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 January 3, 1998. 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 and non-voting stock held by
non-affiliates of the Registrant based on the price of such stock at the
close of business on March 27, 1998 was $1,189,646,901 and $1,527,553,425,
respectively. 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 27, 1998.
Class A Common Stock - 236,467,986
Class B Common Stock - 232,727,364
Exhibit index is located on sequential page 17 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 January 3, 1998
are incorporated by reference in Part II hereof.
2. Proxy Statement for the 1998 Annual Meeting of Shareholders of the
Company to be held on May 7, 1998, 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,"
and "Kash n' Karry", 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 labels of "Food
Lion" and "Kash n' Karry." The Company offers over 20,000 Stock Keeping Units
(SKU's) in its Food Lion locations and over 30,000 in its Kash n' Karry
locations. The Company's current prototype is a 38,000 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 January 3, 1998, 1,157 supermarkets were in operation as follows:
Delaware 10 North 394
Carolina
Florida 188 Pennsylvania 7
Georgia 56 South 106
Carolina
Kentucky 13 Tennessee 78
Maryland 38 Virginia 251
West Virginia 16
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As of March 27, 1998, the Company had opened 14 supermarkets since January 3,
1998, closed 4 supermarkets, relocated 3 supermarkets and had signed leases
for 23 supermarkets which are expected to open in either 1998 or 1999.
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; and
Disputanta, Virginia.
As of January 3, 1998, the Company employed 31,128 full-time and 52,743
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
1997 164 (1) (94) (25) 1,157
1996 64 ( 3) (22) 1,112
1995 47 ( 1) (12) 1,073
(1) Includes 100 stores acquired from Kash n' Karry
Item 2. Properties.
Supermarkets operated by the Company in the southeastern United States
average 31,200 square feet in size. The Company's current prototype retail
format is a 38,000 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 66 owned operating supermarkets, the Company
occupies its various supermarket premises under lease agreements providing for
initial terms of up to 30 years, with options generally ranging from five to
twenty years.
At the end of 1997 the Company had $99.4 million (book value) in property
held for sale.
The following table identifies the location and square footage of distribution
centers and office space operated by the Company as of January 3, 1998.
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 759,546
Corporate Headquarters Salisbury, NC 271,592
9,009,628
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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 filed motions
for summary judgment on all claims and plaintiffs filed a motion for summary
judgment on certain affirmative defenses asserted by the Company and Mr. Smith.
The court held a hearing on the summary judgement motions in February 1998, and
took the motions under advisement. 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"). In general, the actions involved
claims seeking payment under the Fair Labor Standards Act for alleged
uncompensated overtime hours, liquidated damages, additional contributions to
the Company's profit-sharing plan, costs and attorneys' fees. The pretrial
proceedings are complete and pursuant thereto, a number of claims were
dismissed. Other cases settled (North Carolina, 1994 and 1995; Virginia, 1993
and 1994;Tennessee, 1994;and Florida, 1997) in an aggregate amount
(inclusive of attorneys' fees where awarded) not material to the Company's
financial condition or results of operations. 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 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 eight claims dismissed from the South
Carolina and Florida cases were added to this appeal.Oral argument was held in
the Fourth Circuit in January 1998. The remaining cases involve the claims of
approximately 111 plaintiffs in South Carolina. These 111 cases were tentatively
settled in the first quarter of 1998 in an aggregate amount that is not material
to the Company's financial condition or results of operations, and in the same
period a petition for attorneys' fees was filed with respect to the Florida
claims. Based on currently available information, the Company believes that any
resulting liability from this litigation will not have a material adverse effect
on the financial condition or results of operations of the Company.
-4-
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 1, 1998, 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, 1998 Officer Present
Office
Tom E. Smith 56 1974 1981
President and Chief
Executive Officer
Joseph C. Hall, Jr. 48 1988 1995
Senior Vice President and
Chief Operating Officer
R. William McCanless 40 1993 1996
Senior Vice President,
Chief Administrative
Officer
and Secretary
Pamela K. Kohn 33 1995 1997
Senior Vice President of
Merchandising
Jay J. Abraham 1 41 1994 1994
Vice President of Marketing
A. Edward Benner, Jr. 56 1980 1996
Vice President and Chief
Information Officer
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Robert J. Brunory 43 1994 1994
Vice President
Procurement/Category
Management
Mike Byars 39 1997 1997
Vice President
of Operations, Food Lion,
Kash n'Karry Division
Larry A. Cooper 2 49 1996 1996
Vice President of
Distribution
W. Bruce Dawson 45 1995 1995
Vice President of
Operations/
Northern Division
Keith M. Gehl 39 1997 1997
Vice President of Real
Estate and
Store Development
Carol Herndon 35 1991 1994
Corporate Controller and
Director of Accounting
Richard James 38 1997 1997
Director of Finance and
Treasurer
Darrell Johnson 45 1997 1997
Vice President of Human
Resources
Laura Kendall 3 46 1997 1997
Vice President of Finance
and Chief Financial Officer
Dave Morgan 47 1997 1997
Vice President of
Operations/
Southern Division
Lester C. Nail 4 38 1995 1995
Vice President Legal
Affairs
and Assistant Secretary
Tom Robinson 37 1997 1997
Vice President of
Operations/
Central Division
Natalie Taylor 38 1997 1997
Vice President of Diversity
-6-
1 Prior to joining Food Lion, 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 his employment at Food Lion.
3 Ms. Kendall served as the Chief Financial Officer for F & M Distributors
prior to joining Food Lion. 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.
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 January 3, 1998, 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 January 3,
1998, 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 January 3, 1998, 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 January 3, 1998, are hereby incorporated by
reference.
-7-
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 7, 1998 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.
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 1998 Annual
Meeting of Shareholders to be held on May 7, 1998, 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 1998
Annual Meeting of Shareholders to be held on May 7, 1998, 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 1998 Annual Meeting of Shareholders to be held May
7, 1998, is hereby incorporated by reference.
-8-
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 January 3, 1998:
ANNUAL REPORT
PAGE NO.
Consolidated Statements of Income for the years
ended January 3, 1998, December 28, 1996 and
December 30, 1995 20
Consolidated Balance Sheets, as of January 3,
1998 and December 28, 1996 21
Consolidated Statements of Cash Flows for the
years ended January 3, 1998, December 28, 1996
and December 30, 1995 22
Consolidated Statements of Shareholders' Equity
for the years ended January 3, 1998,
December 28, 1996 and December 30, 1995 23
Notes to Consolidated Financial Statements 24-29
Results by Quarter (unaudited) 31
10-K
PAGE NO.
2. Financial Statement Schedules:
Report of Independent Accountants 16
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.
-9-
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
1997 Annual Report to Shareholders of Food Lion, Inc. and incorporated by
reference into this Form 10-K Annual Report, the 1997 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
(incorporated by reference to Exhibit 3(b)
of the Company's Annual Report on Form 10-K
dated March 27, 1997)
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(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-
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) 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(g) 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(h) 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)
10(i) 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(j) 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(k) 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(l) 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(m) 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(n) 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)
-11-
10(o) 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(p) 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(q) 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(r) 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(s) 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(t) Employment Agreement dated as of February 27,1997
between Joseph C. Hall,Jr. and the Company
(incorporated by reference to Exhibit 10(w) of
the Company's Annual Report on Form 10-K dated
March 27, 1997)
10(u) Employment Agreement dated as of February 27,1997
between R. William McCanless and the Company
(incorporated by reference to Exhibit 10(x) of the
Company's Annual Report on Form 10-K dated
March 27, 1997)
10(v) 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 Report
on Form 8-K dated October 31, 1996)
10(w) 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 Report on Form 8-K dated October 31,1996)
10(x) $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 (incorporated by reference to
Exhibit 10(aa) of the Company's Annual Report on
Form 10-K dated March 27, 1997)
-12-
10(y) License agreement, dated as of June 19, 1997,
among the Company, Kash n' Karry Food Stores, Inc.,
and Etablissements Delhaize Freres Et Cie "Le Lion" S.A.
(incorporated by reference to Exhibit 10(a) of the
Company's Quarterly Report on Form 10-Q dated
July 25, 1997)
10(z) Food Lion Inc. and The Bank of New York, Trustee,
First Supplement Indenture dated as of April 21, 1997
(incorporated by reference to Exhibit 10(a) of the
Company's Quarterly Report on Form 10-Q dated
May 2, 1997)
10(aa) Underwriting Agreement dated as of April 16, 1997
between Food Lion, Inc. and Salomon Brothers, Inc.
for itself and as representative for NationsBanc
Capital Markets Inc.(incorporated by reference to
Exhibit 10(b) of the Company's Quarterly Report
on Form 10-Q dated May 2, 1997)
10(ab) Credit Agreement dated as of December 15, 1997, among
the Company the lenders party thereto, The Chase
Manhattan Bank, as Administrative Agent, and Wachovia
Bank , N.A., as Documentation Agent.
10(ac) Deferral Agreement and Election, dated as of December
18, 1997, by and between Tom E. Smith and the Company.
10(ad) Employment Agreement, dated as of October 1, 1997,
between Pamela K. Kohn and the Company.
10(ae) Employment Agreement, dated as of October 1, 1997,
between A. Edward Benner and the Company.
10(af) Agreement, dated as of January 4, 1998, between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and the Company.
11 Computation of Earnings Per Share
13 Annual Report to Shareholders for the year
ended January 3, 1998
21 Subsidiaries of Registrant
23 Consent of Independent Accountants
27 Financial Data Schedules
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 did not file a report on Form 8-K for the period ended
January 3, 1998.
-13-
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:04/08/98 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: 04/08/98 By Tom E. Smith
Tom E. Smith
President, Chief Executive
Officer, Principal
Executive Officer and Director
Date:4/08/98 By Pierre-Olivier Beckers
Pierre-Olivier Beckers
Director
Date: By
Dr. Jacqueline K. Collamore
Director
Date: 4/08/98 By Jean-Claude Coppieters t Wallant
Jean-Claude Coppieters t Wallant
Director
Date: By
William G. Ferguson
Director
Date: By
Dr. Bernard Franklin
Director
Date: 04/08/98 By Joseph C. Hall
Joseph C. Hall
Senior Vice President of Operations
Director
Date:04/08/98 By Margaret H. Kluttz
Margaret H. Kluttz
Director
Date: By
Philippe Stroobant
Director
Date:4/08/98 By Gui de Vaucleroy
Gui de Vaucleroy
Director
-14-
Date: By
R.William McCanless
Chief Administrative Officer
and Secretary
Date:04/08/98 By Laura Kendall
Laura Kendall
Vice President of Finance
Chief Financial Officer
Principal Financial Officer
-15-
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders of Food Lion, Inc.:
We have audited the consolidated financial statements of Food Lion, Inc.
and subsidiaries as of January 3, 1998 and December 28, 1996, and for each of
the three fiscal years in the period ended January 3, 1998, which financial
statements are included on pages 20 through 30 of the 1997 Annual Report
to Shareholders of Food Lion,Inc., incorporated by reference herein.
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 subsidiaries, as of January 3, 1998 and December 28, 1996, and the
consolidated results of their operations and their cash flows for each of the
three fiscal years in the period ended January 3, 1998, in conformity with
generally accepted accounting principles.
As discussed in Note 17, the 1996 financial statements have been revised to
reflect adjustments related to store closing reserves.
Charlotte, North Carolina
February 10, 1998
COOPERS & LYBRAND, L.L.P.
-16-
EXHIBIT INDEX
to
ANNUAL REPORT ON FORM 10-K of
Food Lion, Inc.
For Year Ended January 3, 1998
Sequential
Exhibit No. Description Page 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
(incorporated by reference to Exhibit 3(b)
of the Company's Annual Report on Form 10-K
dated March 27, 1997)
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)
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)
-1-
10(f) 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(g) 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(h) 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(i) 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(j) 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(k) 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(l) 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(m) 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(n) 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(o) 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(p) 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)
-2-
10(q) 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(r) 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(s) 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(t) Employment Agreement dated as of February 27,1997
between Joseph C. Hall,Jr. and the Company (incorporated by
reference to Exhibit 10(w) of the Company's Annual Report
on Form 10-K dated March 27, 1997)
10(u) Employment Agreement dated as of February 27,1997
between R. William McCanless and the Company (incorporated
by reference to Exhibit 10(x) of the Company's Annual Report
on Form 10-K dated March 27, 1997)
10(v) 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 Report on Form 8-K dated October 31, 1996)
10(w) 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 Report on Form
8-K dated October 31,1996)
10(x) $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 (incorporated by reference to Exhibit 10(aa) of
the Company's Annual Report on Form 10-K dated March
27, 1997)
10(y) License agreement, dated as of June 19, 1997, among
the Company, Kash n' Karry Food Stores, Inc., and
Etablissements Delhaize Freres Et Cie "Le Lion" S.A.
