absent
special circumstances, the shares of the corporation are not entitled
to vote if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the corporation owns, directly
or indirectly, a majority of the shares entitled to vote for directors
of the second corporation, except that this provision shall not limit
the power of the corporation to vote shares held by it in a fiduciary
capacity.
Section 10. Proxies. Shares may be voted either in person
or by a proxy who has been appointed by the shareholder by signing an
appointment form, either personally or by his duly authorized attorney-
in-fact. An appointment of proxy is effective when received by the
secretary or other officer or agent authorized to tabulate votes. An
appointment of proxy is valid for 11 months unless a different period
is expressly provided in the appointment form.
Section 11. Action Without Meeting. Any action which the
shareholders could take at a meeting may be taken without a meeting if
one or more written consents, setting forth the action taken, shall be
signed, before or after such action, by all the shareholders who would
be entitled to vote upon the action at a meeting. The consent shall
be delivered to the corporation for inclusion in the minutes or filing
with the corporate records. The corporation must give its nonvoting
shareholders written notice of the proposed action at least 10 days
before the action is taken, which notice must contain or be
accompanied by the same material that would have been required by law
to be sent to nonvoting shareholders in a notice of meeting at which
the proposed action would have been submitted to the shareholders for
action.
ARTICLE 3
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed under the direction of the board of
directors except as otherwise provided by the articles of
incorporation or by a valid shareholders' agreement.
Section 2. Number, Term and Qualification. The number of
directors of the corporation shall be not less than eight persons nor
more than ten persons, with the exact number of directors within the
minimum and maximum to be established from time to time by the
shareholders of the board of directors; but, in the absence of such
action, the number of directors elected at the annual meeting of
shareholders, unless the number is previously changed by action of the
shareholders or the board of directors. Only shareholders may change
the range for the size of the board of directors or change from a
variable range to a fixed size board of directors. Each director
shall hold office until the next annual meeting of the shareholders
and until his successor is elected and qualifies, until there is a
decrease in the number of directors or until his earlier death,
resignation, removal or disqualification. Directors need not be
residents of the State of North Carolina or shareholders of the
corporation unless the articles of incorporation so provide.
Section 3. Nomination of Directors. Only persons who are
nominated in accordance with the provisions set forth in these bylaws
shall be eligible to be elected as directors at the annual or special
meeting of shareholders. Nomination for election to the board of
directors shall be made or approved by the board of directors.
In addition, nomination for election of any person to the
board of directors may be made by a shareholder if written notice of
the nomination of such person shall have been delivered to the
Secretary of the corporation at the principal office of the
corporation not less than 14 days nor more than 60 days prior to any
meeting of the shareholders called for the election of directors;
provided, however, that if fewer than 21 days' notice of the meeting
is given to shareholders, such written notice shall be received not
later than the close of the tenth day following the day on which
notice of the meeting was mailed to shareholders. Notwithstanding the
foregoing, any shareholder who wishes the board of directors or a duly
authorized committee of the board of directors to consider nominating
for election to the board of directors a person recommended by a
shareholder must deliver such notice to, or mail it so that it is
received by, the Secretary of the corporation not less than 90 nor
more than 150 days prior to the meeting. Any notice provided pursuant
to this Section shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is
a holder of record of shares of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c)
a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission if the
nominee had been nominated by the board of directors; and (e) the
written consent of each nominee to serve as a director of the
corporation if so elected. Nothing in this Section shall require the
board of directors to nominate or approve, as one of its nominees, any
person recommended to be so nominated by a shareholder or to give the
shareholders notice of any proposed nomination by a shareholder. The
chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
Section 4. Election. Except as provided in Section 6 of
this article III (vacancies), the directors shall be elected at the
annual meeting of shareholders. Those persons who receive the highest
number of votes at a meeting at which a quorum is present shall be
deemed to have been elected.
Section 5. Removal. Directors may be removed from office
with or without cause (unless the articles of incorporation provide
that directors may be removed only for cause), provided the notice of
the shareholders' meeting at which such action is to be taken states
that a purpose of the meeting is removal of the director and the
number of votes cast to remove the director exceeds the number of
votes cast not to remove him.
Section 6. Vacancies. Except as otherwise provided in the
articles of incorporation, a vacancy occurring in the board of
directors, including, without limitation, a vacancy resulting from an
increase in the number of directors or from the failure by the
shareholders to elect the full authorized number of directors, shall
be filled by an affirmative vote of at least 70% of the remaining
directors in favor of a nominee selected by the Nominating Committee
of the board of directors, in accordance with the procedures set forth
in Article 5, Section 2, below. The shareholders may elect a director
at any time to fill a vacancy not filled by the directors. A director
elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 7. Compensation. The board of directors may
compensate directors for their services as such and may provide for
the payment of any or all expenses incurred by directors in attending
regular and special meetings of the board of directors.
ARTICLE 4
Meetings of Directors
Section 1. Annual and Regular Meetings. The annual meeting
of the board of directors shall be held immediately following the
annual meeting of the shareholders. The board of directors may by
resolution provide for the holding of regular meetings of the board on
specified dates and at specified times. Notice of regular meetings
held at the principal office of the corporation and at the usual
scheduled time shall not be required. If any date for which a regular
meeting is scheduled shall be a legal holiday, the meeting shall be
held on a date designated in the notice of the meeting, if any, during
either the same week in which the regularly scheduled date falls or
during the preceding or following week. Regular meetings of the board
shall be held at the principal office or the corporation or at such
other place as may be designated in the notice of the meeting.
Section 2. Special Meetings. Special meetings of the board
of directors may be called by or at the request of the chairman of the
board, the president and chief executive officer or any two directors.
Such meetings may be held at the time and place designated in the
notice of the meeting.
Section 3. Notice of Meetings. Unless the articles of
incorporation provide otherwise, the annual and regular meetings of
the board of directors may be held without notice of the date, time or
place. However, the president and chief executive officer or
secretary shall provide each director with a written agenda of the
items to be discussed at such meetings at least seven days prior
thereto. Any person or persons calling a special meeting shall give
notice by any usual means of communication to be sent at least seven
days before the meeting if notice is sent by means of telephone,
telecopy or personal delivery and at least ten days before the meeting
if notice is sent by mail. A director's attendance at, or
participation in, a meeting for which notice is required shall
constitute a waiver of notice, unless the director at the beginning of
the meeting (or promptly upon arrival) objects to holding the meeting
or transacting business at the meeting and does not thereafter vote or
assent to action taken at the meeting.
Section 4. Quorum. Except as otherwise provided in the
articles of incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business at a meeting of
the board of directors.
Section 5. Manner of Acting. Except as otherwise provided
in the articles of incorporation or these bylaws, the act of the
majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors.
Section 6. Special Vote. The board of directors may not,
without an affirmative vote of at least 70% of the number of directors
fixed by these bylaws ("Special Vote"), be empowered to authorize the
corporation to:
(a) Approve the nomination of any person or persons for
election to the board of directors or elect a chief executive officer
other than Tom E.Smith;
(b) Authorize any contract involving payment by
the corporation of cash or property valued in excess of $500,000,
including, without limitation, the purchase,sale or leasing of property or
the incurring of indebtedness, except transactions relating to the leasing
or construction of stores, warehouses and related facilities or any
other transaction in the ordinary course of business;
(c) Approve or authorize capital expenditures of more than
$500,000 in any one instance or $1,000,000 in the aggregate in any fiscal
year, except expenditures relating to the leasing or construction of stores
warehouses and related facilities or any other transaction in the ordinary
course of business;
(d) Authorize the issuance or sale of stock or other
securities of the corporation or any subsidiary of the corporation, or
options or warrants or obligations convertible into such stock or
securities, except the issuance of stock options or stock or both,as
the case may be, pursuant to the corporation's 1981 Employee Stock Option
Plan, 1983 Employee Stock Option Plan, 1991 Employee Stock Option Plan,
Employee Stock Purchase Plan and Employee Stock Ownership Plan and other
employee benefit plans approved by the board of directors;
(e) Sell or otherwise dispose of a substantial part of the
corporation's assets other than in the ordinary course of business;
(f) Amend the bylaws of the corporation; or
(g) Approve for submission to the shareholders of the corporation
for their approval a proposal for the amendment of the corporation's charter
or the merger or consolidation of the corporation with or into any other
corporation or the reorganization, recapitalization or liquidation of the
corporation;
Any Special Vote approving any such action may specify other
limitations which shall not be exceeded without a further Special
Vote.
Section 7. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors at
which action on any corporate matter is taken is deemed to have
assented to the action taken unless he objects at the beginning of the
meeting (or promptly upon arrival) to holding, or transacting business
at, the meeting, or unless his dissent or abstention is entered in the
minutes of the meeting or unless he shall file written notice of his
dissent or abstention to such action with the presiding officer of the
meeting before its adjournment or with the corporation immediately
after adjournment of the meeting. The right of dissent or abstention
shall not apply to a director who voted in favor of such action.
Section 8. Action Without Meeting. Unless otherwise
provided in the articles of incorporation, action required or
permitted to be taken at a meeting of the board of directors may be
taken without a meeting if the action is taken by all members of the
board. The action must be evidenced by one or more written consents
signed by each director before or after such action, describing the
action taken, and included in the minutes or filed with the corporate
records. Action taken without a meeting is effective when the last
director signs the consent, unless the consent specifies a different
effective date.
Section 9. Meeting by Communications Device. Unless
otherwise provided in the articles of incorporation, the board of
directors may permit any or all directors to participate in a regular
or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in
person at the meeting.
Section 10. Minutes of Meetings of the Board of Directors.
Minutes of all meetings of the board of directors shall be furnished
all directors promptly after such meeting.
ARTICLE 5
Committees
Section 1. General. The board of directors may create, by
the affirmative vote of at least 70% of the number of directors then
serving, one or more committees not otherwise provided for by these
bylaws. Such committees shall consist of two or more directors
appointed and removable by the affirmative vote of at least 70% of
the number of directors then serving. Such committees may meet at
stated times, or on notice to all by any of their own number. The
board of directors may by resolution provide that during intervals
between meetings of the board of directors, the committees shall have
and may exercise the powers of the board in the management of the
business and affairs of the corporation, except that the committees
shall not have authority to:
(a) Authorize distributions;
(b) Approve or propose to shareholders
action required to be approved by shareholders;
(c) Fill vacancies on the board of
directors or on any of its committees;
(d) Amend the articles of incorporation;
(e) Adopt, amend or repeal the bylaws;
(f) Approve a plan or merger not
requiring shareholder approval;
(g) Authorize or approve reacquisition
of shares, except according to a formula or method
prescribed by the board of directors; or
(h) Authorize or approve the issuance,
sale or contract for sale of shares, or determine
the designation and relative rights, preferences
and limitations of a class or series of shares,
except that the board of directors may authorize a
committee (or a senior executive officer of the
corporation) to do so within limits specifically
prescribed by the board of directors.
Section 2. Nominating Committee. There shall be a
Nominating Committee of the board of directors, which shall consist of
three directors, one of whom shall be designated by Etablissements
Delhaize Freres et Cie "Le Lion" S.A. ("Delhaize") and/or Delhaize the
Lion America, Inc., one of whom shall be the Chief Executive Officer
of the Company or his designee from among the members of the board of
directors of the Company, and one of whom shall be an independent
director. The Nominating Committee shall propose to the board of
directors (a) the slate of directors to be submitted to the
shareholders for election at the annual meeting of shareholders or at
any meeting of the shareholders at which a director or directors are
to be elected, and (b) persons to fill any vacancies that may arise
from time to time on the board of directors.
The slate of directors proposed by the Nominating Committee
shall consist of ten persons, four of whom shall be proposed by the
Chief Executive Officer of Delhaize (the "Delhaize Designees"), two of
whom shall be proposed by the Chief Executive Officer of the Company
or his representative on the Nominating Committee (the "CEO
Designees") and four of whom shall be independent directors. In the
event of a vacancy on the board of directors, the Nominating Committee
shall propose to the board of directors an appropriate person to fill
such vacancy such that the foregoing ratio of Delhaize Designees, CEO
Designees and independent directors is regained. Thus, if a Delhaize
Designee ceases to be a director, the vacancy left thereby shall be
filled by a new Delhaize Designee, if a CEO Designee ceases to be a
director, the vacancy left thereby shall be filled by a new CEO
Designee, and if an independent director ceases to be a director, the
vacancy left thereby shall be filled by a new independent director.
The Nominating Committee shall recommend its slate of
directors or any individual nominee to the board of directors of the
Company, which shall approve such nominations by Special Vote. If the
board of directors does not approve a slate of directors or any
individual nominee proposed by the Nominating Committee, the
Nominating Committee shall meet to propose another slate of directors
or nominee acceptable to the board of directors.
The Nominating Committee shall meet at least (a) annually,
prior to the annual meeting of shareholders, (b) prior to any special
meeting of shareholders called for the purpose of electing one or more
directors, (c) within thirty days' notice of any vacancy occurring on
the board of directors, and (d) at any time that it is determined that
the composition of the Company's board of directors does not comply
with any laws or rules that apply to the Company, including the rules
of the National Association of Securities Dealers or any national
securities exchange on which the Company's securities are listed.
Meetings of the Nominating Committee shall be held at such place as is
fixed by the chairman thereof in the notice of the meeting. The
provisions of Article 4 governing action without a meeting, notice,
waiver of notice and quorum requirements shall apply to the Nominating
Committee. All decisions of the Nominating Committee shall require
the affirmative vote of at least two members.
Section 3. Meetings. Except as otherwise provided in these
bylaws, the provisions of Article 4 governing meetings of the board of
directors, action without meeting, notice, waiver of notice,
presumption of assent and quorum and voting requirements shall apply
to the committees of the board and its members.
Section 4. Minutes. The committees shall keep minutes of
their proceedings and documentation of their decisions and shall
transmit copies thereof and report thereon to the board of directors
at or before the next meeting of the board.
ARTICLE 6
Officers
Section 1. Titles. The officers of the corporation shall
be a chairman of the board, a president and chief executive officer, a
secretary and a treasurer. The board of directors or the president
and chief executive officer (if authorized by the board) may appoint
one or more vice presidents, one or more assistant secretaries, one or
more assistant treasurers and such other officers as shall be deemed
necessary. The additional officers shall have the authority and
perform the duties as from time to time may be prescribed by the board
of directors or by direction of the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers). Any two or more offices may
be held by the same individual, but no officer may act in more than
one capacity where action of two or more officers is required.
Section 2. Election; Appointment. The officers of the
corporation shall be elected from time to time by the board of
directors or appointed from time to time by the president and chief
executive officer (to the extent that the president and chief
executive officer is authorized by the board to appoint officers).
Section 3. Removal. Any officer may be removed by the
board at any time with or without cause whenever in its judgment the
best interests of the corporation will be served, but removal shall
not itself affect the officer's contract rights, if any, with the
corporation.
Section 4. Vacancies. Vacancies among the officers may be
filled and new officers may be created and filled by the board of
directors, or by the president and chief executive officer (to the
extent authorized by the board).
Section 5. Compensation. Except as otherwise provided in
these bylaws, the compensation of the officers shall be fixed by the
board of directors.
Section 6. Chairman and Vice Chairman of the Board of
Directors. The chairman of the board of directors shall preside at
meetings of the shareholders and the board of directors and shall have
such other authority and perform such other duties as the board of
directors shall designate. The vice chairman, if elected, shall
preside at meetings of the board in the absence of the chairman and
shall have such other authority and perform such other duties as the
board of directors shall designate.
Section 7. President and Chief Executive Officer. In the
absence of the chairman of the board, the president and chief
executive officer shall preside at all meetings of the shareholders
and the board of directors. Subject to the board of directors, he
shall be the principal executive officer of the corporation and shall
have general charge of the business of the corporation; he shall keep
the board of directors fully informed of the business of the
corporation; he may sign and execute all authorized bonds, contracts,
or other obligations in the name of, and on behalf of, the
corporation, and with the secretary or assistant secretary, if one be
elected, may sign all certificates of stock, and without further
authorization than these presents, may sign all checks or drafts upon
funds of this corporation, in its name and on its behalf, and any bank
or depository in which funds of the corporation shall be deposited
shall be fully and conclusively protected in honoring any checks or
drafts on behalf of this corporation, signed by the president and
chief executive officer. Subject to the limitations of Section 6(e)
of Article 4 of these bylaws, he shall have the power to fix the
salaries of all other officers, agents and employees of the
corporation, except the chairman and vice presidents (including senior
vice presidents, if any); and shall have the power to employ and
discharge all agents and employees of the corporation, subject to the
control of the board of directors, except the chairman and vice
presidents. He shall generally conduct the affairs of the corporation
and shall do and perform such other duties as, from time to time, may
be assigned to him by the board of directors or by these bylaws.
Section 8. Vice Presidents. The vice presidents shall
perform such duties as from time to time may be assigned to them by
the chairman of the board or the president and chief executive
officer, the board of directors or by these bylaws.
Section 9. Secretary. The secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and of the board of directors and shall give all notices required by
law and by these bylaws. The secretary shall have general charge of
the corporate books and records and shall have the responsibility and
authority to maintain and authenticate such books and records. The
secretary shall have general charge of the corporate seal and shall
affix the corporate seal to any lawfully executed instrument requiring
it. The secretary shall have general charge of the stock transfer
books of the corporation and shall keep at the principal office of the
corporation a record of shareholders, showing the name and address of
each shareholder and the number and class of shares held by each. The
secretary shall sign such instruments as may require the signature of
the secretary, and in general shall perform the duties incident to the
office of secretary and such other duties as may be assigned from time
to time by the board of directors or the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers).
Section 10. Assistant Secretaries. Each assistant
secretary shall have such powers and perform such duties as may be
assigned by the board of directors or the president and chief
executive officer (if authorized by the board of directors to
prescribe the authority and duties of other officers), and the
assistant secretaries shall exercise the powers of the secretary
during that officer's absence or inability to act.
Section 11. Treasurer. The treasurer shall have custody of
all funds and securities belonging to the corporation and shall
receive, deposit or disburse the same under the direction of the board
of directors. The treasurer shall keep full and accurate accounts of
the finances of the corporation and shall cause a true statement of
the assets and liabilities of the corporation as of the close of each
fiscal year and of the results of its operations and of changes in
surplus, all in reasonable detail, to be made and filed at the
principal office of the corporation within four months after the end
of the fiscal year. The statement shall be available for inspection
by any shareholder for a period of ten years, and the treasurer shall
mail or otherwise deliver a copy of the latest statement to any
shareholder upon written request. The treasurer shall in general
perform all duties incident to the office and such other duties as may
be assigned from time to time by the board of directors or the
president and chief executive officer (if authorized by the board of
directors to prescribe the authority and duties of other officers).
Section 12. Assistant Treasurers. Each assistant treasurer
shall have such powers and perform such duties as may be assigned by
the board of directors or the president and chief executive officer
(if authorized by the board of directors to prescribe the authority
and duties of other officers), and the assistant treasurers shall
exercise the powers of the treasurer during that officer's absence or
inability to act.
Section 13. Voting Upon Stocks. Unless otherwise ordered
by the board of directors, the president and chief executive officer
shall have full power and authority in behalf of the corporation to
attend, act and vote at meetings of the shareholders of any
corporation in which this corporation may hold stock, and at such
meetings shall possess and may exercise any and all rights and powers
incident to the ownership of such stock and which, as the owner, the
corporation might have possessed and exercised if present. The board
of directors may by resolution from time to time confer such power and
authority upon any other person or persons.
ARTICLE 7
Capital Stock
Section 1. Certificates. Shares of the capital stock of
the corporation shall be represented by certificates. The name and
address of the persons to whom shares of capital stock of the
corporation are issued, with the number of shares and date of issue,
shall be entered on the stock transfer records of the corporation.
Certificates for shares of the capital stock of the corporation shall
be in such form not inconsistent with the articles of incorporation of
the corporation as shall be approved by the board of directors. Each
certificate shall be signed (either manually or by facsimile) by (a)
the president and chief executive officer or any vice president and by
the secretary, assistant secretary, treasurer or assistant treasurer
or (b) any two officers designated by the board of directors. Each
certificate may be sealed with the seal of the corporation or a
facsimile thereof.
Section 2. Transfer of Shares. Transfer of shares shall be
made on the stock transfer records of the corporation, and transfers
shall be made only upon surrender of the certificate for the shares
sought to be transferred by the recordholder or by a duly authorized
agent, transferee or legal representative. All certificates
surrendered for transfer or reissue shall be canceled before new
certificates for the shares shall be issued.
Section 3. Transfer Agent and Registrar. The board of directors
may appoint one or more transfer agents and one or more registrars of
transfers and may require all stock certificates to be signed or counter-
signed by the transfer agent and registered by the registrar of transfers.
Section 4. Regulations. The board of directors may make
rules and regulations as it deems expedient concerning the issue,
transfer and registration of shares of capital stock of the
corporation.
Section 5. Fixing Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any
other purpose, the board of directors may fix in advance a date as the
record date for the determination of shareholders. The record date
shall not be more than 70 days before the meeting or action requiring
a determination of shareholders. A determination of shareholders
entitled to notice of or to vote at the shareholders' meeting shall be
effective for any adjournment of the meeting unless the board of
directors fixes a new record date, which it shall do if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting. If no record date is fixed for the determination of
shareholders, the record date shall be the day the notice of the
meeting is mailed or the day the action requiring a determination of
shareholders is taken. If no record date is fixed for action without
a meeting, the record date for determining shareholders entitled to
take action without a meeting shall be the date the first shareholder
signs a consent to the action taken.
Section 6. Lost Certificates. The board of directors must
authorize the issuance of a new certificate in place of a certificate
claimed to have been lost, destroyed or wrongfully taken, upon receipt
of (a) an affidavit from the person explaining the loss, destruction
or wrongful taking, and (b) a bond from the claimant in a sum as the
corporation may reasonably direct to indemnify the corporation against
loss from any claim with respect to the certificate claimed to have
been lost, destroyed or wrongfully taken. The board of directors may,
in its discretion, waive the affidavit and bond and authorize the
issuance of a new certificate in place of a certificate claimed to
have been lost, destroyed or wrongfully taken.
ARTICLE 8
Indemnification of Officers and Directors
Section 1. Indemnification Provisions. Any person who at
any time serves or has served as a director of officer of the
corporation or of any wholly owned subsidiary of the corporation, or
in such capacity at the request of the corporation for any other
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or as a trustee or administrator under any employee
benefit plan of the corporation or of any wholly owned subsidiary
thereof (a "Claimant"), shall have the right to be indemnified and
held harmless by the corporation to the fullest extent from time to
time permitted by law against all liabilities and litigation expenses
(as hereinafter defined) in the event a claim shall be made or
threatened against that person in, or that person is made or
threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the
corporation, including all appeals therefrom (a "proceeding"), arising
out of that person's status as such or that person's activities in any
such capacity; provided, that such indemnification shall not be
effective with respect to (a) that portion of any liabilities or
litigation expenses with respect to which the Claimant is entitled to
receive payment under any insurance policy or (b) any liabilities or
litigation expenses incurred on account of any of the Claimant's
activities which were at the time taken known or believed by the
Claimant to be clearly in conflict with the best interests of the
corporation.
Section 2. Definitions. As used in this Article, (a)
"liabilities" shall include, without limitation, (1) payments in
satisfaction of any judgment, money decree, excise tax, fine or
penalty for which the Claimant had become liable in any proceeding and
(2) payments in settlement of any such proceeding subject, however, to
Section 3 of this Article 8; (b) "litigation expenses" shall include,
without limitation, (1) reasonable costs and expenses and attorneys'
fees and expenses actually incurred by the Claimant in connection with
any proceeding and (2) reasonable costs and expenses and attorneys'
fees and expenses in connection with the enforcement of rights to the
indemnification granted hereby or by applicable law, if such
enforcement is successful in whole or in part; and (c) "disinterested
directors" shall mean directors who are not party to the proceeding in
question.
Section 3. Settlements. The corporation shall not be
liable to indemnify the Claimant for any amounts paid in settlement of
any proceeding effected without the corporation's written consent.
The corporation will not unreasonably withhold its consent to any
proposed settlement.
Section 4. Litigation Expense Advances.
(a) Except as provided in subsection (b) below, any
litigation expenses shall be advanced to any Claimant within 30 days
of receipt by the secretary of the corporation of a demand therefor,
together with an undertaking by or on behalf of the Claimant to repay
to the corporation such amount unless it is ultimately determined that
Claimant is entitled to be indemnified by the corporation against such
expenses. The secretary shall promptly forward notice of the demand
and undertaking immediately to all directors of the corporation.
(b) Within 10 days after mailing of notice to the directors
pursuant to subsection (a) above, any disinterested director may, if
desired, call a meeting of all disinterested directors to review the
reasonableness of the expenses so requested. No advance shall be made
if a majority of the disinterested directors affirmatively determines
that the item of expense is unreasonable in amount; but if the
disinterested directors determine that a portion of the expense item
is reasonable, the corporation shall advance such portion.
Section 5. Approval of Indemnification Payments. Except as
provided in Section 4 of this Article, the board of directors of the
corporation shall take all such action as may be necessary and
appropriate to authorize the corporation to pay the indemnification
required by Section 1 of this Article, including, without limitation,
making a good faith evaluation of the manner in which the Claimant
acted and of the reasonable amount of indemnity due the Claimant. In
taking any such action, any Claimant who is a director of the
corporation shall not be entitled to vote on any matter concerning
such Claimant's right to indemnification.
Section 6. Suits by Claimant. No Claimant shall be
entitled to bring suit against the corporation to enforce his rights
under this Article until sixty days after a written claim has been
received by the corporation, together with any undertaking to repay as
required by Section 4 of this Article. It shall be a defense to any
such action that the Claimant's liabilities or litigation expenses
were incurred on account of activities described in clause (b) of
Section 1, but the burden of proving this defense shall be on the
corporation. Neither the failure of the corporation to have made a
determination prior to the commencement of the action to the effect
that indemnification of the Claimant is proper in the circumstances,
nor an actual determination by the corporation that the Claimant had
not met the standard of conduct described in clause (b) of Section 1,
shall be a defense to the action or create a presumption that the
Claimant has not met the applicable standard of conduct.
Section 7. Consideration; Personal Representatives and
Other Remedies. Any person who during such time as this Article or
corresponding provisions of predecessor bylaws is or has been in
effect serves or has served in any of the aforesaid capacities for or
on behalf of the corporation, shall be deemed to be doing so or to
have done so in reliance upon, and as consideration for, the right of
indemnification provided herein or therein. The right of
indemnification provided herein or therein shall inure to the benefit
of the legal representatives of any person who qualifies or would
qualify as a Claimant hereunder, and the right shall not be exclusive
of any other rights to which the person or legal representative may be
entitled apart from this Article.
Section 8. Scope of Indemnification Rights. The rights
granted herein shall not be limited by the provisions of Section 55-8-
51 of the General Statutes of North Carolina or any successor statute.
ARTICLE 9
General Provisions
Section 1. Dividends and other Distributions. The board of
directors may from time to time declare, and the corporation may pay
or make, dividends and other distributions with respect to its
outstanding shares in the manner and upon the terms and conditions
provided by law.
Section 2. Seal. The seal of the corporation shall consist
of two concentric circles between which is the name of the corporation
and in the center of which is inscribed SEAL; and such seal as is
impressed in the margin hereof is hereby adopted as the corporate seal
of the corporation.
Section 3. Waiver of Notice. Whenever notice is required
to be given to a shareholder, director or other person under the
provisions of these bylaws, the articles of incorporation or by
applicable law, a waiver in writing signed by the person or persons
entitled to the notice, whether before or after the date and time
stated in the notice and delivered to the corporation, shall be
equivalent to giving the notice.
Section 4. Checks. All checks, drafts or orders for the
payment of money shall be signed by the officer or officers or other
individuals that the board of directors may from time to time
designate.
Section 5. Contracts. The board of directors may authorize
any officer or officers, agent or agents to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be generally or confined to
specific instances.
Section 6. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit
of the corporation in such depositories as the board of directors may
select.
Section 7. Bond. The board of directors may by resolution
require any or all officers, agents and employees of the corporation
to give bond to the corporation, with sufficient sureties, conditioned
on the faithful performance of the duties of their respective offices
or positions, and to comply with such other conditions as may from
time to time be required by the board.
Section 8. Fiscal Year. The fiscal year of the corporation
shall be fixed by the board of directors.
Section 9. Amendments. Unless otherwise provided in the
articles of incorporation or a bylaw adopted by the shareholders or by
law, these bylaws may be amended or repealed by the board of directors
in accordance with the special voting provisions contained in Article
4, Section 6, except that a bylaw adopted, amended or repealed by the
shareholders may not be readopted, amended or repealed by the board of
directors if neither the articles of incorporation nor a bylaw adopted
by the shareholders authorizes the board of directors to adopt, amend
or repeal that particular bylaw or the bylaws generally. These bylaws
may also be amended or repealed by the board of directors. A bylaw
that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders, unless such bylaw as
originally adopted by the shareholders provides that such bylaw may be
amended or repealed by the board of directors of (b) if originally
adopted by the board of directors, either by the shareholders or by
the board of directors. A bylaw that fixes a greater quorum or voting
requirement may not be adopted by the board of directors by a vote
less than a majority of the directors then in office and may not
itself be amended by a quorum or vote of the directors less than a
quorum or vote prescribed in such bylaw or prescribed by the
shareholders.
THIS IS TO CERTIFY that the above bylaws of Food Lion, Inc. were
duly adopted by the board of directors of the corporation, effective
May 4, 1995, by action taken at a meeting of the board of directors in
accordance with Section 55-8-2 of the General Statutes of North
Carolina.
This 4th day of May, 1995.
/s/ R. William McCanless
Assistant Secretary
[Corporate Seal]
-17-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made this 27th day of February,
1997, between FOOD LION, INC., a North Carolina corporation with
its principal place of business in Salisbury, North Carolina (the
"Company"), and Joseph C. Hall, Jr., an individual residing at 57
Gregory Road, Salisbury, North Carolina 28147 ("Mr. Hall"),
W I T N E S S E T H:
WHEREAS, Mr. Hall is currently employed by the Company as
its Senior Vice President of Operations and Chief Operating
Officer;
WHEREAS, the Board of Directors of the Company recognizes
that it is in the best interests of the Company and its
shareholders to retain capable and experienced executive officers
such as Mr. Hall;
WHEREAS, the Board of Directors recognizes that Mr. Hall has
made substantial contributions to the growth and success of the
Company and desires to provide for the continuing employment of
Mr. Hall and to encourage the continued dedication and attention
of Mr. Hall to the Company;
WHEREAS, Mr. Hall is willing to continue to serve the
Company; and
WHEREAS, the Company and Mr. Hall desire to enter into this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises, and the
mutual agreements herein contained, the Company and Mr. Hall
hereby agree as follows:
1. Continue to Employ. The Company hereby agrees to
continue to employ Mr. Hall as Senior Vice President of
Operations and Chief Operating Officer of the Company for the
Term of Employment as herein set forth, and Mr. Hall hereby
agrees to continue to serve the Company as Senior Vice President
of Operations and Chief Operating Officer for such term.
2. Term of Employment. The "Term of Employment," as used
herein, will commence on the date hereof and, unless sooner
terminated as hereinafter provided, shall terminate on the
fifth (5th) anniversary of such date; provided, however, that the
Term of Employment shall automatically be extended for additional
periods of one (1) year each on the terms and conditions provided
herein unless either party shall give the other party no less
than one hundred eighty (180) days' written notice prior to the
expiration of the applicable Term of Employment.
3. Employment During the Term. During the Term of
Employment, Mr. Hall shall devote his full professional time to
the business of the Company, shall use his best efforts to
promote the interests of the Company and shall serve as Senior
Vice President of Operations and Chief Operating Officer of the
Company and in such other senior executive capacities as the
Board of Directors of the Company shall hereafter designate from
time to time.
4. Vacation. Mr. Hall shall be entitled to annual
vacations in accordance with the vacation policy and practices of
the Company.
5. Compensation.
(a) Base Salary. As compensation for Mr. Hall's
services hereunder and for his covenants set forth in Sections
10, 11, and 12 below, the Company shall pay to Mr. Hall a base
salary which shall not be less than Four Hundred Seventeen
Thousand One Hundred Twelve Dollars ($417,112) per annum;
provided, however, such amount shall be increased from time to
time by the Board of Directors of the Company to assure that the
compensation paid to Mr. Hall under this Employment Agreement
remains competitive with amounts paid to other executive officers
in similar positions in the large supermarket chain industry and
reflects the performance of Mr. Hall and the financial
performance of the Company. In no event shall such annual review
result in any reduction in base salary provided in this
Employment Agreement. Such compensation shall be payable in
accordance with the Company's payroll practices for executive
employees.
(b) Bonus Plans. In addition, Mr. Hall shall be
eligible to participate in the Company's annual incentive bonus
plan, stock option plans and other compensation plans of the
Company, as they shall be administered by the Board of Directors
of the Company and the relevant committees thereof (referred to
herein as the "Bonus Plans").
(c) Deferral Arrangement.
(i) Right to Defer. Mr. Hall may elect to
defer some or all of his bonus compensation and up to
fifty percent (50%) of his base salary payable to him
pursuant to this Employment Agreement. Any deferral of
bonus compensation shall be irrevocable and must be
requested by Mr. Hall in writing prior to the start of
the fiscal year to which such bonus relates (except
that any deferral election for the fiscal year 1997 may
be made within thirty (30) days following the effective
date of this Employment Agreement). Any deferral of
base salary shall be irrevocable and must be requested
by Mr. Hall in writing prior to the start of the fiscal
year to which such salary relates (except that the
deferral election for the 1997 fiscal year may be made
within thirty (30) days following the Effective Date,
but will relate only to amounts payable after the
election is received by the Company). An election for
a given fiscal year shall be deemed a continuing
election for each subsequent fiscal year, unless a
subsequent written election to defer (or not to defer)
is provided to the Company by Mr. Hall prior to the
start of such fiscal year.
(ii) Bookkeeping Account and Grantor Trust.
Any amounts deferred by Mr. Hall hereunder will be
credited to a bookkeeping account established on the
books and records of the Company for this purpose. In
addition, the Company will maintain in a separate,
irrevocable grantor trust established by the Company an
amount in cash equal to the amounts deferred by Mr.
Hall. In connection with the deferral election, Mr.
Hall shall have the right to specify the investments in
which his bookkeeping account shall be deemed invested;
provided, however, the Company shall be under no
obligation to purchase any such investments chosen by
Mr. Hall. Mr. Hall's bookkeeping account shall be
credited to reflect all income, gains and losses of
such deemed investments. The parties hereto agree
that, to the extent that any investment vehicle that
Mr. Hall selects results in a loss to the bookkeeping
account, the Company will have no obligation to
compensate Mr. Hall for such loss or to make any
compensatory adjustment to the bookkeeping account to
make up for such loss.