(incorporated by reference to Exhibit 10(a) of the
Company's Quarterly Report on Form 10-Q dated
July 25, 1997)
10(z) Food Lion Inc. and The Bank of New York, Trustee, First
Supplement Indenture dated as of April 21, 1997
(incorporated by reference to Exhibit 10(a) of the
Company's Quarterly Report on Form 10-Q dated
May 2, 1997)
-3-
10(aa) Underwriting Agreement dated as of April 16, 1997
between Food Lion, Inc. and Salomon Brothers, Inc.
for itself and as representative for NationsBanc
Capital Markets Inc.(incorporated by reference to
Exhibit 10(b) of the Company's Quarterly Report
on Form 10-Q dated May 2, 1997)
10(ab) Credit Agreement dated as of December 15, 1997,
among the Company the lenders party thereto, The
Chase Manhattan Bank, as Administrative Agent,
and Wachovia Bank, N.A., as Documentation Agent.
10(ac) Deferral Agreement and Election, dated as of
December 18, 1997, by and between Tom E. Smith and
the Company.
10(ad) Employment Agreement, dated as of October 1,1997,
between Pamela K. Kohn and the Company.
10(ae) Employment Agreement, dated as of October 1,1997,
between A. Edward Benner and the Company.
10(af) Agreement, dated as of January 4, 1998, between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and the Company.
11 Computation of Earnings Per Share
13 Annual Report to Shareholders for the year ended
January 3,1998
21 Subsidiaries of Registrant
23 Consent of Independent Accountants
27 Financial Data Schedules
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 did not file a report on Form 8-K for the period ended
January 3, 1998.
-4-
EXECUTION COPY
CREDIT AGREEMENT
dated as of
December 15, 1997
among
FOOD LION, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
WACHOVIA BANK, N.A.,
as Documentation Agent
$350,000,000 364-DAY REVOLVING CREDIT FACILITY
AND COMPETITIVE ADVANCE FACILITY
__________________________________
CHASE SECURITIES, INC.,
as Arranger
Index Page
ABR 1, 2, 11, 19, 20, 23-28
Adjusted LIBO Rate 1, 9, 16, 17, 26-29
Administrative Agent 1, 3, 9, 12, 16-27, 30, 32, 33, 36-40, 45-56
Administrative Questionnaire 1, 50, 53
Affiliate 1, 19, 32, 39, 43, 48, 49, 51, 52, 56
Alternate Base Rate 1, 17, 26, 27
Amortization 1
Applicable Percentage 1, 52
Applicable Rate 2, 26
Assessment Rate 3
Assignment and Acceptance 3, 5, 12, 52, 53
Availability Period 3, 19, 20, 27
Base CD Rate 3, 16
Board 3, 16, 17, 36, 41
Borrower 1-3, 5-13, 15-30, 32-56
Borrowing 1, 3, 5, 9, 11, 12, 17-27, 36, 38
Borrowing Request 3, 20, 22, 28
Business Day 3, 10, 12, 17, 20-25, 31
Capital Lease Obligations 4, 7, 11
Capital Stock 4, 7, 16
Capitalized Lease 4, 14, 15
Change in Control 4, 47
Change in Law 5, 28, 29
Class 5, 18, 19, 25
Code 5, 9, 15
Commitment 1-3, 5, 13, 16, 19, 20, 24-27, 37, 38, 41, 47,
51-54
Competitive Bid 5, 10, 13, 19-21, 29
Competitive Bid Rate 5, 21, 22
Competitive Bid Request 5, 12, 20-22
Competitive Loan 5, 9, 10, 13, 19-22, 25, 29
Consolidated 5
Consolidated Debt 5, 7, 44
Consolidated Fixed Charges 6, 44
Consolidated Interest Expense 6
Consolidated Net Income 6, 7, 44
Consolidated Net Worth 7
Consolidated Subsidiary 1, 4, 6, 7, 14, 15
Consolidated Total Assets 7, 45
Consolidated Total Capitalization 7, 44
Contractual Obligation 7, 36, 40
Control 1, 5, 7
Controlled 1, 7, 17
Controlling 7
Debt 5-8, 25, 44
Default 8, 35, 38, 39, 42, 48, 50, 54
Delhaize 4, 5, 8
Depreciation 8
Detla 4, 5, 8
Disclosed Matters 8, 35
Documentation Agent 1, 8, 49, 1
Dollars 3, 8, 16, 31
Effective Date 3, 8, 36, 37
Environmental Law 8, 11, 35
Environmental Liability 8, 35, 51
ERISA 8, 9, 14, 15, 18, 35
ERISA Affiliate 9, 15
ERISA Event 9, 35, 39, 47
Eurodollar 9-12, 16, 18, 23, 24
Event of Default 8, 9, 24, 29, 53, 55
Excluded Taxes 9, 11
Federal Funds Effective Rate 1, 9, 23, 32, 57
Financial Officer 10, 37-40
Fiscal Quarter 7, 10, 44
Fiscal Year 10
Fixed Rate 5, 10, 17, 27
Fixed Rate Loan 10, 12, 19, 27-29
Foreign Lender 9, 10, 30, 54
GAAP 1, 4, 7, 8, 10, 16-18, 34, 38-40
Governmental Authority 5, 8, 10, 15, 17, 30, 32-35, 39, 40
Guarantee 10, 11, 42, 43
Guarantor 11, 17, 37, 43, 47
Hazardous Materials 8, 11, 51
Hedging Agreement 11, 13, 42, 43
Indebtedness 10, 11, 13, 41-44, 46
Indemnified Taxes 11, 29, 30
Index Debt 2, 11
Interest Election Request 11, 23, 24, 28
Interest Payment Date 11, 12, 27
Interest Period 1, 3, 12, 13, 19-21, 23-27, 29
Investment 6, 35, 42
Lenders 1-3, 12, 13, 19, 21-28, 31-34, 36-38, 41, 42,
45, 48-53, 56, 1
LIBO Rate 1, 9, 12, 13, 17, 26, 27
Lien 8, 11, 13, 14, 34, 41-44
Loans 1, 5, 9, 13, 16-19, 21-28, 32, 33, 36, 37, 42, 47,
51-54, 57
LTF 2, 13
Majority Lenders 13, 18, 24, 27, 37, 47-51
Margin 5, 13, 26
Material Adverse Effect 13, 33-36, 39, 40, 47
Material Indebtedness 13, 46
Maturity Date 3, 14, 15, 19, 24, 25
Minority Interests 6, 14
Moody's 2, 4, 14
Multiemployer Plan 9, 14, 15, 18
Operating Lease 14, 15
Other Taxes 14, 29, 30
PBGC 9, 14
Permitted Encumbrances 14, 41
Permitted Investments 4, 42
Person 1, 4, 5, 7, 8, 10-12, 15-18, 31, 34, 41-44, 48, 51-53,
56, 57
Plan 9, 15, 35
Prime Rate 1, 15, 27
Redeemable Preferred Stock 7, 15, 16
Register 15, 53
Related Parties 15, 49, 52
Rentals 6, 15
Requirement of Law 15, 36
Revolving Credit Exposure 2, 5, 13, 15, 19, 20, 24, 26
Revolving Loan 2, 3, 5, 15, 16, 18, 19, 25, 31, 32
S&P 2, 4, 16
Solvent 16, 36
Statutory Reserve Rate 1, 3, 16
Stockholder's Equity 7, 16
Subsidiary 7, 8, 13, 15, 17, 32, 35, 39-48
Subsidiary Guarantee 17, 37, 44
Taxes 17, 29, 35
Three-Month Secondary CD Rate 3, 17
Transactions 17, 33, 34, 37, 43, 51, 52, 56
Type 3, 17-20, 23, 25, 26, 28
Withdrawal Liability 9, 18
Table of Contents
ARTICLE I Page
Definitions 1
SECTION 1.1 Defined Terms 1
SECTION 1.2 Classification of Loans and
Borrowings 18
SECTION 1.3 Terms Generally 18
SECTION 1.4 Accounting Terms; GAAP 18
ARTICLE II
The Credits 19
SECTION 2.1 Commitments 19
SECTION 2.2 Loans and Borrowings 19
SECTION 2.3 Requests for Revolving Borrowings 19
SECTION 2.4 Competitive Bid Procedure 20
SECTION 2.5 Funding of Borrowings 22
SECTION 2.6 Interest Elections 23
SECTION 2.7 Termination and Reduction of
Commitments 24
SECTION 2.8 Repayment of Loans; Evidence of
Debt 25
SECTION 2.9 Prepayment of Loans 25
SECTION 2.10 Fees 26
SECTION 2.11 Interest 26
SECTION 2.12 Alternate Rate of Interest 27
SECTION 2.13 Increased Costs 28
SECTION 2.14 Break Funding Payments 29
SECTION 2.15 Taxes 29
SECTION 2.16 Payments Generally; Pro Rata
Treatment; Sharing of Set-offs 31
SECTION 2.17 Mitigation Obligations;
Replacement of Lenders 32
ARTICLE III
Representations and Warranties 33
SECTION 3.1 Organization; Powers 33
SECTION 3.2 Authorization; Enforceability 33
SECTION 3.3 Governmental Approvals; No
Conflicts 33
SECTION 3.4 Financial Condition; No Material
Adverse Change 34
SECTION 3.5 Properties 34
SECTION 3.6 Litigation and Environmental
Matters 34
SECTION 3.7 Compliance with Laws and
Agreements 35
SECTION 3.8 Investment and Holding Company
Status 35
SECTION 3.9 Taxes 35
SECTION 3.10 ERISA 35
SECTION 3.11 Disclosure 36
SECTION 3.12 Margin Stock 36
SECTION 3.13 No Burdensome Restrictions 36
SECTION 3.14 Subsidiaries 36
SECTION 3.15 Solvency 36
ARTICLE IV
Conditions 36
SECTION 4.1 Effective Date 36
SECTION 4.2 Each Credit Event 38
ARTICLE V
Affirmative Covenants 38
SECTION 5.1 Financial Statements and Other
Information 38
SECTION 5.2 Notices of Material Events 39
SECTION 5.3 Existence; Conduct of Business 40
SECTION 5.4 Payment of Obligations 40
SECTION 5.5 Maintenance of Properties;
Insurance 40
SECTION 5.6 Books and Records; Inspection
Rights 40
SECTION 5.7 Compliance with Laws and Material
Contractual Obligations 40
SECTION 5.8 Use of Proceeds 41
ARTICLE VI
Negative Covenants 41
SECTION 6.1 Liens 41
SECTION 6.2 Fundamental Changes 42
SECTION 6.3 Investments, Loans, Advances,
Guarantees and Acquisitions; Hedging
Agreements 42
SECTION 6.4 Transactions with Affiliates 43
SECTION 6.5 Restrictive Agreements 43
SECTION 6.6 Fixed Charges Coverage 44
SECTION 6.7 Ratio of Consolidated Debt to
Consolidated Total Capitalization 44
SECTION 6.8 Limitation on Sales of Assets 44
ARTICLE VII
Events of Default 45
ARTICLE VIII
The Administrative Agent 48
ARTICLE IX
Miscellaneous 50
SECTION 9.1 Notices 50
SECTION 9.2 Waivers; Amendments 50
SECTION 9.3 Expenses; Indemnity; Damage
Waiver 51
SECTION 9.4 Successors and Assigns 52
SECTION 9.5 Survival 54
SECTION 9.6 Counterparts; Integration;
Effectiveness 54
SECTION 9.7 Severability 55
SECTION 9.8 Right of Setoff 55
SECTION 9.9 Governing Law; Jurisdiction;
Consent to Service of Process 55
SECTION 9.10 WAIVER OF JURY TRIAL 56
SECTION 9.11 Headings 56
SECTION 9.12 Confidentiality 56
SECTION 9.13 Interest Rate Limitation 57
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 15, 1997,
among FOOD LION, INC., the LENDERS party hereto, THE
CHASE MANHATTAN BANK, as Administrative Agent, and
WACHOVIA BANK, N.A., as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
1.1 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.
"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 Commitments represented by
such Lender's Commitment. 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", "Eurodollar Spread" or "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:
S&P/Moody's ABR Eurodollar Facility Fee
Index Debt Ratings: Spread Spread Rate
Category 1
A-/A3 or higher .00% .155% .07%
Category 2
BBB+/Baa1 .00% .17% .08%
Category 3
BBB/Baa2 .00% .22% .08%
Category 4
BBB-/Baa3 .00% .42% .08%
Category 5
BB+/Ba1 or lower .00% .67% .08%
provided that the foregoing rates applicable to Revolving Loans set
forth in the columns above under the captions "ABR Spread" and
"Eurodollar Spread" shall be increased by 5 basis points per annum
for any period during which the aggregate outstanding amount of
(w) the Revolving Credit Exposure and Competitive Loans and (x)
the LTF Revolving Credit Exposure and LTF Competitive Loans
(as defined in the LTF Credit Agreement) is greater than 50% of
the aggregate of (y) the original maximum amount of the
Commitments and (z) the original maximum amount of the LTF
Commitments (as defined in the LTF Credit Agreement).
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.
"Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitments.
"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 each Lender,
the commitment of such Lender to make Revolving Loans
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 Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment,
as applicable.
"Competitive Bid" means an offer by a Lender to
make a Competitive Loan in accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the
Borrower for Competitive Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan made under the
Commitments pursuant to Section 2.4.
"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,
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 Kash N' Karry Food Stores, Inc.,
a Delaware corporation, and each Subsidiary that executes a
Subsidiary Guarantee pursuant to Section 6.3(vi) or 6.8(f).
"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 Credit Agreement" means the Credit
Agreement, dated as of December 16, 1996, among the Borrower,
the lenders party thereto, the administrative agent thereunder and
the documentation agent thereunder, as amended by the First
Amendment, dated as of December 15, 1997, among the Borrower,
the lenders party thereto, the administrative agent thereunder and
the documentation agent thereunder.
"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,
including, but not limited to, Indebtedness under the LTF Credit
Agreement, (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.
"Maturity Date" means December 14, 1998.
"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.
"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 (as defined in the LTF Credit Agreement)
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 the outstanding principal
amount of such Lender's Revolving Loans at such time.
"Revolving Loan" means a Loan made under the
Commitments pursuant to Section 2.3.
"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, in
substantially the form of Exhibit C, made by each Guarantor in
favor of the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"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.
1.2 Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to
by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar
Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan").
Borrowings also may be classified and referred to by Class (e.g., a
"Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
1.3 Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of
or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts
and contract rights.
1.4 Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, 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
2.1 Commitments. Subject to the terms and conditions
set forth herein, each Lender with a Commitment agrees to make
Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not
result in (i) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans exceeding the total Commitments.
Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
2.2 Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.4. The
failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments and Competitive Bids of the
Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.12, (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.
(c) At the commencement of each Interest Period
for any Eurodollar Revolving Borrowing, such Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000
and not less than $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.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to
elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
2.3 Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 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 an ABR
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which shall be
a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the
Borrower's account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.5.
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.
2.4 Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the
Availability Period the Borrower may request Competitive Bids and
may (but shall not have any obligation to) accept Competitive Bids
and borrow Competitive Loans with specified maturities ranging
from seven to 360 days; provided that the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans at any time shall not exceed the
total Commitments. To request Competitive Bids, the Borrower
shall notify the Administrative Agent of such request by telephone,
in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) 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
Eurodollar Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the
Borrower's account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.5.
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.
2.5 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.
(b) 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.
2.6 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.
(b) To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election
by telephone by the time that a Borrowing Request would be
required under Section 2.3 if the Borrower were requesting a
Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance with
Section 2.2:
(i) the Borrowing to which such
Interest Election Request applies and, if different options
are being elected with respect to different portions thereof,
the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii) the effective date of the election made
pursuant to such Interest Election Request, which shall be a
Business Day;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration.
(d) Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each
Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving
Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the
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.
2.7 Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrower may at any time terminate, or
from time to time reduce, the Commitments; provided that (i) each
reduction of 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.
(c) The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly
following receipt of any notice, the 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.
2.8 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
Commitment the then unpaid principal amount of such Lender's
Revolving Loans on the Maturity Date and (ii) 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.
(b) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made
hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it
be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in 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).
2.9 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.
(b) The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later than 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.
2.10 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).
(b) The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative
Agent for distribution, in the case of facility fees to the Lenders.
Fees paid shall not be refundable under any circumstances.
2.11 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.
(b) 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.
(c) Each Fixed Rate Loan shall bear interest at a
rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by
the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 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.
(e) 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.
(f) 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.
2.12 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.
2.13 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.
2.14 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.
2.15 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.
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify the
Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (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.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any 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).
(f) 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.
2.16 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.
(b) If at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts
of principal, interest and fees then due hereunder, such funds shall
be applied (i) first, 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.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Revolving Loans 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.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the
Lenders 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.
(e) 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.
2.17 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.
(b) 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).
III
Representations and Warranties
The Borrower represents and warrants to the
Lenders that:
3.1 Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now
conducted and, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification is
required.
3.2 Authorization; Enforceability. The Transactions
are within the Borrower's corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder
action. 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.
3.3 Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding
upon the Borrower or any of its Subsidiaries or 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 not 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 any payments
contemplated to be made in connection with the Transactions, and
(e) will not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
3.4 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, 1996, 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 6,
1997, certified by its 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.
(b) Since December 31, 1996, 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.
3.5 Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its
real and personal property material to its business, except for
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.
(b) Each of the Borrower and its Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
3.6 Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries or that involve this Agreement 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).
(b) Except for the Disclosed Matters and except
with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been
no change in the status of the Disclosed Matters that, individually
or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
3.7 Compliance with Laws and Agreements. Each of
the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to
it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure
to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
3.8 Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
3.9 Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are
being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, has set aside
on its books 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.
3.10 ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected
to occur, could reasonably be expected to result in a Material
Adverse Effect. 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.
3.11 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.
3.12 Margin Stock. Not more than 25% of the
consolidated assets of the Borrower consists 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.
3.13 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.
3.14 Subsidiaries. Schedule 3.14 sets forth all of the
Subsidiaries of the Borrower at the date hereof.
3.15 Solvency. As of the date hereof and on the
occasion of any Borrowing, the Borrower is Solvent.
IV
Conditions
4.1 Effective Date. The obligations of the Lenders to
make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in
accordance with Section 9.2):
(a) The Administrative Agent 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 each Guarantor either (i) a counterpart of the
Subsidiary Guarantee signed on behalf of such 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 each
Guarantor has signed a counterpart of the Subsidiary
Guarantee.
(c) 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.
(d) 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.
(e) All governmental and third party approvals
necessary in connection with the Transactions and the
continuing operations of the Borrower and its Subsidiaries
shall have been obtained and be in full force and effect.
(f) 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.
(g) 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.
(h) All 364-Day Revolving Loans (as defined in
the LTF Credit Agreement) and 364-Day Competitive
Loans (as defined in the LTF Credit Agreement) shall have
been repaid in full and the 364-Day Commitments (as
defined in the LTF Credit Agreement) shall have been
contemporaneously permanently terminated and the
Administrative Agent shall have received satisfactory
evidence of such repayment and termination 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 15, 1997 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
4.2 Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
(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.
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:
5.1 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, 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, 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.
5.2 Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
(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.
5.3 Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of 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.
5.4 Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including
Tax liabilities, that, if not paid, could result in a Material Adverse
Effect before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good
faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make
payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
5.5 Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in
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.
5.6 Books and Records; Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its
business and activities. The Borrower will, and will cause each of
its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
5.7 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.
5.8 Use of Proceeds. The proceeds of the 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.
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:
6.1 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.
6.2 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.
(b) The Borrower will not, and will not permit any
of its Subsidiaries to, engage to any material extent in any business
other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and
businesses reasonably related or incidental thereto.
6.3 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) extensions of trade credit in the ordinary
course of business;
(iii) investments arising from the settlement of
debts or as a result of bankruptcy or insolvency proceedings
or as a result of enforcement proceedings;
(iv) investments of the Borrower and the
Subsidiaries existing on the date hereof;
(v) investments by the Borrower
existing on the date hereof in the capital stock of its
Subsidiaries;
(vi) 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;
(vii) Guarantees to the extent that the resulting
Debt would be permitted by Section 6.7;
(viii) 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 in
an aggregate amount not to exceed $400,000,000 over the
term of this Agreement; and
(ix) 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.
6.4 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.
6.5 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, the other related loan documents, the LTF
Credit Agreement and the loan documents related thereto; (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 (i) (insofar
as it relates to the LTF Credit Agreement and the documents
related thereto), (ii), (v), (vi) and (viii) above.
6.6 Fixed Charges Coverage. At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending January 3,
1998, 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.
6.7 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.
6.8 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; and
(f) conveyances, sales, leases, assignments, transfers
or other dispositions of assets from the Borrower to a
wholly owned Subsidiary, from a Subsidiary to the
Borrower or from a Subsidiary to a wholly owned
Subsidiary, provided that in each case any such wholly
owned Subsidiary to whom such assets are being conveyed,
sold, leased, assigned, transferred or otherwise disposed of
executes and delivers a guarantee of the Borrower's
obligations hereunder in favor of the Administrative Agent
in substantially the form of Exhibit C.
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.
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.
IX
Miscellaneous
9.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all
notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Borrower, to it at 2110 Executive Drive,
Salisbury, North Carolina 28145-1330, Attention of Richard
James, Treasurer/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) 270-5646); 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.
9.2 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.
(b) Neither this Agreement, the Subsidiary
Guarantee nor any guarantee executed and delivered pursuant to
Section 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.
9.3 Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including
the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications
or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or
any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection
with the enforcement or protection of its rights in connection with
this Agreement, 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).
(b) The Borrower shall indemnify the
Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any
Loan or the use of the proceeds therefrom, (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.
(c) 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.
(d) 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.
(e) All amounts due under this Section shall be
payable promptly after written demand therefor.
9.4 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the
Loans 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.
(c) The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its
offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, 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.
(d) 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.
(e) Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing
to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of
this Agreement; 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.
(f) 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.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any 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.
9.5 Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless
of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender
may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.13, 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.
9.6 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall
constitute a single contract. This Agreement and any separate letter
agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.1, this
Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery
of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
9.7 Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction.
9.8 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.
9.9 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District
Court 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.
(c) The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in
Section 9.1. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner
permitted by law.
9.10 WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
9.11 Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
9.12 Confidentiality. Each of the Administrative Agent
and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential),
(b) to the extent requested by any regulatory authority, (c) to the
extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) 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.
9.13 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: Laura Kendall
Name: Laura Kendall
Title: VP of Finance, CFO
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By: Ellen L. Gertzog
Name: Ellen L. Gertzog
Title: Vice President
WACHOVIA BANK, 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: Patrick A. Thom
Name: Patrick A. Thom
Title: Vice President & Director
By: Larry Kelley
Name: Larry Kelley
Title: Group Vice President
BANCA MONTE DEI PASCHI DI SIENA S.p.A.
By: G. Natali
Name: G. Natali
Title: S.V.P. & General Manager
By: Brian R. Landy
Name: Brian R. Landy
Title: Vice President
THE BANK OF NEW YORK
By: Paula Regan
Name: Paula Regan
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Atlanta Agency
By: William L. Otott Jr.
Name: William L. Otott Jr.
Title: Vice President
BARNETT BANK, N.A.
By: Scott M. Mesketh
Name: Scott M. Mesketh
Title: VP - US Banking
CORESTATES BANK, N.A.
By: Thomas J. McDonnell
Name: Thomas J. McDonnell
Title: Vice President
CRESTAR BANK
By: James P. Duval Jr.
Name: James P. Duval Jr.
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
Atlanta Agency
By: Takao Mochizuki
Name: Takao Mochizuki
Title: General Manager
FIRST AMERICAN NATIONAL BANK
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: Christina Zautoke
Name: Christina Zautoke
Title: Vice President
THE FIRST NATIONAL BANK OF
MARYLAND
By: Robert M. Beaver
Name: Robert M. Beaver
Title: Vice President
THE FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: J. Michael Blackwell
Name: J. Michael Blackwell
Title: Sr. Vice President
FUJI BANK, LIMITED, Atlanta Agency
By: Mr. Shinichiro Fujimoto
Name: Mr. Shinichiro Fujimoto
Title: Senior Vice President and Joint General Manager
GENERALE BANK N.V., New York Branch
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: Koichi Hasegawa
Name: Koichi Hasegawa
Title: Senior Vice President and Deputy General Manager
KREDIETBANK N.V., Grand Cayman Branch
By: Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: Raymond F. Murray
Name: Raymond F. Murray
Title: Vice President
NATIONSBANK, N.A.