(iii) Distribution. The timing of the
payment of all amounts deferred by Mr. Hall shall be
specified in his initial deferral election and may not
be subsequently changed by Mr. Hall without the prior
written approval of the Board of Directors. The
initial deferral may specify a lump sum payment of up
to five (5) annual installment payments to be paid out
in their entirety by no later than the sixth
anniversary of the Date of Termination (as defined
below); provided, however, that, notwithstanding Mr.
Hall's deferral election, all amounts will be paid to
Mr. Hall within thirty (30) days following a
termination of this Employment Agreement for any reason
specified in Sections 7(c) or 7(e).
6. Benefits. Mr. Hall shall be entitled to participate in
all health, accident, disability, medical, life and other
insurance programs and other benefit and compensation plans
maintained by the Company for the benefit of Mr. Hall and/or
other executive employees of the Company in accordance with the
Company's policies. In addition, the Company shall maintain in
full force and effect on the life of Mr. Hall a life insurance
policy, subject to a split dollar arrangement, in the face amount
of three and one-half (3.5) times Mr. Hall's base salary if his
death occurs prior to his retirement (provided his retirement is
on terms consistent with the terms of the life insurance policy
and any split dollar arrangements between Mr. Hall and the
Company relating thereto) and two (2) times Mr. Hall's last base
salary if his death occurs after any such retirement. Mr. Hall
shall be the owner of such policy with the authority to designate
the beneficiary thereof.
7. Termination. Termination of Mr. Hall's employment
under any of the following circumstances shall not constitute a
breach of this Employment Agreement:
(a) Death. Termination upon the death of
Mr. Hall.
(b) Cause. Termination by the Company for "Cause" as
described in this Section 7(b). For purposes of this Employment
Agreement, "Cause" shall mean (i) willful failure (other than by
reason of incapacity due to physical or mental illness) to
perform his material duties hereunder and his inability or
unwillingness to correct such failure within thirty (30) days
after receipt of such notice, (ii) conviction of Mr. Hall of a
felony or plea of no contest to a felony, or (iii) perpetration
of a material dishonest act or fraud against the Company or any
affiliate thereof. The definition of "Cause" expressly excludes
any mistake of fact or judgment made by Mr. Hall in good faith
with respect to the Company's business.
(c) Good Reason. Termination by Mr. Hall for "Good
Reason" as described in this Section 7(c). For purposes of this
Employment Agreement, "Good Reason" shall mean (i) a material
diminution of the professional responsibilities of Mr. Hall, (ii)
assignment of inappropriate duties to Mr. Hall, (iii) failure of
the Company to comply with compensation and benefits obligations
to Mr. Hall, (iv) transfer of Mr. Hall more than 50 miles from
Salisbury, North Carolina, without good business reasons, as
determined by the Company's Board of Directors, (v) a purported
termination of this Employment Agreement by the Company other
than in accordance with the terms hereof, (vi) the occurrence of
a Change in Control of the Company (as defined below), or (vii)
failure of the Company to require any successor to the Company to
assume and comply with this Employment Agreement. For purposes
of this Employment Agreement, a determination in good faith by
Mr. Hall of "Good Reason" shall be conclusive.
For purposes of this Employment Agreement, "a Change in
Control of the Company" shall mean a change in control of a
nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as amended (the "Exchange Act");
provided that, without limitation, a Change in Control of the
Company shall be deemed to have occurred if:
(A) an acquisition (other than directly from
the Company) by a Person (as defined below) (excluding
the Company or an employee benefit plan of the Company
or an entity controlled by the Company's shareholders)
results in the aggregate number of shares of the
Company's voting securities beneficially owned by any
other Person to exceed the number of shares of the
Company's voting securities beneficially owned by
Etablissements Delhaize Freres et Cie "Le Lion" S.A.
("Delhaize") and Delhaize "Le Lion" America, Inc.;
(B) at any time during the term of this
Employment Agreement there is a change in the
composition of the Board of Directors of the Company
resulting in a majority of the directors of the Company
who are in office on the date hereof ("Incumbent
Company Directors") no longer constituting a majority
of the directors of the Company; provided that, in
making such determination, persons who are elected to
serve as directors of the Company and who are approved
by all of the directors in office on the date of such
election (other than in connection with an actual or
threatened proxy contest) shall be treated as Incumbent
Company Directors;
(C) consummation of a complete liquidation
or dissolution of the Company or a merger,
consolidation or sale of all or substantially all of
the Company's assets (collectively, a "Business
Combination") other than a Business Combination in
which all or substantially all of the shareholders of
the Company receive fifty percent (50%) or more of the
stock of the Company resulting from the Business
Combination, at least a majority of the board of
directors of the resulting corporation were Incumbent
Company Directors and after which no person or entity
owns twenty percent (20%) or more of the stock of the
resulting corporation, who did not own such stock
immediately before the Business Combination; or
(D) occurrence of any of the events
described in Section 7(c)(B) or (C) to Delhaize or the
acquisition by any Person of more than thirty
percent (30%) of the stock of Delhaize.
For the purpose of this paragraph, the term "beneficially owned"
shall have the meaning set forth in Rule 13d-3 promulgated under
the Exchange Act, and the term "Person" shall have the meaning
set forth in Sections 3(a)(2) and 13(d)(3) of the Exchange Act.
An election by Mr. Hall to terminate his employment under
this Section 7(c) hereof shall not be deemed a voluntary
termination of employment by Mr. Hall for the purpose of this
Employment Agreement or any plan, arrangement or program of the
Company.
(d) Disability. Termination by the Company or Mr.
Hall upon Disability of Mr. Hall. For the termination by the
Company to be valid, (i) the Company must first give forty-
five (45) days' written Notice of Termination, as defined below
(which may occur before or after the end of the 180-day period
specified in the definition of Disability below), and (ii) Mr.
Hall shall not have returned to the performance of his duties
hereunder on a full-time basis during such 180-day period. For
purposes of this Employment Agreement, "Disability" shall mean
Mr. Hall's absence from continuous full-time employment with the
Company for a period of at least 180 consecutive days by reason
of a mental or physical illness. The Company shall have the
right to have Mr. Hall examined at such reasonable times by such
physicians satisfactory to Mr. Hall as the Company may designate,
and Mr. Hall will make himself available for and submit to such
examination as and when requested. Except as otherwise provided
in this Section 7(d), the inability of Mr. Hall to perform his
duties hereunder, whether by reason of injury, illness (physical
or mental), or otherwise shall not result in the termination of
Mr. Hall's employment hereunder, and he shall be entitled to
continue to receive his base salary and other benefits as
provided herein.
(e) Without Cause. Termination by the Company without
Cause.
(f) Date and Notice of Termination. Any termination
of Mr. Hall's employment by the Company or by Mr. Hall (other
than termination pursuant to Section 7(a) above) shall be
communicated by written Notice of Termination to the other party
hereto. For purposes of this Employment Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Employment Agreement
relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of
Mr. Hall's employment under the provision so indicated.
"Date of Termination" shall mean (i) if Mr. Hall's
employment is terminated by his death, the date of his death, and
(ii) if Mr. Hall's employment is terminated pursuant to a Notice
of Termination, the date specified in the Notice of Termination;
provided that, if within thirty (30) days after any Notice of
Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the
date which is finally determined to be the Date of Termination,
either by mutual written agreement of the parties, by a binding
and final arbitration award or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
8. Effect of Termination. In the event of termination of
employment as described in Section 7 hereof, the Company shall
compensate Mr. Hall as follows:
(a) Death. If Mr. Hall's employment is terminated as
a result of his death, as specified in Section 7(a), the Company
shall pay Mr. Hall's beneficiary the benefit called for under his
Salary Continuation Agreement with the Company. Mr. Hall's
beneficiary shall accept the payment provided for in this
Section 8(a) in full discharge and release of the Company of and
from any further obligations under this Employment Agreement,
except for any other benefits due under any applicable plan or
policy of the Company (including life insurance policies and
pension or similar plans), as determined under the provisions of
such plans or policies.
(b) Disability. If Mr. Hall's employment is
terminated by the Company or Mr. Hall as a result of his
disability as specified in Section 7(d), then the Company shall
pay Mr. Hall his full compensation until the Date of Termination.
Within thirty (30) days after the termination of his employment,
the Company shall pay Mr. Hall a lump sum payment equal to fifty
percent (50%) of the present value of the future base salary
payable to Mr. Hall during the remainder of his Term of
Employment under this Employment Agreement or for a period of
two (2) years, whichever is longer. Such lump sum amount shall
be calculated by using a discount rate equal to the applicable
Federal rate that is in effect on the date of payment as
determined under Section 1274(d) of the Internal Revenue Code of
1986 (the "Code") and the regulations thereunder, and by assuming
that Mr. Hall's annual salary in effect on the Date of
Termination would continue for the remainder of the Term of
Employment, or for a period of two (2) years, whichever is
longer. This payment shall be in addition to any payments Mr.
Hall shall be entitled to receive under any applicable disability
insurance policies maintained by the Company for Mr. Hall.
(c) Cause. If Mr. Hall's employment is terminated for
any reason specified in Section 7(b) hereof, the Company shall no
longer be obligated to make any payments to Mr. Hall pursuant to
this Employment Agreement, except for the full amount of his base
salary and all compensation earned prior to the Date of
Termination and payments pursuant to plans, programs, or
arrangements, as determined under the provisions of such plans or
policies.
(d) Good Reason or Without Cause. If Mr. Hall's
employment is terminated by Mr. Hall for Good Reason as specified
in Section 7(c) hereof, or if his employment is terminated by the
Company without Cause as specified in Section 7(e), the Company
shall pay Mr. Hall the full amount of his base salary and other
compensation earned prior to the Date of Termination. The
Company shall also pay Mr. Hall, within thirty (30) days after
his termination, a lump sum payment equal to three (3) (or the
number of years left in the Term of this Employment Agreement,
whichever is greater) times his current base salary. Such lump
sum amount shall be calculated by using a discount rate equal to
the applicable Federal rate that is in effect on the date of
payment as determined under Section 1274(d) of the Code and the
regulations thereunder, and by assuming that Mr. Hall's annual
salary in effect on the Date of Termination would continue for
the remainder of the Term of Employment, or for a period of
three (3) years, whichever is longer.
(e) Benefits. From the Date of Termination of Mr.
Hall's employment for Good Reason, as specified in Section 7(c)
hereof, or without Cause as specified in Section 7(e), the
Company shall pay Mr. Hall the full amount of his base salary and
all compensation earned prior to the Date of Termination. The
Company shall maintain in full force and effect for the continued
benefit of Mr. Hall and his eligible dependents for the greater
of three (3) years and the number of years (including partial
years) remaining in the Term of Employment hereunder, all
employee benefit plans and programs (such as medical, dental,
health and life insurance) in which Mr. Hall was entitled to
participate immediately prior to the Date of Termination, if Mr.
Hall's continued participation is possible under the general
terms and provisions of such plans and programs. In the event
that Mr. Hall's participation in any such plan or program is
barred, the Company shall arrange to provide Mr. Hall with
benefits substantially similar to those to which Mr. Hall would
otherwise have been entitled to receive under such plans and
programs.
9. Business Expenses. The Company agrees that during the
Term of Employment, the Company will reimburse Mr. Hall for
actual travel and other out-of-pocket expenses reasonably
incurred by him in connection with the performance of his duties
hereunder and accounted for in accordance with the policies and
procedures currently established by the Company.
10. No Competing Employment. Mr. Hall agrees that, during
the Term of Employment and for a period of two (2) years after
the Date of Termination ("Restricted Period"), he will not,
without the written consent of the Board of Directors, engage in
any retail or wholesale grocery business which is directly
competitive with the business of the Company or any affiliate
thereof in any geographic area in which the Company or any
affiliate operates on the Date of Termination. Mr. Hall
understands and agrees that a portion of the amounts paid to him
under Section 5(a) hereof is in consideration for his covenants
set forth in Sections 10, 11, and 12.
11. No Solicitation. Mr. Hall agrees that, during the
Restricted Period, he will not, without the prior written consent
of the Board of Directors, directly or indirectly solicit or
recruit any employee or independent contractor of the Company for
the purpose of being employed by Mr. Hall, directly or
indirectly, or any other person or entity on behalf of which Mr.
Hall is acting as an agent, representative or employee.
Notwithstanding the above, if Mr. Hall's employment is terminated
for any reason specified in Section 7 hereof prior to the first
anniversary of the date on which a Change in Control (as defined
above) occurred, the covenants of Sections 10 and 11 shall not be
applicable.
12. Confidentiality. Mr. Hall agrees that, during the Term
of Employment and thereafter, he will not, without the written
consent of the Company, disclose to anyone not entitled thereto,
any confidential information relating to the business, sales,
financial condition or products of the Company or any affiliate
thereof. Mr. Hall also recognizes and acknowledges that he has a
common law obligation not to disclose trade secrets and other
proprietary information of the Company. Mr. Hall further agrees
that, should he leave the active service of the Company, he will
not take with him or retain, without the written authorization of
the Board of Directors, any papers, files or other documents or
copies thereof or other confidential information of any kind
belonging to the Company pertaining to its business, sales,
financial condition or products. Mr. Hall understands and agrees
that the rights and obligations set forth in this Section 12 are
perpetual and, in any case, shall extend beyond the Restricted
Period.
13. Injunctive Relief. Without limiting the remedies
available to the Company, Mr. Hall acknowledges that a breach of
the covenants contained in Sections 10, 11 and 12 herein may
result in material irreparable injury to the Company for which
there is no adequate remedy at law, that it will not be possible
to measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company shall be
entitled to obtain a temporary restraining order or a preliminary
injunction restraining Mr. Hall from engaging in activities
prohibited by Sections 10, 11 and 12 or such other relief as may
be required to specifically enforce any of the covenants in such
Sections.
14. Indemnification. The Company shall indemnify and hold
harmless Mr. Hall to the fullest extent permitted under North
Carolina law, including, without limitation, the provisions of
Part 5 (or any successor provision) of the North Carolina
Business Corporation Act, from and against all losses, claims,
damages, liabilities, costs and expenses (including, without
limitation, attorneys' fees), which may, at any time, be suffered
by Mr. Hall as a result of the fact that Mr. Hall is or was an
officer of the Company, or is or was serving at the request of
the Company as an officer, employee or agent of an affiliate of
the Company. The expenses incurred by Mr. Hall in any proceeding
shall be paid promptly by the Company in advance of the final
disposition of any proceeding at the written request of Mr. Hall
to the fullest extent permitted under North Carolina law. The
indemnification provision of this Section 14 shall survive the
termination or expiration of this Employment Agreement.
15. Gross-Up Payment. In the event that any payments to
which Mr. Hall becomes entitled under this Employment Agreement
(the "Agreement Payments") will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (or any similar
tax that may hereafter be imposed), the Company shall pay to Mr.
Hall at the time specified below, an additional amount (the
"Gross-Up Payment") such that the net amount retained by Mr. Hall
(taking into account the Total Payments (as hereinafter defined)
and the Gross-Up Payment), after deduction of any Excise Tax on
the Total Payments and any federal, state and local income tax
and Excise Tax upon the Gross-Up Payment provided for by this
Section 15, but before deduction for any federal, state or local
income tax on the Total Payments, shall be equal to the "Total
Payments," as defined below. Except as otherwise provided
below, the Gross-Up Payment or portion thereof provided for in
this Section 15 shall be paid not later than the thirtieth (30th)
day following payment of any amounts under the Employment
Agreement that will be subject to the Excise Tax; provided,
however, that if the amount of such Gross-Up Payment or portion
thereof cannot be finally determined on or before such day, the
Company shall pay on such day an estimate, as determined in good
faith by the Company, of the minimum amount of such payments and
shall pay the remainder of such payments (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined, but in no event
later than the forty-fifth (45th) day after payment of any
amounts under the Employment Agreement that will be subject to
the Excise Tax. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to Mr.
Hall, payable on the fifth (5th) day after demand by the Company
(together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
For purposes of determining whether any of the Agreement
Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (i) any other payments, accruals, vestings or other
compensatory benefits received or to be received by Mr. Hall in
connection with a Change in Control of the Company or the
termination of Mr. Hall's employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a
Change in Control of the Company or any person affiliated with
the Company or such person (which, together with the Agreement
Payments, shall constitute the "Total Payments") shall be treated
as "parachute payments" within the meaning of Section 280G(b)(2)
of the Code, and all "excess parachute payments" within the
meaning of Section 280G(b((1) of the Code shall be treated as
subject to the Excise Tax, unless, in the opinion of tax counsel
selected by the Company's independent auditors, such other
payments or benefits (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax, (ii) the amount of the
Total Payments which shall be treated as subject to the Excise
Tax shall be equal to the lesser of (a) the total amount of the
Total Payments, or (b) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) of the Code (after
applying clause (i) above), and (iii) the value of any non-cash
benefits or any deferred payment or benefit shall be determined
by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up
Payment, Mr. Hall shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made and the
applicable state and local income taxes at the highest marginal
rate of taxation for the calendar year in which the Gross-Up
Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state
and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account
hereunder at the time the Gross-Up Payment is made, Mr. Hall
shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction (plus the portion
of the Gross-Up Payment attributable to the Excise Tax and
federal, state and local income tax imposed on the portion of the
Gross-Up Payment being repaid) if such repayment results in a
reduction in Excise Tax and/or a federal, state and local income
tax deduction, plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time the Gross-Up Payment is
made (including, by reason of any payment, the existence or
amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional gross-up payment
in respect of such excess (plus any interest payable with respect
to such excess) at the time that the amount of such excess is
finally determined.
16. Vesting. Upon a Change in Control of the Company or if
Mr. Hall's employment is terminated for reasons specified in
Sections 7(a), 7(c), 7(d) or 7(e) hereof, all of the rights
granted to Mr. Hall by the Company to own or acquire stock of the
Company (including, without limitation, stock options and
restricted stock granted under the Company's Stock Option Plan)
shall automatically vest upon the date of such Change in Control
or Date of Termination, respectively, without the need for
further action or consent by the Company; provided, however, that
(assuming no occurrence of a Change of Control) such rights shall
not vest if Mr. Hall's employment is terminated for Mr. Hall's
failure to adequately perform his duties hereunder as determined
by an affirmative vote of at least seventy percent (70%) of the
Board of Directors of the Company.
17. Legal Expenses. The Company shall reimburse Mr. Hall
for all reasonable legal fees incurred in an effort to establish
entitlement to compensation and benefits under this Employment
Agreement.
18. Mitigation. The Company recognizes that Mr. Hall has
no duty to mitigate the amounts due to him upon termination of
this Employment Agreement, and the obligations of the Company
will not be diminished in the event Mr. Hall is employed by
another employer after the termination of his employment with the
Company.
19. Successors. This Employment Agreement shall inure to
the benefit of and be binding upon the Company and its successors
and assigns and upon Mr. Hall and his legal representatives. The
Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to
expressly assume and agree to perform this Employment Agreement
in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
20. Amendments. This Employment Agreement, which contains
the entire contractual understanding between the parties, may not
be changed orally but only by a written instrument signed by the
parties hereto.
21. Governing Law. This Employment Agreement shall be
governed by and construed in accordance with the laws of the
State of North Carolina.
22. Waiver. The waiver of breach of any term or condition
of this Employment Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or
condition.
23. Severability. In the event that any provision or
portion of this Employment Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions
and portions of this Employment Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest
extent provided by law.
24. Notices. Any notices or other communications required
or permitted hereunder shall be deemed sufficiently given if sent
by registered mail, postage prepaid, as follows:
(a) If to Mr. Hall:
Joseph C. Hall, Jr.
57 Gregory Road
Salisbury, North Carolina 28147
(b) If to the Company:
Food Lion, Inc.
Post Office Box 1330
2110 Executive Drive
Salisbury, North Carolina 28145-1330
Attention: Secretary
with a copy to:
Bruce S. Mendelsohn
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
or to such other address as shall have been specified in writing
by either party to the other. Any such notice or communication
shall be deemed to have been given on the second day (excluding
any days U.S. Post Offices are not open) after the date so
mailed.
IN WITNESS WHEREOF, the Company has caused this Employment
Agreement to be executed by its duly authorized representative,
and Mr. Hall has hereunto set his hand as of the date first above
written.
FOOD LION, INC.
By:Tom E. Smith
Attest:
Glenda Kluttz
Joseph C. Hall, Jr.
Joseph C. Hall, Jr.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made this 27th day of February,
1997, between FOOD LION, INC., a North Carolina corporation with
its principal place of business in Salisbury, North Carolina (the
"Company"), and R. WILLIAM McCANLESS, an individual residing at
244 Confederate Avenue, Salisbury, North Carolina 28144 ("Mr.
McCanless"),
W I T N E S S E T H:
WHEREAS, Mr. McCanless is currently employed by the Company
as its Senior Vice President of Administration and Chief
Administrative Officer;
WHEREAS, the Board of Directors of the Company recognizes
that it is in the best interests of the Company and its
shareholders to retain capable and experienced executive officers
such as Mr. McCanless;
WHEREAS, the Board of Directors recognizes that Mr.
McCanless has made substantial contributions to the growth and
success of the Company and desires to provide for the continuing
employment of Mr. McCanless and to encourage the continued
dedication and attention of Mr. McCanless to the Company;
WHEREAS, Mr. McCanless is willing to continue to serve the
Company; and
WHEREAS, the Company and Mr. McCanless desire to enter into
this Employment Agreement.
NOW, THEREFORE, in consideration of the premises, and the
mutual agreements herein contained, the Company and Mr. McCanless
hereby agree as follows:
1. Continue to Employ. The Company hereby agrees to
continue to employ Mr. McCanless as Senior Vice President of
Administration and Chief Administrative Officer of the Company
for the Term of Employment as herein set forth, and Mr. McCanless
hereby agrees to continue to serve the Company as Senior Vice
President of Administration and Chief Administrative Officer for
such term.
2. Term of Employment. The "Term of Employment," as used
herein, will commence on the date hereof and, unless sooner
terminated as hereinafter provided, shall terminate on the
fifth (5th) anniversary of such date; provided, however, that the
Term of Employment shall automatically be extended for additional
periods of one (1) year each on the terms and conditions provided
herein unless either party shall give the other party no less
than one hundred eighty (180) days' written notice prior to the
expiration of the applicable Term of Employment.
3. Employment During the Term. During the Term of
Employment, Mr. McCanless shall devote his full professional time
to the business of the Company, shall use his best efforts to
promote the interests of the Company and shall serve as Senior
Vice President of Administration and Chief Administrative Officer
of the Company and in such other senior executive capacities as
the Board of Directors of the Company shall hereafter designate
from time to time.
4. Vacation. Mr. McCanless shall be entitled to annual
vacations in accordance with the vacation policy and practices of
the Company.
5. Compensation.
(a) Base Salary. As compensation for Mr. McCanless'
services hereunder and for his covenants set forth in Sections
10, 11, and 12 below, the Company shall pay to Mr. McCanless a
base salary which shall not be less than Three Hundred Forty-
Seven Thousand Five Hundred Ninety-Three Dollars ($347,593) per
annum; provided, however, such amount shall be increased from
time to time by the Board of Directors of the Company to assure
that the compensation paid to Mr. McCanless under this Employment
Agreement remains competitive with amounts paid to other
executive officers in similar positions in the large supermarket
chain industry and reflects the performance of Mr. McCanless and
the financial performance of the Company. In no event shall such
annual review result in any reduction in base salary provided in
this Employment Agreement. Such compensation shall be payable in
accordance with the Company's payroll practices for executive
employees.
(b) Bonus Plans. In addition, Mr. McCanless shall be
eligible to participate in the Company's annual incentive bonus
plan, stock option plans and other compensation plans of the
Company, as they shall be administered by the Board of Directors
of the Company and the relevant committees thereof (referred to
herein as the "Bonus Plans").
(c) Deferral Arrangement.
(i) Right to Defer. Mr. McCanless may elect
to defer some or all of his bonus compensation and up
to fifty percent (50%) of his base salary payable to
him pursuant to this Employment Agreement. Any
deferral of bonus compensation shall be irrevocable and
must be requested by Mr. McCanless in writing prior to
the start of the fiscal year to which such bonus
relates (except that any deferral election for the
fiscal year 1997 may be made within thirty (30) days
following the effective date of this Employment
Agreement). Any deferral of base salary shall be
irrevocable and must be requested by Mr. McCanless in
writing prior to the start of the fiscal year to which
such salary relates (except that the deferral election
for the 1997 fiscal year may be made within thirty (30)
days following the Effective Date, but will relate only
to amounts payable after the election is received by
the Company). An election for a given fiscal year
shall be deemed a continuing election for each
subsequent fiscal year, unless a subsequent written
election to defer (or not to defer) is provided to the
Company by Mr. McCanless prior to the start of such
fiscal year.
(ii) Bookkeeping Account and Grantor Trust.
Any amounts deferred by Mr. McCanless hereunder will be
credited to a bookkeeping account established on the
books and records of the Company for this purpose. In
addition, the Company will maintain in a separate,
irrevocable grantor trust established by the Company an
amount in cash equal to the amounts deferred by Mr.
McCanless. In connection with the deferral election,
Mr. McCanless shall have the right to specify the
investments in which his bookkeeping account shall be
deemed invested; provided, however, the Company shall
be under no obligation to purchase any such investments
chosen by Mr. McCanless. Mr. McCanless' bookkeeping
account shall be credited to reflect all income, gains
and losses of such deemed investments. The parties
hereto agree that, to the extent that any investment
vehicle that Mr. McCanless selects results in a loss to
the bookkeeping account, the Company will have no
obligation to compensate Mr. McCanless for such loss or
to make any compensatory adjustment to the bookkeeping
account to make up for such loss.
(iii) Distribution. The timing of the
payment of all amounts deferred by Mr. McCanless shall
be specified in his initial deferral election and may
not be subsequently changed by Mr. McCanless without
the prior written approval of the Board of Directors.
The initial deferral may specify a lump sum payment of
up to five (5) annual installment payments to be paid
out in their entirety by no later than the sixth
anniversary of the Date of Termination (as defined
below); provided, however, that, notwithstanding Mr.
McCanless' deferral election, all amounts will be paid
to Mr. McCanless within thirty (30) days following a
termination of this Employment Agreement for any reason
specified in Sections 7(c) or 7(e).
6. Benefits. Mr. McCanless shall be entitled to
participate in all health, accident, disability, medical, life
and other insurance programs and other benefit and compensation
plans maintained by the Company for the benefit of Mr. McCanless
and/or other executive employees of the Company in accordance
with the Company's policies. In addition, the Company shall
maintain in full force and effect on the life of Mr. McCanless a
life insurance policy subject to a split dollar arrangement in
the face amount of three and one-half (3.5) times Mr. McCanless'
base salary if his death occurs prior to his retirement (provided
his retirement is on terms consistent with the terms of the life
insurance policy and any split dollar arrangements between Mr.
McCanless and the Company relating thereto ) and two (2) times
Mr. McCanless' last base salary if his death occurs after any
such retirement. Mr. McCanless shall be the owner of such policy
with the authority to designate the beneficiary thereof.
7. Termination. Termination of Mr. McCanless' employment
under any of the following circumstances shall not constitute a
breach of this Employment Agreement:
(a) Death. Termination upon the death of
Mr. McCanless.
(b) Cause. Termination by the Company for "Cause" as
described in this Section 7(b). For purposes of this Employment
Agreement, "Cause" shall mean (i) willful failure (other than by
reason of incapacity due to physical or mental illness) to
perform his material duties hereunder and his inability or
unwillingness to correct such failure within thirty (30) days
after receipt of such notice, (ii) conviction of Mr. McCanless of
a felony or plea of no contest to a felony, or (iii)
perpetration of a material dishonest act or fraud against the
Company or any affiliate thereof. The definition of "Cause"
expressly excludes any mistake of fact or judgment made by Mr.
McCanless in good faith with respect to the Company's business.
(c) Good Reason. Termination by Mr. McCanless for
"Good Reason" as described in this Section 7(c). For purposes of
this Employment Agreement, "Good Reason" shall mean (i) a
material diminution of the professional responsibilities of Mr.
McCanless, (ii) assignment of inappropriate duties to Mr.
McCanless, (iii) failure of the Company to comply with
compensation and benefits obligations to Mr. McCanless, (iv)
transfer of Mr. McCanless more than 50 miles from Salisbury,
North Carolina, without good business reasons, as determined by
the Company's Board of Directors, (v) a purported termination of
this Employment Agreement by the Company other than in accordance
with the terms hereof, (vi) the occurrence of a Change in Control
of the Company (as defined below), or (vii) failure of the
Company to require any successor to the Company to assume and
comply with this Employment Agreement. For purposes of this
Employment Agreement, a determination in good faith by Mr.
McCanless of "Good Reason" shall be conclusive.
For purposes of this Employment Agreement, "a Change in
Control of the Company" shall mean a change in control of a
nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as amended (the "Exchange Act");
provided that, without limitation, a Change in Control of the
Company shall be deemed to have occurred if:
(A) an acquisition (other than directly from
the Company) by a Person (as defined below) (excluding
the Company or an employee benefit plan of the Company
or an entity controlled by the Company's shareholders)
results in the aggregate number of shares of the
Company's voting securities beneficially owned by any
other Person to exceed the number of shares of the
Company's voting securities beneficially owned by
Etablissements Delhaize Freres et Cie "Le Lion" S.A.
("Delhaize") and Delhaize "Le Lion" America, Inc.;
(B) at any time during the term of this
Employment Agreement there is a change in the
composition of the Board of Directors of the Company
resulting in a majority of the directors of the Company
who are in office on the date hereof ("Incumbent
Company Directors") no longer constituting a majority
of the directors of the Company; provided that, in
making such determination, persons who are elected to
serve as directors of the Company and who are approved
by all of the directors in office on the date of such
election (other than in connection with an actual or
threatened proxy contest) shall be treated as Incumbent
Company Directors;
(C) consummation of a complete liquidation
or dissolution of the Company or a merger,
consolidation or sale of all or substantially all of
the Company's assets (collectively, a "Business
Combination") other than a Business Combination in
which all or substantially all of the shareholders of
the Company receive fifty percent (50%) or more of the
stock of the Company resulting from the Business
Combination, at least a majority of the board of
directors of the resulting corporation were Incumbent
Company Directors and after which no person or entity
owns twenty percent (20%) or more of the stock of the
resulting corporation, who did not own such stock
immediately before the Business Combination; or
(D) occurrence of any of the events
described in Section 7(c)(B) or (C) to Delhaize or the
acquisition by any Person of more than thirty
percent (30%) of the stock of Delhaize.
For the purpose of this paragraph, the term "beneficially owned"
shall have the meaning set forth in Rule 13d-3 promulgated under
the Exchange Act, and the term "Person" shall have the meaning
set forth in Sections 3(a)(2) and 13(d)(3) of the Exchange Act.
An election by Mr. McCanless to terminate his employment
under this Section 7(c) hereof shall not be deemed a voluntary
termination of employment by Mr. McCanless for the purpose of
this Employment Agreement or any plan, arrangement or program of
the Company.
(d) Disability. Termination by the Company or Mr.
McCanless upon Disability of Mr. McCanless. For the termination
by the Company to be valid, (i) the Company must first give forty-
five (45) days' written Notice of Termination, as defined below
(which may occur before or after the end of the 180-day period
specified in the definition of Disability below), and (ii) Mr.
McCanless shall not have returned to the performance of his
duties hereunder on a full-time basis during such 180-day period.
For purposes of this Employment Agreement, "Disability" shall
mean Mr. McCanless' absence from continuous full-time employment
with the Company for a period of at least 180 consecutive days by
reason of a mental or physical illness. The Company shall have
the right to have Mr. McCanless examined at such reasonable times
by such physicians satisfactory to Mr. McCanless as the Company
may designate, and Mr. McCanless will make himself available for
and submit to such examination as and when requested. Except as
otherwise provided in this Section 7(d), the inability of Mr.
McCanless to perform his duties hereunder, whether by reason of
injury, illness (physical or mental), or otherwise shall not
result in the termination of Mr. McCanless' employment hereunder,
and he shall be entitled to continue to receive his base salary
and other benefits as provided herein.
(e) Without Cause. Termination by the Company without
Cause.
(f) Date and Notice of Termination. Any termination
of Mr. McCanless' employment by the Company or by Mr. McCanless
(other than termination pursuant to Section 7(a) above) shall be
communicated by written Notice of Termination to the other party
hereto. For purposes of this Employment Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Employment Agreement
relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of
Mr. McCanless' employment under the provision so indicated.
"Date of Termination" shall mean (i) if Mr. McCanless'
employment is terminated by his death, the date of his death, and
(ii) if Mr. McCanless' employment is terminated pursuant to a
Notice of Termination, the date specified in the Notice of
Termination; provided that, if within thirty (30) days after any
Notice of Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the
date which is finally determined to be the Date of Termination,
either by mutual written agreement of the parties, by a binding
and final arbitration award or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
8. Effect of Termination. In the event of termination of
employment as described in Section 7 hereof, the Company shall
compensate Mr. McCanless as follows:
(a) Death. If Mr. McCanless' employment is terminated
as a result of his death, as specified in Section 7(a), the
Company shall pay Mr. McCanless' beneficiary the benefit called
for under his Salary Continuation Agreement with the Company.
Mr. McCanless' beneficiary shall accept the payment provided for
in this Section 8(a) in full discharge and release of the Company
of and from any further obligations under this Employment
Agreement, except for any other benefits due under any applicable
plan or policy of the Company (including life insurance policies
and pension or similar plans), as determined under the provisions
of such plans or policies.
(b) Disability. If Mr. McCanless' employment is
terminated by the Company or Mr. McCanless as a result of his
disability as specified in Section 7(d), then the Company shall
pay Mr. McCanless his full compensation until the Date of
Termination. Within thirty (30) days after the termination of
his employment, the Company shall pay Mr. McCanless a lump sum
payment equal to fifty percent (50%) of the present value of the
future base salary payable to Mr. McCanless during the remainder
of his Term of Employment under this Employment Agreement or for
a period of two (2) years, whichever is longer. Such lump sum
amount shall be calculated by using a discount rate equal to the
applicable Federal rate that is in effect on the date of payment
as determined under Section 1274(d) of the Internal Revenue Code
of 1986 (the "Code") and the regulations thereunder, and by
assuming that Mr. McCanless' annual salary in effect on the Date
of Termination would continue for the remainder of the Term of
Employment, or for a period of two (2) years, whichever is
longer. This payment shall be in addition to any payments Mr.
McCanless shall be entitled to receive under any applicable
disability insurance policies maintained by the Company for Mr.
McCanless.
(c) Cause. If Mr. McCanless' employment is terminated
for any reason specified in Section 7(b) hereof, the Company
shall no longer be obligated to make any payments to Mr.