By: Mark D. Halmrast
Name: Mark D. Halmrast
Title: Vice President
THE SAKURA BANK, LIMITED, Atlanta
Agency
By: Hiroyasu Imanishi
Name: Hiroyasu Imanishi
Title: V.P. & Senior Manager
THE SUMITOMO BANK, LIMITED
By: Masyuki Fukushima
Name: Masayuki Fukushima
Title: Joint General Manager
SUNTRUST BANK, Atlanta
By: Frank R. Callison
Name: Frank R. Callison
Title: Vice President
By: Brian Willman
Name: Brian Willman
Title: Banking Officer
SCHEDULE 2.1
LENDERS AND COMMITMENTS
Lenders 364-Day
Commitment
The Chase Manhattan Bank $26,000,000
Wachovia Bank, N.A. $22,000,000
ABN AMRO Bank N.V., Atlanta Agency $17,000,000
Banca Monte dei Paschi di Siena S.p.A. $11,500,000
The Bank of New York $11,500,000
The Bank of Tokyo-Mitsubishi,
Ltd., Atlanta Agency $17,000,000
Barnett Bank, N.A. $17,000,000
CoreStates Bank, N.A. $11,500,000
Crestar Bank $11,500,000
The Dai-Ichi Kangyo Bank, Limited,
Atlanta Agency $17,000,000
First American National Bank $11,500,000
The First National Bank of Chicago $20,000,000
First National Bank of Maryland $11,500,000
The First Tennessee Bank National Association $11,500,000
The Fuji Bank, Limited, Atlanta Agency $17,000,000
Generale Bank N.V., New York Branch $20,000,000
The Industrial Bank of Japan, Limited,
Atlanta Agency $11,500,000
Kredietbank N.V., Grand Cayman Branch $17,000,000
NationsBank, N.A. $17,000,000
The Sakura Bank, Limited, Atlanta Agency $17,000,000
The Sumitomo Bank, Limited $17,000,000
SunTrust Bank, Atlanta $17,000,000
TOTAL $350,000,000
Schedule 3.6
Incorporated herein by reference is Part I, Item
3 of the Form 10-K of the Borrower for the Fiscal Year
ended December 28, 1996, and Part II,Item 1 of the
Forms 10-Qs of the Borrower for the Fiscal Quarters
ended March 22, 1997, June 14, 1997 and September 6,
1997.
Schedule 3.14
SUBSIDIARIES OF BORROWER
FLI Holding Corp., a Delaware corporation ("FLI"), and
a wholly-owned subsidiary of the Borrower.
Risk Management Service, Inc., a North Carolina
corporation, and a wholly-owned subsidiary of the
Borrower.
Kash n' Karry Food Stores, Inc., a Delaware
corporation, and a wholly-owned subsidiary of FLI.
FL Food Lion, Inc., a Florida corporation, and a
wholly-owned subsidiary of FLI.
**Check status of business trust--i.e. are they still
in existence and held by KnK:
KNK 702 Delaware Business Trust, a Delaware
business trust wholly owned by Target
KNK 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
Liens representing the interest of the
Lessor under Capitalized Leases in existence
on the date of this Agreement have an
aggregate outstanding principal amount not
exceeding $515,430,000. Kash N' Karry has
Liens encumbering certain real property
listed on Annex A hereto.
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 3092 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 15 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 Alachua
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 7232 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)
AA2 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.
ANNEX B
DATE
DEBTOR*
SECURED PARTY*
FILING LOCATION
GENERAL CATEGORY OF COLLATERAL
10/13/89
Kash N' Karry Food
Stores, Inc.
Security Pacific National
Bank
Hillsborough
County, FL
First Mortgage,
Security Agreement
Financing
Statement and
Assignment
of Rents
10/11/95
Kash N' Karry Food
Stores, Inc.
Bank of America National
Trust and Savings Association
Hillsborough
County, FL
Continuation and
Amendment
10/15/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
02/04/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
06/09/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
07/02/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
07/07/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
07/27/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
08/31/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
10/26/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
11/23/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
01/11/93
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
06/03/93
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
04/19/94
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
Amendment --
equipment
05/29/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment --
continuation
DATE
DEBTOR*
SECURED PARTY
FILING LOCATION
GENERAL CATEGORY OF
COLLATERAL
11/13/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
06/12/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Continuation
12/19/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
07/16/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Continuation
01/17/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
08/16/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Continuation
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
01/17/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
08/16/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Continuation
01/16/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
DATE
DEBTOR*
SECURED PARTY
FILING LOCATION
GENERAL CATEGORY OF
COLLATERAL
08/16/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Continuation
12/22/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Hillsborough
County, FL
equipment
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
01/04/93
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Hillsborough
County, FL
equipment
01/12/93
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Hillsborough
County, FL
equipment
03/04/93
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Hillsborough
County, FL
equipment
01/17/95
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Hillsborough
County, FL
real estate and
fixtures
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
05/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Hillsborough
County, FL
Amendment - name
change
07/02/96
Kash N' Karry Food
Stores, Inc.
MDFC Equipment Leasing
Corporation
Hillsborough
County, FL
real estate, fixture
& equipment
01/10/90
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Florida Sec. of
State
equipment
11/17/94
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
11/06/92
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
01/19/90
Kash N' Karry Food
Stores, Inc.
Chrystler Capital Corporation
Florida Sec. of
State
equipment
11/10/94
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
11/06/92
Kash N' Karry Food
Stores, Inc.
Chrystler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
01/08/90
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Florida Sec. of
State
equipment
11/17/94
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
11/12/92
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
01/09/91
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Florida Sec. of
State
equipment
7/13/95
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
DATE
DEBTOR*
SECURED PARTY
FILING LOCATION
GENERAL CATEGORY OF
COLLATERAL
11/06/92
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
01/09/91
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Florida Sec. of
State
equipment
07/13/95
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
11/06/95
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
06/03/91
Kash N' Karry Food
Stores, Inc.
Ford Equipment Leasing
Company
Florida Sec. of
State
equipment
12/14/95
Kash N' Karry Food
Stores, Inc.
Ford Equipment Leasing
Company
Florida Sec. of
State
Continuation
06/03/91
Kash N' Karry Food
Stores, Inc.
Ford Equipment Leasing
Company
Florida Sec. of
State
equipment,
furniture, fixtures
& leashold
improvements
12/14/95
Kash N' Karry Food
Stores, Inc.
Ford Equipment Leasing
Company
Florida Sec. of
State
Continuation
10/14/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
06/11/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Continuation
05/08/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
04/20/94
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
06/04/93
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
01/14/93
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
11/23/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
10/26/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
08/31/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
07/27/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
07/08/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
DATE
DEBTOR*
SECURED PARTY
FILING LOCATION
GENERAL CATEGORY OF
COLLATERAL
07/02/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
06/10/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
02/03/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
11/27/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
06/11/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Continuation
05/08/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
12/20/91
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
07/16/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Continuation
05/07/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
01/16/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
08/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Continuation
05/07/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
01/09/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
08/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Continuation
05/08/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
DATE
DEBTOR*
SECURED PARTY
FILING LOCATION
GENERAL CATEGORY OF
COLLATERAL
05/19/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Amendment -
equipment
01/27/92
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
equipment
08/09/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, Incorporated
Florida Sec. of
State
Continuation
05/08/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation
Florida Sec. of
State
Amendment - name
change
01/30/92
Kash N' Karry Food
Stores, Inc.
NCC Leasing, Inc.
Florida Sec. of
State
equipment
12/30/92
Kash N' Karry Food
Stores, Inc.
NCC Leasing, Inc.
Florida Sec. of
State
Release
11/13/90
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
equipment
05/15/95
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
04/03/96
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
Florida Sec. of
State
equipment
01/17/92
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
06/25/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
08/05/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing
Florida Sec. of
State
equipment
09/17/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
09/17/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
09/17/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
09/17/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
12/14/92
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
12/14/92
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
12/14/92
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
01/07/93
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
01/12/93
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
02/23/94
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
12/24/91
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
03/27/92
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
06/25/92
Kash N' Karry Food
Stores, Inc.
IBM Credit Corporation
Florida Sec. of
State
equipment
01/24/91
Kash N' Karry Food
Stores, Inc.
L'eggs Products, a division
of Sara Lee Corporation
Florida Sec. of
State
goods and inventory
11/02/95
Kash N' Karry Food
Stores, Inc.
L'eggs Products, a division
of Sara Lee Corporation
Florida Sec. of
State
goods and inventory
01/04/89
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
equipment
12/10/93
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
02/14/89
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Amendment -
equipment
01/04/89
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
equipment
12/10/93
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
09/12/89
Kash N' Karry Food
Stores, Inc.
Sun Life Insurance Company of
America, a Maryland
corporation
Florida Sec. of
State
tangible and
intangible property
re: real estate
[BAD
COPY]
Kash N' Karry Food
Stores, Inc.
[BAD COPY]
(94-183277)
Florida Sec. of
State
real estate
12/19/94
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Continuation
11/06/92
Kash N' Karry Food
Stores, Inc.
Chrysler Capital Corporation
Assignee: General Electric
Capital Corporation
Florida Sec. of
State
Full Assignment
01/08/90
Kash N' Karry Food
Stores, Inc.
MDFC Equipment Leasing
Corporation
Florida Sec. of
State
equipment
09/07/94
Kash N' Karry Food
Stores, Inc.
MDFC Equipment Leasing
Corporation
Florida Sec. of
State
Continuation
11/03/92
Kash N' Karry Food
Stores, Inc.
Save and Pack, Inc.
Florida Sec. of
State
equipment
03/22/93
Kash N' Karry Food
Stores, Inc.
AT&T Capital Corporation
Florida Sec. of
State
equipment
03/24/93
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
furniture, fixture
and equipment and
real property
03/24/93
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
equipment
09/20/93
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
Amendment -
equipment
07/06/93
Kash N' Karry Food
Stores, Inc.
Sun Financial Group, Inc.
Florida Sec. of
State
equipment
08/05/93
Kash N' Karry Food
Stores, Inc.
Sun Financial Group, Inc.
Florida Sec. of
State
equipment
01/18/94
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing
Corp.)
Florida Sec. of
State
equipment
08/18/94
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
(Assignee: Continental
Bank, N.A.)
Florida Sec. of
State
equipment
08/18/94
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
(Assignee: Continental
Bank, N.A.)
Florida Sec. of
State
equipment
08/18/94
Kash N' Karry Food
Stores, Inc.
Sensormatic Electronics Corp.
(Assignee: Continental
Bank, N.A.)
Florida Sec. of
State
equipment
01/13/95
Kash N' Karry Food
Stores, Inc.
General Electric Capital
Corporation
Florida Sec. of
State
equipment
01/04/96
Kash N' Karry Food
Stores, Inc.
Sanwa General Equipment
Leasing, a Division of Sanwa
Business Credit Corporation
Florida Sec. of
State
equipment
04/01/96
Kash N' Karry Food
Stores, Inc.
Xerographies Corporation
Florida Sec. of
State
equipment
04/26/93
Kash N' Karry Food
Stores, Inc.
Sun Financial Group, Inc.
Florida Sec. of
State
equipment
03/07/94
Kash N' Karry Food
Stores, Inc.
Sun Financial Group, Inc.
Florida Sec. of
State
equipment
07/02/94
Kash N' Karry Food
Stores, Inc.
MDFC Equipment Leasing
Corporation
Florida Sec. of
State
equipment
06/19/96
Kash N' Karry Food
Stores, Inc.
AT&T Capital Leasing
Florida Sec. of
State
equipment
05/04/94
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing )
Florida Sec. of
State
equipment
01/20/93
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
04/28/93
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
04/28/93
Kash N' Karry Food
Stores, Inc.
GTECC (Assignee: GTE
Leasing)
Florida Sec. of
State
equipment
06/28/93
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
06/25/92
Kash N' Karry Food
Stores, Inc.
GTE Communications Corp.
(Assignee: GTE Leasing)
Florida Sec. of
State
equipment
* As indicated on UCC filing.
Exhibit A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as
of December 15, 1997 (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, 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:
(a) 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.
(b) 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).
(c) 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 Section 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 Section 2.15(e) of the
Credit Agreement.
(d) 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).
(e) 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.
(f) 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.
(g) 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
Facility Assigned
Principal
Amount Assigned
Commitment Percentage Assigned /
$
. %
[Name of Assignee]
By:
Title:
[Name of Assignor]
By:
Title:
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
Title:
Consented To:
FOOD LION, INC.
By:
Title:
Exhibit B
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
ATTORNEYS AT LAW
1700 PACIFIC AVENUE
SUITE 4100
DALLAS, TEXAS 75201-4675
(214) 969-2800
TELEX 732324
FAX (214) 969-4343
December 15, 1997
The Chase Manhattan Bank, as
Administrative Agent
270 Park Avenue
New York, New York 10017
Each of the Lenders named on Annex A
Dear Sirs:
We have acted as counsel for Food Lion,
Inc., a North Carolina corporation (the
"Borrower"), in connection with the Credit
Agreement, dated as of December 15, 1997(the
"Credit Agreement"), among the Borrower, the
Lender party thereto(the "Lenders"), The
Chase Manhattan Bank ("Chase"), as
Administrative Agent, and Wachovia Bank of
North Carolina, N.A. ("Wachovia"), as
Documentation Agent, and as counsel for Kash
n' Karry Food Stores, Inc., a Delaware
Corporation (the "Guarantor"), in connection
with the Subsidiary Guarantee, dated as of
December 15, 1997 (the "Subsidiary Guarantee"
made by the Guarantor in favor of the
Administrative Agent.
The opinions expressed here are
furnished to you pursuant to Subsection
4.1(c) of the Credit Agreement. Unless
otherwise defined herein, terms defined in
the Credit Agreement and used herein shall
have the meanings given in the Credit
Agreement.
In connection with this opinion, we have
examined originals, or copies certified or
otherwise identified to our satisfaction, of
the Credit Agreement and the Subsidiary
Guarantee, (the Credit Agreement and the
Subsidiary Agreement being collectively
called the "Loan Documents"), the certificate
referred to in Subsection 4.1(f) of the
Credit Agreement, the Credit Agreement dated
as of December 15, 1996, among the Borrower,
the lenders party thereto, Chase, as
administrative agent thereunder, and
Wachovia, as documentation agent
thereunder,as amended by the First Amendment
dates as of December 15, 1997 (as so amended,
the "LTF Credit Agreement") and such
corporate documents and records of the
Borrower and the Guarantor as we have deemed
necessary or appropriate. As to questions of
fact relevant to this opinion, we have,
without independent investigation, relied
upon representations made to us by the
Borrower and the Guarantor, including the
representations contained in the Loan
Documents, in the LTF Credit Agreement and in
various certificates delivered by the
Borrower, including, but not limited to,
certificates presented to the Lenders, the
Administrative Agent and the Documentation
Agent, and certain representations of public
officials, all of which we assume to be true.
In our examination, we have assumed (i) the
genuineness of all signatures of all parties
other than signatures of the Borrower, and
the Guarantor; (ii) the authenticity of all
corporate records, agreements, documents,
instruments and certificates submitted to us
as originals, the conformity to original
agreements, documents and instruments of all
agreements and instuments submitted to us as
conformed, certified or photostatic copies
thereof and the authenticity of the originals
of such conformed, certified or photostatic
copies; (iii) the due authorization,
execution and delivery of all agreements,
documents and instruments by all parties
other than the Borrower and the Guarantor;
and (iv) the legal right and power of all
such parties other than the Borrower and the
Guarantor under all
December 15, 1996
Page 2
applicable laws and regulations to enter
into, execute and deliver such agreements,
documents and instruments. We have further
assumed that the Lenders, the Administrative
Agent and the Documentation Agent have the
requisite power and authority to enter into
the Loan Documents and to consummate the
transactions contemplated thereby and the
absence of any requirement of consent,
approval or authorization by any Person or by
any governmental body, agency or official
with respect to the Lenders, the
Administrative Agent and the Documentation
Agent and that the Loan Documents are legal,
valid and binding obligations of the Lenders,
the Administrative Agent and the
Documentation Agent enforceable against such
Persons in accordance with their respective
terms.
This law firm is registered limited
liability partnership organized under the
laws of the State of Texas. We express no
opinion as to the laws of any jurisdiction
other than the laws of the State of New York,
the United States of America, the General
Corporation Law of the State of Delaware and
The North Carolina Business Corporation Act.
As to matters governed by the laws of the
State of North Carolina, we are relying upon
an opinion of George R. Jurch III, Esq. of
even date herewith, a copy of which is
attached hereto. The opinions expressed in
paragraphs 1(b) and 2(b) below are based
solely upon our review of certain
certificates of public officials of various
jurisdictions and are not based upon any
examination of the laws of any such
jurisdiction.
Upon the basis of the foregoing, we are
of the opinion that:
1. The Borrower (a) is duly
incorporated, validly existing and in
good standing under the laws of North
Carolina and has all requisite
corporate power and authority, to
carry on its business as now
conducted and (b) is qualified to do
business in, and is in good standing
in each, jurisdiction listed on
Schedule I attached hereto.
2. The Guarantor (a) is duly
incorporated, validly existing and in
good standing under the laws of
Delaware and has all requisite
corporate power and authority to
carry on its business as now
conducted and (b) is qualified to do
business in, and is in good standing
in, each jurisdiction listed on
Schedule II attached hereto.
3. The Transactions to be effected on
the date hereof 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.
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.
5. To our knowledge, neither the
Transactions to be effected on the
date hereof nor the execution,
delivery and performance of the
Subsidiary Guarantee (a) require any
consent or approval of, registration
or filing with, or any other action
by, any Federal, New York, Delaware
or North Carolina Governmental
Authority, except for consents,
approvals, registrations, filings or
other actions as have been obtained,
made or waived and are in full force
and effect and which are not required
to have been effected prior to the
date hereof, (b) will violate any
applicable Federal, New York,
Delaware corporate or North Carolina
corporate 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 Federal or New
York 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 have a
Material Adverse Effect, or (d) give
rise
December 15, 1996
Page 3
under any indenture, agreement or
other instrument binding upon the
Borrower or any of its Subsidiaries
to any requirement for any payment
be made by the Borrower or any of its
Subsidiaries, or (e) will result sin
the creation or imposition of any
Lien on any asset of the Borrower or
any of its Subsidiaries.
6. To our knowledge, there are no
actions, suits or proceedings by or
before any arbitrator or Governmental
Authority pending against or
threatened against 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 or the
Transactions to be effected on the
date hereof.
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 (by
a "holding company" as defined in, or
subject to regulation under, the
Public Utility Holding Company Act of
1935.
The foregoing opinions are subject to
the exceptions, limitations and
qualifications contained herein,
including the following:
A. The enforceability of the Loan
Documents may be (a) limited by
applicable bankruptcy, insolvency,
reorganization, arrangement,
moratorium, fraudulent conveyance or
transfer and other similar laws
affecting creditors' rights. (b)
subject to general principles of
equity (regardless of whether
considered n a proceeding in equity
or at law), commercial reasonableness
and good faith, and (c) limited by
the power of courts to award damages
in lieu of equitable remedies. In
addition, the right to
indemnification contained in the Loan
Documents may be limited by Federal
or New York state laws or the
policies of such laws.
B. We express no opinion as to
enforceability of any provisions (i)
purporting to vest jurisdiction on
any property of the Borrower or the
Guarantor in the Supreme Court of the
State of New York sitting in New York
County or the United States District
Court of the Southern District of New
York to the extent that such property
is not situated in New York, New
York, (ii) purporting to waive or
restrict access to legal or equitable
remedies (including venue, forum non
conveniens or the right to assert a
setoff) or the right to collect
damages (including venue, forum non
conveniens or the right to assert a
setoff) or the right to collect
damages (including special, indirect,
consequential or punitive damages.)
(iii) preserving and maintaining a
guarantor's liability despite the
fact that the Lenders have willfully
released the primary obligor's
liability or the guaranteed
indebtedness is unenforceable due to
illegality, (iv) prohibiting oral
amendments or waivers of provisions
of the Loan Documents, (v)
establishing evidentiary standards or
(vi) permitting a Lender to set off
against any debtor's accounts any
amounts belonging to a third party or
otherwise held in a fiduciary
capacity.
C. When used in this opinion, the
phrase "to our knowledge" means known
to attorneys in our firm who have
rendered services to the Borrower or
the Guarantor in connection with the
Transactions
December 15, 1996
Page 4
This opinion is as of the date
hereof, and we undertake no, and hereby
disclaim any, obligation to advise you of any
change in any matter set forth herein,
whether based on a change in the law, a
change in any fact relating to the Borrower,
the Guarantor or any other Person or any
other circumstance. This opinion is
delivered to you in connection with the
transactions referenced above and may be
relied upon only by you, any permitted
assignee of an assigning Lender or
Participant under the Credit Agreement, and
Simpson Thacher & Bartlett in connection with
such transaction any may not be relied upon
in a manner or for any purpose by any other
person without our prior written consent.
Very truly yours,
AKIN , GUMP,
STRAUSS, HAUER & FELD, L.L.P.
ANNEX A
LENDERS
The Chase Manhattan Bank
Wachovia Bank of North Carolina, N.A.
ABN AMRO Bank N.V., Atlanta Agency
Banca Monte dei Paschi di Siena S.p.A.
The Bank of New York
The Bank of Tokyo-Mitsubishi, Ltd., Atlanta
Agency
Barnett Bank, N.A.
CoreStates Bank, N.A.
Crestar Bank, N.A.
The Dai-Ichi Kangyo Bank, Limited, Atlanta
Agency
First American National Bank
The First National Bank of Chicago
Fuji Bank, Limited, Atlanta Agency
Generale Bank N.V., New York Branch
Hibernia National Bank
The Industrial Bank of Japan, Limited
Kredietbank N.V., Grand Cayman Branch
NationsBank, N.A.
The Sakura Bank, Limited, Atlanta Agency
The Sumitomo Bank, Limited
SunTrust Bank, Atlanta
The Tokai Bank Ltd., Atlanta Agency
The Yasuda Trust and Banking Company Limited,
New York Branch
SCHEDULE 1
Delaware
Cerificate of Secretary of State of
the State of Delaware dated December
5, 1997
Florida
Certificate of Secretary of State of
the State of Florida dated December
8, 1997
Georgia
Certificate of Secretary of State of
the State of Georgia dated December
8, 1997
Kentucky
Certificate of Secretary of State of
the Commonwealth of Kentucky dated
December 8, 1997
Louisiana
Certificate of Secretary of State of
the State of Louisiana dated
December 5, 1997
Maryland
Cerificate of State Department of
Assessments and Taxes of the State
of Maryland dated December 9, 1997
North Carolina
Certificate of Existence of
Secretary of State of the State of
North Carolina dated December 8,
1997
Oklahoma
Certificate of Secretary of State of
the State of Oklahoma dated December
9, 1997; Certificate of Oklahoma Tax
Commission dated December 9, 1997
Pennsylvania
Certificate of Department of State
of the Commonwealth of Pennsylvania
dated December 4, 1997
South Carolina
Certificate of Secretary of State of
the State of South Carolina dated
December 8, 1997
Tennessee
Cerificate of the Secretary of State
of the State of Tennessee dated
December 8, 1997
Texas
Certificate of Secretary of State of
the State of Texas dated December 4,
1997; Certificate of Comptroller of
Public Accounts of the State of
Texas on December 4, 1997
West Virginia
Certificate of Secretary of State of
the State of West Virginia dated
December 8, 1997
SCHEDULE II
Delaware
Certificate of Secretary of State of
the State of Delaware dated Decmeber
9, 1997
Florida
Certificate of Secretary of State of
the State of Florida dated December
5, 1997
December 15, 1997
The Chase Manhattan Bank Akin,Gump, Strauss, Hauer & Feld. L.L.P.
as Administrative Agent 1333 New Hampshire Avenue, N.W.
270 Park Avenue Suite 400
New York, NY 10017 Washington, DC 20036
Each of the Lenders named on Annex A
Dear Sirs:
I have acted as North Carolina counsel
for Food Lion, Inc., a North Carolina
corporation (the "Borrower"), in connection
with the Credit Agreement, dated as of
December 15, 1997 (the "Credit Agreement),
among the Borrower, the Lenders party thereto
(the "Lenders"), The Chase Manhattan Bank
("Chase), as Administrative Agent, and
Wachovia Bank, N.A. ("Wachovia"), 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
15, 1997 (the "Subsidiary Guarantee") made by
the Guarantor in favor of the Administrative
Agent.