McCanless pursuant to this Employment Agreement, except for the
full amount of his base salary and all compensation earned prior
to the Date of Termination and payments pursuant to plans,
programs, or arrangements, as determined under the provisions of
such plans or policies.
(d) Good Reason or Without Cause. If Mr. McCanless'
employment is terminated by Mr. McCanless for Good Reason as
specified in Section 7(c) hereof, or if his employment is
terminated by the Company without Cause as specified in
Section 7(e), the Company shall pay Mr. McCanless the full amount
of his base salary and other compensation earned prior to the
Date of Termination. The Company shall also pay Mr. McCanless,
within thirty (30) days after his termination, a lump sum payment
equal to three (3) (or the number of years left in the Term of
this Employment Agreement, whichever is greater) times his
current base salary. Such lump sum amount shall be calculated by
using a discount rate equal to the applicable Federal rate that
is in effect on the date of payment as determined under
Section 1274(d) of the Code and the regulations thereunder, and
by assuming that Mr. McCanless' annual salary in effect on the
Date of Termination would continue for the remainder of the Term
of Employment, or for a period of three (3) years, whichever is
longer.
(e) Benefits. From the Date of Termination of Mr.
McCanless' employment for Good Reason, as specified in
Section 7(c) hereof, or without Cause as specified in
Section 7(e), the Company shall pay Mr. McCanless the full amount
of his base salary and all compensation earned prior to the Date
of Termination. The Company shall maintain in full force and
effect for the continued benefit of Mr. McCanless and his
eligible dependents for the greater of three (3) years and the
number of years (including partial years) remaining in the Term
of Employment hereunder, all employee benefit plans and programs
(such as medical, dental, health and life insurance) in which Mr.
McCanless was entitled to participate immediately prior to the
Date of Termination, if Mr. McCanless' continued participation is
possible under the general terms and provisions of such plans
and programs. In the event that Mr. McCanless' participation in
any such plan or program is barred, the Company shall arrange to
provide Mr. McCanless with benefits substantially similar to
those to which Mr. McCanless would otherwise have been entitled
to receive under such plans and programs.
9. Business Expenses. The Company agrees that during the
Term of Employment, the Company will reimburse Mr. McCanless for
actual travel and other out-of-pocket expenses reasonably
incurred by him in connection with the performance of his duties
hereunder and accounted for in accordance with the policies and
procedures currently established by the Company.
10. No Competing Employment. Mr. McCanless agrees that,
during the Term of Employment and for a period of two (2) years
after the Date of Termination ("Restricted Period"), he will not,
without the written consent of the Board of Directors, engage in
any retail or wholesale grocery business which is directly
competitive with the business of the Company or any affiliate
thereof in any geographic area in which the Company or any
affiliate operates on the Date of Termination. Mr. McCanless
understands and agrees that a portion of the amounts paid to him
under Section 5(a) hereof is in consideration for his covenants
set forth in Sections 10, 11, and 12.
11. No Solicitation. Mr. McCanless agrees that, during the
Restricted Period, he will not, without the prior written consent
of the Board of Directors, directly or indirectly solicit or
recruit any employee or independent contractor of the Company for
the purpose of being employed by Mr. McCanless, directly or
indirectly, or any other person or entity on behalf of which Mr.
McCanless is acting as an agent, representative or employee.
Notwithstanding the above, if Mr. McCanless' employment is
terminated for any reason specified in Section 7 hereof prior to
the first anniversary of the date on which a Change in Control
(as defined above) occurred, the covenants of Sections 10 and 11
shall not be applicable.
12. Confidentiality. Mr. McCanless agrees that, during the
Term of Employment and thereafter, he will not, without the
written consent of the Company, disclose to anyone not entitled
thereto, any confidential information relating to the business,
sales, financial condition or products of the Company or any
affiliate thereof. Mr. McCanless also recognizes and
acknowledges that he has a common law obligation not to disclose
trade secrets and other proprietary information of the Company.
Mr. McCanless further agrees that, should he leave the active
service of the Company, he will not take with him or retain,
without the written authorization of the Board of Directors, any
papers, files or other documents or copies thereof or other
confidential information of any kind belonging to the Company
pertaining to its business, sales, financial condition or
products. Mr. McCanless understands and agrees that the rights
and obligations set forth in this Section 12 are perpetual and,
in any case, shall extend beyond the Restricted Period.
13. Injunctive Relief. Without limiting the remedies
available to the Company, Mr. McCanless acknowledges that a
breach of the covenants contained in Sections 10, 11 and 12
herein may result in material irreparable injury to the Company
for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that,
in the event of such a breach or threat thereof, the Company
shall be entitled to obtain a temporary restraining order or a
preliminary injunction restraining Mr. McCanless from engaging in
activities prohibited by Sections 10, 11 and 12 or such other
relief as may be required to specifically enforce any of the
covenants in such Sections.
14. Indemnification. The Company shall indemnify and hold
harmless Mr. McCanless to the fullest extent permitted under
North Carolina law, including, without limitation, the provisions
of Part 5 (or any successor provision) of the North Carolina
Business Corporation Act, from and against all losses, claims,
damages, liabilities, costs and expenses (including, without
limitation, attorneys' fees), which may, at any time, be suffered
by Mr. McCanless as a result of the fact that Mr. McCanless is or
was an officer of the Company, or is or was serving at the
request of the Company as an officer, employee or agent of an
affiliate of the Company. The expenses incurred by Mr. McCanless
in any proceeding shall be paid promptly by the Company in
advance of the final disposition of any proceeding at the written
request of Mr. McCanless to the fullest extent permitted under
North Carolina law. The indemnification provision of this
Section 14 shall survive the termination or expiration of this
Employment Agreement.
15. Gross-Up Payment. In the event that any payments to
which Mr. McCanless becomes entitled under this Employment
Agreement (the "Agreement Payments") will be subject to the tax
(the "Excise Tax") imposed by Section 4999 of the Code (or any
similar tax that may hereafter be imposed), the Company shall pay
to Mr. McCanless at the time specified below, an additional
amount (the "Gross-Up Payment") such that the net amount retained
by Mr. McCanless (taking into account the Total Payments (as
hereinafter defined) and the Gross-Up Payment), after deduction
of any Excise Tax on the Total Payments and any federal, state
and local income tax and Excise Tax upon the Gross-Up Payment
provided for by this Section 15, but before deduction for any
federal, state or local income tax on the Total Payments, shall
be equal to the "Total Payments," as defined below. Except as
otherwise provided below, the Gross-Up Payment or portion thereof
provided for in this Section 15 shall be paid not later than the
thirtieth (30th) day following payment of any amounts under the
Employment Agreement that will be subject to the Excise Tax;
provided, however, that if the amount of such Gross-Up Payment or
portion thereof cannot be finally determined on or before such
day, the Company shall pay on such day an estimate, as determined
in good faith by the Company, of the minimum amount of such
payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of
the Code) as soon as the amount thereof can be determined, but in
no event later than the forty-fifth (45th) day after payment of
any amounts under the Employment Agreement that will be subject
to the Excise Tax. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to Mr.
McCanless, payable on the fifth (5th) day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
For purposes of determining whether any of the Agreement
Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (i) any other payments, accruals, vestings or other
compensatory benefits received or to be received by Mr. McCanless
in connection with a Change in Control of the Company or the
termination of Mr. McCanless' employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a
Change in Control of the Company or any person affiliated with
the Company or such person (which, together with the Agreement
Payments, shall constitute the "Total Payments") shall be treated
as "parachute payments" within the meaning of Section 280G(b)(2)
of the Code, and all "excess parachute payments" within the
meaning of Section 280G(b((1) of the Code shall be treated as
subject to the Excise Tax, unless, in the opinion of tax counsel
selected by the Company's independent auditors, such other
payments or benefits (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax, (ii) the amount of the
Total Payments which shall be treated as subject to the Excise
Tax shall be equal to the lesser of (a) the total amount of the
Total Payments, or (b) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) of the Code (after
applying clause (i) above), and (iii) the value of any non-cash
benefits or any deferred payment or benefit shall be determined
by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up
Payment, Mr. McCanless shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation for
the calendar year in which the Gross-Up Payment is to be made and
the applicable state and local income taxes at the highest
marginal rate of taxation for the calendar year in which the
Gross-Up Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained from deduction of
such state and local taxes. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into
account hereunder at the time the Gross-Up Payment is made, Mr.
McCanless shall repay to the Company, at the time that the amount
of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income tax imposed on the
portion of the Gross-Up Payment being repaid) if such repayment
results in a reduction in Excise Tax and/or a federal, state and
local income tax deduction, plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed
the amount taken into account hereunder at the time the Gross-Up
Payment is made (including, by reason of any payment, the
existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional
gross-up payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that the amount
of such excess is finally determined.
16. Vesting. Upon a Change in Control of the Company or if
Mr. McCanless' employment is terminated for reasons specified in
Sections 7(a), 7(c), 7(d) or 7(e) hereof, all of the rights
granted to Mr. McCanless by the Company to own or acquire stock
of the Company (including, without limitation, stock options and
restricted stock granted under the Company's Stock Option Plan)
shall automatically vest upon the date of such Change in Control
or Date of Termination, respectively, without the need for
further action or consent by the Company; provided, however, that
(assuming no occurrence of a Change of Control) such rights shall
not vest if Mr. McCanless' employment is terminated for Mr.
McCanless' failure to adequately perform his duties hereunder as
determined by an affirmative vote of at least seventy percent
(70%) of the Board of Directors of the Company.
17. Legal Expenses. The Company shall reimburse Mr.
McCanless for all reasonable legal fees incurred in an effort to
establish entitlement to compensation and benefits under this
Employment Agreement.
18. Mitigation. The Company recognizes that Mr. McCanless
has no duty to mitigate the amounts due to him upon termination
of this Employment Agreement, and the obligations of the Company
will not be diminished in the event Mr. McCanless is employed by
another employer after the termination of his employment with the
Company.
19. Successors. This Employment Agreement shall inure to
the benefit of and be binding upon the Company and its successors
and assigns and upon Mr. McCanless and his legal representatives.
The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business or assets of the Company to
expressly assume and agree to perform this Employment Agreement
in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
20. Amendments. This Employment Agreement, which contains
the entire contractual understanding between the parties, may not
be changed orally but only by a written instrument signed by the
parties hereto.
21. Governing Law. This Employment Agreement shall be
governed by and construed in accordance with the laws of the
State of North Carolina.
22. Waiver. The waiver of breach of any term or condition
of this Employment Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or
condition.
23. Severability. In the event that any provision or
portion of this Employment Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions
and portions of this Employment Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest
extent provided by law.
24. Notices. Any notices or other communications required
or permitted hereunder shall be deemed sufficiently given if sent
by registered mail, postage prepaid, as follows:
(a) If to Mr. McCanless:
R. William McCanless
244 Confederate Avenue
Salisbury, North Carolina 28144
(b) If to the Company:
Food Lion, Inc.
Post Office Box 1330
2110 Executive Drive
Salisbury, North Carolina 28145-1330
Attention: Secretary
with a copy to:
Bruce S. Mendelsohn
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
or to such other address as shall have been specified in writing
by either party to the other. Any such notice or communication
shall be deemed to have been given on the second day (excluding
any days U.S. Post Offices are not open) after the date so
mailed.
IN WITNESS WHEREOF, the Company has caused this Employment
Agreement to be executed by its duly authorized representative,
and Mr. McCanless has hereunto set his hand as of the date first
above written.
FOOD LION, INC.
By:Tom E. Smith
Attest:
Glenda Kluttz
R. William McCanless
R. William McCanless
EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE
(Amounts in thousands except Years Ended
per share amounts)
December 28, December 30, December 31,
1996 1995 1994
PRIMARY
NET INCOME $206,070 $172,361 $152,898
WEIGHTED AVERAGE COMMON
SHARES AND OTHER COMMON
STOCK EQUIVALENTS:
COMMON STOCK OUTSTANDING 470,216 481,154 483,708
STOCK OPTIONS 573 - -
470,789 481,154 483,708
PRIMARY EARNINGS PER SHARE (*) $ .4377 $ .3582 $.3161
FULLY DILUTED
NET INCOME $206,070 $172,361 $152,898
ELIMINATION OF INTEREST EXPENSE,
NET OF RELATED TAX EFFECT,
APPLICABLE TO 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE 2003 3,499 3,508 3,508
ADJUSTED INCOME APPLICABLE TO
COMMON STOCK $209,569 $175,869 $156,406
WEIGHTED AVERAGE COMMON
SHARES AND OTHER COMMON
STOCK EQUIVALENTS:
COMMON STOCK OUTSTANDING 470,216 481,154 483,708
STOCK OPTIONS 950 - -
SHARES ISSUABLE UPON
CONVERSION OF 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE
2003
14,440 14,557 14,557
485,606 495,711 498,265
FULLY DILUTED EARNINGS PER SHARE (*) $ .4316 $ .3548 $.3139
(*) NOTE: Dilution is less than 3%. Therefore, common stock equivalents
have been excluded from the total weighted average common shares.
Ten Year Summary of Operations
(Dollars in thousands 1996 1995 1994
except per share amounts)
1. Net sales $9,005,932 8,210,884 7,932,592
2. Same store sales percent
change % 5.70 2.33 3.34
3. Gross profit % 21.31 20.63 20.28
4. Operating income $ 418,290 356,545 339,262
5. Interest expense $ 80,520 73,484 86,564
6. Income before taxes $ 337,770 283,061 252,698
7. Net income $ 206,070 172,361 152,898
8. Current assets $1,428,744 1,152,413 1,128,686
9. Non-current assets $2,059,848 1,492,852 1,353,255
10. Total assets $3,488,592 2,645,265 2,481,941
11. Current liabilities $1,154,235 698,695 690,062
12. Long-term debt $ 495,111 355,300 355,300
13. Capital lease obligations,
deferred taxes and other
liabilities $ 623,308 488,760 409,226
14. Shareholders' equity $1,215,938 1,102,510 1,027,353
15. Cash dividends
Class A $ 26,436 23,621 22,021
Class B $ 25,874 22,672 21,131
16. Depreciation $ 165,286 146,170 139,834
17. EBITDA (FIFO) % 6.70 6.30 6.25
18. Capital expenditures $ 283,564 219,905 117,312
19. Store count 1,112 1,073 1,039
20. Stores opened/acquired 64 47 30
21. Stores relocated (22) (12) (3)
22. Stores closed (3) (1) (84)
23. Total stores square
footage (000) 32,615 30,056 27,335
24. Number of employees 73,170 69,345 64,840
25. Weighted average shares
outstanding (000) 470,216 481,154 483,708
26. Number of Deli/Bakery depts. 888 733 575
27. Earnings per share (a) $ .44 .36 .32
28. Dividends per share (a) $ .111 .096 .089
29. Book value per share (a) $ 2.59 2.29 2.12
30. Asset turnover (b) x 2.94 3.20 3.18
31. Return on sales % 2.29 2.10 1.93
32. Return on assets (b) % 6.72 6.72 6.13
33. Return on equity % 17.78 16.18 15.72
34. Equity ratio (b) % 34.85 41.68 41.39
35. Return on investment (b) % 18.09 17.31 16.69
36. Current ratio (b) x 1.24 1.65 1.64
37. Recapitalization and
stock splits
(Dollars in thousands 1993 1992
except per share amounts) (53 Weeks)
1. Net sales $7,609,817 7,195,923
2. Same store sales percent
change % (2.58) (0.42)
3. Gross profit % 19.56 19.96
4. Operating profit $ 249,195 339,662
5. Interest expense $ 72,343 49,057
6. Income before taxes $ 6,352 290,605
7. Net income $ 3,852 178,005
8. Current assets $1,139,472 1,148,725
9. Non-current assets $1,364,211 1,372,767
10. Total assets $2,503,683 2,521,492
11. Current liabilities $ 619,271 986,274
12. Long-term debt $ 569,350 240,537
13. Capital lease obligations,
deferred taxes and other
liabilities $ 397,508 338,962
14. Shareholders' equity $ 917,554 955,719
15. Cash dividends
Class A $ 21,483 27,355
Class B $ 20,603 26,457
16. Depreciation $ 143,042 121,616
17. EBITDA (FIFO) % 5.30 6.40
18. Capital expenditures $ 159,857 402,327
19. Store count 1,096 1,012
20. Stores opened/acquired 100 140
21. Stores relocated (4) (4)
22. Stores closed (12) (5)
23. Total stores square
footage (000) 28,950 26,428
24. Number of employees 65,494 59,721
25. Weighted average shares
outstanding (000) 483,701 483,663
26. Number of Deli/Bakery depts. 553 446
27. Earnings per share (a) $ .01 .37
28. Dividends per share (a) $ .087 .111
29. Book value per share (a) $ 1.90 1.98
30. Asset turnover x 3.03 3.17
31. Return on sales % .05 2.47
32. Return on assets % .15 7.84
33. Return on equity % .41 19.92
34. Equity ratio % 36.65 37.90
35. Return on investment % 5.68 20.02
36. Current ratio x 1.84 1.16
37. Recapitalization and
stock splits 3 for 2
Ten Year Summary of Operations
(Dollars in thousands 1991 1990 1989
except per share amounts)
1. Net sales $6,438,507 5,584,410 4,717,066
2. Same store sales percent
change % 2.68 4.50 8.60
3. Gross profit % 20.74 20.36 20.03
4. Operating income $ 375,107 317,058 259,655
5. Interest expense $ 34,436 32,587 29,180
6. Income before taxes $ 340,671 284,471 230,475
7. Net income $ 205,171 172,571 139,775
8. Current assets $ 983,370 787,869 671,207
9. Non-current assets $1,035,922 791,996 610,470
10. Total assets $2,019,292 1,579,865 1,281,677
11. Current liabilities $ 676,768 597,392 510,838
12. Long-term debt $ 240,810 91,721 95,774
13. Capital lease obligations,
deferred taxes and other
liabilities $ 270,659 217,694 136,611
14. Shareholders' equity $ 831,055 673,058 538,454
15. Cash dividends
Class A $ 24,393 21,926 16,549
Class B $ 23,638 21,082 15,971
16. Depreciation $ 104,614 81,432 65,042
17. EBITDA (FIFO) % 7.46 7.31 7.20
18. Capital expenditures $ 305,879 206,391 147,810
19. Store count 881 778 663
20. Stores opened/acquired 111 121 105
21. Stores relocated (6) (5) (8)
22. Stores closed (2) (1) (1)
23. Total stores square
footage (000) 22,480 19,424 16,326
24. Number of employees 53,583 47,276 40,736
25. Weighted average shares
outstanding (000) 483,516 483,210 482,964
26. Number of Deli/Bakery depts. 279 183 149
27. Earnings per share (a) $ .42 .36 .29
28. Dividends per share (a) $ .099 .089 .067
29. Book value per share (a) $ 1.72 1.39 1.11
30. Asset turnover x 3.58 3.90 3.98
31. Return on sales % 3.19 3.09 2.96
32. Return on assets % 11.40 12.06 11.79
33. Return on equity % 27.28 28.49 28.84
34. Equity ratio % 41.16 42.60 42.01
35. Return on investment % 26.09 29.33 28.85
36. Current ratio x 1.45 1.32 1.31
37. Recapitalization and
stock splits
(Dollars in thousands 1988 1987
except per share amounts)
1. Net sales $3,815,426 2,953,807
2. Same store sales percent
change % 10.30 6.50
3. Gross profit % 19.74 20.24
4. Operating income $ 203,584 164,462
5. Interest expense $ 21,343 13,760
6. Income before taxes $ 182,241 150,702
7. Net income $ 112,541 85,802
8. Current assets $ 600,459 443,918
9. Non-current assets $ 488,253 361,895
10. Total assets $1,088,712 805,813
11. Current liabilities $ 462,739 315,827
12. Long-term debt $ 106,263 65,419
13. Capital lease obligations,
deferred taxes and other
liabilities $ 88,924 85,343
14. Shareholders' equity $ 430,786 339,224
15. Cash dividends
Class A $ 11,282 6,551
Class B $ 10,093 5,800
16. Depreciation $ 49,904 37,433
17. EBITDA (FIFO) % 6.96 6.88
18. Capital expenditures $ 179,959 111,272
19. Store count 567 475
20. Stores opened/acquired 101 95
21. Stores relocated (9) (2)
22. Stores closed (0) (6)
23. Total stores square
footage (000) 13,695 11,224
24. Number of employees 35,531 27,033
25. Weighted average shares
outstanding (000) 482,744 482,153
26. Number of Deli/Bakery depts. 130 89
27. Earnings per share (a) $ .23 .18
28. Dividends per share (a) $ .044 .026
29. Book value per share (a) $ .89 .70
30. Asset turnover x 4.03 4.19
31. Return on sales % 2.95 2.90
32. Return on assets % 11.88 12.16
33. Return on equity % 29.23 28.41
34. Equity ratio % 39.57 42.10
35. Return on investment % 28.43 28.20
36. Current ratio x 1.30 1.41
37. Recapitalization and
stock splits 2 for 1
Notes to Ten Year Summary of Operations
(a) Amounts are based upon the weighted average number of the Class A and
Class B common shares outstanding.
(b) The following represents ratios excluding Kash n' Karry Food Stores,
Inc.:
Asset turnover 3.11x
Return on assets 7.11%
Equity ratio 38.60%
Return on investment 19.18%
Current ratio 1.30x
DEFINITIONS
Line
17. EBITDA: Earnings before LIFO, interest, taxes, and depreciation.
1993 earnings adjusted for store closing charge.
19. Store count: Number of stores operating at year-end.
24. Number of employees: Number of full-time and part-time employees at
year-end.
25. Weighted average shares outstanding: Weighted average shares outstanding
have been restated to reflect the stock split in 1992.
26. Number of Deli/Bakery departments: Number of stores with Deli/Bakery
departments at year end.
27. Earnings per share: Net income per common share (line 7 , line 25).
28. Dividends per share: Cash dividends per common share (line 15 ,line 25).
29. Book value per share: Book value of shareholders' equity per common
share (line 14 , line 25).
30. Asset turnover: The ratio of sales per dollar of assets employed during
the year. It is calculated by dividing sales by the average total assets
(line 1 , line 10).
31. Return on sales: The percentage of net income earned on each dollar of
sales (line 7 , line 1).
32. Return on assets: The percentage of net income earned on average total
assets (line 7 , line 10).
33. Return on equity: The percentage of net income earned on average
shareholders' equity (line 7 , line 14).
34. Equity ratio: Shows the share of total assets of the business owned by
the shareholders as opposed to outside sources. It is calculated by
dividing year-end shareholders' equity by year-end total assets
(line 14 , line 10).
35. Return on investment: The percentage of net income, excluding interest
expense, to invested capital. ([line 7 + line 5] , [average line 12 +
average line 14]).
36. Current ratio: The ratio of current assets to current liabilities
(line 8 , line 11).
Consolidated Statements of Income
Year Ended Year Ended Year Ended
December 28, December 30, December 31,
(Dollars in thousands 1996 1995 1994
except per share amounts)
Net sales $9,005,932 $8,210,884 $7,932,592
Cost of goods sold 7,087,177 6,516,637 6,323,693
Gross profit 1,918,755 1,694,247 1,608,899
Selling and administrative
expenses 1,325,592 1,191,532 1,129,803
Depreciation 165,286 146,170 139,834
Asset impairment reserve 9,587 - -
Operating income 418,290 356,545 339,262
Interest expense 80,520 73,484 86,564
Income before
income taxes 337,770 283,061 252,698
Provision for income taxes 131,700 110,700 99,800
Net income $ 206,070 $ 172,361 $ 152,898
Earnings per share $ .44 $ .36 $ .32
(Results as a percentage
of sales)
Net sales 100.00% 100.00% 100.00%
Cost of goods sold 78.69 79.37 79.72
Gross profit 21.31 20.63 20.28
Selling and administrative
expenses 14.72 14.51 14.24
Depreciation 1.84 1.78 1.76
Asset impairment reserve .11 - -
Operating income 4.64 4.34 4.28
Interest expense .89 .89 1.09
Income before
income taxes 3.75 3.45 3.19
Provision for income taxes 1.46 1.35 1.26
Net income 2.29% 2.10% 1.93%
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Balance Sheets
December 28, December 30,
(Dollars in thousands 1996 1995
except per share amounts)
Assets
Current assets:
Cash and cash equivalents $ 102,371 $ 70,035
Receivables 151,163 127,995
Inventories 1,065,743 881,021
Prepaid expenses and other 33,660 23,344
Deferred tax asset 75,807 50,018
Total current assets 1,428,744 1,152,413
Property, at cost, less accumulated
depreciation 1,772,503 1,491,069
Deferred tax asset 8,619 -
Intangible assets 278,726 1,783
Total assets $3,488,592 $2,645,265
Liabilities and Shareholders' Equity
Current liabilities:
Notes payable $ 250,010 -
Accounts payable, trade 470,994 $ 363,571
Accrued expenses 397,431 316,569
Capital lease obligations - current 21,970 15,032
Long term debt - current 973 -
Other liabilities - current 7,279 3,523
Income taxes payable 5,578 - _
Total current liabilities 1,154,235 698,695
Long-term debt 495,111 355,300
Capital lease obligations 469,035 372,645
Deferred income taxes - 44,120
Other liabilities 154,273 71,995
Total liabilities 2,272,654 1,542,755
Shareholders' equity:
Class A non-voting common stock,
$.50 par value; authorized 1,500,000,000
shares; issued and outstanding 236,166,000
shares-December 28, 1996 and
238,509,000 shares-December 30, 1995 118,083 119,255
Class B voting common stock, $.50
par value; authorized 1,500,000,000 shares;
issued and outstanding 232,902,000 shares-
December 28, 1996 and 236,625,000 shares-
December 30, 1995 116,451 118,313
Additional capital 1,708 -
Retained earnings 979,696 864,942
Total shareholders' equity 1,215,938 1,102,510
Total liabilities and
shareholders' equity $3,488,592 $2,645,265
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Statements of Cash Flows
December 28, December 30,
1996 1995
(Dollars in thousands)
Cash flows from operating activities
Net income $206,070 $172,361
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation 165,286 146,170
Loss(gain) on disposals of property 466 ( 1,995)
Asset impairment reserve 9,587 -
Deferred income taxes ( 29,300) 2,000
Changes in operating assets
and liabilities net of effect of
acquisition of subsidiary:
Receivables ( 50,845) 12,633
Inventories ( 90,484) ( 27,737)
Prepaid expenses and other ( 6,531) ( 9,527)
Accounts payable and accrued expenses 71,351 44,687
Income taxes payable 5,578 ( 22,169)
Other liabilities 34,099 14,152
Total adjustments 109,207 158,214
Net cash provided by operating
activities 315,277 330,575
Cash flows from investing activities
Capital expenditures ( 283,564) ( 219,905)
Proceeds from sale of property 27,464 20,806
Investment in subsidiary ( 121,578) -
Net cash used in investing
activities ( 377,678) ( 199,099)
Cash flows from financing activities
Net proceeds (payments) under short-term
borrowings 250,000 ( 20,000)
Principal payments on long-term debt ( 65,656) ( 25)
Principal payments under capital
lease obligations ( 17,764) ( 11,081)
Dividends paid ( 52,310) ( 46,293)
Repurchase of common stock ( 44,345) ( 50,950)
Proceeds from issuance of common stock 3,086 39
Net cash provided by (used in)
financing activities 73,011 ( 128,310)
Net increase in cash and cash
equivalents 10,610 3,166
Cash and cash equivalents at beginning
of year 70,035 66,869
Cash and cash equivalents at end of year $ 80,645 $ 70,035
The accompanying notes are an integral part of the consolidated financial
statements
Consolidated Statements of Cash Flows
December 31,
1994
(Dollars in thousands)
Cash flows from operating activities
Net income $152,898
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation 139,834
Loss (gain) on disposals of property ( 228)
Deferred income taxes ( 3,800)
Changes in operating assets
and liabilities:
Receivables ( 30,676)
Inventories 75,854
Prepaid expenses and other ( 186)
Accounts payable and accrued expenses 46,035
Income taxes payable 12,062
Other liabilities ( 1,894)
Total adjustments 237,001
Net cash provided by operating
activities 389,899
Cash flows from investing activities
Capital expenditures (117,312)
Proceeds from sale of property 5,254
Net cash used in investing
activities (112,058)
Cash flows from financing activities
Net (payments) proceeds under short-term
borrowings 9,993
Principal payments on long-term debt (214,208)
Principal payments under capital
lease obligations ( 9,724)
Dividends paid ( 43,152)
Repurchase of common stock -
Proceeds from issuance of common stock 53
Net cash used in
financing activities (257,038)
Net increase in cash and cash
equivalents 20,803
Cash and cash equivalents at beginning
of year 46,066
Cash and cash equivalents at end of year $ 66,869
The accompanying notes are an integral part of the consolidated financial
statements
Consolidated Statements of Shareholders' Equity
Class A Class B
(Dollars and shares in thousands Common Stock Common Stock
except per share amounts) Shares Amount Shares Amount
Balances January 1, 1994 244,132 $122,066 239,571 $119,786
Cash dividends declared:
Class A - $.0902 per share
Class B - $.0882 per share
Sale of stock 10 5 - -
Net income
Balances December 31, 1994 244,142 122,071 239,571 119,786
Cash dividends declared:
Class A - $.0972 per share
Class B - $.0948 per share
Sale of stock 8 4 - -
Repurchase of common stock ( 5,641) ( 2,820) ( 2,946) ( 1,473)
Net income
Balances December 30, 1995 238,509 119,255 236,625 118,313
Cash dividends declared:
Class A - $.1120 per share
Class B - $.1104 per share
Sale of stock 587 293 - -
Repurchase of common stock ( 3,047) ( 1,524) ( 3,723) ( 1,862)
Converted debt 117 59 - -
Net income
Balances December 28, 1996 236,166 $118,083 232,902 $116,451
The accompanying notes are an integral part of the consolidated financial
statements
Additional Retained
Capital Earnings Total
Balances January 1, 1994 $ 289 $675,413 $917,554
Cash dividends declared:
Class A - $.0902 per share ( 22,021) ( 22,021)
Class B - $.0882 per share ( 21,131) ( 21,131)
Sale of Stock 48 53
Net Income 152,898 152,898
Balances December 31, 1994 337 785,159 1,027,353
Cash dividends declared:
Class A - $.0972 per share ( 23,621) ( 23,621)
Class B - $.0948 per share ( 22,672) ( 22,672)
Sale of stock 35 39
Repurchase of common stock ( 372) ( 46,285) ( 50,950)
Net income 172,361 172,361
Balances December 30, 1995 - 864,942 1,102,510
Cash dividends declared:
Class A - $.1120 per share ( 26,436) ( 26,436)
Class B - $.1104 per share ( 25,874) ( 25,874)
Sale of stock 2,793 3,086
Repurchase of common stock ( 1,953) ( 39,006) ( 44,345)
Converted debt 868 927
Net income 206,070 206,070
Balances December 28, 1996 $1,708 $979,696 $1,215,938
Notes to Consolidated Financial Statements
1. Summary of Significant Accounting Policies
Nature of Operations
The Company operates a chain of retail food supermarkets in 14 states,
principally located in the southeast. As of December 28, 1996, the Company
operated 1,112 Food Lion retail food supermarkets and nine distribution centers.
In addition, as of December 18, 1996, the Company acquired 100 locations in its
purchase of Kash n' Karry Stores, Inc. The Company's stores, which are operated
under the names of "Food Lion" and "Kash n' Karry," sell a wide variety of
groceries, produce, meats, dairy products, seafood, frozen foods, deli/bakery
and non-food items, such as health and beauty aids and other household and
personal products.
Principles of Consolidation
The consolidated financial statements include the accounts of Food Lion, Inc.
and its subsidiary. All significant intercompany accounts and transactions are
eliminated in consolidation.
Single Industry Segment
The Company engages in one line of business, the operation of general food
supermarkets.
Fiscal Year
The Company's fiscal year ends on the Saturday nearest to December 31.
Use of Estimates in Financial Statements
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and Cash Equivalents
The Company considers all highly liquid investment instruments purchased with an
original maturity of three months or less to be cash equivalents.
Inventories
Inventories are stated at the lower of cost or market. Inventories valued using
the last-in, first out (LIFO) method comprised approximately 83% and 90% of
inventories, in 1996 and 1995, respectively. Meat, produce and deli inventories
are valued on the first-in, first-out (FIFO) method. If the FIFO method were
used entirely, inventories would have been $104,446 and $94,195 greater in 1996
and 1995, respectively.
Statements of Cash Flows
Selected cash payments and noncash activities were as follows:
(Dollars in thousands) 1996 1995 1994
Cash payments for income taxes $154,791 $130,907 $ 60,005
Cash payments for interest,
net of amounts capitalized 76,631 70,095 86,645
Noncash investing and financing activities:
Capitalized lease obligations
incurred for store properties 130,899 91,219 36,140
Capitalized lease obligations
terminated for store properties 25,710 9,615 21,012
Capitalized lease obligations for
store equipment purchases - 3,069 32
Conversion of long term debt to stock 927 - -
Property
Property is stated at cost and depreciated on a straight-line basis over the
estimated service lives of assets, generally as follows:
Buildings 40 years
Furniture, fixtures and equipment 3 - 10 years
Leasehold improvements 8 years
Vehicles 7 years
Property under capital leases Lease term
Goodwill
Goodwill represents the excess of the purchase price over the fair value of the
net assets of the acquired entities, and is being amortized on the straight-line
method over various periods not exceeding 40 years. The Company evaluates, on
an ongoing basis, the carrying value of goodwill and will make a specific
provision when impairment is identified.
Deferred Income Taxes
Deferred tax liabilities or assets are established for temporary differences
between financial and tax reporting bases and are subsequently adjusted to
reflect changes in tax rates expected to be in effect when the temporary
differences reverse.
Cost of Goods Sold
Purchases are recorded net of cash discounts.
Store Opening and Closing Costs
Costs associated with the opening of new stores are expensed as incurred. When
a decision to close a store is made by management, the unrecoverable investment
in fixed assets and/or the present value of any remaining liability under the
lease is expensed.
Earnings Per Share
Earnings per share are based on the weighted average number of shares
outstanding. Common share equivalents in the form of stock options are excluded
from the calculation since they are not materially dilutive.
Reclassification
Certain financial statement items have been reclassified to conform to the
current year's format.
2. Acquisitions
On December 18, 1996, the Company acquired all of the outstanding shares of
Kash n' Karry Food Stores, Inc. ("Kash n' Karry"),a Florida-based supermarket
retailer which operates 100 stores, for $121.6 million in cash.
The acquisition has been accounted for using the purchase method of
accounting,and, accordingly, the purchase price has been allocated to the assets
acquired and the liabilities assumed based upon their respective fair values at
the date of acquisition. The balance of the purchase price is included in
Intangible Assets and will be amortized over 40 years.
The purchase price allocation includes plans to close a number of Kash n'Karry
stores in conjunction with the Company's store relocation program and as a
result of identifying underperforming units that do not meet operating
expectations.