The opinions expressed here are
furnished to Akin, Gump, Strauss, Hauer &
Feld, L.L.P. in connection with its opinion
required pursuant to Subsection 4.1(c) of the
Credit Agreement. Unless otherwise defined
herein, terms defined in the Credit Agreement
and used herein shall have the meaning given
in the Credit Agreement.
In connection with this opinion, I have
examined originals, or copies certified or
otherwise identified to my satisfaction, of
the Credit Agreement and the Subsidiary
Guarantee, (the Credit Agreement and the
Subsidiary Guarantee being collectively
called the "Loan Documents"), the certificate
referred to in Subsection 4.1(f) of the
Credit Agreement, the Credit Agreement dated
as of December 15, 1996, among the Borrower,
the lenders party thereto, Chase as
administrative agent thereunder, and
Wachovia, as documentation agent thereunder,
as amended by the First Amendment dated as of
December 15, 1997 (as so amended, the "LTF
Credit Agreement") and such corporate
documents and records of the Borrower as I
have deemed necessary or appropriate. As to
questions of fact relevant to this opinion, I
have, without independent investigation,
relied upon representations made to me by the
Borrower, including the representations
contained in the Loan Documents, in the LTF
Credit Agreement and in various certificates
delivered by the Borrower, including, but not
limited to, certificates presented to the
Lenders, the Administrative Agent and the
Documentation Agent, and certain
representations of public officials, all of
which I assume to be true. In my
examination, I have assumed (I) the
genuineness of all signatures of all parties
other than signatures of the Borrower and the
Guarantor, (ii) the authenticity of all
corporate records, agreements, documents,
instruments and certificates submitted to me
as originals, the conformity to original
agreements, documents and instruments of all
agreements and instruments submitted to me as
conformed, certified or photostatic copies
thereof and the authenticity of the originals
of such conformed, certified or photostatic
copies; (iii) the due authorization,
execution and delivery of all agreements,
documents and instruments by all parties
other than the Borrower and the Guarantor;
and (iv)the legal right and power of all such
parties other than the Borrower and the
Guarantor under all applicable laws and
regulations to enter into, execute and
deliver such agreements, documents and
instruments.
I am a member of the bar of the State of
North Carolina. I express no opinion as to
any laws other than The North Carolina
Business Corporation Act.
Upon the basis of the foregoing, I am of
the opinion that:
1. The Borrower is duly incorporated,
validly existing and in good standing
under the laws of North Carolina and
has all requisite corporate power and
authority to carry on its business as
now conducted.
2. The Transactions to be effected on
the date hereof are within the
Borrower's corporate powers and have
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.
3. To my knowledge, neither the
Transactions to be effected on the
date hereof nor the execution,
delivery and performance of
Subsidiary Guarantee (a) requires any
consent or approval of, registration
or filing with, or any other action
by, North Carolina Governmental
Authority, except for consents,
approvals, registrations, filings or
other actions as have been obtained,
made or waived and are in full force
and effect or (b) will violate any
applicable North Carolina corporate
law or regulation or the charter,
bylaws or other organizational
documents of the Borrower.
In rendering the opinion set forth in
Paragraph 3, based on my knowledge, I have,
with your permission, advised you only as to
such knowledge as I have obtained from my
investigation described above.
This opinion is as of the date hereof,
and I undertake no, and hereby disclaim any,
obligation to advise you of any change n any
matter set forth herein, whether based on a
change in the law, a change in any fact
relating to the Borrower or any other Person
or any other circumstance. I understand that
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
will rely on this opinion as to matters of
North Carolina corporate law in connection
with the opinion required to be delivered by
such law firm pursuant to the Credit
Agreement, and I consent to such reliance.
This opinion is delivered to you in
connection with the transactions referenced
above and may be relied upon only by you, any
permitted assignee of an assigning Lender or
Participant under the Credit Agreement, and
Simpson, Thacher & Bartlett in connection
with such transaction and may not otherwise
be relied upon in any manner or for any
purpose by any other person without my prior
written consent.
Very truly
yours,
George R. Jurch III
N.C. State Bar
No. 20247
EXHIBIT C
FORM OF SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of December 15,
1997, made by KASH N' KARRY FOOD STORES, INC., 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 15, 1997 (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, N.A., 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 adversal 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, (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 (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 Section 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.
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.
KASH N' KARRY FOOD STORES,INC.
By: ____________
Title:
Address for Notices:
Attention:
Fax:
Deferral Agreement and Election
The parties hereto desire to provide for the deferral
of certain compensation payable to Tom E. Smith (the
"Executive") by Food Lion, Inc.
Pursuant to the terms of this agreement (the
"Agreement"), the Executive hereby elects to defer a portion
of his annual compensation in connection with the
performance of the Executive's services as an employee of
the Company for each calendar year, including 1997, in the
amount (the "Annual Deferral Amount") that is necessary each
calendar year to prevent the Executive from being
compensated in excess of the $1,000,000 cap on non-
performance-based compensation set forth in section 162(m)
of the Internal Revenue Code of 1986, as amended (the
"Code") and the regulations thereunder. This election shall
be irrevocable and shall last until the earliest of (i) the
termination of Executive's employment with the Company, (ii)
retirement (at either early or normal retirement age
pursuant to the Company's pension plan), (iii) death or (iv)
total disability (as defined in the Company's long term
disability plan).
The sum of all Annual Deferral Amounts plus earnings
(collectively referred to as the "Benefits") shall be
payable to the Executive at the earliest of: his retirement
from the Company, his total disability, death, or
termination of employment for any reason.
The Annual Deferral Amount shall be recorded each year
by the Company in a deferral compensation account (the
"Account") maintained in the name of the Executive. The
Account shall be credited on each date that any portion of
the Annual Deferral Amount would be otherwise payable, in
accordance with the Company's normal practices. The Company
shall furnish the Executive with an annual statement of his
Account. The Company shall also credit interest or other
earnings on all amounts in the Account from the date
received until final distribution of the Account to the
Executive or his beneficiary or estate, as the case may be.
All amounts credited to the Account shall be credited with
interest at a rate equal to 10 percentage points per annum.
Payment of the Benefits shall be in one lump-sum;
provided, however, that the Executive may elect to receive
his Benefits in annual installments over five, ten or
fifteen years (the "Payment Election"). For a Payment
Election to be effective, it must be made at least twelve
months prior to the time when payment of Benefits is due.
If the Executive makes a Payment Election revoking an
earlier Payment Election, the earlier Payment Election will
remain in effect until twelve months have passed since the
Executive has made the later Payment Election. Once the
Benefits are payable, no change in Payment Election may be
made. In the event of the Executive's death prior to
complete distribution to him of the entire balance of his
Account, the balance of his Account on the date of his
death, shall be payable to the Executive's designated
beneficiary in one lump sum, and if no such designation is
in existence, to the Executive's spouse and if the Executive
does not have a spouse on the date of his death, to the
Executive's estate.
The right of the Executive or his designated
beneficiary to receive a distribution shall be an unsecured
claim against the general assets of the Company. All
amounts credited to the Account shall constitute general
assets of the Company and may be disposed of by the Company
at such time and for such purposes as it may deem
appropriate. An Account may not be encumbered or assigned
by the Executive or any beneficiary. The Company may
establish a grantor trust to fund amounts payable pursuant
to this Agreement. The amounts in said trust will be held
separate and apart from other Company funds and shall be
used exclusively for the purposes set forth in this
Agreement and the applicable trust agreement. The creation
of said trust shall not cause this Agreement to be
considered other than "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974, as amended.
The Executive acknowledges that any payroll taxes (FICA
and Medicare) due and owing with respect to any amounts
deferred hereunder are the Executive's responsibility for
payment. The Company's payroll department shall consult
with the Executive regarding any applicable payroll taxes
owed and procedures to be implemented to effectuate the
above-described deferral.
Food Lion, Inc.
By: R.William McCanless
Date:December 18, 1997
Agreed to:
Tom E.Smith
Date: December 18, 1997
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made this 1st day of October,
1997, between FOOD LION, INC., a North Carolina corporation with
its principal place of business in Salisbury, North Carolina (the
"Company"), and PAMELA K. KOHN, an individual residing at 107
Tremont Drive, Salisbury, North Carolina 28144 ("Employee"),
W I T N E S S E T H:
WHEREAS, Employee is currently employed by the Company as
its Senior Vice President of Merchandising;
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 Employee;
WHEREAS, the Board of Directors recognizes that Employee has
made substantial contributions to the growth and success of the
Company and desires to provide for the continuing employment of
Employee and to encourage the continued dedication and attention
of Employee to the Company;
WHEREAS, Employee is willing to continue to serve the
Company; and
WHEREAS, the Company and Employee desire to enter into this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises, and the
mutual agreements herein contained, the Company and Employee
hereby agree as follows:
1. Continue to Employ. The Company hereby agrees to
continue to employ Employee as Senior Vice President of
Merchandising of the Company for the Term of Employment as herein
set forth, and Employee hereby agrees to continue to serve the
Company as Senior Vice President of Merchandising 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, Employee shall devote her full professional time to
the business of the Company, shall use her best efforts to
promote the interests of the Company and shall serve as Senior
Vice President of Merchandising 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. Employee 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 Employee's
services hereunder and for her covenants set forth in Sections
10, 11, and 12 below, the Company shall pay to Employee a base
salary which shall not be less than Two Hundred Eight Thousand
Five Hundred Fifty-Six Dollars ($208,556) 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 Employee 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 Employee 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, Employee 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. Employee may elect to
defer some or all of her bonus compensation and up to
fifty percent (50%) of her base salary payable to her
pursuant to this Employment Agreement. Any deferral of
bonus compensation shall be irrevocable and must be
requested by Employee 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 Employee 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 Employee prior to the
start of such fiscal year.
(ii) Bookkeeping Account and Grantor Trust.
Any amounts deferred by Employee 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
Employee. In connection with the deferral election,
Employee shall have the right to specify the
investments in which her bookkeeping account shall be
deemed invested; provided, however, the Company shall
be under no obligation to purchase any such investments
chosen by Employee. Employee'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 Employee selects results in a loss to the
bookkeeping account, the Company will have no
obligation to compensate Employee 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 Employee shall be
specified in her initial deferral election and may not
be subsequently changed by Employee 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
Employee's deferral election, all amounts will be paid
to Employee within thirty (30) days following a
termination of this Employment Agreement for any reason
specified in Sections 7(c) or 7(e).
6. Benefits. Employee 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 Employee 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 Employee a life insurance
policy subject to a split dollar arrangement in the face amount
of three and one-half (3.5) times Employee's base salary if her
death occurs prior to her retirement (provided her retirement is
on terms consistent with the terms of the life insurance policy
and any split dollar arrangements between Employee and the
Company relating thereto) and two (2) times Employee's last base
salary if her death occurs after any such retirement. Employee
shall be the owner of such policy with the authority to designate
the beneficiary thereof.
7. Termination. Termination of Employee's employment
under any of the following circumstances shall not constitute a
breach of this Employment Agreement:
(a) Death. Termination upon the death of Employee.
(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 her material duties hereunder and her inability or
unwillingness to correct such failure within thirty (30) days
after receipt of such notice, (ii) conviction of Employee 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 Employee in good faith
with respect to the Company's business.
(c) Good Reason. Termination by Employee 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 Employee, (ii)
assignment of inappropriate duties to Employee, (iii) failure of
the Company to comply with compensation and benefits obligations
to Employee, (iv) transfer of Employee 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
Employee 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 Employee to terminate her employment under
this Section 7(c) hereof shall not be deemed a voluntary
termination of employment by Employee for the purpose of this
Employment Agreement or any plan, arrangement or program of the
Company.
(d) Disability. Termination by the Company or
Employee upon Disability of Employee. 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)
Employee shall not have returned to the performance of her duties
hereunder on a full-time basis during such 180-day period. For
purposes of this Employment Agreement, "Disability" shall mean
Employee'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 Employee examined at such reasonable times by such
physicians satisfactory to Employee as the Company may designate,
and Employee will make herself available for and submit to such
examination as and when requested. Except as otherwise provided
in this Section 7(d), the inability of Employee to perform her
duties hereunder, whether by reason of injury, illness (physical
or mental), or otherwise shall not result in the termination of
Employee's employment hereunder, and she shall be entitled to
continue to receive her 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 Employee's employment by the Company or by Employee (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
Employee's employment under the provision so indicated.
"Date of Termination" shall mean (i) if Employee's
employment is terminated by her death, the date of her death, and
(ii) if Employee'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 Employee as follows:
(a) Death. If Employee's employment is terminated as
a result of her death, as specified in Section 7(a), the Company
shall pay Employee's beneficiary the benefit called for under her
Salary Continuation Agreement with the Company. Employee'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 Employee's employment is
terminated by the Company or Employee as a result of her
disability as specified in Section 7(d), then the Company shall
pay Employee her full compensation until the Date of Termination.
Within thirty (30) days after the termination of her employment,
the Company shall pay Employee a lump sum payment equal to fifty
percent (50%) of the present value of the future base salary
payable to Employee during the remainder of her 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 Employee'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
Employee shall be entitled to receive under any applicable
disability insurance policies maintained by the Company for
Employee.
(c) Cause. If Employee'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 Employee pursuant to
this Employment Agreement, except for the full amount of her 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 Employee's
employment is terminated by Employee for Good Reason as specified
in Section 7(c) hereof, or if her employment is terminated by the
Company without Cause as specified in Section 7(e), the Company
shall pay Employee the full amount of her base salary and other
compensation earned prior to the Date of Termination. The
Company shall also pay Employee, within thirty (30) days after
her 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 her 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 Employee'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
Employee'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 Employee the full amount of
her 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 Employee and her 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 Employee was
entitled to participate immediately prior to the Date of
Termination, if Employee's continued participation is possible
under the general terms and provisions of such plans and
programs. In the event that Employee's participation in any such
plan or program is barred, the Company shall arrange to provide
Employee with benefits substantially similar to those to which
Employee 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 Employee for
actual travel and other out-of-pocket expenses reasonably
incurred by her in connection with the performance of her duties
hereunder and accounted for in accordance with the policies and
procedures currently established by the Company.
10. No Competing Employment. Employee agrees that, during
the Term of Employment and for a period of two (2) years after
the Date of Termination ("Restricted Period"), she 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. Employee
understands and agrees that a portion of the amounts paid to her
under Section 5(a) hereof is in consideration for her covenants
set forth in Sections 10, 11, and 12.
11. No Solicitation. Employee agrees that, during the
Restricted Period, she 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 Employee, directly or
indirectly, or any other person or entity on behalf of which
Employee is acting as an agent, representative or employee.
Notwithstanding the above, if Employee'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. Employee agrees that, during the Term
of Employment and thereafter, she 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. Employee also recognizes and acknowledges that she has
a common law obligation not to disclose trade secrets and other
proprietary information of the Company. Employee further agrees
that, should she leave the active service of the Company, she
will not take with her 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. Employee
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, Employee 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 Employee 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 Employee 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 Employee as a result of the fact that Employee 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 Employee in any proceeding
shall be paid promptly by the Company in advance of the final
disposition of any proceeding at the written request of Employee
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 Employee 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
Employee at the time specified below, an additional amount (the
"Gross-Up Payment") such that the net amount retained by Employee
(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
Employee, 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 Employee in
connection with a Change in Control of the Company or the
termination of Employee'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, Employee 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, Employee
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
Employee'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 Employee 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 Employee's employment is terminated for Employee's
failure to adequately perform her 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 Employee
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 Employee has
no duty to mitigate the amounts due to her upon termination of
this Employment Agreement, and the obligations of the Company
will not be diminished in the event Employee is employed by
another employer after the termination of her 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 Employee and her 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. Arbitration. Except as otherwise necessary to secure
the remedy specified in Section 13 of this Employment Agreement,
any dispute arising between the Company and Employee with respect
to the performance or interpretation of this Employment Agreement
shall be submitted to arbitration in Salisbury, North Carolina
for resolution in accordance with the commercial arbitration
rules of the American Arbitration Association, modified to
provide that the decision by the arbitrators shall be binding on
the parties, shall be furnished in writing, separately and
specifically stating the findings of fact and conclusions of law
on which the decision is based, and shall be rendered within
ninety (90) days following impanelment of the arbitrators. The
cost of arbitration shall initially be borne by the party
requesting arbitration. Following a decision by the arbitrators,
the costs of arbitration shall be divided as directed by the
arbitrators.
24. 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.
25. 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 Employee:
Pamela K. Kohn
107 Tremont Drive
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 Employee has hereunto set her hand as of the date first above
written.
FOOD LION, INC.
By: Tom E.Smith
Attest:
R.William McCanless
EMPLOYEE:
Pamela K. Kohn
Pamela K. Kohn
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made this 1st day of October,
1997, between FOOD LION, INC., a North Carolina corporation with
its principal place of business in Salisbury, North Carolina (the
"Company"), and A. EDWARD BENNER, JR., an individual residing at
7602 Bringle Ferry Road, Salisbury, North Carolina 28146
("Employee"),
W I T N E S S E T H:
WHEREAS, Employee is currently employed by the Company as
its Vice President of Information Technology/Chief Information
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 Employee;
WHEREAS, the Board of Directors recognizes that Employee has
made substantial contributions to the growth and success of the
Company and desires to provide for the continuing employment of
Employee and to encourage the continued dedication and attention
of Employee to the Company;
WHEREAS, Employee is willing to continue to serve the
Company; and
WHEREAS, the Company and Employee desire to enter into this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises, and the
mutual agreements herein contained, the Company and Employee
hereby agree as follows:
1. Continue to Employ. The Company hereby agrees to
continue to employ Employee as Vice President of Information
Technology/Chief Information Officer of the Company for the Term
of Employment as herein set forth, and Employee hereby agrees to
continue to serve the Company as Vice President of Information
Technology/Chief Information 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, Employee 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 Vice
President of Information Technology/Chief Information 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. Employee 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 Employee's
services hereunder and for his covenants set forth in Sections
10, 11, and 12 below, the Company shall pay to Employee a base
salary which shall not be less than Two Hundred Thirty-Two
Thousand Eight Hundred Thirty-Six Dollars ($232,836) 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 Employee 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 Employee 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, Employee 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. Employee 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 Employee 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 Employee 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 Employee prior to the
start of such fiscal year.
(ii) Bookkeeping Account and Grantor Trust.
Any amounts deferred by Employee 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
Employee. In connection with the deferral election,
Employee 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 Employee. Employee'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 Employee selects results in a loss to the
bookkeeping account, the Company will have no
obligation to compensate Employee 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 Employee shall be
specified in his initial deferral election and may not
be subsequently changed by Employee 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
Employee's deferral election, all amounts will be paid
to Employee within thirty (30) days following a
termination of this Employment Agreement for any reason
specified in Sections 7(c) or 7(e).
6. Benefits. Employee 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 Employee and/or
other executive employees of the Company in accordance with the
Company's policies.
7. Termination. Termination of Employee's employment
under any of the following circumstances shall not constitute a
breach of this Employment Agreement:
(a) Death. Termination upon the death of
Employee.
(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 Employee 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 Employee in good faith
with respect to the Company's business.
(c) Good Reason. Termination by Employee 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 Employee, (ii)
assignment of inappropriate duties to Employee, (iii) failure of
the Company to comply with compensation and benefits obligations
to Employee, (iv) transfer of Employee 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
Employee 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 Employee to terminate his employment under
this Section 7(c) hereof shall not be deemed a voluntary
termination of employment by Employee for the purpose of this
Employment Agreement or any plan, arrangement or program of the
Company.
(d) Disability. Termination by the Company or
Employee upon Disability of Employee. 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)
Employee 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
Employee'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 Employee examined at such reasonable times by such
physicians satisfactory to Employee as the Company may designate,
and Employee 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 Employee to perform his
duties hereunder, whether by reason of injury, illness (physical
or mental), or otherwise shall not result in the termination of
Employee'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 Employee's employment by the Company or by Employee (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
Employee's employment under the provision so indicated.
"Date of Termination" shall mean (i) if Employee's
employment is terminated by his death, the date of his death, and
(ii) if Employee'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 Employee as follows:
(a) Death. If Employee's employment is terminated as
a result of his death, as specified in Section 7(a), the Company
shall pay Employee's beneficiary the benefit called for under his
Salary Continuation Agreement with the Company. Employee'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 Employee's employment is
terminated by the Company or Employee as a result of his
disability as specified in Section 7(d), then the Company shall
pay Employee his full compensation until the Date of Termination.
Within thirty (30) days after the termination of his employment,
the Company shall pay Employee a lump sum payment equal to fifty
percent (50%) of the present value of the future base salary
payable to Employee 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 Employee'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
Employee shall be entitled to receive under any applicable
disability insurance policies maintained by the Company for
Employee.
(c) Cause. If Employee'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 Employee 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 Employee's
employment is terminated by Employee 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 Employee the full amount of his base salary and other
compensation earned prior to the Date of Termination. The
Company shall also pay Employee, 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 Employee'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
Employee'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 Employee 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 Employee 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 Employee was
entitled to participate immediately prior to the Date of
Termination, if Employee's continued participation is possible
under the general terms and provisions of such plans and
programs. In the event that Employee's participation in any such
plan or program is barred, the Company shall arrange to provide
Employee with benefits substantially similar to those to which
Employee 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 Employee 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. Employee 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. Employee
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. Employee 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 Employee, directly or
indirectly, or any other person or entity on behalf of which
Employee is acting as an agent, representative or employee.
Notwithstanding the above, if Employee'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. Employee 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. Employee also recognizes and acknowledges that he has a
common law obligation not to disclose trade secrets and other
proprietary information of the Company. Employee 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. Employee 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, Employee 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 Employee 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 Employee 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 Employee as a result of the fact that Employee 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 Employee in any proceeding
shall be paid promptly by the Company in advance of the final
disposition of any proceeding at the written request of Employee
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 Employee 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
Employee at the time specified below, an additional amount (the
"Gross-Up Payment") such that the net amount retained by Employee
(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
Employee, 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 Employee in
connection with a Change in Control of the Company or the
termination of Employee'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, Employee 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, Employee
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
Employee'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 Employee 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 Employee's employment is terminated for Employee'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 Employee
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 Employee 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 Employee 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 Employee 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. Arbitration. Except as otherwise necessary to secure
the remedy specified in Section 13 of this Employment Agreement,
any dispute arising between the Company and Employee with respect
to the performance or interpretation of this Employment Agreement
shall be submitted to arbitration in Salisbury, North Carolina
for resolution in accordance with the commercial arbitration
rules of the American Arbitration Association, modified to
provide that the decision by the arbitrators shall be binding on
the parties, shall be furnished in writing, separately and
specifically stating the findings of fact and conclusions of law
on which the decision is based, and shall be rendered within
ninety (90) days following impanelment of the arbitrators. The
cost of arbitration shall initially be borne by the party
requesting arbitration. Following a decision by the arbitrators,
the costs of arbitration shall be divided as directed by the
arbitrators.
24. 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.
25. 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 Employee:
A. Edward Benner, Jr.
7602 Bringle Ferry Road
Salisbury, North Carolina 28146
(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 Employee has hereunto set his hand as of the date first above
written.
FOOD LION, INC.
By:Tom E.Smith
Attest:
R.William McCanless
EMPLOYEE:
A.Edward Benner, Jr.
A. Edward Benner, Jr.
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered
into as of January 4, 1998, by and between FOOD LION, INC.,
a corporation organized and existing under the laws of the
State of North Carolina, United States of America, having
its principle offices at 2110 Executive Drive, Salisbury,
North Carolina ("Food Lion") and ETABLISSEMENTS DELHAIZE
FRERES ET CIE "LE LION" S.A., a corporation organized under
the laws of Belgium, having its principle office at rue
Osseghem 53, 1080 Brussels, Belgium (hereinafter referred to
as Delhaize).