The net purchase price was allocated as follows:
(Dollars in thousands)
Property, plant and equipment $103,078
Other assets 49,229
Intangible assets 269,348
Long-term debt (230,836)
Other liabilities,net ( 69,241)
Purchase price, net of cash received $121,578
The following unaudited pro forma summary combines the consolidated results of
operations of the Company and Kash n' Karry as if the acquisition had occurred
as of the beginning of fiscal 1995. The pro forma results include revised
depreciation expense based on the fair market value of the property and
equipment acquired, the amortization of intangibles arising from the
transaction, and the adjustments to interest expense resulting from plans to
refinance Kash n' Karry's long-term debt. This pro forma financial information
is presented for informational purposes only and may not be indicative of what
the actual consolidated results of operations would have been if the acquisiton
had been effective at the beginning of fiscal 1995. Anticipated operational
efficiencies expected from the acquisition are not fully determinable and
therefore have been excluded from the amounts included in the following pro
forma financial information.
Years ended
December 28, 1996 December 30, 1995
(Dollars in thousands)
Sales $9,945,888 $9,260,153
Net income 204,722 184,521
Earnings per share $.44 $.38
3. Property
Property consists of the following:
(Dollars in thousands) 1996 1995
Land and improvements $ 202,490 $ 201,622
Buildings 429,350 407,929
Furniture, fixtures and equipment 1,169,638 1,033,493
Vehicles 99,745 95,965
Leasehold improvements 234,992 153,279
Construction in progress (estimated
costs to complete and equip at
December 28, 1996 are $56.8 million) 32,945 19,658
2,169,160 1,911,946
Less accumulated depreciation 826,345 760,193
1,342,815 1,151,753
Property under capital leases
(less accumulated depreciation
of $90,727 and $79,555 for 1996
and 1995, respectively) 429,688 339,316
$1,772,503 $1,491,069
Property is recorded net of provisions totaling $27.1 million and $58.2 million
for 1996 and 1995, respectively, to reflect the realizable value of properties
that are held for sale as part of the Company's 1994 store closing program (Note
14).
During the first quarter of 1996, Food Lion adopted Financial Accounting
Standards Board Statement no. 121, "Accounting for the Impairment of Long-Lived
Assets to be Disposed of" (FASB no. 121). This statement requires companies to
record impairments to long-lived assets, certain identifiable intangibles and
related goodwill when events or changing circumstances make it probable that an
asset's carrying amount cannot be fully recovered. In adopting this statement,
management considered the expected operating cash flows along with an estimate
of the market value of the assets if they were sold. The implementation of FASB
no. 121 created a non-cash charge against first quarter earnings of $9.6 million
to properly reflect the carrying value of the Company's assets using discounted
cash flows.
4. Accrued Expenses
Accrued expenses consist of the following:
(Dollars in thousands) 1996 1995
Employee profit sharing $ 99,618 $ 89,854
Self insurance 89,249 59,535
Payroll 53,207 39,532
Provision for store closings
(Note 14) 19,271 20,413
Other 136,086 107,235
$397,431 $316,569
5. Employee Benefit Plan
The Company has a noncontributory retirement plan covering all Food Lion
employees. The plan provides benefits to participants upon death, retirement or
termination of employment with the Company. Contributions to the retirement
plan are determined by the Company's Board of Directors. The plan year ends in
mid December.
Profit sharing expense totaled $94.9 million in 1996, $85.3 million in 1995 and
$73.3 million in 1994.
6. Long-Term Debt
Long-term debt consists of the following:
(Dollars in thousands) 1996 1995
Medium term notes, due from 1999 to
2006. Interest ranges from 8.32%
to 8.73%. $150,300 $150,300
Note purchase agreements, due 1998.
Interest is at 10.21%. 50,000 50,000
Note purchase agreements, due 1997.
Interest is at 8.25%. - 40,000
Convertible subordinated debentures, due 2003.
Interest is at 5%. 114,073 115,000
Senior fixed rate notes, due 2003.
Interest is at 11.5%. 136,803 -
Senior floating rate notes, due 2003.
Interest is at a rate equal to six month
LIBOR plus 200 basis points. 23,942 -
Mortgage payable due from 1999 through
2003. Interest ranges from 7.5% to 10.35%. 20,925 -
Other 41 -
496,084 355,300
Less current portion 973 -
$495,111 $355,300
During the second quarter of 1996, the note purchase agreement due 1997 totaling
$40.0 million was paid in full with no prepayment penalty.
The convertible subordinated debentures are convertible at any time into shares
of the Company's Class A non-voting common stock at a conversion price of $7.90
per share, subject to adjustment under certain circumstances. As of December
28, 1996, 117,341 shares had been converted.
At December 28, 1996, $22.5 million in property was pledged as collateral for
long-term debt. At December 28, 1996 and December 30, 1995 the Company estimated
that the market value of its long-term debt was approximately $535.7 million and
$377.2 million, respectively. The fair value of the Company's long-term debt is
estimated based on the current rates offered to the Company for debt of the same
remaining maturities.
Approximate maturities of long-term debt in the years 1997 through 2001 are
$0.1, $51.2, $28.3, $16.6 and $106.3 million, respectively.
The Company exercised its right to call all of the senior fixed rate notes and
the senior floating rate notes at par in January, 1997 using the revolving
credit facility discussed in Note 7.
7. Credit Arrangements
The Company maintains a revolving credit facility with a syndicate of commercial
banks providing $700.0 million in committed lines of credit,of which $350.0
million will expire on December 15, 1997 and the remaining $350.0 million on
December 16, 2001. As of December 28, 1996, there was $250.0 million in
borrowings outstanding at a weighted average interest rate of 6.22%.
Additionally, the Company had other committed short-term lines of credit with
banks totaling $35.0 million,of which no borrowings were outstanding at December
28, 1996.
The Company has a $250.0 million commercial paper program, of which no
borrowings were outstanding during the year ended December 28, 1996 and December
30, 1995.
In addition, the Company has periodic short-term borrowings under other informal
arrangements. There were no outstanding borrowings under these arrangements at
December 28, 1996 and December 30, 1995.
8. Leases
The Company's stores operate principally in leased premises. Lease terms
generally range from ten to twenty-five years with renewal options ranging from
ten to twenty years. The following schedule shows future minimum lease payments
under capital leases, together with the present value of net minimum lease
payments, and operating leases that have initial or remaining noncancelable
lease terms in excess of one year as of December 28, 1996.
Capital Operating
(Dollars in thousands) Leases Leases
1997 $ 84,242 $ 137,260
1998 80,996 136,699
1999 78,964 136,317
2000 77,726 134,932
2001 76,457 133,669
Thereafter 858,054 1,148,880
Total minimum payments 1,256,439 $1,827,757
Less estimated executory
costs 85,996
Net minimum lease payments 1,170,443
Less amount representing
interest 679,438
Present value of net minimum
lease payments $ 491,005
Minimum payments have not been reduced by minimum sublease rentals of $13.9
million due in the future under noncancelable subleases or the remaining rent
payments on leased stores that have been closed.
Total rent expense for operating leases, excluding those with terms of one year
or less, is as follows:
(Dollars in thousands) 1996 1995 1994
Minimum rents $137,157 $108,457 $113,606
Contingent rents,
based on sales 680 457 490
$137,837 $108,914 $114,096
In addition, the Company has signed lease agreements for additional store
facilities, the construction of which was not complete at December 28, 1996.
The leases expire on various dates extending to 2021 with renewal options
generally ranging from ten to twenty years. Total future minimum rents under
these agreements are approximately $493.8 million.
9. Income Taxes
Provisions for income taxes for 1996, 1995 and 1994 consist of the following:
(Dollars in thousands) Current Deferred Total
1996
Federal $134,000 $(24,400) $109,600
State 27,000 ( 4,900) 22,100
$161,000 $(29,300) $131,700
1995
Federal $ 90,500 $ 1,600 $ 92,100
State 18,200 400 18,600
$108,700 $ 2,000 $110,700
1994
Federal $ 86,400 $( 3,200) $ 83,200
State 17,200 ( 600) 16,600
$103,600 $( 3,800) $ 99,800
The Company's effective tax rate varied from the federal statutory rate as
follows:
1996 1995 1994
Federal statutory rate 35.0% 35.0% 35.0%
State income taxes, net of
federal tax benefit 4.3 4.3 4.3
Other ( 0.3) (0.2) 0.2
39.0% 39.1% 39.5%
Deferred income tax expense relates to the following:
(Dollars in thousands) 1996 1995 1994
Excess tax depreciation $ 2,774 $ 2,852 $ 11,409
Excess interest and amortization
over rent on capital leases ( 3,003) ( 3,258) ( 3,229)
Provision for store closings 15,454 12,237 5,080
Closed stores (18,500) ( 6,838) ( 582)
Excess tax gain/loss ( 9,277) ( 4,882) ( 1,903)
Asset impairment reserve ( 3,765) - -
Accrued expenses ( 3,251) ( 2,635) (12,507)
Other ( 9,732) 4,524 ( 2,068)
$ (29,300) $ 2,000 $( 3,800)
The components of deferred income tax assets and liabilities at December 28,
1996 and December 30, 1995 are as follows:
(Dollars in thousands) 1996 1995
Current assets:
Inventories $ 16,312 $ 6,298
Accrued expenses 53,166 37,125
Provision for store closings 6,329 6,595
Total current asset 75,807 50,018
Noncurrent assets/(liability):
Depreciation (105,101) (112,810)
Leases 40,435 25,700
Provision for store closings 46,109 42,990
Net operating loss carryforward 20,777 -
Other deferred charges 6,399 -
Total noncurrent asset/(liability) 8,619 (44,120)
Net deferred taxes $ 84,426 $ 5,898
As of December 28, 1996, the Company had net operating loss carryforwards for
tax purposes of approximately $56.0 million. Due to certain change of ownership
requirements of Section 382 of the IRC, utilization of the Kash n' Karry Food
Stores, Inc. operating losses is expected to be limited to approximately $3.6
million per year. If the full amount of that limitation is not used in any year,
the amount not used increases the allowable limit in the subsequent year.Loss
carryovers will expire during the years 2004 through 2012.
10. Other Liabilities
Other liabilities consist of the following:
(Dollars in thousands) 1996 1995
Estimated store closing costs $150,093 $67,061
Other 11,459 8,457
161,552 75,518
Less current portion 7,279 3,523
$154,273 $ 71,995
11. Stock Option Plans
The Company has a stock option plan under which options to purchase shares of
Class A common stock may be granted to officers and key employees at prices not
less than fair market value on the date of grant. Options become exercisable
as determined by the Stock Option Committee of the Board of Directors of the
Company on the date of grant, provided that no option may be exercised more than
ten years after the date of grant.
Transactions in stock options are summarized as follows:
Shares
Under
Option Price Per Share
Outstanding at 1993 3,324,520 $5.25 - 17.58
Granted 187,650 5.25 - 6.38
Exercised ( 9,270) 5.25 - 6.17
Cancelled ( 493,970) 5.25 - 15.83
Outstanding at 1994 3,008,930 $5.25 - 17.58
Granted 146,650 5.125 - 6.50
Exercised ( 7,531) 5.25
Cancelled ( 489,980) 5.125 - 14.67
Outstanding at 1995 2,658,069 $5.125 - 17.58
Granted 931,715 5.375 - 9.375
Exercised ( 587,795) 5.25 - 7.13
Cancelled ( 448,154) 5.125 - 17.58
Outstanding at 1996 2,553,835 $5.125 - 17.58
On December 28, 1996, options for the purchase of 1,367,820 shares of Class A
common stock were exercisable and 6,935,244 shares of Class A common stock were
available for future grants.
During the first quarter of 1996, the Company adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock Based Compensation" ("SFAS
No. 123"). As permitted by SFAS 123, the Company has chosen to apply APB
Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25") and
related interpretations in accounting for its Plans. Accordingly, no
compensation cost has been recognized for options granted under the stock option
plans. Had compensation cost for the Company's stock option plans been
determined based on the fair value at the grant dates for awards under the stock
option plans consistent with the method of SFAS 123, the impact on the Company's
net income and earnings per share would not have been material.
12. Common Stock
On December 28, 1996, approximately 24.3% and 15.2% of the issued and
outstanding Class A non-voting common stock and 24.5% and 27.2% of the issued
and outstanding Class B voting common stock was held, respectively, by
Etablissements Delhaize Freres et Cie "Le Lion" S.A. (Delhaize) and Delhaize The
Lion America, Inc., a wholly owned subsidiary of Delhaize (Detla). In the
aggregate, Delhaize and Detla owned approximately 51.7% of the Class B voting
common stock and 39.5% of Class A non-voting common stock.
Holders of Class B common stock are entitled to one vote for each share of Class
B common stock held, while holders of Class A common stock are not entitled to
vote except as required by law.
The Board of Directors of the Company may declare dividends with respect to
Class A common stock in excess of dividends declared and paid with respect to
the Class B common stock or without declaring and paying any dividends with
respect to the Class B common stock. When dividends are declared with respect
to the Class B common stock, the Board of Directors of the Company must declare
a greater per share dividend to the holders of Class A common stock.
13. Interest Expense
Interest expense consists of the following:
(Dollars in thousands) 1996 1995 1994
Interest on capital leases $46,767 $38,995 $38,511
Other interest (net of $1.5, $1.9
and $1.0 million capitalized in
1996, 1995, and 1994, respectively.) 33,753 34,489 48,053
$80,520 $73,484 $86,564
14. Store Closing Charge
In 1993, the Company established a pre-tax charge against 1993 earnings of
$170.5 million (after tax $104 million, or 22 cents per share) to cover
management's best estimate of the costs associated with the closing of 88
unprofitable store locations. The Company charged $39.4 million, $31.1 million
and $13.0 million, respectively, during 1996, 1995 and 1994 against the reserve
related to the disposition of property and the payment of remaining rent
obligations on leased stores. As of December 28, 1996, the remaining reserve is
$87.0 million and is included in Property, Accrued Expenses and Other
Liabilities in the accompanying balance sheet. Management believes the
remaining reserve is adequate to cover the costs associated with the disposition
of the remaining properties. (See Notes 3, 4 and 10 for related information).
Report of Independent Accountants
To the Shareholders of Food Lion, Inc.:
We have audited the accompanying consolidated balance sheets of Food Lion, Inc.
and subsidiary, as of December 28, 1996 and December 30, 1995 and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three fiscal years in the period ended December 28, 1996. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Food Lion, Inc.and
subsidiary, as of December 28, 1996 and December 30, 1995 and the results of
their operations and their cash flows for each of the three fiscal years in the
period ended December 28, 1996 in conformity with generally accepted accounting
principles.
Coopers & Lybrand L.L.P.
Charlotte, North Carolina
February 18, 1997
Results by Quarter
(Unaudited)
(Dollars in thousands except First Second Third Fourth
per share amounts) (12 Weeks) (12 Weeks) (12 Weeks) (16 Weeks)
1996
Net sales $2,024,453 $2,084,414 $2,124,390 $2,772,675
Gross profit 411,623 443,646 462,061 601,425
Operating income 85,976 99,285 101,193 131,836
Net income 40,853 48,584 50,018 66,615
Earnings per share .09 .10 .11 .14
1995
Net sales $1,866,262 $1,895,208 $1,913,982 $2,535,432
Gross profit 383,073 390,456 398,292 522,426
Operating income 81,130 82,186 82,198 111,031
Net income 37,665 38,732 41,003 54,961
Earnings per share .08 .08 .09 .11
Market Price of Common Stock
Year Ended December 28, 1996 Year Ended December 30, 1995
Class A Class B Class A Class B
Quarter High Low High Low High Low High Low
First 5 13/16 5 3/8 5 13/16 5 3/8 5 7/8 4 15/16 6 5 1/16
Second 8 5/16 5 1/2 8 1/16 5 1/2 6 5/8 5 7/16 6 5/16 5 1/2
Third 9 1/16 7 3/4 8 9/16 7 5/16 6 1/8 5 11/16 6 1/4 5 11/16
Fourth 9 11/16 8 3/8 9 11/16 8 1/8 6 3/16 5 1/2 6 1/4 5 7/16
The Company's Class A and the Class B common stock trades on the NASDAQ Stock
Market under the symbol: FDLNA and FDLNB, respectively. Price quotations are
reported on the NASDAQ National Market System. The closing market prices per
share for both Class A and Class B common stock at December 28, 1996 were
$9.6875, compared with $5.71875 and $5.6875, respectively, for the Class A and
Class B common stock at December 30, 1995. The over-the-counter quotations
reflect inter-dealer prices without retail mark-up, mark-down or commission and
may not necessarily represent actual transactions. On February 3, 1997, there
were 30,753 holders of record of Class A common stock and 20,945 holders of
record of Class B common stock. The closing market prices per share for the
Class A and the Class B common stock at February 3, 1997 were $8.5625 and $8.75.
Dividends Declared Per Share of Common Stock
Year Ended December 28, 1996 Year Ended December 30, 1995
Quarter Class A Class B Class A Class B
First $.0280 $.0276 $.0243 $.0237
Second .0280 .0276 .0243 .0237
Third .0280 .0276 .0243 .0237
Fourth .0280 .0276 .0243 .0237
Total $.1120 $.1104 $.0972 $.0948
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations
The Company had record sales of $9.0 billion and net earnings
of $206.1 million in fiscal 1996, increases of 9.7% and 19.6%,
respectively, compared with fiscal 1995. During 1996, Food Lion
opened 55 new stores and acquired nine additional stores when it
purchased the assets of the Food Fair supermarket chain in
Winston Salem, N.C. The Company relocated 22 older stores and
closed three stores, resulting in 1,112 stores operating at the
end of the fiscal year compared with 1,073 stores in 1995. The
Company renovated 124 existing Food Lion stores in 1996, which
included expanding square footage and adding deli/bakeries in most
of the stores.
In December of 1996, the Company completed its acquisition of
Kash n' Karry Food Stores, Inc. of Tampa, FL. Kash n' Karry
operates 100 supermarkets in West Central Florida and is operated
as a wholly owned subsidiary. The transaction was accounted for
using the purchase method of accounting.
Sales
Sales reached a record $9.0 billion for the 52 weeks ended
December 28, 1996, compared with $8.2 billion and $7.9 billion for
the comparable periods in 1995 and 1994, resulting in annual
increases of 9.7%, 3.5% and 4.2%, respectively. In 1996, the
Company recorded a 5.7% increase in same store sales, or sales
for stores open in comparable periods. Same store sales increases
were 2.3% and 3.3% in 1995 and 1994, respectively.
During 1996, the Company's sales increase resulted from a
number of factors including its aggressive store renovation
strategy, opening of new stores, conversion to 24-hour operations
and several marketing initiatives. Store renovations continue to
boost sales, as 124 existing stores were renovated to update
equipment and properties, and in most locations, to add
deli/bakeries. The Company continued to convert its stores to 24-
hour operation in 1996 and, as a result, 80% of its stores had
been converted to 24-hour operation as of December 28, 1996. As
stated under Results of Operations above, the Company opened 55
new stores, acquired nine stores, and closed 25 older stores, a
net increase of 39 stores for 1996, excluding the Kash n' Karry
stores acquired in December 1996.
During 1996, the Company expanded the MVP Customer program,
which rewards loyal Food Lion shoppers with additional discounts
of up to 20% off Food Lion's Extra Low Prices on a monthly
selection of items featured by the program. The MVP Customer
program has been increased to include a wider selection of items,
and the Company plans to link it with additional promotional
activity in 1997. Additionally, the Company expanded its
convenience to customers by implementing debit/credit card
processing and no-ID check tender in all of its stores in 1996 and
offering 24 hour operations in 80% of its stores.
The 1997 business plan includes opening 55 to 60 new stores
(up to 20 of these replacing older stores) and renovating
approximately 100 existing stores. The Company's growth strategy
includes plans to open new stores and renovate existing stores to
maintain a competitive edge in the Company's current markets, and
expand by acquisitions, if and when appropriate. In addition, Food
Lion will continue to evaluate its store base and may close stores
to take advantage of relocation opportunities or to eliminate
operating losses in underperforming stores. During 1996, Food
Lion's Southwest market, with 61 stores, improved cash flow and
reduced operating losses. The Company continues to monitor sales
and profits in the Southwest market. Food Lion will continue to
evaluate the performance of all corporate assets, including those
in the Southwest. Food Lion's growth strategy is flexible, and
the Company will listen to its customers and revise its strategy
accordingly in an effort to provide Extra Low Prices and More for
its customers.
Gross Profit
In fiscal 1996, gross profit was 21.31% of sales compared
with 20.63% and 20.28% in 1995 and 1994, respectively. Gross
profit increased by 0.68% of sales in 1996 through category
management initiatives, increases in private label sales, and the
addition of deli/bakery departments. Category management
initiatives increased gross profit through product analysis,
selection and strategic pricing, contributing to gross profit
increases in the grocery, perishables and fresh departments in
1996. In addition, gross profits were positively impacted by the
Company's private label program, which during the year increased
to 16% of total sales, and the number of stores with deli/bakery
departments, which increased from 733 in 1995 to 888 in 1996. The
Company continues to focus on providing customers with quality,
freshness and cleanliness as part of its Extra Low Prices and More
philosophy. The Company's improved gross profit in 1995 was
primarily the result of improved product mix in the higher margin
departments of meat, perishable and deli, due to the Company's
focus on quality and freshness and store renovations which added
deli/bakeries.
The LIFO charge, as a percent of sales, decreased gross
profit by 0.11% in 1996, 0.18% in 1995 and 0.21% in 1994. FIFO
gross profits were 21.42%, 20.81% and 20.49%, respectively in
1996, 1995 and 1994.
Selling and Administrative Expenses
Selling and administrative expenses as a percentage of sales
were 14.72%, 14.51% and 14.24% in 1996, 1995, and 1994,
respectively. Selling and administrative expenses were impacted in
1996 by provisions to cover the cost of planned store closings,
expenses related to technology improvements for stores, and losses
resulting from hurricanes Fran and Bertha. The Company is required
to provide for the cost of closing stores as such decisions are
finalized. The cost to close a store averages $500,000 to
$900,000. At the end of 1996, Food Lion had provided for all
planned 1997 closings, which includes 18 to 20 relocations and the
closing of 15 underperforming units.
During 1996, the Company also incurred expenses related to
technology improvements, including on-line communications to
stores and the extension of debit/credit card acceptance and no-ID
check tender to all stores. The above increases were offset
partially by improved store operating expenses such as salaries,
benefits, supplies and repairs as the Company controlled these
costs during periods of strong sales performance.
Advertising costs increased in 1996 primarily due to
additional print media advertising targeted to certain market
areas. In addition, the Company continued its marketing strategies
focusing on enhancing the Company's image through the Gold Lion
Guarantee initiative, which communicates the Company's commitment
to quality, freshness, cleanliness, service and friendliness using
the theme Extra Low Prices and More and the MVP Customer Card
program, described under Sales above. The Company also had two
successful promotional campaigns tied in with NASCAR ("National
Association for Stock Car Auto Racing") race events and
participated in other advertising as the "Official Supermarket
of NASCAR," a relationship the Company began in December, 1995.
Food Lion's 1996 business plan reflected the Company's
commitment to maintaining its existing store base as 124 store
renovations were completed in 1996 compared with 121 in 1995 and
65 in 1994. The Company currently intends to complete
approximately 100 renovations to existing stores in 1997. Store
renovations negatively impact the Company's operating expenses
such as rent and utilities, but add value to customers as
demonstrated by sales increases in renovated stores. Deli/bakery
departments, in particular, command a higher gross margin, but
they also include additional expenses related to rent, supplies,
salaries and maintenance. The Company plans to continue an
aggressive renovation program to maintain a quality shopping
environment for customers in all Food Lion stores.
The Company established a pre-tax charge against 1993
earnings of $170.5 million (approximately $104 million after tax)
to cover management's estimate of the costs associated with the
closing of 88 unprofitable store locations. The Company charged
$39.4 million, $31.1 million and $13.0 million, respectively,
during 1996, 1995 and 1994, relating to the disposition of
property and the payment of remaining rent obligations on leased
stores, against the reserve. As of December 28, 1996, the
remaining reserve is $87.0 million and is included in Property,
Accrued Expenses and Other Liabilities in the accompanying balance
sheet. The Company realized the total annual benefit of $30.0
million pre-tax on these store closings in 1996 and 1995 (partial
benefit of approximately $24.0 million was realized in 1994).
Management currently believes the remaining reserve is adequate to
cover the costs associated with the disposition of the remaining
properties.
The Company believes that expenses related to the customer
initiatives outlined above are effectively increasing sales, and
the Company plans to continue to incur these expenses and others
designed to increase sales and meet customer needs.
Interest Expense
Interest Expense as a percent of sales was 0.89% in 1996 and
1995, and 1.09% in 1994. During the second quarter of 1996, the
Company used excess cash to repurchase $40 million in privately
issued notes. Offsetting the above, interest expense on capital
leases increased $7.8 million as a result of an increase in the
number of capital leases and lease modifications due to
renovations. Interest expense decreased in 1995 due to the
prepayment of three series of senior unsecured notes totaling $214
million in the fourth quarter of 1994, and additional capitalized
interest as a result of construction to expand the Greencastle,
Pennsylvania distribution center and the construction of nine
Company-owned stores. Interest expense increased in 1994 due to
the amortization of rent obligations on the 1994 store closings
and lower capitalized interest as a result of less construction
(during 1994, eight Company-owned stores were constructed compared
with 31 Company-owned stores in 1993).
Depreciation Expense
Depreciation expense as a percent of sales was 1.84% in 1996
compared with 1.78% in 1995 and 1.76% in 1994. Depreciation
increased in 1996 primarily due to leasehold improvements
resulting from 124 store renovations and depreciation on leased
assets resulting from an increase in the number of capital leases.
During 1996, the Company equipped 55 leased stores and renovated
124 existing stores. During 1995, the Company constructed and
equipped nine stores, equipped 38 leased stores, renovated 121
stores and completed an expansion of its Greencastle, Pennsylvania
distribution center. During 1994, the Company closed 84
underperforming stores, constructed and equipped eight stores,
equipped 22 leased stores, renovated 65 existing stores and began
construction to expand its Greencastle, Pennsylvania distribution
center.
The Company plans to finance the majority of its store growth
in 1997 with conventional lease arrangements, but will continue to
build and own stores in market areas where leasing is not
economically advantageous.
Impairment of Assets Reserve
During the first quarter of 1996, Food Lion adopted Financial
Accounting Standards Board Statement no. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be
Disposed of" (FASB no. 121). This statement requires companies to
record impairments to long-lived assets, certain identifiable
intangibles and related goodwill when events or changing
circumstances make it probable an asset's carrying amount cannot
be fully recovered. In adopting this statement, management
considered the expected operating cash flows along with an
estimate of the market value of the assets if they were sold. The
implementation of FASB no. 121 created a non-cash charge against
first quarter earnings of $9.6 million to properly reflect the
carrying value of the Company's assets, using discounted cash
flows.
LIFO
The LIFO reserve increased $10.3 million in 1996, as compared
with increases of $15.0 million in 1995 and $16.3 million in 1994.
The 1996 increase was primarily due to increased cost of grocery,
frozen food and dairy items. In 1995, paper, plastic products and
packaging were the primary contributors to the LIFO increase.
During 1994, inflationary coffee costs were a large part of the
LIFO reserve increase.
Income Taxes
The provision for income taxes was $131.7 million in 1996,
$110.7 million in 1995 and $99.8 million in 1994. The Company's
effective tax rate was 39.0% in 1996 compared with 39.1% in 1995
and 39.5% in 1994. Assuming there are no additional federal or
state income tax rate increases, Food Lion expects the effective
rate for 1997 to be 39.0%.
Liquidity and Capital Resources
Cash provided by operating activities was $315.3 million in
1996, compared with $330.6 million in 1995 and $389.9 million in
1994. The decrease in 1996 was due primarily to increased
inventory levels and increased receivables. The decrease in 1995
was primarily due to changes in comparative levels of inventory as
a result of more store openings occurring toward the end of 1995,
an increase in prepaid expenses and a decrease in taxes payable,
offset by a decrease in receivables and an increase in payables.
The increase in 1994 was due to improved earnings, lower
inventories achieved by improvement in inventory management
techniques and the closing of underperforming stores in early
1994. Accounts payable, accrued expenses and income taxes payable
increases also contributed to the increase in cash provided by
operating activities in 1994.
Cash flows used in investing activities increased to $377.7
million in 1996 compared with $199.1 million and $112.1 million in
1995 and 1994, respectively. In December of 1996, Food Lion
purchased the stock of Kash n' Karry for $121.6 million and as of
December 28, 1996, the Company had paid $25.7 million to retire a
portion of Kash n' Karry's debt.
Capital expenditures increased to $283.6 million in 1996,
compared with $219.9 million in 1995 and $117.3 million in 1994.
During 1996, the Company equipped a total of 55 new stores and
renovated 124 existing stores (including expansions in the
majority of these stores) and implemented debit/credit and on-line
communication technology in its stores. During 1995, the Company
constructed nine Company-owned stores, completed 121 store
renovations and completed construction on an expansion of the
Greencastle, Pennsylvania distribution center. During 1994, the
Company equipped a total of 30 new stores, constructed eight
Company-owned stores, completed 65 store renovations and began
construction of the expansion of its Greencastle, Pennsylvania
distribution center.
As a result of 64 total store openings (including the
acquisition of nine Food Fair stores) and the closing of 25 stores
in 1996, total stores increased from 1,073 to 1,112. Total store
square footage increased 8.51% from 30.1 million in 1995 to 32.6
million in 1996. The total distribution space owned by the Company
was approximately 10.0 million square feet in 1996 compared with
9.9 million and 9.5 million in 1995 and 1994, respectively.
In 1997, Food Lion plans to continue its three-fold growth
plan, which focuses on a combination of renovations and new store
openings, as well as growth through acquisitions, if and when
appropriate. The Company presently expects to open a total of 55
to 60 new stores and to renovate approximately 100 stores in 1997.
The Company anticipates that the majority of the new stores will
be opened under conventional leasing arrangements and, as a
result, the impact on liquidity of owning stores will be
insignificant in 1997. Significant capital expenditures currently
planned for 1997 include approximately $108 million for store
expansion and new store construction, $123 million to equip new
and renovated stores, and $8 million for land costs. In addition,
the Company anticipates $150 million in capital expenditures over
the next four years for Kash n' Karry store remodels and new store
development.
The Company plans to finance capital expenditures for 1997
through funds generated from operations, existing bank and credit
lines, and additional long term debt. The Company will consider
the possibility of sale-leaseback transactions on certain free-
standing, Company-owned stores in the future if advantageous
opportunities are presented by potential lessors.
During 1996, Food Lion expended $44.3 million for the
purchase of Class A and Class B shares, as part of the Company's
program to repurchase up to $100 million of its outstanding
shares. The Company purchased 3,047,000 shares of Class A stock at
an average price of $5.89 per share, and 3,722,250 shares of Class
B stock at an average price of $7.09 per share. Additional
purchases may be made in the open market under the current program
as deemed in the best interest of shareholders. During 1995, the
Company expended $50.9 million to purchase 5,640,615 shares of
Class A stock at an average price of $5.89 per share, and
2,946,500 shares of Class B stock at an average price of $5.87 per
share.
Debt
The Company maintains a revolving credit facility with a
syndicate of commercial banks providing $700.0 million in
committed lines of credit. Of this $700.0 million, $350.0 million
will expire on December 15, 1997 and $350.0 million will expire on
December 16, 2001. Outstanding borrowings were $250.0 million as
of December 28, 1996. During 1996, the Company had average
borrowings of $7.55 million at a daily weighted average interest
rate of 6.22% with a maximum amount outstanding of $250.0 million.
The Company also maintains additional committed lines of
credit totaling $35.0 million which are available when needed. The
Company is not required to maintain compensating balances related
to these lines of credit and borrowings may occur periodically.
The Company had no borrowings outstanding under these lines at
December 28, 1996. During 1996, the Company had average borrowings
of $3.02 million at a daily weighted average interest rate of
5.42% with a maximum amount outstanding of $24.0 million.
The Company has a $250.0 million commercial paper program, of
which no borrowings were outstanding at December 28, 1996,
December 30, 1995 and December 31, 1994 nor used during these
years.
Finally, the Company has periodic short-term borrowings under
informal credit arrangements which are available to the Company at
the discretion of the lender (see table below):
Informal Credit Arrangements
(Dollars in millions)
1996 1995 1994
Outstanding borrowings at year end $ 0 $ 0 $20.0
Average borrowings 3.0 0.3 2.4
Maximum amount outstanding 55.0 20.0 20.0
Daily weighted average interest rate 5.48% 6.04% 5.62%
In 1996, the Company repurchased privately issued notes
totaling $40.0 million, which were due on February 1, 1997. During
the fourth quarter of 1994, the Company pre-paid three series of
senior unsecured notes totaling $214.0 million which were due from
1998 to 2003 at interest rates ranging from 6.97% to 8.00%.
The Company has outstanding $114.1 million of 5% convertible
subordinated debentures due 2003. The debentures are convertible
into shares of the Company's Class A non-voting stock at $7.90 per
share. As of December 28, 1996, 117,341 shares have been
converted. The Company also currently has outstanding two series
of notes in the aggregate amount of $200.3 million.
The Company expects that in the near future it will issue up
to $300 million in debt securities, the proceeds of which will be
used to retire certain other indebtedness.
Impact of Inflation
During 1996, the impact of inflation on the Company's
operating results was moderate. Inventory and labor, the Company's
primary costs, increase with inflation and, where possible, will
be recovered through operating efficiencies and gross profits.
Other:
From time to time, information provided by the Company, including
written or oral statements made by its representatives, may
contain forward-looking information as defined in the Private
Securities Litigation Reform Act of 1995. All statements, other
than statements of historical facts, which address activities,
events or developments that the Company expects or anticipates
will or may occur in the future, including such things as
expansion and growth of the Company's business, future capital
expenditures and the Company's business strategy, are forward-
looking statements. In reviewing such information it should be
kept in mind that actual results may differ materially from those
projected or suggested in such Forward-Looking information. This
forward-looking information is based on various factors and was
derived utilizing numerous assumptions. Many of these factors have
previously been identified in filings or statements made by or on
behalf of the Company.
Important assumptions and other important factors that could cause
actual results to differ materially from those set forth in the
forward-looking information include: changes in the general
economy or in the Company's primary markets, changes in consumer
spending, competitive factors and other factors affecting the
Company's business in or beyond the Company's control. These
factors include changes in the rate of inflation, changes in state
or federal legislation or regulation, adverse determinations with
respect to litigation or other claims, inability to develop new
stores or complete remodels as rapidly as planned, stability of
product costs, and uncertainties detailed from time-to-time in the
Company's filings with the Securities and Exchange Commission,
including on Forms 10-Q, 10-K and 8-K.