RECITALS
WHEREAS, Food Lion is engaged primarily in the
operation of supermarkets in the United States of America;
WHEREAS, Delhaize through itself and its subsidiaries,
is engaged primarily in the operation of supermarkets
throughout the world;
WHEREAS, Food Lion and Delhaize entered into that
certain License Agreement dated as of January 1, 1983
hereinafter referred to as the "1983 License Agreement" by
which Delhaize granted Food Lion a license under a trademark
comprised of the name Delhaize and a lion logo, registered
in Belgium, the Netherlands and Luxembourg, Benelux Trade
Mark No. 086048 and registered in the United States of
America, No. 1132312, together with the goodwill associated
therewith, said trademark and lion logo being referred to in
the 1983 License Agreement and herein as the "Trademark";
WHEREAS, Pursuant to the 1983 License Agreement,
Delhaize also granted to Food Lion the exclusive right to
use the lion logo in conjunction with Food Lion's trademarks
and service marks "Food Town," "Save-Rite" and "Food Lion,"
said combination of the lion logo and the trademarks and
service marks "Food Town," "Save-Rite" and "Food Lion" being
referred to in the 1983 License Agreement and herein as the
"New Trademarks";
WHEREAS, Food Lion and Delhaize entered into that
certain License Agreement dated as of June 19, 1997
hereinafter referred to as the "1997 License Agreement" by
which Delhaize agreed to allow Food Lion to assign its
rights under the 1983 License Agreement to an indirect
wholly-owned subsidiary;
WHEREAS, Food Lion desires to assign its rights under
the 1983 License Agreement to FL Food Lion, Inc.
(hereinafter referred to as "FL Food Lion"), an indirect
wholly owned subsidiary of Food Lion, and to obtain a
sublicense from FL Food Lion of said rights under the 1983
License Agreement;
NOW, THEREFORE, in consideration of and subject to the
premises and the mutual agreements, terms and conditions
herein contained, the benefits to be derived therefrom, the
mutual cooperation and assistance between the parties, and
other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, Food Lion and
Delhaize agree as follows;
1. Pursuant to paragraph 21 of the 1983 License
Agreement, Delhaize hereby agrees that:
A. Food Lion is permitted to assign its rights
under the 1983 License Agreement to FL Food Lion; and
B. Following consummation of the assignment of
Food Lion's rights under the 1983 License Agreement to FL
Food Lion, FL Food Lion is permitted to sublicense its
rights under the 1983 License Agreement to Food Lion.
2. Pursuant to paragraph 21 of the 1983 License
Agreement, this Agreement shall constitute Delhaize's prior
written consent to the transactions noted in paragraph 1.
3. The remaining provisions of the 1983 License
Agreement shall remain in full force and effect as written.
4. Delhaize shall be entitled, in its sole discretion
and without liability, to withdraw its consent as granted
herein, upon a change in control of FL Food Lion. In the
event of a change in control of FL Food Lion, and upon
Delhaize's election to withdraw its consent hereunder, Food
Lion's rights under the 1983 License Agreement shall revert
back to Food Lion and the assignment and sublicense shall be
void. Food Lion's rights under the 1983 License Agreement
shall not be affected by such withdrawal of consent.
5. This Agreement constitutes Delhaize's consent to
FL Food Lion's sublicensure of Food Lion's rights under the
1983 License Agreement to Food Lion alone. FL Food Lion
shall not grant any further sublicenses of Food Lion's
rights under the 1983 License Agreement without Delhaize's
prior written consent.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first above written.
FOOD LION, INC.
By:
G.de Vaucleroy
ETABLISSEMENTS DELHAIZE
FRERES ET CIE "LE LION" S.A.
By:
P.O. Beckers
EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE
(Amounts in thousands except Years Ended
per share amounts)
January 3, December 28, December 30,
1998 1996 1995
BASIC
NET INCOME $172,250 $215,220 $172,361
WEIGHTED AVERAGE COMMON
STOCK OUTSTANDING 468,916 470,216 481,154
BASIC EARNINGS PER SHARE $ .3673 $ .4577 $.3582
DILUTED
NET INCOME $172,250 $215,220 $172,361
ELIMINATION OF INTEREST EXPENSE,
NET OF RELATED TAX EFFECT,
APPLICABLE TO 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE 2003 3,479 3,499 3,508
ADJUSTED INCOME APPLICABLE TO
COMMON STOCK $175,729 $218,719 $175,869
WEIGHTED AVERAGE COMMON
SHARES AND OTHER COMMON
STOCK EQUIVALENTS:
COMMON STOCK OUTSTANDING 468,916 470,216 481,154
STOCK OPTIONS 737 573 -
SHARES ISSUABLE UPON
CONVERSION OF 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE
2003 14,440 14,440 14,557
484,093 485,229 495,711
DILUTED EARNINGS PER SHARE $ .3630 $ .4508 $.3548
Exhibit 21
Subsidiaries of Registrant
Entity State of incorporation
Food Lion, Inc NC
Kash n' Karry DE
Food Stores, Inc.
FLI Holding Corp. DE
Risk Management NC
Services, Inc.
FL Food Lion,Inc. FL
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 10, 1998, on our audits of the
consolidated financial statements of Food Lion, Inc. and subsidiaries as
of January 3, 1998, and December 28,1996, and for the fiscal years ended
January 3, 1998, December 28, 1996, and December 30, 1995, which report
is included in this Annual Report on Form 10-K.
COOPERS & LYBRAND, L.L.P.
Charlotte, North Carolina
April 7, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule 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
referernce to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> Year
<FISCAL-YEAR-END> JAN-03-1998
<PERIOD-END> JAN-03-1998
<CASH> 56,147
<SECURITIES> 0
<RECEIVABLES> 166,790
<ALLOWANCES> 0
<INVENTORY> 982,744
<CURRENT-ASSETS> 1,297,038
<PP&E> 2,894,274
<DEPRECIATION> 1,052,005
<TOTAL-ASSETS> 3,458,943
<CURRENT-LIABILITIES> 923,595
<BONDS> 586,355
0
0
<COMMON> 235,270
<OTHER-SE> 1,097,915
<TOTAL-LIABILITY-AND-EQUITY> 3,458,943
<SALES> 10,194,385
<TOTAL-REVENUES> 10,194,385
<CGS> 7,975,659
<TOTAL-COSTS> 7,975,659
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 115,389
<INCOME-PRETAX> 282,376
<INCOME-TAX> 110,126
<INCOME-CONTINUING> 172,250
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 172,250
<EPS-PRIMARY> 0.37
<EPS-DILUTED> 0.36
</TABLE>
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 January 3, 1998, 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 convertible subordinated debentures
dated June 15, 1993 totaling $115 million.
This is the 8th day of April, 1998.
FOOD LION, INC.
Laura Kendall
Consolidated Statements of Income
Year Ended Year Ended Year Ended
January 3, December 28, December 30,
(Dollars in thousands 1998 1996 1995
except per share amounts) Restated
Net sales $ 10,194,385 $9,005,932 $8,210,884
Cost of goods sold 7,975,659 7,087,177 6,516,637
Gross profit 2,218,726 1,918,755 1,694,247
Selling and administrative
expenses 1,516,726 1,325,592 1,191,532
Depreciation and amortization 219,833 165,286 146,170
Asset impairment reserve - 22,187 -
Store closing charge/(income) 84,40 (27,600) -
Operating income 397,765 433,290 356,545
Interest expense 115,389 80,520 73,484
Income before
income taxes 282,376 352,770 283,061
Provision for income taxes 110,126 137,550 110,700
Net income $ 172,250 $ 215,220 $ 172,361
Basic earnings per common share $ .37 $ .46 $ .36
(Results as a percentage
of sales)
Net sales 100.00% 100.00% 100.00%
Cost of goods sold 78.24 78.69 79.37
Gross profit 21.76 21.31 20.63
Selling and administrative
expenses 14.88 14.72 14.51
Depreciation and amortization 2.16 1.84 1.78
Asset impairment reserve - .25 -
Store closing charge/(income) .82 (.31) -
Operating income 3.90 4.81 4.34
Interest expense 1.13 .89 .89
Income before
income taxes 2.77 3.92 3.45
Provision for income taxes 1.08 1.53 1.35
Net income 1.69% 2.39% 2.10%
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Balance Sheets
January 3, December 28,
(Dollars in thousands 1998 1996
except per share amounts) Restated
Assets
Current assets:
Cash and cash equivalents $ 56,147 $ 102,371
Receivables 166,790 151,163
Inventories 982,744 1,065,743
Prepaid expenses and other 28,234 33,660
Deferred tax asset 63,123 75,807
Total current assets 1,297,038 1,428,744
Property, at cost, less accumulated
depreciation 1,842,269 1,768,232
Deferred tax asset 51,980 2,769
Intangible assets less accumulated
amortization 267,656 278,726
Total assets $3,458,943 $3,478,471
Liabilities and Shareholders' Equity
Current liabilities:
Short-term borrowings $ 80,000 $ 250,010
Accounts payable, trade 460,714 470,994
Accrued expenses 351,173 378,160
Capital lease obligations - current 20,427 21,970
Long term debt - current 2,525 973
Other liabilities - current 8,756 7,279
Income taxes payable 0 5,578
Total current liabilities 923,595 1,134,964
Long-term debt 586,355 495,111
Capital lease obligations 489,928 469,035
Other liabilities 125,880 154,273
Total liabilities 2,125,758 2,253,383
Shareholders' equity:
Class A non-voting common stock,
$.50 par value; authorized
1,500,000,000 shares; issued and
outstanding 236,224,000 shares at
January 3, 1998 and 236,166,000
shares at December 28, 1996 118,112 118,083
Class B voting common stock, $.50
par value; authorized 1,500,000,000
shares; issued and outstanding
232,727,000 shares at January 3, 1998
and 232,902,000 shares at
December 28, 1996 116,364 116,451
Additional capital 794 1,708
Retained earnings 1,097,915 988,846
Total shareholders' equity 1,333,185 1,225,088
Total liabilities and
shareholders' equity $ 3,458,943 $3,478,471
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Statements of Cash Flows
January 3, December 28,
1998 1996
(Dollars in thousands) Restated
Cash flows from operating activities
Net income $172,250 $215,220
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization 219,833 165,286
Loss(gain) on disposals of property 964 466
Store closing charge/(income) 84,402 (27,600)
Asset impairment reserve - 22,187
Deferred income taxes ( 36,527) ( 23,450)
Changes in operating assets
and liabilities net of effect of
acquisition of subsidiary:
Receivables ( 15,627) ( 50,845)
Inventories 82,999 ( 90,484)
Prepaid expenses and other 5,426 ( 6,531)
Accounts payable and accrued expenses ( 40,945) 71,351
Income taxes payable ( 5,578) 5,578
Other liabilities ( 36,416) 34,099
Total adjustments 258,531 100,057
Net cash provided by operating
activities 430,781 315,277
Cash flows from investing activities
Capital expenditures ( 346,134) ( 283,564)
Proceeds from sale of property 32,572 27,464
Investment in subsidiary,
net of cash received - ( 99,852)
Net cash used in investing
activities ( 313,562) ( 355,952)
Cash flows from financing activities
Net (payments) proceeds under short-term
borrowings ( 170,010) 250,000
Principal payments on long-term debt ( 212,027) ( 65,656)
Proceeds from issuance of long-term debt 304,823 -
Principal payments under capital
lease obligations ( 22,076) ( 17,764)
Dividends paid ( 62,748) ( 52,310)
Repurchase of common stock ( 2,960) ( 44,345)
Proceeds from issuance of common stock 1,555 3,086
Net cash (used in) provided by
financing activities ( 163,443) 73,011
Net (decrease) increase in cash and
cash equivalents ( 46,224) 32,336
Cash and cash equivalents at beginning
of year 102,371 70,035
Cash and cash equivalents at end of year $ 56,147 $102,371
The accompanying notes are an integral part of the consolidated financial
statements
Consolidated Statements of Cash Flows
December 30,
1995
(Dollars in thousands)
Cash flows from operating activities
Net income $172,361
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization 146,170
(Gain) loss on disposals of property ( 1,995)
Asset impairment reserve -
Deferred income taxes 2,000
Changes in operating assets
and liabilities:
Receivables 12,633
Inventories ( 27,737)
Prepaid expenses and other ( 9,527)
Accounts payable and accrued expenses 44,687
Income taxes payable ( 22,169)
Other liabilities 14,152
Total adjustments 158,214
Net cash provided by operating
activities 330,575
Cash flows from investing activities
Capital expenditures (219,905)
Proceeds from sale of property 20,806
Net cash used in investing
activities (199,099)
Cash flows from financing activities
Net (payments) proceeds under short-term
borrowings ( 20,000)
Principal payments on long-term debt ( 25)
Principal payments under capital
lease obligations ( 11,081)
Dividends paid ( 46,293)
Repurchase of common stock ( 50,950)
Proceeds from issuance of common stock 39
Net cash used in
financing activities (128,310)
Net increase in cash and cash
equivalents 3,166
Cash and cash equivalents at beginning
of year 66,869
Cash and cash equivalents at end of year $ 70,035
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 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, restated 236,166 118,083 232