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statements of Food Lion, Inc. on Form S-8 (File Nos. 33-18796, 33-
18797 and 333-03669) and Form S-3 (File Nos. 33-40457,33-50037 and 33-49620)
of our report dated February 18, 1997, on our audits of the consolidated
financial statements and financial statement schedule of Food Lion,
Inc. and subsidiary as of December 28, 1996, and December 30, 1995, and for
the fiscal years ended December 28, 1996, December 30, 1995 and
December 31, 1994,which report is included in this Annual Report on Form 10-K.
COOPERS & LYBRAND, L.L.P.
Charlotte, North Carolina
March 26, 1997
Exhibit 99
UNDERTAKING TO FILE EXHIBITS PURSUANT
TO ITEM 601(b)(4)(iii)(A) OF REGULATIONS S-K
The undersigned registrant acknowledges that it has not filed
with the Securities and Exchange Commission (the "Commission") copies
of certain instruments with respect to long-term debt of the
registrant representing obligations not exceeding 10% of the
registrant's total assets as of December 28, 1996, pursuant to the
provisions of Item 601(b)(4)(iii)(A) of Regulation S-K of the
Commission (the "Regulation").
Pursuant to the Regulation, the undersigned registrant hereby
undertakes to furnish to the Commission upon its request a copy of
any such instrument, including nine Note Purchase Agreements dated
July 20, 1988 between the Company and various parties, in amounts
ranging from $1.5 million to $15 million and totaling $50 million,
and convertible subordinated debentures dated June 15, 1993 totaling
$115 million.
This is the 25th day of March , 1997.
FOOD LION, INC.
Laura Kendall
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THIS SCEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, THE CONSOLIDATED STATEMENTS OF INCOME AND
THE CONSOLIDATED STATEMENT OF CASH FLOWS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
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<FISCAL-YEAR-END> DEC-28-1996
<PERIOD-START> DEC-31-1995
<PERIOD-END> DEC-28-1996
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<RECEIVABLES> 151163
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0
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<INCOME-PRETAX> 337700
<INCOME-TAX> 131700
<INCOME-CONTINUING> 206070
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</TABLE>
EXECUTION COPY
CREDIT AGREEMENT
dated as of
December 16, 1996
among
FOOD LION, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
as Documentation Agent
$350,000,000 364-DAY REVOLVING CREDIT FACILITY
AND COMPETITIVE ADVANCE FACILITY
and
$350,000,000 FIVE YEAR REVOLVING CREDIT
AND COMPETITIVE ADVANCE
FACILITY
__________________________________
CHASE SECURITIES, INC.,
as Arranger
Index
Page
364-Day Availability Period 20, 22, 24
364-Day Commitment 2, 5, 20, 22-24, 29, 30
364-Day Competitive Loan 6, 20, 22, 24
364-Day Maturity Date 20, 23, 29, 30
364-Day Revolving Exposure 18
364-Day Revolving Loan 18, 20, 22, 23, 30
ABR 1, 2, 13, 23, 24, 27-29, 31-33
Acquisition 1, 41, 44-46, 51, 54
Acquisition Sub 1, 12, 16, 20
Adjusted LIBO Rate 1, 10, 19, 21, 32, 33, 35
Administrative Agent 1, 3, 10, 14, 19-31, 33, 36, 38, 39, 44-46,
48-50, 57, 58, 60-72
Administrative Questionnaire 1, 64, 68
Affiliate 1, 23, 38, 49, 55, 61, 62, 65, 67, 71
Alternate Base Rate 1, 21, 32, 33
Amortization 1
Applicable Percentage 2, 66
Applicable Rate 2, 31
Assessment Rate 3
Assignment and Acceptance 3, 14, 15, 20, 67, 68
Base CD Rate 3, 19
Board 3, 19, 20, 44, 51
Borrower 1, 3-11, 13-15, 17, 19, 21-36, 38, 39, 41-46,
48-62,
64-72
Borrowing 1, 3, 5, 10, 13, 14, 21, 23-28, 31, 33, 44, 46
Borrowing Request 4, 24, 27, 33
Borrowings 23
Business Day 4, 10, 13, 14, 20, 23, 25, 26, 28, 29, 31, 37
Capital Lease Obligations 4, 8, 12
Capital Stock 4, 7, 19
Capitalized Lease 4, 16, 18
Cash Available for Fixed Charges 56
Change in Control 5, 60
Change in Law 5, 33, 34
Class 5, 21, 23, 30
Code 5, 9, 17
Commitment 2, 5, 22, 29, 31, 32, 46, 48, 52, 60, 65, 67-69
Competitive Bid 5, 11, 15, 24, 26, 35
Competitive Bid Rate 6, 26
Competitive Bid Request 6, 13, 25-27
Competitive Loan 6, 10, 11, 15, 26, 31, 34
Consolidated 6
Consolidated Debt 6, 8, 56
Consolidated Fixed Charges 6, 56
Consolidated Interest Expense 6
Consolidated Net Income 6, 7
Consolidated Net Worth 7, 8
Consolidated Subsidiary 4, 6, 7, 16, 18
Consolidated Total Assets 8, 57
Consolidated Total Capitalization 8, 56
Contractual Obligation 8, 44, 50, 51
Control 1, 5, 8
Controlled 1, 8, 19
Controlling 8
Debt 6, 8, 30, 55
Default 8, 43, 47-49, 53, 61, 64, 69
Delhaize 5, 8, 9
Depreciation 8
Detla 5, 9
Disclosed Matters 9, 42, 43
Documentation Agent 1, 9, 63, 78
Dollars 9
Effective Date 9, 14, 20, 45, 46
Environmental Laws 9
Environmental Liability 9, 43, 66
ERISA 9, 10, 16, 17, 21, 43
ERISA Affiliate 9, 10, 17
ERISA Event 9, 43, 49, 59
Eurodollar 10
Event of Default 8, 10, 29, 35, 67, 70
Excluded Taxes 10, 13
Federal Funds Effective Rate 1, 10, 27, 39, 72
Financial Officer 11, 46, 48, 49
Fiscal Quarter 7, 11, 56
Fiscal Year 11
Fixed Charges 56
Fixed Rate 6, 11, 21, 32
Fixed Rate Loan 11, 13, 23, 32, 34, 35
Foreign Lender 10, 11, 36, 68
GAAP 2, 4, 8, 11, 16, 19, 22, 42, 48, 50
Governmental Authority 5, 9, 11, 17, 18, 20, 36, 39, 41-43, 49,
51
Guarantee 11, 12, 53, 54
Guarantor 12, 20, 45, 55
Hazardous Materials 9, 12, 66
Hedging Agreement 12, 15, 16, 53, 54
Indebtedness 11, 12, 15, 52, 54, 55, 59
Indemnified Taxes 13, 35, 36
Index Debt 2, 3, 13
Interest Election Request 13, 28, 29, 33
Interest Payment Date 13, 32
Interest Period 1, 3, 13, 14, 23-26, 28-30, 32, 33, 35
Investment 6, 43, 53
Lenders 1, 3, 14, 15, 23, 25, 27-33, 38, 39, 41, 42,
44-46, 48,
52, 53, 57, 61, 62, 64, 65, 67, 68, 71, 78
LIBO Rate 1, 10, 14, 15, 21, 32, 33
Lien 8, 12, 14, 16, 42, 52, 53, 55
Loans 1, 5, 10, 14, 15, 21, 23, 26-34, 38, 39, 45, 46,
51, 53,
60, 65, 67, 68, 69, 72
LTF 14
LTF Availability Period 14, 22, 24
LTF Commitment 2, 5, 14, 15, 22, 23, 25, 29, 30
LTF Competitive Loan 6, 15, 22, 24, 25
LTF Maturity Date 14, 15, 17, 23, 29, 30
LTF Revolving Credit Exposure 14, 15, 22, 25
LTF Revolving Loan 14, 15, 18, 22, 23, 30
Majority Lenders 15, 22, 29, 33, 45, 59-62, 65
Margin 6, 15, 32
Material Adverse Effect 15, 41-44, 49-51, 59
Material Indebtedness 15, 58
Merger 1, 12, 16
Merger Agreement 16, 20, 45
Minority Interests 6, 16
Moody's 2-4, 16
Multiemployer Plan 10, 16, 17, 21
Net Income 16
Operating Lease 16, 18
Other Taxes 16, 35, 36
PBGC 10, 16
Permitted Encumbrances 16, 52
Permitted Investments 4, 54
Person 1, 4, 5, 8, 11-14, 16-19, 21, 37, 42, 52-55, 62,
65, 67,
68, 71, 72
Plan 9, 10, 17, 43, 44
Prime Rate 1, 17, 33
Rate 35
Redeemable Preferred Stock 8, 17, 19
Register 17, 68
Related Parties 17, 62, 67
Rentals 6, 17
Requirement of Law 18, 44
Revolving Credit Exposure 2, 15, 18, 29, 31
Revolving Loan 2, 3, 5, 18, 21, 38
S&P 2-4, 18
Solvent 18, 44
Statutory Reserve Rate 1, 3, 19
Stockholder's Equity 7, 19
Sub 16
Subsidiary 7, 9, 15, 17, 19, 20, 38, 43, 49, 50, 52-56, 58, 59,
61
Subsidiary Guarantee 20, 45, 55
Target 12, 16, 20, 45
Taxes 20, 35, 43
Tender Offer 1, 20, 45
Three-Month Secondary CD Rate 3, 20
Transactions 21, 41, 42, 44, 45, 55, 66, 71
Type 3, 21, 23, 24, 28, 30, 31, 33
Withdrawal Liability 10, 21
Table of Contents
Page
ARTICLE I
Definitions 1
SECTION 1.1 Defined Terms 1
SECTION 1.2 Classification of Loans and
Borrowings 21
SECTION 1.3 Terms Generally 21
SECTION 1.4 Accounting Terms; GAAP 22
ARTICLE II
The Credits 22
SECTION 2.1 Commitments 22
SECTION 2.2 Loans and Borrowings 23
SECTION 2.3 Requests for Revolving Borrowings 23
SECTION 2.4 Competitive Bid Procedure 24
SECTION 2.5 Funding of Borrowings 27
SECTION 2.6 Interest Elections 28
SECTION 2.7 Termination and Reduction of
Commitments 29
SECTION 2.8 Repayment of Loans; Evidence of Debt 30
SECTION 2.9 Prepayment of Loans 31
SECTION 2.10 Fees 31
SECTION 2.11 Interest 32
SECTION 2.12 Alternate Rate of Interest 33
SECTION 2.13 Increased Costs 33
SECTION 2.14 Break Funding Payments 35
SECTION 2.15 Taxes 35
SECTION 2.16 Payments Generally; Pro Rata
Treatment; Sharing of Set-offs 37
SECTION 2.17 Mitigation Obligations; Replacement
of Lenders 39
ARTICLE III
Representations and Warranties 41
SECTION 3.1 Organization; Powers 41
SECTION 3.2 Authorization; Enforceability 41
SECTION 3.3 Governmental Approvals; No Conflicts 41
SECTION 3.4 Financial Condition; No Material
Adverse Change 42
SECTION 3.5 Properties 42
SECTION 3.6 Litigation and Environmental Matters 42
SECTION 3.7 Compliance with Laws and Agreements 43
SECTION 3.8 Investment and Holding Company Status 43
SECTION 3.9 Taxes 43
SECTION 3.10 ERISA 43
SECTION 3.11 Disclosure 44
SECTION 3.12 Margin Stock 44
SECTION 3.13 No Burdensome Restrictions 44
SECTION 3.14 Subsidiaries 44
SECTION 3.15 Solvency 44
ARTICLE IV
Conditions 45
SECTION 4.1 Effective Date 45
SECTION 4.2 Each Credit Event 46
ARTICLE V
Affirmative Covenants 48
SECTION 5.1 Financial Statements and Other
Information 48
SECTION 5.2 Notices of Material Events 49
SECTION 5.3 Existence; Conduct of Business 50
SECTION 5.4 Payment of Obligations 50
SECTION 5.5 Maintenance of Properties; Insurance 50
SECTION 5.6 Books and Records; Inspection Rights 50
SECTION 5.7 Compliance with Laws and Material
Contractual Obligations 50
SECTION 5.8 Use of Proceeds 51
ARTICLE VI
Negative Covenants 52
SECTION 6.1 Liens 52
SECTION 6.2 Fundamental Changes 53
SECTION 6.3 Investments, Loans, Advances,
Guarantees and Acquisitions; Hedging Agreements 53
SECTION 6.4 Transactions with Affiliates 55
SECTION 6.5 Restrictive Agreements 55
SECTION 6.6 Fixed Charges Coverage 56
SECTION 6.7 Ratio of Consolidated Debt to
Consolidated Total Capitalization 56
SECTION 6.8 Limitation on Sales of Assets 56
ARTICLE VII
Events of Default 58
ARTICLE VIII
The Administrative Agent 61
ARTICLE IX
Miscellaneous 64
SECTION 9.1 Notices 64
SECTION 9.2 Waivers; Amendments 64
SECTION 9.3 Expenses; Indemnity; Damage Waiver 65
SECTION 9.4 Successors and Assigns 66
SECTION 9.5 Survival 69
SECTION 9.6 Counterparts; Integration;
Effectiveness 69
SECTION 9.7 Severability 70
SECTION 9.8 Right of Setoff 70
SECTION 9.9 Governing Law; Jurisdiction; Consent
to Service of Process 70
SECTION 9.10 WAIVER OF JURY TRIAL 71
SECTION 9.11 Headings 71
SECTION 9.12 Confidentiality 71
SECTION 9.13 Interest Rate Limitation 72
SCHEDULES:
Schedule 2.1 Commitments
Schedule 3.6 Disclosed Matters
Schedule 3.14 Subsidiaries
Schedule 6.1 Existing Liens
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Opinion of Borrower's Counsel
Exhibit C Form of Subsidiary Guarantee
CREDIT AGREEMENT dated as of December 16, 1996, among
FOOD LION, INC., the LENDERS party hereto, THE CHASE MANHATTAN
BANK, as Administrative Agent, and WACHOVIA BANK OF NORTH
CAROLINA, N.A., as Documentation Agent.
The parties hereto agree as follows:
Article I
Definitions
.1 Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference
to the Alternate Base Rate.
"Acquisition" means the collective reference to the
Tender Offer and the Merger.
"Acquisition Sub" means KK Acquisition Corp., a
Delaware corporation and an indirect wholly-owned Subsidiary.
"Adjusted LIBO Rate" means, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank,
in its capacity as administrative agent for the Lenders
hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per
annum equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Base CD Rate
or the Federal Funds Effective Rate, respectively.
"Amortization" means for any period the sum of all
amortization expenses of the Borrower and its Consolidated
Subsidiaries for such period, as determined in accordance with
GAAP.
"Applicable Percentage" means, with respect to any
Lender, the percentage of the total 364-Day Commitments
represented by such Lender's 364-Day Commitment or the percentage
of the total LTF Commitments represented by such Lender's LTF
Commitment, as the case may be. If the Commitments have
terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect,
giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to
any ABR Loan or Eurodollar Revolving Loan, or with respect to the
facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption "ABR
Spread", "364-Day Eurodollar Spread", "LTF Eurodollar Spread",
"364-Day Facility Fee Rate" or "LTF Facility Fee Rate", as the
case may be, based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Index Debt:
364-Day LTF 364-Day LTF
S&P/Moody's ABR Eurodollar Eurodollar Facility Facility
Index Debt Spread Spread Spread Fee Fee
Ratings: Rate Rate
Category 1
A-/A3 or higher .00% .155% .145% .07% .08%
Category 2
BBB+/Baa1 .00% .17% .16% .08% .09%
Category 3
BBB/Baa2 .00% .22% .20% .08% .10%
Category 4
BBB-/Baa3 .00% .42% .35% .08% .15%
Category 5
BB+/Ba1 or lower .00% .67% .50% .08% .25%
provided that the foregoing rates applicable to Revolving Loans
set forth in the columns above under the captions "ABR Spread",
"364-Day Eurodollar Spread" and "LTF Eurodollar Spread" shall be
increased by 5 basis points per annum for any period during which
the aggregate outstanding amount of the Revolving Credit Exposure
and Competitive Loans is greater than 50% of the original maximum
amount of the Commitments.
For purposes of the foregoing, (i) if either Moody's or
S&P shall not have in effect a rating for the Index Debt (other
than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall be
deemed to have established a rating in Category 5; (ii) if the
ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different
Categories, the Applicable Rate shall be based on the higher of
the two ratings unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable
Rate shall be determined by reference to the Category next below
that of the higher of the two ratings; and (iii) if the ratings
established or deemed to have been established by Moody's and S&P
for the Index Debt shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), such change shall
be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of
such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of
Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good
faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency
and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 9.4),
and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate plus
(b) the Assessment Rate. As used in this definition, "Assessment
Rate" means, for any day, the annual assessment rate in effect on
such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup
"B" (or a comparable successor risk classification) within the
meaning of 12 C.F.R. Part 327 (or any successor provision) to the
Federal Deposit Insurance Corporation for insurance by such
Corporation of time deposits made in Dollars at the offices of
such member in the United States; provided that if, as a result
of any change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined
by the Administrative Agent to be representative of the cost of
such insurance to the Lenders.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" means Food Lion, Inc., a North Carolina
corporation.
"Borrowing" means (a) Revolving Loans of the same Type,
made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Competitive Loan or group of Competitive Loans of
the same Type made on the same date and as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for
a Revolving Borrowing in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not
open for dealings in Dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any capital stock of the Borrower
or any Consolidated Subsidiary (to the extent issued to a Person
other than the Borrower), whether common or preferred.
"Capitalized Lease" means any lease which is required
to be capitalized on a consolidated balance sheet of the lessee
and its subsidiaries in accordance with GAAP.
"Cash Equivalents" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States of America (or by any agency thereof to
the extent such obligations are backed by the full faith and
credit of the United States of America), in each case
maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at
such date of acquisition, a rating of at least P-1 by
Moody's or A-1 by S&P;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or
any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000;
(d) investments consisting of cash deposits in
operating accounts maintained by the Borrower or any
Subsidiary; and
(e) repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the
criteria described in clause (c) above.
"Change in Control" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities
Exchange Act of 1934, as amended, and the rules of the Securities
and Exchange Commission thereunder as in effect on the date
hereof) other than Delhaize and Detla, of shares representing
more than 15% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of the Borrower; (b)
the failure of Delhaize and Detla to own, directly or indirectly,
beneficially or of record, shares representing more than a
majority of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (c)
occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were
neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated; or (d) the
acquisition of direct or indirect Control of the Borrower by any
Person or group other than Delhaize or Detla.
"Change in Law" means (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date
of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender
or by such Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of
this Agreement.
"Class", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to any Lender, the
collective reference to such Lender's LTF Commitment and 364-Day
Commitment.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the
Borrower for Competitive Bids in accordance with Section 2.4.
"Competitive Loans" means, as to any Lender, the
collective reference to the 364-Day Competitive Loans and the LTF
Competitive Loans made by such Lender.
"Consolidated" means, when used in connection with any
defined term, and not otherwise defined, such term as it applies
to the Borrower and its Subsidiaries on a consolidated basis,
after eliminating all intercompany items.
"Consolidated Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"Consolidated Fixed Charges" for any period means,
without duplication, on a consolidated basis the sum of (i) all
Rentals payable during such period by the Borrower and its
Consolidated Subsidiaries, and (ii) Consolidated Interest Expense
for such period.
"Consolidated Interest Expense" for any period means
interest, whether expensed or capitalized, in respect of Debt of
the Borrower or any of its Consolidated Subsidiaries outstanding
during such period.
"Consolidated Net Income" for any period means the
gross revenues of the Borrower and its Consolidated Subsidiaries
for such period less all expenses and other proper charges
(including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding
Minority Interests, but excluding in any event:
(a) any unusual or extraordinary gains or
losses on the sale or other disposition of investments
(excluding Cash Equivalents) or fixed or capital
assets, and any taxes on such excluded gains and any
tax deductions or credits on account of any such
excluded losses;
(b) the proceeds of any life insurance
policy;
(c) net earnings and losses of any
Consolidated Subsidiary accrued prior to the date it
became a Consolidated Subsidiary;
(d) net earnings and losses of any
corporation (other than a Consolidated Subsidiary),
substantially all the assets of which have been
acquired in any manner by the Borrower or any
Consolidated Subsidiary, realized by such corporation
prior to the date of such acquisition;
(e) net earnings and losses of any
corporation (other than a Consolidated Subsidiary) with
which the Borrower or a Consolidated Subsidiary shall
have consolidated or which shall have merged into or
with the Borrower or a Consolidated Subsidiary prior to
the date of such consolidation or merger;
(f) net earnings and losses of any business
entity (other than a Consolidated Subsidiary) in which
the Borrower or any Consolidated Subsidiary has an
ownership interest unless such net earnings shall have
actually been received by the Borrower or such
Consolidated Subsidiary in the form of cash
distributions;
(g) any portion of the net earnings and
losses of any Consolidated Subsidiary which for any
reason is unavailable for payment of dividends to the
Borrower or any other Consolidated Subsidiary;
(h) earnings resulting from any reappraisal,
revaluation or write-up of assets;
(i) any deferred or other credit
representing any excess of the equity in any Subsidiary
at the date of acquisition thereof over the amount
invested in such Subsidiary;
(j) any gain arising from the acquisition of
any Capital Stock;
(k) any reversal of any contingency reserve
except to the extent that provision for such
contingency reserve shall have been made from income
arising during such period; provided, however, that any
reversal of a contingency reserve from a prior period
shall only be excluded from Consolidated Net Income to
the extent that the aggregate amount of such reversals
exceeds $10,000,000 during the immediately preceding 4
Fiscal Quarters; and
(l) any other unusual or extraordinary gain
or loss.
"Consolidated Net Worth" means, as of the date of any
determination thereof, Stockholder's Equity.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which, in accordance
with GAAP, would be consolidated with those of the Borrower in
its consolidated financial statements as of such date.
"Consolidated Total Assets" means at any time the total
assets of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries.
"Consolidated Total Capitalization" means as of the
date of any determination thereof, the sum of (a) Consolidated
Net Worth and (b) Consolidated Debt.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"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, except trade accounts payable and accrued
expenses arising in the ordinary course of business, (iv) all
Capital Lease Obligations, (v) all obligations of such Person to
reimburse any bank or other Person in respect of amounts payable
under a banker's acceptance, (vi) all Redeemable Preferred Stock
of such Person (in the event such Person is a corporation), (vii)
all obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien
on any asset of such Person, whether or not such Debt is assumed
by such Person, and (ix) all Debt of others Guaranteed by such
Person.
"Default" means any event or condition which
constitutes an Event of Default or which upon notice, lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Delhaize" means Etablissements Delhaize Freres et Cie
"Le Lion" S.A., a Belgian corporation.
"Depreciation" means for any period the sum of all
depreciation expenses of the Borrower and its Consolidated
Subsidiaries for such period, as determined in accordance with
GAAP.
"Detla" means Delhaize The Lion America, Inc., a
Delaware corporation.
"Disclosed Matters" means the actions, suits and
proceedings and the environmental matters disclosed in
Schedule 3.6.
"Documentation Agent" means Wachovia Bank of North
Carolina, N.A., in its capacity as documentation agent hereunder.
"Dollars" or "$" refers to lawful money of the United
States of America.
"Effective Date" means the date on which the conditions
specified in Section 4.1 are satisfied (or waived in accordance
with Section 9.2).
"Environmental Laws" means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any
Hazardous Material or health and safety matters.
"Environmental Liability" means any liability,
contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that, together with the Borrower, is treated
as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or
to appoint a trustee to administer any Plan; (f) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the Borrower or
any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or
a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate (or, in the case of a
Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such
term in Article VII.
"Excluded Taxes" means, with respect to the
Administrative Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request
by the Borrower under Section 2.17(b)), any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement or is
attributable to such Foreign Lender's failure or inability to
comply with Section 2.15(e), except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Borrower.
"Fiscal Quarter" means any fiscal quarter of the
Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Rate" means, with respect to any Competitive
Loan (other than a Eurodollar Competitive Loan), the fixed rate
of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing
interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized
under the laws of a jurisdiction other than that in which the
Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles
in the United States of America.
"Governmental Authority" means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
"Guarantor" means, prior to the Merger, the Acquisition
Sub, and upon consummation of the Merger, the Target.
"Hazardous Materials" means all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid
(excluding current accounts payable incurred in the ordinary
course of business), (d) all obligations of such Person under
conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect
of bankers' acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness
provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded
Taxes.
"Index Debt" means senior, unsecured, long-term
indebtedness for borrowed money of the Borrower that is not
guaranteed by any other Person (other than Subsidiaries) or
subject to any other credit enhancement.
"Interest Election Request" means a request by the
Borrower to convert or continue a Revolving Borrowing in
accordance with Section 2.6.
"Interest Payment Date" means (a) with respect to any
ABR Loan, the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such
Interest Period and (c) with respect to any Fixed Rate Loan, the
last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid
Request), each day prior to the last day of such Interest Period
that occurs at intervals of 90 days' duration after the first day
of such Interest Period, and any other dates that are specified
in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any
Eurodollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter,
as the Borrower may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than seven days or
more than 360 days) commencing on the date of such Borrowing and
ending on the date specified in the applicable Competitive Bid
Request; provided, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurodollar Borrowing
that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in
the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the
case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such
Borrowing.
"Lenders" means the Persons listed on Schedule 2.1 and
any other Person that shall have become a party hereto pursuant
to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and
Acceptance.
"LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page
3750 of the Telerate Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period, as the rate for Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate
is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which Dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation,
encumbrance, charge or security interest in, on or of such asset
and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the
Borrower pursuant to this Agreement.
"LTF" means "long term facility".
"LTF Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the
LTF Maturity Date and the date of termination of the LTF
Commitments.
"LTF Commitment" means, with respect to each Lender,
the commitment of such Lender to make LTF Revolving Loans
hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's LTF Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.7 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
pursuant to Section 9.4. The initial amount of each Lender's LTF
Commitment is set forth on Schedule 2.1, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
LTF Commitment, as applicable.
"LTF Competitive Loan" means a Loan made under the LTF
Commitments pursuant to Section 2.4.
"LTF Maturity Date" means December 16, 2001.
"LTF Revolving Credit Exposure" means, with respect to
any Lender at any time, the sum of the outstanding principal
amount of such Lender's LTF Revolving Loans at such time.
"LTF Revolving Loan" means a Loan made under the LTF
Commitments pursuant to Section 2.3.
"Majority Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing
more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that, for purposes
of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate,
the outstanding Competitive Loans of the Lenders shall be
included in their respective Revolving Credit Exposures in
determining the Majority Lenders.
"Margin" means, with respect to any Competitive Loan
bearing interest at a rate based on the LIBO Rate, the marginal
rate of interest, if any, to be added to or subtracted from the
LIBO Rate to determine the rate of interest applicable to such
Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this
Agreement.
"Material Indebtedness" means Indebtedness (other than
the Loans or the guarantees thereof), or obligations in respect
of one or more Hedging Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount
exceeding $20,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary
would be required to pay if such Hedging Agreement were
terminated at such time.
"Merger" means the merger of the Acquisition Sub with
and into the Target pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of
Merger dated as of October 31, 1996 among the Borrower, the
Acquisition Sub and the Target.
"Minority Interests" means any shares of stock of any
class of a Consolidated Subsidiary (other than directors'
qualifying shares as required by law) that are not owned by the
Borrower and/or one or more of its Consolidated Subsidiaries.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Income" means, of any Person for any period, net
income of such Person, determined on a consolidated basis in
accordance with GAAP.
"Operating Lease" means any lease other than a
Capitalized Lease.
"Other Taxes" means any and all present or future stamp
or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments and
other governmental charges that are not yet due or are being
contested in compliance with Section 5.4;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's, landlords' and other like Liens
imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than
30 days or are being contested in compliance with Section
5.4;
(c) Liens granted to a landlord pursuant to a lease to
secure the obligations of the lessee under such lease which
apply only to property or assets of the lessee located at
the leased premises;
(d) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(e) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any
Subsidiary.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV
of ERISA or Section 412 of the Code or Section 302 of ERISA, and
in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by The Chase Manhattan Bank
as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being
effective.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior
to the LTF Maturity Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Register" has the meaning set forth in Section 9.4.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Rentals" means and includes as of the date of any
determination thereof all fixed payments (including as such all
payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the property) payable by
the Borrower or a Consolidated Subsidiary, as lessee or sublessee
under an Operating Lease or Capitalized Lease of real or personal
property, but shall be exclusive of any amounts required to be
paid by the Borrower or a Consolidated Subsidiary (whether or not
designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges.
Fixed rents under any so-called "percentage leases" shall be
computed solely on the basis of the minimum rents, if any,
required to be paid by the lessee regardless of sales volume or
gross revenues.
"Requirement of Law" means, as to any Person, the
Certificate of Incorporation and By-Laws or other organizational
or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Revolving Credit Exposure" means, with respect to any
Lender at any time, the sum of such Lender's 364-Day Revolving
Exposure and LTF Revolving Exposure.
"Revolving Loan" means the collective reference to the
LTF Revolving Loans and the 364-Day Revolving Loans.
"S&P" means Standard & Poor's.
"Solvent", when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the
"present fair saleable value" of the assets of such Person and
its subsidiaries, taken as a whole, will, as of such date, exceed
the amount that will be required to pay all "liabilities of such
Person and its subsidiaries, taken as a whole, contingent or
otherwise", as of such date (as such quoted terms are determined
in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors) as such debts become
absolute and matured, (b) such Person and its subsidiaries, taken
as a whole, will not have, as of such date, an unreasonably small
amount of capital with which to conduct their businesses, taking
into account the particular capital requirements of such Person
and its projected capital requirements and availability and (c)
such Person and its subsidiaries, taken as a whole, will be able
to pay their debts as they mature, taking into account the timing
of and amounts of cash to be received by such Person and its
subsidiaries, taken as a whole, and the timing of and amounts of
cash to be payable on or in respect of indebtedness of such
Person and its subsidiaries, taken as a whole. For purposes of
this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such
a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal or
equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Statutory Reserve Rate" means a fraction (expressed as
a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with
maturities approximately equal to three months and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Stockholder's Equity" means, at any time, the
shareholders' equity of the Borrower and its Consolidated
Subsidiaries, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its
Consolidated Subsidiaries. Shareholders' equity shall include,
but not be limited to (i) the par or stated value of all
outstanding Capital Stock, (ii) capital surplus, (iii) retained
earnings, and (iv) various deductions such as (A) purchases of
treasury stock, (B) valuation allowances, (C) receivables due
from an employee stock ownership plan, (D) employee stock
ownership plan debt guarantees, and (E) translation adjustments
for foreign currency transactions.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company,
partnership, association or other entity of which securities or
other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held by such
Person or one or more subsidiaries of such Person or by such
Person and one or more subsidiaries of such Person.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantee" means the Guarantee Agreement,
in substantially the form of Exhibit C, made by the Guarantor in
favor of the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Target" means Kash N' Karry Food Stores, Inc., a
Delaware corporation.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Tender Offer" means the all cash tender offer for all
of the issued and outstanding shares of common stock of the
Target by the Acquisition Sub pursuant to the Merger Agreement.
"364-Day Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the
364-Day Maturity Date and the date of termination of the 364-Day
Commitments.
"364-Day Commitment" means, with respect to each
Lender, the commitment of such Lender to make 364-Day Revolving
Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's 364-Day Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.7 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.4. The initial amount of each Lender's 364-
Day Commitment is set forth on Schedule 2.1, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed
its 364-Day Commitment, as applicable.
"364-Day Competitive Loan" means a Loan made under the
364-Day Commitments pursuant to Section 2.4.
"364-Day Maturity Date" means December 15, 1997.
"364-Day Revolving Credit Exposure" means, with respect
to any Lender at any time, the sum of the outstanding principal
amount of such Lender's 364-Day Revolving Loans at such time.
"364-Day Revolving Loan" means a Loan made under the
364-Day Commitments pursuant to Section 2.3.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a
Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day)
or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day is
not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and
performance by the Borrower of this Agreement, the borrowing of
Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such Loan,
or on the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate, the Alternate Base Rate or,
in the case of a Competitive Loan or Borrowing, the LIBO Rate or
a Fixed Rate.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
.2 Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred
to by Class (e.g., a "Revolving Loan") or by Type (e.g., a
"Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar
Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
.3 Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The
word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any
Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities,
accounts and contract rights.
.4 Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if the Borrower
notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Majority
Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or
such provision amended in accordance herewith.
Article II The Credits
.1 Commitments. (a) Subject to the terms and
conditions set forth herein, each Lender with a 364-Day
Commitment agrees to make 364-Day Revolving Loans to the Borrower
from time to time during the 364-Day Availability Period in an
aggregate principal amount that will not result in (i) such
Lender's 364-Day Revolving Credit Exposure exceeding such
Lender's 364-Day Commitment or (ii) the sum of the total 364-Day
Revolving Credit Exposures plus the aggregate principal amount of
outstanding 364-Day Competitive Loans exceeding the total 364-Day
Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow 364-Day Revolving Loans.
(a) Subject to the terms and conditions set forth herein, each
Lender with a LTF Commitment agrees to make LTF Revolving Loans
to the Borrower from time to time during the LTF Availability
Period in an aggregate principal amount that will not result in
(i) such Lender's LTF Revolving Credit Exposure exceeding such
Lender's LTF Commitment or (ii) the sum of the total LTF
Revolving Credit Exposures plus the aggregate principal amount of
outstanding LTF Competitive Loans exceeding the total LTF
Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow LTF Revolving Loans.
.2 Loans and Borrowings. (a) Each 364-Day
Revolving Loan shall be made as part of a Borrowing consisting of
364-Day Revolving Loans made by the Lenders ratably in accordance
with their respective 364-Day Commitments. Each LTF Revolving
Loan shall be made as part of a Borrowing consisting of LTF
Revolving Loans made by the Lenders ratably in accordance with
their respective LTF Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.4.
The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments and Competitive Bids of
the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(a) Subject to Section 2.12, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as
the Borrower may request in accordance herewith, and (ii) each
Competitive Borrowing shall be comprised entirely of Eurodollar
Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this
Agreement.
(b) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than
$5,000,000 (or, if less, the unused portion of the related
Commitments). Each Competitive Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 10 Eurodollar
Revolving Borrowings outstanding.
(c) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert
or continue, (i) any 364-Day Borrowing if the Interest Period
requested with respect thereto would end after the 364-Day
Maturity Date or (ii) any LTF Borrowing if the Interest Period
requested with respect thereto would end after the LTF Maturity
Date.
.3 Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing
Request in a form approved by the Administrative Agent and signed
by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance
with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a 364-Day Borrowing
or a LTF Borrowing;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.5.
If no election as to the Type of Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to
any requested Eurodollar Revolving Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount
of such Lender's Loan to be made as part of the requested
Borrowing.
.4 Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during
the 364-Day Availability Period the Borrower may request
Competitive Bids and may (but shall not have any obligation to)
accept Competitive Bids and borrow 364-Day Competitive Loans with
specified maturities ranging from seven to 360 days; provided
that the sum of the total 364-Day Revolving Credit Exposures plus
the aggregate principal amount of outstanding 364-Day Competitive
Loans at any time shall not exceed the total 364-Day Commitments.
Subject to the terms and conditions set forth herein, from time
to time during the LTF Availability Period the Borrower may
request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow LTF Competitive
Loans with specified maturities ranging from seven to 360 days;
provided that the sum of the total LTF Revolving Credit Exposures
plus the aggregate principal amount of outstanding LTF
Competitive Loans at any time shall not exceed the total LTF
Commitments. To request Competitive Bids, the Borrower shall
notify the Administrative Agent of such request by telephone, in
the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) five Competitive
Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any
previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or
all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent
of a written Competitive Bid Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a 364-Day Borrowing
or a LTF Borrowing;
(iv) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the definition
of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.5.
Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Administrative Agent shall
notify the Lenders of the details thereof by telecopy, inviting
the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to
a Competitive Bid Request. Each Competitive Bid by a Lender must
be in a form approved by the Administrative Agent and must be
received by the Administrative Agent by telecopy, in the case of
a Eurodollar Competitive Borrowing, not later than 9:30 a.m., New
York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids
that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent,
and the Administrative Agent shall notify the applicable Lender
as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be a minimum of $5,000,000
and an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by
the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which
the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more
than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the
identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower
shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether
and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurodollar Competitive
Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the proposed Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of
each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Borrower shall not exceed the aggregate amount of
the requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, the Borrower may accept Competitive Bids
at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid, and (v) except pursuant to clause (iv)
above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of $1,000,000
or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive
Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000
in a manner determined by the Borrower. A notice given by the
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has
been accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become
bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower at least one quarter of
an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative
Agent pursuant to paragraph (b) of this Section.
.5 Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained
with the Administrative Agent in New York City and designated by
the Borrower in the applicable Borrowing Request or Competitive
Bid Request.
(a) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such
date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
.6 Interest Elections. (a) Each Revolving
Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar
Revolving Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different
options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to
Competitive Borrowings which may not be converted or continued.
(a) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required
under Section 2.3 if the Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the
Borrower.
(b) Each telephonic and written Interest Election Request
shall specify the following information in compliance with
Section 2.2:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect
to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration.
(c) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
(d) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving Borrowing
prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Majority Lenders, so
notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
.7 Termination and Reduction of Commitments. (a)
Unless previously terminated, the 364-Day Commitments shall
terminate on the 364-Day Maturity Date and the LTF Commitments
shall terminate on the LTF Maturity Date.
(a) The Borrower may at any time terminate, or from time to
time reduce, the 364-Day Commitments or the LTF Commitments;
provided that (i) each reduction of any Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or
reduce any Commitments if, after giving effect to any concurrent
prepayment of the relevant Loans in accordance with Section 2.9,
the sum of the relevant Revolving Credit Exposures plus the
aggregate principal amount of outstanding relevant Competitive
Loans would exceed the total relevant Commitments.
(b) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under
paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction,
specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall
be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities,
in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
.8 Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender with a 364-
Day Commitment the then unpaid principal amount of such Lender's
364-Day Revolving Loans on the 364-Day Maturity Date, (ii) to the
Administrative Agent for the account of each Lender with a LTF
Commitment the then unpaid principal amount of such Lender's LTF
Revolving Loans on the LTF Maturity Date and (iii) to the
Administrative Agent for the account of the relevant Lender the
then unpaid principal amount of each Competitive Loan on the last
day of the Interest Period applicable to such Loan.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the
Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(d) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by
the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.4) be
represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered
assigns).
.9 Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the
Borrower shall not have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(a) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i)
in the case of prepayment of a Eurodollar Revolving Borrowing,
not later than 11:00 a.m., New York City time, three Business
Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by
Section 2.7, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with
Section 2.7. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial
prepayment of any Revolving Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.2. Each
prepayment of a Revolving Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall
be accompanied by accrued interest to the extent required by
Section 2.11.
.10 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility
fee, which shall accrue at the Applicable Rate on the daily
amount of the Commitment of such Lender (whether used or unused)
during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit
Exposure after its Commitment terminates, then such facility fee
shall continue to accrue on the daily amount of such Lender's
Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date
on which the relevant Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any
facility fees accruing after the date on which the relevant
Commitments terminate shall be payable on demand. All facility
fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(a) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the
Administrative Agent.
(b) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees to the Lenders. Fees
paid shall not be refundable under any circumstances.
.11 Interest. (a) The Loans comprising each
ABR Borrowing shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Rate.
(a) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a
Eurodollar Revolving Loan, the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing
plus (or minus, as applicable) the Margin applicable to such
Loan.
(b) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the Fixed Rate applicable to such Loan.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus
the rate applicable to ABR Loans as provided above.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall
be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period),
accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment, (iii) in
the event of any conversion of any Eurodollar Revolving Loan
prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of
such conversion and (iv) all accrued interest shall be payable
upon termination of the Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year
of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be
conclusive absent manifest error.
.12 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period;
or
(b) the Administrative Agent is advised by the Majority Lenders
(or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing shall be ineffective, (ii) if any Borrowing
Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by the
Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise
to such notice do not affect all the Lenders, then requests by
the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of
Borrowing, then the other Types of Borrowing shall be permitted.
.13 Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market
any other condition affecting this Agreement or Eurodollar Loans
or Fixed Rate Loans made by such Lender or any participation
therein;
and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan
or Fixed Rate Loan (or of maintaining its obligation to make any
such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such
Lender, as the case may be, such additional amount or amounts as
will compensate such Lender, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the
rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender, to a level below that
which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration
such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or
such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such
Lender the amount shown as due on any such certificate within
15 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation;
provided that the Borrower shall not be required to compensate a
Lender pursuant to this Section for any increased costs or
reductions incurred more than ninety days prior to the date that
such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the ninety-day period referred to
above shall be extended to include the period of retroactive
effect thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have
been publicly announced prior to submission of the Competitive
Bid pursuant to which such Loan was made.
.14 Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate
Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, (c) the failure to borrow
any Eurodollar Loan, convert any ABR Loan into a Eurodollar Loan,
continue any Eurodollar Loan or prepay any Eurodollar Loan on the
date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable
under Section 2.9(b) and is revoked in accordance herewith),
(d) the failure to borrow any Competitive Loan after accepting
the Competitive Bid to make such Loan, or (e) the assignment of
any Eurodollar Loan or Fixed Rate Loan other than on the last day
of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.17, then, in any
such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case
of a Eurodollar Loan, the loss to any Lender attributable to any
such event shall be deemed to include an amount determined by
such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of
such payment, conversion, failure or assignment to the last day
of the then current Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest
Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were
to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar
market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any
such certificate within 15 days after receipt thereof.
.15 Taxes. (a) Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made
free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower shall be required
to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance
with applicable law.
(a) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable
law.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) paid by
the Administrative Agent or such Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a
Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(c) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(d) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate. The Borrower shall not be
obligated to make any payments to a Foreign Lender pursuant to
Section 2.15(a) to the extent that such Indemnified Taxes or
Other Taxes became payable as a consequence of such Foreign
Lender having failed to comply with this Section 2.15(e).
(e) If any Lender shall become aware that it is entitled to
receive a refund or credit (such credit to include any increase
in any foreign tax credit) as a result of Indemnified Taxes
(including any penalties or interest with respect thereto) as to
which it has been indemnified by the Borrower pursuant to this
Section 2.15, it shall promptly notify the Borrower of the
availability of such refund or credit and shall, within 30 days
after receipt of a request by the Borrower, apply for such refund
or credit at the Borrower's expense, and in the case of any
application for such refund or credit by the Borrower, shall, if
legally able to do so, deliver to the Borrower such certificates,
forms or other documentation as may be reasonably necessary to
assist the Borrower in such application. If any Lender receives
a refund or credit (such credit to include any increase in any
foreign tax credit) in respect to any Indemnified Taxes as to
which it has been indemnified by the Borrower pursuant to this
Section 2.15, it shall promptly notify the Borrower of such
refund or credit and shall, within 30 days after receipt of such
refund or the benefit of such credit (such benefit to include any
reduction of the taxes for which any Lender would otherwise be
liable due to any increase in any foreign tax credit available to
such Lender, repay the amount of such refund or benefit of such
credit (with respect to the credit, as determined by the Lender
in its sole judgment) to the Borrower (to the extent of amounts
that have been paid by the Borrower under this Section 2.15 with
respect to Indemnified Taxes giving rise to such refund or
credit), plus any interest received with respect thereto, net of
all reasonable out-of-pocket expenses of such Lender and without
interest (other than interest actually received from the relevant
taxing authority or other Governmental Authority with respect to
such refund or credit); provided, however, that the Borrower,
upon the request of such Lender, agrees to return the amount of
such refund or benefit of such credit (plus interest) to such
Lender in the event such Lender is required to repay the amount
of such refund or benefit of such credit to the relevant taxing
authority or other Governmental Authority.
.16 Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required
to be made by it hereunder (whether of principal, interest, fees,
or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative
Agent at its offices at 270 Park Avenue, New York, New York,
except that payments pursuant to Sections 2.13, 2.14, 2.15 and
9.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(a) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall
be applied (i) first, to pay interest and fees then due
hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder,
ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(b) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans resulting
in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and accrued interest
thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans of
other Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans; provided that (i)
if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored
to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained
by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount
of such participation.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due.
In such event, if the Borrower has not in fact made such payment,
then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day
from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate.
(d) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.5(b) or 2.16(d), then the
Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to
satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
.17 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.15, then such Lender shall use
reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates, or to file any certificate or document reasonably
requested by the Borrower, if, in the judgment of such Lender,
such designation or assignment or filing (i) would eliminate or
reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(a) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.15, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the
restrictions contained in Section 9.4), all its interests, rights
and obligations under this Agreement (other than any outstanding
Competitive Loans held by it) to an assignee that shall assume
such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other
than Competitive Loans), accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.13 or payments required to be
made pursuant to Section 2.15, such assignment will result in a
reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment
and delegation cease to apply. A Lender shall not be required to
pay any fee to the Administrative Agent in connection with such
assignment and delegation (any such fee to be paid by the
Borrower or the assignee).
Article III
Representations and Warranties
The Borrower represents and warrants to the Lenders
that:
.1 Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction
where such qualification is required.
.2 Authorization; Enforceability. The Transactions
and the Acquisition are each within the Borrower's corporate
powers and have each been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement
has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
.3 Governmental Approvals; No Conflicts. Neither
the Transactions nor the Acquisition (a) requires any consent or
approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or
made and are in full force and effect or except such as may be
required to effect the Acquisition each of which will have been
obtained or made and will be in full force and effect prior to
the time required in order to consummate the Acquisition in
accordance with all Requirements of Law, (b) will violate any
applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will
violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of its
Subsidiaries or its assets other than defaults or violations for
which consents or waivers have been obtained or which defaults or
violations, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect,
(d) will give rise to a right under any indenture, agreement or
other instrument binding upon the Borrower or any of its
Subsidiaries or its assets to require any payment to be made by
the Borrower or any of its Subsidiaries other than the repayment
of Indebtedness with the proceeds of the initial Loans hereunder
and any other payments contemplated to be made in connection with
the Transactions and the Acquisition, or (e) will result in the
creation or imposition of any Lien on any asset of the Borrower
or any of its Subsidiaries.
.4 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders
equity and cash flows (i) as of and for the fiscal year ended
December 31, 1995, reported on by Coopers & Lybrand L.L.P.,
independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended September 7,
1996, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the
financial condition and results of operations and cash flows of
the Borrower and its consolidated Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(a) Since December 31, 1995, there has been no material
adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
.5 Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in,
all its real and personal property material to its business,
except for defects in title that do not interfere with its
ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes and except as
may be permitted pursuant to Section 6.1.
(a) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
.6 Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries or that involve this Agreement, the
Acquisition or the Transactions as to which there is a reasonable
possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters).
(a) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.
(b) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
.7 Compliance with Laws and Agreements. Each of
the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
No Default has occurred and is continuing.
.8 Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
.9 Taxes. Each of the Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside on its books reserves as
and to the extent required by GAAP or (b) to the extent that the
failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
.10 ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than
$2,500,000 the fair market value of the assets of such Plan, and
the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting
such amounts, exceed by more than $5,000,000 the fair market
value of the assets of all such underfunded Plans.
.11 Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other
restrictions to its knowledge to which it or any of its
Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports,
financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or
any Lender in connection with the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only
that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time. Any forward
looking statements contained therein are inherently subject to
risk and uncertainties, many of which can not be predicted with
accuracy, and some of which might not be anticipated. Future
events and actual results, financial and otherwise, could differ
materially from those set forth therein or contemplated by the
forward looking statements contained therein.
.12 Margin Stock. After giving effect to the
Acquisition, not more than 25% of the consolidated assets of the
Borrower will consist of "margin stock" within the meaning of
such term under Regulation G or Regulation U of the Board of
Governors of the Federal Reserve System.
.13 No Burdensome Restrictions. No Requirement of
Law or Contractual Obligation of the Borrower or any of its
Subsidiaries could reasonably be expected to have a Material
Adverse Effect.
.14 Subsidiaries. Schedule 3.14 sets forth all of
the Subsidiaries of the Borrower at the date hereof.
.15 Solvency. As of the date hereof and on the
occasion of any Borrowing, after giving effect to the
Transactions and the Acquisition or the transactions contemplated
to occur on such other date, the Borrower is Solvent.
Article IV
Conditions
.1 Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived
in accordance with Section 9.2):
(a) The Administrative Agent shall have received from each
party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of
a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received from the
Guarantor either (i) a counterpart of the Subsidiary Guarantee
signed on behalf of the Guarantor or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of the
Subsidiary Guarantee) that the Guarantor has signed a counterpart
of the Subsidiary Guarantee.
(c) The Lenders shall be reasonably satisfied with the
structure and terms of the Acquisition and the Tender Offer shall
have been or shall be simultaneously consummated in accordance
with applicable law and the Merger Agreement and the Merger
Agreement shall have been approved by the respective boards of
directors of the Borrower and of the Target.
(d) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of Akin, Gump, Strauss,
Hauer & Feld L.L.P., counsel for the Borrower, substantially in
the form of Exhibit B, and covering such other matters relating
to the Borrower, this Agreement or the Transactions as the
Majority Lenders shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinion.
(e) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of the Borrower, the authorization of
the Transactions and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its
counsel.
(f) All governmental and third party approvals necessary in
connection with the Acquisition, the financing contemplated
hereby and the continuing operations of the Borrower and its
Subsidiaries shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose
adverse conditions on the Acquisition or the financing thereof.
(g) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.2.
(h) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by
the Borrower hereunder.
(i) The Lenders shall have received a satisfactory pro forma
consolidated balance sheet of the Borrower as at the date of the
most recent consolidated balance sheet of the Borrower, adjusted
to give effect to the consummation of the Acquisition and the
financings contemplated hereby as if such transactions had
occurred on such date.
(j) All loans and other amounts outstanding under,
and in respect of, the Credit Agreement, dated as of
November 17, 1994 (the "Existing Credit Agreement"), among
the Borrower, the banks parties thereto, Wachovia Bank of
Georgia, N.A. and Nationsbank of North Carolina, N.A. as co-
agents, and Wachovia Bank of Georgia, N.A., as
administrative agent, shall have been repaid in full, the
commitments under the Existing Credit Agreement shall have
been contemporaneously permanently terminated and all
obligations under the Existing Credit Agreement shall have
been contemporaneously discharged and the Administrative
Agent shall have received satisfactory evidence of such
repayment, termination and discharge on the Effective Date.
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.2) at or prior to 3:00
p.m., New York City time, on December 31, 1996 (and, in the event
such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).
.2 Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing is subject
to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of
the date of such Borrowing, except to the extent such
representations and warranties expressly relate to an earlier
date.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (a) and (b) of this
Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated
and the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, the Borrower
covenants and agrees with the Lenders that:
.1 Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 105 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as
of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by Coopers & Lybrand L.L.P. or other independent
public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present
fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly
in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed
calculations of the financial covenants set forth in Sections 6.6
and 6.7 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.4 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be
limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other
materials filed (excluding exhibits) by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions
of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and
financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the
Administrative Agent or any Lender through the Administrative
Agent may reasonably request.
.2 Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that,
if adversely determined, could reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably
be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $20,000,000
subsequent to the date hereof; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by
a statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or
development requiring such notice and any action taken or
proposed to be taken with respect thereto.
.3 Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of the
business of the Borrower and its Subsidiaries taken as a whole
except to that extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under
Section 6.2.
.4 Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
.5 Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to,
(a) keep and maintain all property material to the conduct of its
business in adequate working order and condition, ordinary wear
and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same
or similar locations.
.6 Books and Records; Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
.7 Compliance with Laws and Material Contractual
Obligations. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its
property and all material Contractual Obligations, except where
the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect;
provided that the foregoing shall not be construed to prevent the
Borrower or any such Subsidiary from contesting any of the same
by appropriate proceedings.
.8 Use of Proceeds. The proceeds of the LTF Loans
will be used to fund all or a portion of the purchase price of
the Acquisition and the fees and expenses related thereto and for
general corporate purposes of the Borrower and its Subsidiaries,
including as credit support for the Borrower's commercial paper
programs. The proceeds of the 364-Day Loans will be used only
for general corporate purposes of the Borrower and its
Subsidiaries, including as credit support for the Borrower's
commercial paper programs. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and
the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Borrower covenants and
agrees with the Lenders that:
.1 Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in
Schedule 6.1 or resulting from operating leases existing on the
date hereof being reclassified as capital leases in accordance
with GAAP; provided that (i) such Lien shall not apply to any
other property or asset (other than accessions, modifications and
proceeds thereof) of the Borrower or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the
date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing
on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets (other than
accessions, modifications and proceeds thereof) of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that
(i) such security interests and the Indebtedness secured thereby
are incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement, (ii) the
Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets
and (iii) such security interests shall not apply to any other
property or assets (other than accessions, modifications and
proceeds thereof) of the Borrower or any Subsidiary; and
(e) Liens not otherwise permitted pursuant to this Section 6.1
securing Indebtedness of the Borrower or any Subsidiary in an
aggregate principal amount not exceeding $20,000,000 at any time
outstanding.
.2 Fundamental Changes. (a) The Borrower will
not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of the assets of the
Borrower and its Subsidiaries taken as a whole (whether now owned
or hereafter acquired), or liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) the Borrower
may merge into any other Person in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary may
merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (iii) any Subsidiary may merge into
any Subsidiary in a transaction in which the surviving entity is
a Subsidiary, (iv) any Subsidiary may merge into any other Person
in a transaction in which the surviving entity is a Subsidiary or
in a transaction permitted by Section 6.8 and in which the
surviving Person is not a Subsidiary, (v) any Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the
Borrower or to another Subsidiary or in a transaction not
constituting all or substantially all of the assets of the
Borrower and its Subsidiaries taken as a whole and which is
permitted by Section 6.8 and (vi) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall
not be permitted unless also permitted by Section 6.3.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business
other than businesses of the type conducted by the Borrower and
its Subsidiaries on the date of execution of this Agreement (but
giving effect to the Acquisition) and businesses reasonably
related or incidental thereto.
.3 Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. (a) The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances
to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a
business unit, except:
(i) Cash Equivalents;
(ii) as required to consummate the Acquisition;
(iii) extensions of trade credit in the ordinary course of
business;
(iv) investments arising from the settlement of debts or
as a result of bankruptcy or insolvency proceedings or as a
result of enforcement proceedings;
(v) investments of the Borrower and the Subsidiaries
(including the Target) existing on the date hereof;
(vi) investments by the Borrower existing on the date
hereof in the capital stock of its Subsidiaries;
(vii) loans, advances and other investments made by the
Borrower to or in any Subsidiary and made by any Subsidiary to or
in the Borrower or any other Subsidiary, provided that in each
case such Subsidiary executes and delivers a guarantee of the
Borrower's obligations hereunder in favor of the Administrative
Agent in substantially the form of Exhibit C;
(viii) Guarantees to the extent that the resulting Debt
would be permitted by Section 6.7;
(ix) acquisitions of a Person or the assets of a Person
constituting a business unit in the same line of business
conducted by the Borrower on the date hereof (giving effect to
the Acquisition) in an aggregate amount not to exceed
$400,000,000 over the term of this Agreement; and
(x) investments not otherwise permitted pursuant to this
Section 6.3 in an aggregate amount not to exceed $10,000,000 at
any time outstanding.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
.4 Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease
or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-
length basis from unrelated third parties and (b) transactions
between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliate.
.5 Restrictive Agreements. The Borrower will not
permit any of its Subsidiaries that are not Guarantors to,
directly or indirectly, enter into, incur or permit to exist any
agreement or consensual arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of any such Subsidiary
to create, incur or permit to exist any Liens in favor of the
Borrower upon any of its property or assets, or (b) the ability
of such Subsidiary to pay dividends or make distributions with
respect to its capital stock or to make or repay loans or
advances to the Borrower or to guarantee the Indebtedness of the
Borrower outstanding under this Agreement; provided that the
foregoing shall not apply to restrictions and conditions (i)
imposed by law, this Agreement, the Subsidiary Guarantee or the
other related loan documents; (ii) existing under agreements
applying to Debt of such Subsidiary that limit its ability to pay
dividends or make distributions or similar payments during the
continuation of a default by such Subsidiary under such
agreements; (iii) constituting customary provisions in leases,
licenses and other contracts entered into in the ordinary course
of business; (iv) binding upon any Person at the time at which
such Person becomes a Subsidiary or binding upon an asset
acquired by a Subsidiary, so long as such restrictions and
conditions do not bind any other Subsidiary or asset and are not
entered into or incurred in contemplation of such Person's
becoming a Subsidiary or such asset's acquisition, (v) existing
on the date hereof (but shall apply to any amendment or
modification expanding in any material way the restrictions or
conditions entered in any such agreement or arrangement taken as
a whole); (vi) imposed pursuant to an agreement relating to the
sale or disposition of assets or a Subsidiary (which may include
capital stock), provided that such restrictions and conditions
apply only to the assets or Subsidiary that is to be sold and
such sale is permitted hereunder; (vii) insofar as clause (a) of
the foregoing would otherwise be applicable, existing under
agreements evidencing obligations permitted to be incurred after
the date of this Agreement to the extent that such obligations
under such agreements are or could have been secured with a Lien
not prohibited by Section 6.1, provided that the terms and
conditions of such restrictions and conditions taken as a whole
are not materially more restrictive than those contained under
agreements that would be permitted under clause (ii) above;
(viii) on the transfer of assets that are subject to Liens not
prohibited by Section 6.1 and (ix) under any agreement which
replaces any of the agreements containing restrictions and
conditions specified in clause (ii), (v), (vi) and (viii) above.
.6 Fixed Charges Coverage. At the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending
December 31, 1996, the ratio of (x) the sum of (i) Consolidated
Net Income plus, in each case to the extent deducted in
determining such Consolidated Net Income and without duplication,
(ii) Consolidated depreciation expenses of the Borrower, (iii)
Consolidated amortization expenses of the Borrower, (iv) all
Federal, state, local and foreign income taxes of the Borrower
and its Consolidated Subsidiaries and (v) Consolidated Fixed
Charges for the period of four Fiscal Quarters then ended to (y)
Consolidated Fixed Charges for such period, shall not have been
less than 2.25 to 1.00.
.7 Ratio of Consolidated Debt to Consolidated Total
Capitalization. The ratio of Consolidated Debt to Consolidated
Total Capitalization shall not at any time exceed 0.60 to 1.00.
.8 Limitation on Sales of Assets. The Borrower
will not, nor will it permit any Subsidiary to, convey, sell,
lease, assign, transfer or otherwise dispose of any of its
property, business or assets, whether now owned or hereafter
acquired, or discontinue or eliminate any business line or
segment, except:
(a) the sale or other disposition of obsolete, surplus or worn
out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) as permitted by Section 6.2(a);
(d) sales of assets in a single transaction or in a series of
related transactions the aggregate book value of which is not
greater than $25,000,000 in any one such transaction or series of
related transactions;
(e) dispositions and discontinuances of a business line or
segment not otherwise permitted pursuant to this Section 6.8,
provided that the aggregate assets to be so disposed of or the
aggregate assets utilized in a business line or segment to be so
discontinued (in a single transaction or in a series of related
transactions), when combined with all other assets disposed of
(including, without limitation, pursuant to a sale and leaseback
transaction) and all other assets utilized in all other business
lines or segments discontinued, during the period from the date
of this Agreement through and including the date of any such
disposition or discontinuation would not exceed 10% of
Consolidated Total Assets as determined by reference to the
Borrower's most recently audited financial statements provided to
the Administrative Agent and the Lenders pursuant to Section
5.1(a) and provided, further that if, within 180 days of the sale
of any assets, the Borrower or any Subsidiary acquires similar
assets having a use similar to and a fair market value at least
equal to the assets so sold, then the value of the assets sold
shall not be included in calculating future assets permitted to
be sold under this Section 6.8.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default")
shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any amendment or modification hereof, or in any
report, certificate, financial statement or other document
delivered pursuant to this Agreement or any amendment or
modification hereof, shall prove to have been incorrect when made
or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.2, 5.3 (with
respect to the Borrower's existence) or 5.8 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than
those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent (given at the
request of any Lender) to the Borrower;
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the
same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing
such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or
any Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered
against the Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be
effectively stayed, bonded or vacated or any action shall be
legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Majority Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result
in a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) any Subsidiary Guarantee shall cease, for any reason (other
than any act on the part of the Administrative Agent or any
Lender), to be binding and in effect (except in accordance with
its terms or as permitted hereunder) or any Guarantor shall so
assert;
then, and in every such event (other than an event with respect
to the Borrower described in clause (h) or (i) of this Article),
and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Majority
Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender
as any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank 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 other
Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) the Administrative
Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to
exercise in writing by the Majority Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at
the request of the Majority Lenders or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and
until written notice thereof is given to the Administrative Agent
by the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument
or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative
Agent.
The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to
have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one
or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-
agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the
Majority Lenders shall have the right (so long as no Default has
occurred and is continuing with consent of the Borrower which
consent shall not be unreasonably withheld) to appoint a
successor. If no successor shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. The
fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After
the Administrative Agent's resignation hereunder, the provisions
of this Article and Section 9.3 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
The Documentation Agent shall have no duties or
responsibilities nor shall it incur any liabilities under this
Agreement.
ARTICLE IX
Miscellaneous
.1 Notices. Except in the case of notices and
other communications expressly permitted to be given by
telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail
or sent by telecopy, as follows:
(a) if to the Borrower, to it at 2110 Executive Drive,
Salisbury, North Carolina 28145-1330, Attention of Mike Price,
Treasurer and Director of Finance (Telecopy No. 704-639-1353);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza,
8th floor, New York, New York 10081, Attention of Janet Belden
(Telecopy No. (212) 552-5658), with a copy to The Chase Manhattan
Bank, 270 Park Avenue, New York 10017, Attention of Ellen Gertzog
(Telecopy No. (212) 270-1474); and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
receipt.
.2 Waivers; Amendments. (a) No failure or delay
by the Administrative Agent or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such
Default at the time.
(a) Neither this Agreement, the Subsidiary Guarantee nor any
guarantee executed and delivered pursuant to subsection
6.3(a)(vii) nor any provision hereof or thereof may be waived,
amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Majority Lenders
or by the Borrower and the Administrative Agent with the consent
of the Majority Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of
"Majority Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each
Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent
of the Administrative Agent.
.3 Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby
shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the
fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in
connection with the Loans made hereunder, including in connection
with any workout, restructuring or negotiations in respect
thereof (other than any such expenses directly related to a court
enforcement action in which the Borrower prevails on the merits
in a final and nonappealable judgment).
(a) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (ii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its
Subsidiaries, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(b) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under
paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent such Lender's
Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(c) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of,
this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds
thereof.
(d) All amounts due under this Section shall be payable
promptly after written demand therefor.
.4 Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(a) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of
an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent must give their prior
written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment
to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the
amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless
each of the Borrower and the Administrative Agent otherwise
consent, (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event
of Default under clause (h) or (i) of Article VII has occurred
and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.13, 2.14, 2.15 and 9.3). Any
assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be
treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.
(b) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.
(c) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section
9.2(b) that affects such Participant. Subject to paragraph (f)
of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender
would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits
of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any such pledge
or assignment to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such
Lender as a party hereto.
.5 Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive
the execution and delivery of this Agreement and the making of
any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue
in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so
long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.3 and Article VIII
shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision
hereof.
.6 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any
and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in
Section 4.1, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
.7 Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision
in any other jurisdiction.
.8 Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized
at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any
of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective
of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff)
which such Lender may have.
.9 Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(a) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District
Court for the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out
of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative
Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in
Section 9.1. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
.11 Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting,
this Agreement.
.12 Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may
be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to
any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to a written agreement containing
provisions substantially the same as those of this Section, to
any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available
to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from
the Borrower relating to the Borrower, its Subsidiaries or their
businesses, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case
of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord
to its own confidential information.
.13 Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such
Lender.
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.
FOOD LION, INC.
By: R.William McCanless
Name:R. William McCanless
Title:Senior Vice President of
Administration/CAO
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By: Ellen L. Gertzog
Name:Ellen L Gertzog
Title:Vice President
WACHOVIA BANK OF NORTH CAROLINA,
N.A.,
individually and as
Documentation Agent
By: Sarah T. Warren
Name:Sarah T. Warren
Title:Vice President
ABN AMRO BANK N.V., Atlanta Agency
By: Steven Hipsman
Name:Steven Hipsman
Title:Vice President
By: Larry Kelley
Name:Larry Kelley
Title:Group Vice President
BANCA MONTE DEI PASCHI DI SIENA
S.P.A.
By: G. Natalicchi
Name:G.Natalicchi
Title:S.V.P & General Manager
By: Brian R. Landy
Name:Brian R. Landy
Title:Vice President
THE BANK OF NEW YORK
By: Ann Marie Beeble
Name:Ann Marie Beeble
Title: Asst Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Atlanta Agency
By: Randy L. Glass
Name:Randy L. Glass
Title:Vice President
BARNETT BANK, N.A.
By: Glen Romm
Name:Glen Romm
Title:Vice President
CORESTATES BANK, N.A.
By: Rodger Levenson
Name:Rodger Levenson
Title:V.P.
CRESTAR BANK
By: James D. Duval, Jr.
Name:James D. Duval, Jr.
Title:Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
Atlanta Agency
By: Toshiaki Kurihara
Name:Toshiaki Kurihara
Title:Joint General Manager
FIRST AMERICAN NATIONAL BANK
By: Russell S. Rogers
Name:Russell S. Rogers
Title:Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: Catherine A. Muszynski
Name:Catherine A. Muszynski
Title:Assistant Vice President
FUJI BANK, LIMITED, Atlanta Agency
By: Mr. T. Mitsui
Name:Mr. T. Mitsui
Title:V.P. & Manager
GENERALE BANK N.V., New York Branch
By: Hans Neuhomm
Name: Hans Neuhomm
Title:General Manager
By: _________________________
Name:
Title:
HIBERNIA NATIONAL BANK
By: ___________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: Junya Fujiwara
Name:Junya Fujiwara
Title:Joint General Manager
KREDIETBANK N.V., Grand Cayman
Branch
By: Robert Snauffer
Name:Robert Snauffer
Title:Vice President
By: Tod R. Angus
Name:Tod R. Angus
Title:Vice President
NATIONSBANK, N.A.
By: Loy D. Thompson III
Name:Loye D. Thompson III
Title:Senior Vice President
THE SAKURA BANK, LIMITED, Atlanta
Agency
By: Hiroyasu Imanishi
Name:Hiroyasu Imanishi
Title:V.P. & Senior Manager
THE SUMITOMO BANK, LIMITED
By: Masaki Shinbo
Name: Masaki Shinbo
Title: General Manager
SUNTRUST BANK, Atlanta
By: Frank R. Callison
Name:Frank R. Callison
Title:Vice President
By: Jason P. Owen
Name:Jason P. Owen
Title: BO
THE TOKAI BANK LTD., Atlanta Agency
By: Eiichi Fujihira
Name:Eiichi Fujihira
Title:General Manager
THE YASUDA TRUST AND BANKING
COMPANY LIMITED, New York Branch
By: Makoto Tagawa
Name:Makoto Tagawa
Title:Deputy General Manager
SCHEDULE 2.1
LENDERS AND COMMITMENTS
364-Day LTF
Lenders Commitment Commitment
The Chase Manhattan Bank $25,000,000 $25,000,000
Wachovia Bank of North Carolina, $21,500,000 $21,500,000
N.A.
ABN AMRO Bank N.V., Atlanta Agency $17,500,000 $17,500,000
Banca Monte dei Paschi di Siena $ 7,500,000 $ 7,500,000
S.p.A.
The Bank of New York $11,500,000 $11,500,000
The Bank of Tokyo-Mitsubishi, $17,500,000 $17,500,000
Ltd., Atlanta Agency
Barnett Bank, N.A. $17,500,000 $17,500,000
CoreStates Bank, N.A. $11,500,000 $11,500,000
Crestar Bank $11,500,000 $11,500,000
The Dai-Ichi Kangyo Bank, Limited, $17,500,000 $17,500,000
Atlanta Agency
First American National Bank $11,500,000 $11,500,000
The First National Bank of Chicago $17,500,000 $17,500,000
The Fuji Bank, Limited, Atlanta $17,500,000 $17,500,000
Agency
Generale Bank N.V., New York $17,500,000 $17,500,000
Branch
Hibernia National Bank $11,500,000 $11,500,000
The Industrial Bank of Japan, $11,500,000 $11,500,000
Limited, Atlanta Agency
Kredietbank N.V., Grand Cayman $11,500,000 $11,500,000
Branch
NationsBank, N.A. $17,500,000 $17,500,000
The Sakura Bank, Limited, Atlanta $17,500,000 $17,500,000
Agency
The Sumitomo Bank, Limited $17,500,000 $17,500,000
SunTrust Bank, Atlanta $17,500,000 $17,500,000
The Tokai Bank Ltd., Atlanta $11,500,000 $11,500,000
Agency
The Yasuda Trust and Banking $11,500,000 $11,500,000
Company Limited, New York Branch
TOTAL $350,000,000 $350,000,000
Schedule 3.6
Borrower:
Incorporated herein by reference is Item 3 of the Form 10-K
of Borrower for the fiscal year ending December 30, 1995 and Item
1 of the Form 10-Q of the Borrower for the fiscal quarter ending
March 23, 1996.
Target:
Upon consummation of the Tender Offer the Target will be a
Subsidiary. The Target has the following actions, suits and
proceedings and environmental matter which will become Disclosed
Matters:
Section 4.08 of Company Disclosure Letter as defined in the
Agreement and Plan of Merger dated as of October 31, 1996 by and
among Borrower, Acquisition Sub and Target, as updated by a
Litigation Report dated December 11, 1996 from Robert S. Bolt,
Esquire, is incorporated herein by reference.
SECTION 4.08
LEGAL PROCEEDINGS
The identification of any proceedings and claims herein is
not intended to imply that any such proceedings or claims will
have, or could reasonably be expected to have, a material adverse
effect on the Company and its Subsidiaries taken as a whole or on
the ability of the Company to consummate the transactions
contemplated by this Agreement.
The Company is engaged in various legal actions and claims
arising in the ordinary course of business, including the pending
proceedings and claims identified on Annexes A and B to this
Section 4.08.
With reference to the Pizano proceeding described on Annex
A, Plaintiff filed an Amended Complaint on July 22, 1996.
With reference to the Carlos Blackman claim identified on
Annex B, the EEOC issued a right to sue order on July 17, 1996
and the Company subsequently received a demand letter from the
claimant's counsel.
The Company is engaged in a dispute with its landlord at
Store 206, which might result in litigation. The dispute
involves the landlord's breach of its duty to repair/replace the
roof, and the Company's attempt to perform the landlord's duty
and offset the cost of performance against the rent.
The Company expects to commence an eviction proceeding to
evict its subtenant at the Store 217 site.
BARNETT, BOLT, KIRKWOOD & LONG
MEMORANDUM
TO: Ron Johnson
FROM: Bob Bolt
SUBJECT: Litigation Report to the Board of Directors of Kash n'
Karry Food
Stores, Inc.
DATE: October 29, 1996
WORK PRODUCT/ATTORNEY -CLIENT PRIVILEGE
Connie Schimpf vs. Kash n' Karry Food Stores Inc. and Doug
Merrell.
Kash n' Karry Food Stores, Inc., and Doug Merrell have been
sued by Connie Schimpf in circuit court in Hillsborough County,
Florida, to recover for personal injuries purportedly resulting
from the alleged misconduct of Merrell, a pharmacist formerly
employed by Kash n' Karry. Merrell is accused of causing
physical and psychological injuries to Schimpf by improperly
dispensing large quantities of controlled substance to her and
sexually exploiting her. Plaintiff alleges that the controlled
substances were improperly dispensed to her regularly from 1991
through January 1996, and that she was sexually exploited from
March 1994 through January 1996. Plaintiff's theories against
Kash n' Karry are, in essence, respondent superior liability for
Merrell's actions, failure to adequately supervise Merrell, and
failure to institute and maintain adequate inventory controls.
Plaintiff's demands for judgment were in the amounts of $599,999
against Kash n' Karry along, $2 million against Merrell alone,
and $2 million against Kash n' Karry and Merrell jointly.
Plaintiff's counsel has recently expressed settlement overtures
in the $250,000 range.
Plaintiff withdrew the notices of hearings on Plaintiff's
motion to amend to assert punitive damages and Plaintiff's motion
for summary judgment, so that neither motion has been heard,
although technically they remain pending. The amended complaint
required as a result of Kash n' Karry's successful motion to
dismiss has been served and
Kash n' Karry has answered and asserted affirmative defenses.
Written discovery requests from both sides continue. A
deposition of the Plaintiff was scheduled for November 1, 1996,
but has been postponed due to a scheduling conflict. Alternative
dates in mid-November and early December are under consideration.
Depositions of Plaintiff's doctors are planned, but dates have
not yet been confirmed. Merrell pled guilty to one count of
trafficking in hydrocodone and agreed to a five (5) year prison
sentence and suspension of his pharmacy license. He is presently
serving that sentence.
October 29, 1996
Page 2
We are still in the relatively early stages of this
litigation and, thus, evaluation of the probable outcome remains
difficult. However, based upon the information that we have
obtained thus far, settlement in the range demanded does not
appear warranted. Plaintiff appears to have a long history of
psychological problems and her drug dependency appear to have
been self induced. The experts we have retained indicate that
Kash n' Karry's pharmacy system with respect to inventory control
is comparable to other chain pharmacy operations.
Liberty Mutual has recently agreed to pay Kash n' Karry's
defense costs. Risk Enterprise Management, as claims adjuster
for Home Insurance and Zurich Insurance, has denied coverage of
defense costs and provided an extensive reservation of rights
letter with respect to indemnification coverage. Liberty Mutual
has also raised various defenses to indemnification coverage in
its reservation of rights letter. There are some significant
coverage issues. To the extent Merrell's conduct is determined
to have been intentional there will likely be no coverage for
Merrell or Kash n' Karry. Further, the self-insured retentions
in the Home and Zurich policies could be applied in a manner that
would effectively exclude coverage for injuries prior to the
Liberty coverage which did not begin until November 1, 1995.
Diane Bernard, as Personal Representative of the Estate of Doris
M. Bothem, deceased, Plaintiff, vs. R.J. Reynolds Tobacco Co.;
Liggett Group, Inc.; Lorillard Tobacco Company; Kash n' Karry
Food Stores, Inc.; and Winn-Dixie Stores, Inc., Defendants.
This was an action brought against Kash n' Karry as the
seller of tobacco products, and other defendants, as the
manufacturers and sellers of tobacco products. Claims were
asserted against Kash n' Karry based upon negligence and strict
products liability arising from the death of Doris M. Bothem,
allegedly caused by the use of tobacco products. The case
against Kash n' Karry was voluntarily dismissed without prejudice
on July 25, 1996, although the case against the manufacturers
continues.
Gilmore A. Dominique, individually, and Certified Sales, Inc.,
Plaintiffs, vs. Kash n' Karry Food Stores, Inc. and Gary M.
Shell, individually, Defendants.
This is an action brought against Kash n' Karry and Gary
Shell (now deceased) alleging tortious interference with contract
and prospective business relations and violations of Florida's
RICO act. Plaintiffs attempt to support their tortious
interference claim with allegations that the Robinson-Patman Act
was violated in connection with the alleged interference. This
action arises from termination of Dominguez and his closely-held
corporation as broker for various suppliers of Kash n' Karry's
private label products. Plaintiffs seek damages in excess of $1
million trebled.
October 29, 1996
Page 3
Kash n' Karry and Shell moved to dismiss the complaint and
removed the case to federal court. Plaintiffs' motion to remand
the case to state court was denied, so the case will be staying
in the forum of Kash n' Karry's choice. The motions to dismiss
and strike remain pending. This case has been set for jury trial
during the trial term beginning August 4, 1997.
It appears that directors and officers liability insurance
coverage may be available to cover a judgment against Shell (less
a $250,000 deductible). The insurance carrier initially denied a
request to provide Shell's defense, but may be reconsidering its
position. Kash n' Karry has an obligation under its Indemnity
Agreement to provide separate counsel for Shell's defense at Kash
n' Karry's expense, provided that none of the limitations set
forth in the Indemnity Agreement, such as willful misconduct,
fraud, or deliberate dishonesty, apply to the facts of this
matter.
This firm's motion to withdraw as counsel for Gary Shell was
granted and Plaintiff's motion to substitute the Estate of Gary
Shell was denied without prejudice. The motion to substitute
will be granted when the court is notified that a probate
proceeding has been opened and a personal representative
appointed. Plaintiffs have filed the probate proceeding and it
is expected that a personal representative will be appointed in
the near future.
Discovery in underway. Response to the initial round of
written discovery have been provided and received. A series of
twelve depositions has recently been completed. Although it
remains too early to predict the outcome of the case,
investigation and discovery thus far have revealed some
significant concerns. It appears that Gary Shell expresses
animosity regarding Dominguez coupled with a statement that he
intended to put Dominguez out of business. This occurred not
long before Kash n' Karry employees began contacting suppliers
represented by Dominguez to request that those suppliers switch
their accounts to a direct relationship with Kash n' Karry or to
representation by California Growers Corporation. Further, if
appear that we may have some difficulty establishing that money
received directly or indirectly from various suppliers was
utilized for providing services in promotion of the products of
those suppliers, so as to be covered by the services rendered
exception in the Robinson-Patman Act.
Walter Parrish, Plaintiff, v. Kash n' Karry Food Stores, Inc. and
Ronald J. Floto, Individually , Defendants.
In 1989, the plaintiff was criminally charged with authoring
several threatening letters, set in "ransom note" style, and
delivering the letters to several then Kash n' Karry Vice
Presidents. Plaintiff's former wife, Reta Koopman, was Vice
Preisent - Deli-Bakery at the time the threatening letters were
circulated.
October 29, 1996
Page 4
Judgment of acquittal was entered in favor of the plaintiff
in his criminal case due to the prosecution's failure to exclude
Ms. Koopman, who was not charged, as a possible suspect. In
1991, Mr. Parrish sued Kash n' Karry and several individual
employees. Extensive periods of in activity on plaintiff's part
together with the intervening bankruptcy stay account for the age
of this case. After entry of several orders of dismissal, a
single count for malicious prosecution remains pending against
Kash n' Karry and Ronald J. Floto. Defense of Floto continues
pursuant to an Indemnity Agreement entered into with Floto.
Discovery is complete. A motion for summary on behalf of
Kash n' Karry and Floto was argued on October 8, 1996. The court
has taken the matter under advisement and the parties are
awaiting the court's order. The prospects for prevailing on the
motion for summary judgment appear good in light of the lack of
evidence developed by the plaintiff during discovery. The case
is scheduled for trial during the week of January 27, 1997.
Roberto Pizano, Plaintiff v. Kash n' Karry Food Stores, Inc., and
Earl Wells and Tony Fernandez, Individually.
Plaintiff was employed for over ten years by the Kash n'
Karry warehouse. Plaintiff is a Cuban-American, who has been
visibly active in connection with anti-Castro political issues.
On December 4, 1995, mechanic foreman Earl Wells reported
observing the plaintiff consuming a carton of orange juice that
he had removed from a pallet on the dock. After an
investigation, Plaintiff was terminated. Consistent with the
Kash n' Karry employee manual, plaintiff's outstanding vacation
pay was withheld due to the fact that his termination was for
reasons of dishonesty.
In, February, 1996, plaintiff brought suit alleging that
Wells, Fernandez and Kash n' Karry defamed him and conspired to
defame him, by publicizing to other employees that plaintiff
stole orange juice. Further, plaintiff claimed that Wells and
Kash n' Karry defamed him and conspired to defame him by
publicizing to other employees Wells' claim that plaintiff
verbally assaulted and threatened Wells. Plaintiff also
alleged that Fernandez and Kash n' Karry defrauded him by falsely
representing, shortly prior to plaintiff's termination, that
"everything would turn out fine" if plaintiff refrained from
"doing anything" including, presumably, contacting counsel.
Finally, plaintiff claimed that Kash n' Karry wrongfully withheld
his wages subsequent to his termination. This firm has been
representing all defendants under a multiple representation
agreement.
The complaint included numerous allegations that suggest
that plaintiff was defamed and terminated due to the company's
alleged suspicion that he was attempting to organize a union
within Kash n' Karry and for his political activities generally.
Further,
October 29, 1996
Page 5
the complaint gratuitously included allegations calculated to
suggest that Wells is a racist and is prejudiced against Cuban-
Americans.
A hearing was held on motions to dismiss filed by all
defendants. As a result, counts in the complaint relating to
conspiracy and direct defamation on the part of Kash n' Karry
were dismissed for improper pleading with leave to amend.
Plaintiff's amended complaint omits Kash n' Karry as a party to
the conspiracy count, but adds a count against Kash n' Karry for
libel in connection with an article commenting on the litigation
published in The Tampa Tribune. The discovery phase in the case
has only recently commenced.
Durable, Inc. vs. Kash n' Karry Food Stores, Inc.
Durable, Inc. sued Kash n' Karry in U.S. District Court in
the Northern District of Illinois for allegedly breaching a
letter agreement for the purchase of foilware products.
Plaintiff alleges damages in the amount of $380,000 based upon
purported lost profits.
Kash n' Karry moved to dismiss the complaint for improper
venue and lack of jurisdiction. As a result of our motion, the
court recently transferred the case to the U.S. District Court
for the Middle District of Florida. Kash n' Karry's answer and
affirmative defenses have been filed. Discovery will be
beginning shortly pursuant to the recently filed case management
plan. It is expected that the case will be set for trial
sometime after July 15, 1997. It is too early to evaluate the
possible outcome of this case.
Department of Business and Professional Regulation, Division of
Alcoholic Beverages and Tobacco vs. Kash n' Karry Food Stores,
Inc., d/b/a/ Kash n' Karry #620.
The Division of Alcoholic Beverages and Tobacco filed a
Notice to Show Cause with respect to Kash n' Karry store no. 620
alleging that, on three occasions, Kash n' Karry employees
working at that location sold alcoholic beverages to minors in
violation of Section 526.11 Florida Statutes. The case has been
assigned to a judge for an administrative hearing, but the date
of that hearing has not yet been set.
Kash n' Karry Food Stores, Inc.
Legal
Lawsuits
1. Mark Marciano v. Kash n' Karry Food Stores, Inc. Marciano
claims to have been sexually harassed by his stockcrew leader
verbally and by his stockcrew leader exposing himself. He also
claims to have been constructively discharge in retaliation for
his reporting of the harassment.
Charges of Discrimination
1. Emanual Baker, Florida Commission on Human Relations. Basis:
National Origin
Date of Charge: February 12, 1996
Baker was laid-off based on performance due to store
closings.
2. Carlos Blackman, Florida Commission on Human Relations.
Basis: National Origin
Date of Charge: February 2,1 996
Blackman, an Assistant Manager, was discharged for
referencing a store associate
as "a little faggot".
3. Dolores Novitsky, EEOC. Basis: Sex, Age, ADA Date of
Charge: January 18, 1996
Novitsky's position of head cashier was filled by another
female head cashier while
she was on extended leave. She was offered the same
position in a store closer to
her home upon her return.
4. Odell Carson, EEOC. Basis: Race, ADA Date of Charge:
November 14, 1995
Carson was drug tested after making comments to his
supervisor about
"popping pills" and a worker's compensation accident.
5. Eartha Fields, EEOC Basis: Race, Sex, ADA Date of Charge:
October 12, 1995
Fields requested a position as a full-time dispatcher as an
accommodation, a
position she was not qualified for.
6. Angel Alexander, Florida Commission on Human Relations.
Basis: Sex
Date of Charge: September 26, 1995
Alexander, a manager, was discharged for working off the
clock after warning.
7. Carlos Alvarez, EEOC. Basis: Race Date of Charge: August
24, 1994
Alvarez failed to return to work as scheduled following a
vacation and was discharged.
8. Joyce Williams, EEOC. Basis: Race Date of Charge: April
14, 1994
Williams, a pharmacist, was discharged after repeated
warnings related to
poor performance.
OSHA Claims
None
Florida State Department of Labor, Wage and Hour Claims
None
Federal Department of Labor, Wage and Hour Claims
None
National Labor Relations Board
None
Wrongful Discharge Claims
None
BARNETT, BOLT, KIRKWOOD & LONG
MEMORANDUM
TO: Russell W. Parks, Jr., Esquire
Akin, Gump, Strauss, Hauer
& Feld, L.L. P.
VIA FACSIMILE (202/887-4288)
FROM: Robert S. Bolt, Esquire
SUBJECT: Litigation Report
DATE: December 11, 1996
Pursuant to your request, we are providing the following
descriptions of the significant litigation matters this firm is
handling for Kash n' Karry Food Stores, Inc. We have not
included descriptions of certain other litigation matters in
which the amount in controversy is less than $250,000.
Gilmore A. Dominguez, individually, and Certified Sales, Inc.,
Plaintiffs, vs. Kash n' Karry Food Stores, Inc. and Gary M.
Shell, individually Defendants.
This is an action brought against Kash n' Karry and Gary
Shell (now deceased) alleging tortious interference with contract
and prospective business relations and violations of Florida's
RICO Act. Plaintiffs attempt to support their tortious
interference claim with allegations that the Robinson-Patman Act
was violated in connection with the alleged interference and that
the alleged interference was malicious. This action arises from
termination of Dominguez and his closely-held corporation as
broker for various suppliers of Kash n' Karry's private label
products. Plaintiffs' complaint seeks damages in excess of $1
million trebled. Plaintiffs have provided an expert opinion that
their compensatory damages are approximately $1.9 million. We
believe this opinion considerably overestimates the total
recoverable compensatory damages. In addition to compensatory
damages Plaintiffs seek punitive damages.
Kash n' Karry and Shell moved to dismiss the complaint and
removed the case to federal court. Plaintiffs' motion to remand
the case to state court was denied. The motions to dismiss and
strike remain pending. This case has been set for jury trial
during the trial term beginning August 4, 1997.
It appears that directors and officers liability insurance
coverage may be available to cover a judgment against Shell (less
a $250,000 deductible). Plaintiffs' motion to substitute the
Estate of Gary Shell was denied without prejudice. However, the
motion to
Russell W. Parks, Jr., Esquire
December 11, 1996
Page 2
substitute will be granted when the court is notified that a
probate proceeding has been opened and a personal representative
appointed. Plaintiffs have filed the probate proceeding.
However, there is an issue regarding appointment of an
appropriate individual as a personal representative.
Discovery is well underway. Responses to the initial round
of written discovery have been provided and received. A series
of thirteen depositions has recently been completed. More
depositions will be taken in January and February 1997. Although
it remains too early to predict the outcome of the case,
investigation and discovery thus far have revealed some concerns
and, as a result, we are engaging in settlement negotiations.
Connie Schimpf vs. Kash n' Karry Food Stores Inc. and Doug
Merrell.
Kash n' Karry Food Stores, Inc., and Doug Merrell have been
sued by Connie Schimpf in circuit court in Hillsborough County,
Florida, to recover for personal injuries purportedly resulting
from the alleged misconduct of Merrell, a pharmacist formerly
employed by Kash n' Karry. Merrell is accused of causing
physical and psychological injuries to Schimpf by improperly
dispensing large quantities of controlled substances to her and
sexually exploiting her. Plaintiff alleges that the controlled
substances were improperly dispensed to her regularly from 1991
through January 1996, and that she was sexually exploited from
March 1994 through January 1996. Plaintiff's theories against
Kash n' Karry are, in essence, respondeat superior liability for
Merrell's actions, failure to adequately supervise Merrell, and
failure to institute and maintain adequate inventory controls.
Very recent negotiations have resulted in a tentative
settlement of this matter for an amount that would not be deemed
material and that will be paid by Liberty Mutual Insurance
Company on behalf of Kash n' Karry and Mr. Merrell. We are
awaiting resolution of certain issues regarding the nature and
form of settlement documentation before this tentative settlement
can be finalized.
Roberto Pizano, Plaintiff v. Kash n' Karry Food Stores, Inc., and
Earl Wells and Tony Fernandez, Individually.
Plaintiff was employed for over ten years by the Kash n'
Karry warehouse. Plaintiff is a Cuban-American, who has been
visibly active in connection with anti-Castro political issues.
On December 4, 1995, mechanic foreman Earl Wells reported
observing the plaintiff consuming a carton of orange juice that
he had removed from a pallet on the dock. After an
investigation, Plaintiff was terminated. Consistent with the
Kash n' Karry employee manual, plaintiff's outstanding vacation
pay was withheld due to the fact that his termination was for
reasons of dishonesty.
Russell W. Parks, Jr., Esquire
December 11, 1996
Page 3
In February, 1996, plaintiff brought suit alleging that
Wells, Fernandez and Kash n' Karry defamed him and conspired to
defame him, by publicizing to other employees that plaintiff
stole orange juice. Further, plaintiff claimed that Wells and
Kash n' Karry defamed him and conspired to defame him by
publicizing to other employees Wells' claim that plaintiff
verbally assaulted and threatened Wells. Plaintiff also alleged
that Fernandez and Kash n' Karry defrauded him by falsely
representing, shortly prior to plaintiff's termination, that
"everything would turn out fine" if plaintiff refrained from
"doing anything" including, presumably, contacting counsel.
Finally, plaintiff claimed that Kash n' Karry wrongfully withheld
his wages subsequent to his termination. This firm has been
representing all defendants under a multiple representation
agreement.
The complaint included numerous allegations that suggest
that plaintiff was defamed and terminated due to the company's
alleged suspicion that he was attempting to organize a union
within Kash n' Karry and for his political activities generally.
Further, the complaint gratuitously included allegations
calculated to suggest that Wells is a racist and is prejudiced
against Cuban-Americans.
A hearing was held on motions to dismiss filed by all
defendants. As a result, counts in the complaint relating to
conspiracy and direct defamation on the part of Kash n' Karry
were dismissed for improper pleading with leave to amend.
Plaintiff's amended complaint omits Kash n' Karry as a party to
the conspiracy count, but adds a count against Kash n' Karry for
libel in connection with an article commenting on the litigation
published in The Tampa Tribune. The discovery phase in the case
has only recently commenced.
Durable, Inc. vs. Kash n' Karry Food Stores, Inc.
Durable, Inc. sued Kash n' Karry in U.S. District Court in
the Northern District of Illinois for allegedly breaching a
letter agreement for the purchase of foilware products.
Plaintiff alleges damages in the amount of $380,000, based upon
purported lost profits.
Kash n' Karry moved to dismiss the complaint for improper
venue and lack of jurisdiction. As a result of our motion, the
court transferred the case to the U.S. District Court for the
Middle District of Florida. Kash n' Karry's answer and
affirmative defenses have been filed. Discovery has begun in the
form of requests for production and interrogatories. No
depositions have been taken yet. This case has been set for
trial on the trial term beginning July 1, 1997. It is too early
to evaluate the possible outcome of this case.
Schedule 3.14
SUBSIDIARIES OF BORROWER
FLI Holding Corp., a Delaware corporation ("Holding") and wholly-
owned subsidiary of the Borrower.
KK Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Holding.
Upon consummation of the Tender Offer the following entities will
also be Subsidiaries of the Borrower:
Kash N'Karry Food Stores, Inc., a Delaware corporation
("Target")
KNK 702 Delaware Business Trust, a Delaware business trust
wholly owned by Target
KWK 886 Delaware Business Trust, a Delaware business trust
wholly owned by Target
KNK 891 Delaware Business Trust, a Delaware business trust
wholly owned by Target
Schedule 6.1
Borrower:
Liens representing the interest of the Lessor under
Capitalized Leases in existence on the date of this Agreement
having an aggregate outstanding principal amount not exceeding
$430,000.00
Target:
Upon consummation of the Tender offer the Target will be
Subsidiary. The Target has the following material Liens:
Liens encumbering real property owned or leased by the
Target or its Subsidiaries and listed on the Annex A
attached hereto.
The Amended and Restated Credit Facility dates as of
December 12, 1995, among Target, the lenders party thereto
and The CIT Group/Business Credit, Inc., as Administrative
Agent, is secured by Liens on substantially all of the
assets of the Company, and listed on Annex B attached
hereto.
In addition, the Target has other Liens securing obligations not
exceeding $5,000,000.
ANNEX A TO SCHEDULE 6.1
List of Owned or Leased Real Property
See Footnote Text and Status Code on Page 12
STATUS STORE ADDRESS COUNTY
S/A 108 2 305 West Hillsborough Avenue Hillsborough
Tampa 33604
(Assigned to Moran Foods, Inc.,
d/b/a Save-A-Lot, Ltd. on 1/22/90)
A 113 2 128 South Westshore Boulevard Hillsborough
Tampa 33609 (Food)
A 129 2 925 Bartow Road Polk
Lakeland 33801 (Food)
(to be terminated on January 31, 1997)
A 133 2 7625 Blind Pass Road Pinellas
St. Petersburg Beach 33706 (Food)
A 139 2 458 Venice By-Pass Sarasota
Venice 33595 (Food)
A 146 1 4101 North Florida Avenue Hillsborough
Tampa 33603 (Food)
C 201 2 9450 9th Street North Pinellas
St. Petersburg 33702 (Food)
Lease expires 12/31/96
(Notice to terminate given)
S/A 202 2 7600 Starkey Road Pinellas
Largo 33543 (Food)
(Subleased to Consolidated Stores
Corporation on 5/26/94)
S/A 203 2 2900 North 34th Street Pinellas
St. Petersburg 33713 (Food)
(Subleased to Consolidated Stores
Corporation on 5/26/94)
A 284 2 3535 U.S. 19 Pasco
New Port Richey 33552 (Food)
S/A 205 2 9474 U.S. Highway 19 Pasco
Port Richey 33568 (Food)
(Assigned to Office Depot 8/29/94)
STATUS STORE ADDRESS COUNTY
S/A 206 2 1801 North Tamiami Trail Lee
North Ft. Myers 33903
(Subleased to Discount Auto Parts)
A 207 2 4200 S. Tamiami Trail Charlotte
Charlotte Harbor 33952 (Food)
A 209 2 8951 Bonita Beach Road Lee
Bonita Springs 33923 (Food)
A 211 2 5805 Manatee Avenue West Manatee
Bradenton 33529 (Food)
S/A 212 2 8199 South Tamiami Trail Sarasota
Sarasota 33581
(Subleased to Staples)
A 214 2 3535 Fruitville Road Sarasota
Sarasota 33577 (Food)
A 215 2 1325 South Tamiami Trail Sarasota
Sarasota 33579 (Food)
A 216 2 4404 Bee Ridge Road Sarasota
Sarasota 33583 (Food)
S/A 217 2 6257 McGregor Boulevard Lee
Ft. Myers
(Subleased to Wagan Enterprises, Inc.)
A 301 2 2499 S. W. 27th Avenue Marion
Ocala 32674 (Food)
C 305 2 2111 South Tamiami Trail Sarasota
Venice 34293 (Food) (See 306)
Lease expires 02/29/04
L/C 306 2 2109 South Tamiami Trail Sarasota
Venice 34293 (Liquor) (See 305)
A 309 2 8595-35 College Parkway, S. Lee
Ft. Myers 33907 (Food) (See 310)
L/A 310 2 8595-33 College Parkway, S. Lee
Ft. Myers 33907 (Liquor) (See 309)
A 311 2 15675 McGregor Blvd., Ste 4 Lee
South Ft. Myers 33988 (Food) (See 312)
STATUS STORE ADDRESS COUNTY
L/A 312 2 15675 McGregor Blvd., Ste 4 Lee
South Ft. Myers 33988 (Liquor) (See 311)
A 313 2 5660 Bayshore Rd., NE, Lee
Ste 21, Ft. Myers 33903
(Food) (See 314)
L/A 314 2 5660 Bayshore Rd., NE, Lee
Ste 21, Ft. Myers 33903
(Liquor) (See 313)
A 315 2 1530 S. Del Prado Boulevard Lee
Cape Coral 33904 (Food) (See 316)
L/A 316 2 1535 S. Del Prado Boulevard Lee
Cape Coral 33904 (Liquor) (See 315)
S/A 319 2 17 Beneva Road South Sarasota
Sarasota 33577 (Food) (See 320)
(Subleased to Arthur Anderson)
S/A 320 2 17 Beneva Road south Sarasota
Sarasota 33577 (Liquor) (See 319)
(Subleased to Arthur Anderson)
SP/A 401 3&5 2525 North Dale Mabry Hillsborough
Tampa 33607 (Food)
SP/A 403 2&5 11612 North Nebraska Ave Hillsborough
Tampa 33612 (Food)
S/A 405 2 30535 U.S.Highway 19 N. Pinellas
Palm Harbor 34684 (Food)
(Assigned to Waccamaw on 6/1/94)
L/A 507 2 1350 Tampa Street Pinellas
Palm Harbor 33952 (Liquor) (See 707)
L/A 512 2 1250 Jacaranda Boulevard Sarasota
Sarasota 34292 (Liquor) (See 712)
L/A 514 2 221 North Beneva Road Sarasota
Sarasota (Liquor) (See 214)
L/A 515 2 5205 33rd Street East Manatee
Bradenton 34203 (Liquor) (See 715)
L/A 518 2 7099 W. Waters Avenue Hillsborough
Tampa 33634 (Liquor) (See 718)
STATUS STORE ADDRESS COUNTY
L/A 519 2 6148 N. Lockwood Ridge Road Sarasota
Sarasota 34235 (Liquor) (See 719)
L/A 520 2 2320 N.W. 13th Street Alachua
Gainesville 32605 (Liquor) (See 720)
UNDER 522 2150 Swann Avenue Hillsborough
CONSTRUCTION Tampa, FL 33606 (Liquor)
(See 722)
L/A 523 2 123 Alexander Street Hillsborough
Plant City (Liquor) (See 723)
L/A 525 2 7129 North U.S. Highway 441 Marion
Ocala (Liquor) (See 725)
L/A 528 2 7321 Gall Boulevard Pasco
Zephyrhills (Liquor) (See 728)
L/A 529 2 1951 South McCall Road Charlotte
Suite 300
Englewood 34223-4933 (Liquor) (See 729)
L/A 533 2 604 Havendale Blvd. Polk
Auburndale (Liquor) (See 733)
L/A 552 2 7489 4th Street North Pinellas
St. Petersburg (Liquor) (See 852)
L/A 554 2 519 7th Street West Manatee
Palmetto 34221 (Liquor) (See 854)
L/A 584 2 2002 S. W. 34th Street Alachus
Gainesville 32608 (Liquor) (See 884)
L/A 587 2 2712 East Fowler Avenue Hillsborough
Tampa 33612 (Liquor) (See 887)
L/A 592 2 14738 West Village Drive Hillsborough
Tampa 33624 (Liquor) (See 892)
L/A 596 2 11308 S. E. Highway 301 Marion
Belleview 32620 (Liquor) (See 896)
C 601 2 3740 E. Silver Springs Blvd. Marion
Ocala 32670 (Food) (See 602)
STATUS STORE ADDRESS COUNTY
L/C 602 2 3740 E. Silver Springs Blvd. Marion
Ocala 32670 (Liquor) (See 601)
A 603 2 9017 State Road 52 Pasco
Hudson 33562 (Food) (See 604)
L/A 604 2 9017 State Road 52 Pasco
Hudson 33562 (Food) (See 603)
A 605 2 7431 County Road 54 Pasco
New Port Richey 33552 (Food) (See 606)
L/A 606 2 7431 County Road 54 Pasco
New Port Richey 33552 (Liquor) (See 605)
S/A 607 2 2465 U. S. Highway 19 N. Pinellas
Clearwater 33675
(See 608)
(Subleased to Office Depot, Inc.)
S/A 608 2 2461 U. S. Highway 19 N. Pinellas
Clearwater 33675 (Liquor) (See 607)
A 609 2 2270 113th Street, S. W. Pinellas
Largo 33540 (Food) (See 610)
L/A 610 2 2270 113th Street, S. W. Pinellas
Largo 33540 (Liquor) (See 609)
A 611 2 4665 66th Street North Pinellas
Kenneth City 33709 (Food) (See 612)
L/A 612 2 4665 66th Street North Pinellas
Kenneth City 33709 (Liquor) (See 611)
A 613 2 2134 34th Street North Pinellas
St. Petersburg 33713 (Food) (See 614)
L/A 614 2 2134 34th Street North Pinellas
St. Petersburg 33713 (Liquor) (See 613)
A 615 2 6851 Gulfport Blvd., South Pinellas
South Pasadena 33707 (Food) (See 616)
L/A 616 2 6851 Gulfport Blvd., South Pinellas
South Pasadena 33707 (Liquor) (See 615)
A 617 2 15692 N. Dale Mabry Highway Hillsborough
Tampa 33618 (Food) (See 618)
STATUS STORE ADDRESS COUNTY
L/A 618 2 15692 N. Dale Mabry Highway Hillsborough
Tampa 33618 (Liquor) (See 617)
A 619 2 13508 Florida Avenue Hillsborough
Tampa 33612 (Food) (See 620)
L/A 620 2 13508 Florida Avenue Hillsborough
Tampa 33612 (Liquor) (See 619)
A 621 2 2333 West Hillsborough Hillsborough
Tampa 33603 (Food) (See 622)
L/A 622 2 2333 West Hillsborough Hillsborough
Tampa 33603 (Liquor) (See 621)
A 623 2 4317 Gandy Boulevard Hillsborough
Tampa 33611 (Food) (See 624)
L/A 624 2 4317 Gandy Boulevard Hillsborough
Tampa 33611 (Liquor) (See 623)
A 627 2 2401 Cortez Road Manatee
Bradenton 33507 (Food) (See 628)
L/A 628 2 2401 Cortez Road Manatee
Bradenton 33507 (Liquor) (See 627)
A 629 2 13352 North Cleveland Avenue Lee
North Ft. Myers 33903 (Food)
L/A 630 2 13332 North Cleveland Avenue Lee
North Ft. Myers 33903
(Liquor) (See 629)
A 651 2&4 2720 E. Silver Springs Marion
Ocala, 32670 (Food)
A 701 2 3183 West Vine Street Osceola
Kissimmee 32741 (Food)
A 702 2 651 S. E. Highway 19 Citrus
Crystal River 32629 (Food)
(underlying fee property is owned by
Subsidiary)
A 703 2 8775 Temple Terrace Hwy Hillsborough
Temple Terrace 33617 (Food)
STATUS STORE ADDRESS COUNTY
A 704 2 21605 Village Lakes Pasco
Land O'Lakes 34639 (Food)
A 705 2 3146 Tampa Road Pinellas
Oldsmar 34677 (Food)
A 707 2 1360 Tampa Road Pinellas
Palm Harbor 33563 (Food)
A 709 2 2050 Forrest Nelson Blvd. Charlotte
Port Charlotte 33952 (Food)
A 710 2 13817 Wallingham Road Pinellas
Largo 34644 (Food)
A 711 2 858 Saxon Boulevard Volusia
Orange City 32763 (Food)
Corporation MDFC
A 712 2 1254 Jacaranda Blvd. Sarasota
Venice 34292 (Food) (See 512)
A 715 2 5201 33rd Street East Manatee
Bradenton 34203 (Food) (See 515)
A 716 2 11160 Spring Hill Drive Hernando
Spring Hill (Food)
A 717 2 6400 Massachusetts Avenue Pasco
New Port Richey 34652 (Food)
A 718 2 7095 W. Waters Avenue Hillsborough
Tampa 33634 (Food) (See 518)
A 719 2 6150 N. Lockwood Ridge Road Sarasota
Sarasota 34235 (Food) (See 519)
A 720 2 2320 N. W. 13th St. Alachua
Gainesville 32605 (Food) (See 520)
A 722 2 2100 Swann Avenue Hillsborough
Tampa (Food)
A 723 2 Alexander Street Hillsborough
Plant City (Food) (See 523)
STATUS STORE ADDRESS COUNTY
A 724 3 5050 10th Avenue Hillsborough
Tampa 33619 (Food)
A 725 2 7130 N. U.S. Hwy 441 Marion
Ocala (Food) (See 525)
NO PLANS 726 1 (Vacant Land) Citrus
TO BUILD Beverly Hills 34465
A 728 2 Medical Arts Court Pasco
Zephryhills (Food) (See 528)
A 729 2 1951 S. McCall Road, Charlotte
Suite 300
Englewood 34223-4933 (Food) (See 529)
A 733 2 604 Ravendale Blvd. Polk
Auburndale
(Food) (See 533)
UNDER 734 1 Dale Mabry & Lambright Hillsborough
CONTRACT Tampa
TO SELL (Vacant Land)
UNDER 735 Bloomingdale & Bell Shoals Hillsborough
CONSTRUCTION Brandon
UNDER 736 1 Martin Luther King Hillsborough
CONTRACT Tampa
FOR (Vacant Land)
SALE/LEASEBACK
A 743 2 8837 N. 56th Street Hillsborough
Terrace Plaza
Temple Terrace 33617 (Food)
A 765 1&3 3327 9th Street North Pinellas
St. Petersburg 33704 (Food)
(store site is ground leased)
825 32nd Avenue North;
815 32nd Avenue North; and
815 1/2 32nd Avenue North
St. Petersburg 33704
(three adjacent residential
properties are owned)
STATUS STORE ADDRESS COUNTY
A 826 2 507 Wheeler Street Hillsborough
Plant City 33566 (Food)
A 827 2 8320 North Florida Avenue Hillsborough
Tampa 33604 (Food)
A 831 2 6095 9th Avenue North Pinellas
St. Petersburg 33710
A 842 2 3rd Street & Avenue O. SW Polk
Winter Haven 33880 (Food)
A 848 2 1023 North Tamiami Trail Hillsborough
Ruskin 33570 (Food)
A 849 2 21323 U.S. 19 North Pinellas
Clearwater 34625-2830 (Food)
A 851 2 1502 West Main Street Citrus
Inverness 32650 (Food)
Landlord: Joe Greco Family, Ltd.
A 852 2 7491 4th Street North Pinellas
St. Petersburg 33702 (Food) (See 552)
A 854 2 515 7th Street Manatee
Palmetto 33561 (Food) (See 554)
A 855 2 7415 U.S. Highway 301 Hillsborough
Riverview 33569 (Food)
A 857 2 955 62nd Avenue South Pinellas
St. Petersburg 33705 (Food)
A 858 2 4056 North Armenia Hillsborough
Tampa 33607 (Food)
A 864 2 2200 Main Street Pinellas
Dunedin 33528 (Food)
S/A 866 2 14829 N. Dale Mabry Highway Hillsborough
Tampa 33618 (Food)
(Assigned to Michaels Stores)
A 867 2 5802 14th Street West Manatee
Bradenton 33507 (Food)
A 868 2 20050 Cortez Blvd. Hernando
Brooksville 34601 (Food)
STATUS STORE ADDRESS COUNTY
A 869 2 901 Lithia-Pinecrest Road Hillsborough
Brandon 33511 (Food)
A 870 2 6734 Memorial Highway Hillsborough
Tampa 33615 (Food)
A 871 2 4500 South Suncoast Blvd. Citrus
Homosassa 32646 (Food)
A 873 2 2519 McMullen Booth Road Pinellas
Clearwater 33519 (Food)
A 874 2 2930 South Boulevard Pasco
New Port Richey 33552 (Food)
A 875 3&6 2650 U.S. Highway 19 North Pinellas
Palm Harbor 33563 (Food)
A 876 3&6 4120 N.W. 16th Boulevard Alachua
Gainesville 32602 (Food)
A 877 3&6 750 State Road 574 Hillsborough
Seffner 33584 (Food)
A 878 2 4519 Gunn Highway Hillsborough
Tampa 33624 (Food)
A 879 2 13000 - 66th Street North Pinellas
Largo 33543 (Food)
A 880 3&6 4057 Cattlemen Road Sarasota
Sarasota 33583 (Food)
A 881 2 2460 East Bay Drive Pinellas
Largo 33541 (Food)
A 882 1 4820 Leonard Street Lee
Cape Coral 33904
(Store is leased and
adjacent property is owned)
882 2 4820 Leonard Street Lee
Cape Coral 33904 (Food)
(Store is leased and
adjacent property is owned)
A 883 2 1861 North Highland Pinellas
Clearwater 33515 (Food)
STATUS STORE ADDRESS COUNTY
A 884 2 2002 S. W. 34th Street Alachua
Gainesville 32608
(Food) (See 584)
A 885 2 9101 Little Road Pasco
New Port Richey 33553 (Food)
A 886 2 2384 Commercial Way Hernando
Spring Hill 33526 (Food)
(underlying fee property is owned by
Subsidiary)
A 887 2 2770 Fowler Avenue Hillsborough
Tampa 33612 (Food) (See 587)
C 888 1068 Ulmerton Road Pinellas
Largo 33544
Store lease expires 10/31/09
A 889 2 1340 State Road 60 East Polk
Lake Wales 33853 (Food)
A 890 2 1133 U. S. Highway 17 South Hardee
Wauchula 33873 (Food)
A 891 2 3250 U. S. 27 South Highlands
Sebring 33870 (Food)
(underlying fee property is owned by
Subsidiary)
A 892 2 5320 Ehrlich Road Hillsborough
Tampa 33624 (Food) (See 592)
A 893 2 4233 South Florida Avenue Polk
Lakeland 33803 (Food)
A 894 2 833 U.S. 41 North Marion
Dunnellon 32630 (Food)
A 895 2 1176 U. S. Highway 27 North Polk
Haines City 33844 (Food)
A 896 2 11310 S. E. U.S. Hwy 301 Marion
Belleview 32620 (Food) (See 596)
A 897 2 1870 U. S. Highway 301 South Pasco
Dade City 33525 (Food)
C 898 2 3233 S. E. Maricamp Road Marion
Ocala 32671 (Food)
Store lease expires 10/31/05
STATUS STORE ADDRESS COUNTY
A 899 2 6220 North Highway 98 Polk
Lakeland 33805 (Food)
904 2 1432 Tampa East Boulevard Hillsborough
Tampa 33619
"Returns Center"
988 1&7 6422 Harney Road Hillsborough
Tampa 33610 (Office)
988 1&7 6422 Harney Road Hillsborough
Tampa 33610 (Warehouse)
AA20 610 South Armenia Avenue Hillsborough
Tampa 33609
Lease Agreement and
Contract to Purchase
from Ernest J. Petros
dated 09/15/92; expires on
12/31/96
CC2 6401-A Harney Road Hillsborough
Tampa 33610
(Assigned to GSI Outsourcing, Inc.)
Explanations:
1 = Fee Properties.
2 = Leased Properties.
3 = Ground Leased/Improvements Owned.
4 = Encumbered by lien in favor of Goodings
Supermarkets, Inc.
5 = Encumbered by lien in favor of Save and Pack, Inc.
6 = Mortgage in favor of the CIT Group/Business
Credit, Inc. covers "land only;" both lease
interest and owned improvements are subject
to
superior lien in favor of California Public
Employees' Retirement System, which
obligation was
assumed by the company from Lucky Stores,
Inc., as
of October 11, 1988.
7 = Encumbered by Sun Life Insurance company of
America Mortgage.
Bold = Encumbered by Mortgage held by The CIT
Group/Business Credit,Inc., as Administrative
Agent
STATUS LEGEND:
C = Store closed, Kash n' Karry still paying rent.
A = Active open store
L = Liquor Store
S/A = Store subleased or lease assigned; Kash n' Karry
no longer paying full rent.
L/A = Active open liquor store.
L/C = Closed liquor store.
SP/A = Active open Save `n Pack warehouse store.
<TABLE>
ANNEX B
GENERAL CATEGORY
<S> <C> <C> <C> <C>
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
10/13/89 Kash N' Karry Food Security Pacific Hillsborough First Mortgage,
Stores, Inc. National Bank County, FL Security
Agreement
Financing
Statement and
Assignment
of Rents
10/11/95 Kash N' Karry Food Bank of America National Hillsborough Continuation and
Stores, Inc. Trust and Savings County, FL Amendment
Association
10/15/91 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
02/04/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
06/09/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
07/02/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
07/07/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
07/27/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
08/31/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
10/26/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
11/23/92 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
01/11/93 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
06/03/93 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
04/19/94 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, Incorporated County, FL equipment
05/29/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment --
Stores, Inc. Leasing, a division of County, FL continuation
Sanwa Business Credit
Corporation
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
11/13/91 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
06/12/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Continuation
Stores, Inc. Leasing, a division of County, FL
Sanwa Business Credit
Corporation
12/19/91 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
07/16/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Continuation
Stores, Inc. Leasing, a division of County, FL
Sanwa Business Credit
Corporation
01/17/92 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
08/16/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Continuation
Stores, Inc. Leasing, a division of County, FL
Sanwa Business Credit
Corporation
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
01/17/92 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
08/16/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Continuation
Stores, Inc. Leasing, a division of County, FL
Sanwa Business Credit
Corporation
01/16/92 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
08/16/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Continuation
Stores, Inc. Leasing, a division of County, FL
Sanwa Business Credit
Corporation
12/22/92 Kash N' Karry Food Sanwa General Equipment Hillsborough equipment
Stores, Inc. Leasing, Incorporated County, FL
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
01/04/93 Kash N' Karry Food IBM Credit Corporation Hillsborough equipment
Stores, Inc. County, FL
01/12/93 Kash N' Karry Food IBM Credit Corporation Hillsborough equipment
Stores, Inc. County, FL
03/04/93 Kash N' Karry Food IBM Credit Corporation Hillsborough equipment
Stores, Inc. County, FL
01/17/95 Kash N' Karry Food General Electric Capital Hillsborough real estate and
Stores, Inc. Corporation County, FL fixtures
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
05/09/96 Kash N' Karry Food Sanwa General Equipment Hillsborough Amendment - name
Stores, Inc. Leasing, a division of County, FL change
Sanwa Business Credit
Corporation
07/02/96 Kash N' Karry Food MDFC Equipment Leasing Hillsborough real estate,
Stores, Inc. Corporation County, FL fixture &
equipment
01/10/90 Kash N' Karry Food Chrysler Capital Florida Sec. of equipment
Stores, Inc. Corporation State
11/17/94 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
11/06/92 Kash N' Karry Food Chrysler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
01/19/90 Kash N' Karry Food Chrystler Capital Florida Sec. of equipment
Stores, Inc. Corporation State
11/10/94 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
11/06/92 Kash N' Karry Food Chrystler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
01/08/90 Kash N' Karry Food Chrysler Capital Florida Sec. of equipment
Stores, Inc. Corporation State
11/17/94 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
11/12/92 Kash N' Karry Food Chrysler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
01/09/91 Kash N' Karry Food Chrysler Capital Florida Sec. of equipment
Stores, Inc. Corporation State
7/13/95 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
11/06/92 Kash N' Karry Food Chrysler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
01/09/91 Kash N' Karry Food Chrysler Capital Florida Sec. of equipment
Stores, Inc. Corporation State
07/13/95 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
11/06/95 Kash N' Karry Food Chrysler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
06/03/91 Kash N' Karry Food Ford Equipment Leasing Florida Sec. of equipment
Stores, Inc. Company State
12/14/95 Kash N' Karry Food Ford Equipment Leasing Florida Sec. of Continuation
Stores, Inc. Company State
06/03/91 Kash N' Karry Food Ford Equipment Leasing Florida Sec. of equipment,
Stores, Inc. Company State furniture,
fixtures &
leashold
improvements
12/14/95 Kash N' Karry Food Ford Equipment Leasing Florida Sec. of Continuation
Stores, Inc. Company State
10/14/91 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
06/11/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, a division of State
Sanwa Business Credit
Corporation
05/08/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
04/20/94 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
06/04/93 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
01/14/93 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
11/23/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
10/26/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
08/31/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
07/27/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
07/08/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
07/02/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
06/10/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
02/03/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
11/27/91 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
06/11/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, a division of State
Sanwa Business Credit
Corporation
05/08/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
12/20/91 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
07/16/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, a division of State
Sanwa Business Credit
Corporation
05/07/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
01/16/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
08/09/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, a division of State
Sanwa Business Credit
Corporation
05/07/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
01/09/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
08/09/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, Incorporated State
05/08/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
05/19/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment -
Stores, Inc. Leasing, Incorporated State equipment
01/27/92 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, Incorporated State
08/09/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Continuation
Stores, Inc. Leasing, Incorporated State
05/08/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of Amendment - name
Stores, Inc. Leasing, a division of State change
Sanwa Business Credit
Corporation
01/30/92 Kash N' Karry Food NCC Leasing, Inc. Florida Sec. of equipment
Stores, Inc. State
12/30/92 Kash N' Karry Food NCC Leasing, Inc. Florida Sec. of Release
Stores, Inc. State
11/13/90 Kash N' Karry Food General Electric Capital Florida Sec. of equipment
Stores, Inc. Corporation State
05/15/95 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
04/03/96 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. State
01/17/92 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
06/25/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
08/05/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing State
09/17/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
09/17/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
09/17/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
09/17/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
12/14/92 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
12/14/92 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
12/14/92 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
01/07/93 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
01/12/93 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
02/23/94 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
12/24/91 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
03/27/92 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
06/25/92 Kash N' Karry Food IBM Credit Corporation Florida Sec. of equipment
Stores, Inc. State
01/24/91 Kash N' Karry Food L'eggs Products, a Florida Sec. of goods and
Stores, Inc. division of Sara Lee State inventory
Corporation
11/02/95 Kash N' Karry Food L'eggs Products, a Florida Sec. of goods and
Stores, Inc. division of Sara Lee State inventory
Corporation
01/04/89 Kash N' Karry Food General Electric Capital Florida Sec. of equipment
Stores, Inc. Corporation State
12/10/93 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
02/14/89 Kash N' Karry Food General Electric Capital Florida Sec. of Amendment -
Stores, Inc. Corporation State equipment
01/04/89 Kash N' Karry Food General Electric Capital Florida Sec. of equipment
Stores, Inc. Corporation State
12/10/93 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
09/12/89 Kash N' Karry Food Sun Life Insurance Florida Sec. of tangible and
Stores, Inc. Company of America, a State intangible
Maryland corporation property re: real
estate
[BAD Kash N' Karry Food [BAD COPY] Florida Sec. of real estate
COPY] Stores, Inc. (94-183277) State
12/19/94 Kash N' Karry Food General Electric Capital Florida Sec. of Continuation
Stores, Inc. Corporation State
11/06/92 Kash N' Karry Food Chrysler Capital Florida Sec. of Full Assignment
Stores, Inc. Corporation Assignee: State
General Electric Capital
Corporation
01/08/90 Kash N' Karry Food MDFC Equipment Leasing Florida Sec. of equipment
Stores, Inc. Corporation State
09/07/94 Kash N' Karry Food MDFC Equipment Leasing Florida Sec. of Continuation
Stores, Inc. Corporation State
11/03/92 Kash N' Karry Food Save and Pack, Inc. Florida Sec. of equipment
Stores, Inc. State
03/22/93 Kash N' Karry Food AT&T Capital Corporation Florida Sec. of equipment
Stores, Inc. State
03/24/93 Kash N' Karry Food General Electric Capital Florida Sec. of furniture,
Stores, Inc. Corporation State fixture and
equipment and
real property
03/24/93 Kash N' Karry Food General Electric Capital Florida Sec. of equipment
Stores, Inc. Corporation State
09/20/93 Kash N' Karry Food General Electric Capital Florida Sec. of Amendment -
Stores, Inc. Corporation State equipment
07/06/93 Kash N' Karry Food Sun Financial Group, Florida Sec. of equipment
Stores, Inc. Inc. State
08/05/93 Kash N' Karry Food Sun Financial Group, Florida Sec. of equipment
Stores, Inc. Inc. State
01/18/94 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing State
Corp.)
08/18/94 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. (Assignee: State
Continental Bank, N.A.)
08/18/94 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. (Assignee: State
Continental Bank, N.A.)
08/18/94 Kash N' Karry Food Sensormatic Electronics Florida Sec. of equipment
Stores, Inc. Corp. (Assignee: State
Continental Bank, N.A.)
01/13/95 Kash N' Karry Food General Electric Capital Florida Sec. of equipment
Stores, Inc. Corporation State
01/04/96 Kash N' Karry Food Sanwa General Equipment Florida Sec. of equipment
Stores, Inc. Leasing, a Division of State
Sanwa Business Credit
Corporation
04/01/96 Kash N' Karry Food Xerographies Corporation Florida Sec. of equipment
Stores, Inc. State
04/26/93 Kash N' Karry Food Sun Financial Group, Florida Sec. of equipment
Stores, Inc. Inc. State
03/07/94 Kash N' Karry Food Sun Financial Group, Florida Sec. of equipment
Stores, Inc. Inc. State
07/02/94 Kash N' Karry Food MDFC Equipment Leasing Florida Sec. of equipment
Stores, Inc. Corporation State
GENERAL CATEGORY
DATE DEBTOR* SECURED PARTY FILING LOCATION OF COLLATERAL
06/19/96 Kash N' Karry Food AT&T Capital Leasing Florida Sec. of equipment
Stores, Inc. State
05/04/94 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
01/20/93 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
04/28/93 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
04/28/93 Kash N' Karry Food GTECC (Assignee: GTE Florida Sec. of equipment
Stores, Inc. Leasing) State
06/28/93 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
06/25/92 Kash N' Karry Food GTE Communications Corp. Florida Sec. of equipment
Stores, Inc. (Assignee: GTE Leasing) State
* As indicated on UCC filing.
</TABLE>
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
December 16, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among FOOD LION, INC.
(the "Borrower"), the Lenders named therein, THE CHASE MANHATTAN
BANK, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), and WACHOVIA BANK OF NORTH CAROLINA,
N.A., as Documentation Agent. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the
"Assignor") and the Assignee identified on Schedule l hereto (the
"Assignee") agree as follows:
(1) The Assignor hereby irrevocably sells and assigns to
the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor
without recourse to the Assignor, as of the Effective Date (as
defined below), the interest described in Schedule 1 hereto (the
"Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those
credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 hereto (individually, an "Assigned Facility";
collectively, the "Assigned Facilities"), in a principal amount
for each Assigned Facility as set forth on Schedule 1 hereto.
(2) The Assignor (a) makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or any other instrument or document furnished
pursuant thereto or with respect to the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or any other instrument or document
furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligor or
the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches
any promissory notes held by it evidencing the Assigned
Facilities and (i) requests that the Administrative Agent, upon
request by the Assignee, exchange the attached promissory notes
for a new promissory note or promissory notes payable to the
Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Administrative Agent
exchange the attached promissory notes for a new promissory note
or promissory notes payable to the Assignor, in each case in
amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become
effective on the Effective Date).
(3) The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance;
(b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in
subsection 3.4 thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement or any other
instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be
bound by the provisions of the Credit Agreement and will perform
in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it
as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant
to subsection 2.15(e) of the Credit Agreement.
(4) The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1
hereto (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective
as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by
the Administrative Agent).
(5) Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the
Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent
for periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
(6) From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
(7) This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned/1
$ . %
[Name of Assignee] [Name of Assignor]
By: By:
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as FOOD LION, INC.
Administrative Agent
By: By:
Title: Title:
EXHIBIT B
FORM OF OPINION OF COUNSEL TO BORROWER
December , 1996
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Each of the Lenders named in Annex A
We have acted as counsel to FOOD LION, INC., a North
Carolina corporation (the "Borrower"), in connection with the
Credit Agreement, dated as of December 16, 1996 (the "Credit
Agreement"), among the Borrower, the Lenders parties thereto, The
Chase Manhattan Bank, as Administrative Agent, and Wachovia Bank
of Georgia, N.A., as Documentation Agent, and to KASH N' KARRY
FOOD STORES, INC., a Delaware corporation (the "Guarantor"), in
connection with the Subsidiary Guarantee, dated as of December
, 1996 (the "Subsidiary Guarantee"), made by the Guarantor in
favor of the Administrative Agent.
The opinions expressed below are furnished to you pursuant
to subsection 4.1(d) of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit
Agreement.
In arriving at the opinions expressed below,
(a) we have examined and relied on the originals, or copies
certified or otherwise identified to our satisfaction, of each of
the Credit Agreement and the Subsidiary Guarantee; and
(b) we have examined such corporate documents and records of
the Borrower and the Guarantor and such other instruments and
certificates of public officials, officers and representatives of
the Borrower, the Guarantor and other Persons as we have deemed
necessary or appropriate for the purposes of this opinion.
In arriving at the opinions expressed below, we have made
such investigations of law, in each case as we have deemed
appropriate as a basis for such opinions.
In rendering the opinions expressed below, we have assumed, with
your permission, without independent investigation or inquiry, (a) the
authenticity of all documents submitted to us as originals, (b) the
genuineness of all signatures on all documents that we examined (other
than those of the Borrower and the Guarantor and officers of the Borrower
and the Guarantor) and (c) the conformity to authentic originals of
documents submitted to us as certified, confirmed or photostatic copies.
When our opinions expressed below are stated "to the best of
our knowledge," we have made reasonable and diligent
investigation of the subject matters of such opinions and have no
reason to believe that there exist any facts or other information
that would render such opinions incomplete or incorrect.
[Other exceptions, qualifications and limitations to be
discussed.]
Based upon and subject to the foregoing, we are of the
opinion that:
1 The Borrower is duly organized, validly existing and in
good standing under the laws of North Carolina, has all requisite
power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is
in good standing in, every jurisdiction where such qualification
is required.
2 The Guarantor is duly organized, validly existing and in
good standing under the laws of Delaware, has all requisite power
and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect (as defined in the Subsidiary Guarantee),
is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
3 The Transactions and the Acquisition are each within the
Borrower's corporate powers and have each been duly authorized by
all necessary corporate and, if required, stockholder action.
The Credit Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject
to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.
4 The execution, delivery and performance of the Subsidiary
Guarantee is within the Guarantor's corporate powers and has been
duly authorized by all necessary corporate and, if required,
stockholder action. The Subsidiary Guarantee has been duly
executed and delivered by the Guarantor and constitutes a legal,
valid and binding obligation of the Guarantor, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in
equity or at law.
5 Neither the Transactions, the Acquisition nor the
execution, delivery and performance of the Subsidiary Guarantee
(a) requires any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except
for consents, approvals, registrations, filings or other actions
described on Schedule 1 attached hereto, all of which have been
obtained, made or waived and are in full force and effect, (b)
will violate any applicable law or regulation or the charter, by-
laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c)
will violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or
any of its Subsidiaries, or (d) will result in the creation or
imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
6 To the best of our knowledge, there are no actions, suits
or proceedings by or before any arbitrator or Governmental
Authority pending against or threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve the
Credit Agreement, the Subsidiary Guarantee, the Acquisition or
the Transactions.
7 Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
8 After giving effect to the Acquisition, not more than 25%
of the consolidated assets of the Borrower will consist of
"margin stock" within the meaning of such term under Regulation G
or Regulation U of the Board of Governors of the Federal Reserve
System.
We are members of the bar of the State of New York and we
express no opinion as to the laws of any jurisdiction other than
the General Corporate Law of the State of North Carolina, the
General Corporate Law of the State of Delaware and the Federal
laws of the United States of America.
Very truly yours,
Annex A
LENDERS
Schedule 1
CONSENTS, APPROVALS, REGISTRATIONS,
FILINGS AND OTHER ACTIONS
EXHIBIT C
FORM OF SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of December 16, 1996, made by KK
ACQUISITION CORP., a Delaware corporation (the "Guarantor"), in
favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Administrative Agent") for the lenders (the
"Lenders") parties to the Credit Agreement, dated as of December
16, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among FOOD LION, INC. (the
"Borrower"), the Lenders, the Administrative Agent and Wachovia
Bank of North Carolina, as Documentation Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower owns indirectly all of the issued and
outstanding stock of the Guarantor;
WHEREAS, the proceeds of the Loans will be used in part to enable
the Borrower to make valuable transfers (as determined as
provided herein) to the Guarantor in connection with the
acquisition and operation of its business;
WHEREAS, the Borrower is, and the Guarantor will be, engaged in
related businesses, and the Guarantor will derive substantial
direct and indirect benefit from the making of the Loans; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrower under the
Credit Agreement that the Guarantor shall have executed and
delivered this Guarantee to the Administrative Agent for the
ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective
Loans to the Borrower under the Credit Agreement, the Guarantor
hereby agrees with the Administrative Agent, for the ratable
benefit of the Lenders, as follows:
1 Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
b As used herein:
"Material Adverse Effect" means a material adverse effect on
(i) the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the
Subsidiaries taken as a whole, (ii) the ability of the Guarantor
to perform any of its obligations under this Guarantee or (iii)
the rights of or benefits available to the Lenders under this
Guarantee.
"Obligations" means the collective reference to the unpaid
principal of and interest on the Loans and all other obligations
and liabilities of the Borrower to the Administrative Agent or
the Lenders (including, without limitation, interest accruing at
the then applicable rate provided in the Credit Agreement after
the maturity of the Loans and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing
of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement or any other document
made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be
paid by the Borrower or the Guarantor pursuant to the terms of
the Credit Agreement or this Guarantee).
c The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this
Guarantee as a whole and not to any particular provision of this
Guarantee, and section and paragraph references are to this
Guarantee unless otherwise specified.
d The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2 Guarantee. (a) Subject to the provisions of paragraph
2(b), the Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
b Anything herein to the contrary notwithstanding, the
maximum liability of the Guarantor hereunder shall in no event
exceed the amount which can be guaranteed by the Guarantor under
applicable federal and state laws relating to the insolvency of
debtors.
c The Guarantor further agrees to pay all out-of-pocket
expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for
the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this
Guarantee, including in connection with any workout,
restructuring or negotiations in respect thereof (other than any
such expenses directly related to a court enforcement action in
which the Guarantor prevails on the merits in a final and
nonappealable judgment). This Guarantee shall remain in full
force and effect until the Obligations are paid in full and the
Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrower may be free from any Obligations.
d The Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of the
Guarantor hereunder without impairing this Guarantee or affecting
the rights and remedies of the Administrative Agent or any Lender
hereunder.
e No payment or payments made by the Borrower, the
Guarantor, any other guarantor or any other Person or received or
collected by the Administrative Agent or any Lender from the
Borrower, the Guarantor, any other guarantor or any other Person
by virtue of any action or proceeding or any setoff or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment
or payments other than payments made by the Guarantor in respect
of the Obligations or payments received or collected from the
Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of the Guarantor
hereunder until the Obligations are paid in full and the
Commitments are terminated.
f The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative
Agent or any Lender on account of its liability hereunder, it
will notify the Administrative Agent in writing that such payment
is made under this Guarantee for such purpose.
3 Right of Setoff. Upon the occurrence of any Default, the
Guarantor hereby irrevocably authorizes each Lender at any time
and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the
credit or the account of the Guarantor against any of and all the
obligations of the Guarantor now or hereafter existing under this
Guarantee held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Guarantee and
although such obligations may be unmatured. The Administrative
Agent and each Lender shall notify the Guarantor promptly of any
such setoff and the application made by the Administrative Agent
or such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
The rights of the Administrative Agent and each Lender under this
Section are in addition to other rights and remedies (including
other rights of setoff) which the Administrative Agent or such
Lender may have.
4 No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder or any setoff or application of
funds of the Guarantor by any Lender, the Guarantor shall not be
entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrower or any
collateral security or guarantee or right of offset held by any
Lender for the payment of the Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower in respect of payments made by
the Guarantor hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrower on account
of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall
be held by the Guarantor in trust for the Administrative Agent
and the Lenders, segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned
over to the Administrative Agent in the exact form received by
the Guarantor (duly indorsed by the Guarantor to the
Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
5 Amendments, etc. with respect to the Obligations; Waiver
of Rights. The Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by
such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any
part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and the Credit Agreement and
any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated,
in whole or in part, as the Administrative Agent (or the Majority
Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset
at any time held by the Administrative Agent or any Lender for
the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against the Guarantor,
the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on the Borrower or any other
guarantor, and any failure by the Administrative Agent or any
Lender to make any such demand or to collect any payments from
the Borrower or any other guarantor or any release of the
Borrower or such other guarantor shall not relieve the Guarantor
of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a
matter of law, of the Administrative Agent or any Lender against
the Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
6 Guarantee Absolute and Unconditional. The Guarantor
waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon this
Guarantee or acceptance of this Guarantee, the Obligations, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guarantee; and all dealings between the
Borrower and the Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or the Guarantor with respect
to the Obligations. The Guarantor understands and agrees that
this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Credit Agreement,
any of the Obligations or any other collateral security therefor
or guarantee or right of offset with respect thereto at any time
or from time to time held by the Administrative Agent or any
Lender (b) any defense, setoff or counterclaim (other than a
defense of payment or performance) which may at any time be
available to or be asserted by the Borrower against the
Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the
Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the
Borrower for the Obligations, or of the Guarantor under this
Guarantee, in bankruptcy or in any other instance. When pursuing
its rights and remedies hereunder against the Guarantor, the
Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have
against the Borrower or any other Person or against any
collateral security or guarantee for the Obligations or any right
of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrower or any such
other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release
of the Borrower or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent and the
Lenders against the Guarantor. This Guarantee shall remain in
full force and effect and be binding in accordance with and to
the extent of its terms upon the Guarantor and the successors and
assigns thereof, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective
successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantor under this
Guarantee shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time
to time during the term of the Credit Agreement the Borrower may
be free from any Obligations.
7 Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the
Borrower or the Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or the Guarantor or
any substantial part of its property, or otherwise, all as though
such payments had not been made.
8 Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without setoff
or counterclaim in Dollars at the office of the Administrative
Agent located at 270 Park Avenue, New York, New York 10017.
9 Representations and Warranties. The Guarantor hereby
represents and warrants that:
a it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction
where such qualification is required;
b the execution, delivery and performance of this Guarantee
is within the Guarantor's corporate powers and has been duly
authorized by all necessary corporate and, if required,
stockholder action. This Guarantee has been duly executed and
delivered by the Guarantor and constitutes a legal, valid and
binding obligation of the Guarantor, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors'
rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law;
c the execution, delivery and performance of this Guarantee
(i) does not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force
and effect or except such as may be required to effect the
Acquisition each of which will have been obtained or made and
will be in full force and effect prior to the time required in
order to consummate the Acquisition in accordance with all
Requirements of Law, (ii) will not violate any applicable law or
regulation or the charter, by-laws or other organizational
documents of the Guarantor or any of its subsidiaries or any
order of any Governmental Authority, (iii) will not violate or
result in a default under any indenture, agreement or other
instrument binding upon the Guarantor or any of its subsidiaries
or its assets other than defaults or violations for which
consents or waivers have been obtained or which defaults or
violations, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect,
(iv) will not give rise to a right under any indenture, agreement
or other instrument binding upon the Guarantor or any of its
subsidiaries or its assets to require any payment to be made by
the Guarantor or any of its subsidiaries other than the repayment
of Indebtedness with the proceeds of the initial Loans under the
Credit Agreement and any other payments contemplated to be made
in connection with the Transactions and the Acquisition, and (v)
will not result in the creation or imposition of any Lien on any
asset of the Guarantor or any of its subsidiaries;
d the Guarantor has good title to, or valid leasehold
interests in, all its real and personal property material to its
business, except for defects in title that do not interfere with
its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes and except as
may be permitted pursuant to Section 6.1 of the Credit Agreement;
e the Guarantor owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Guarantor
and its subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect;
f there are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to
the knowledge of the Guarantor, threatened against or affecting
the Guarantor or any of its subsidiaries or that involve the
Credit Agreement, this Guarantee or the Transactions as to which
there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters);
g the Guarantor is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; and
h the Guarantor has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid
or caused to be paid all Taxes required to have been paid by it,
except (i) Taxes that are being contested in good faith by
appropriate proceedings and for which the Guarantor has set aside
on its books reserves as and to the extent required by GAAP or
(ii) to the extent that the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on
the date of each Borrowing by the Borrower under the Credit
Agreement on and as of such date of borrowing as though made
hereunder on and as of such date.
10 Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the
Administrative Agent under this Guarantee with respect to any
action taken by the Administrative Agent or the exercise or non-
exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the
Administrative Agent and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as
may exist from time to time among them, but, as between the
Administrative Agent and the Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the
Lenders with full and valid authority so to act or refrain from
acting, and the Guarantor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
11 Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
a if to the Administrative Agent or any Lender, at its
address or transmission number for notices provided in subsection
9.1 of the Credit Agreement; and
b if to the Guarantor, at its address or transmission number
for notices set forth under its signature below.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
party hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Guarantee
shall be deemed to have been given on the date of receipt.
12 Counterparts. This Guarantee may be executed by the
Guarantor on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the counterparts of this Guarantee
signed by the Guarantor shall be lodged with the Administrative
Agent.
13 Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
14 Integration. This Guarantee represents the entire
agreement of the Guarantor with respect to the subject matter
hereof and there are no promises or representations by the
Administrative Agent or any Lender relative to the subject matter
hereof not reflected herein.
15 Amendments in Writing; No Waiver; Cumulative
Remedies. (a) None of the terms or provisions of this Guarantee
may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Guarantor and the
Administrative Agent, provided that any provision of this
Guarantee may be waived by the Administrative Agent and the
Lenders in a letter or agreement executed by the Administrative
Agent or by facsimile transmission from the Administrative Agent.
b Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to paragraph
15(a) hereof), delay, indulgence, omission or otherwise be deemed
to have waived any right or remedy hereunder or to have
acquiesced in any Default or in any breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the
Administrative Agent or such Lender would otherwise have on any
future occasion.
c The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
16 Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
17 Successors and Assigns. This Guarantee shall be
binding upon the successors and assigns of the Guarantor and
shall inure to the benefit of the Administrative Agent and the
Lenders and their successors and assigns.
18 Governing Law. This Guarantee shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
19 Jurisdiction; Consent to Service of Process. (a)
The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County
and of the United States District Court for the Southern District
of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this
Guarantee, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guarantee shall affect
any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this
Guarantee against the Guarantor or its properties in the courts
of any jurisdiction.
b The Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or
relating to this Guarantee in any court referred to in paragraph
(a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
c Each party to this Guarantee irrevocably consents to service of
process in the manner provided for notices in Section 11.
Nothing in this Guarantee will affect the right of any party to
this Guarantee to serve process in any other manner permitted by
law.
20 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
21 Effect of Merger. After giving effect to the merger
of KK Acquisition Corp. with and into Kash N' Karry Food Stores,
Inc., a Delaware corporation, the Guarantor will be Kash N' Karry
Food Stores, Inc., by operation of law.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as
of the day and year first above written.
KK ACQUISITION CORP.
By: _________________________
Title:
Address for Notices:
Attention:
Fax:
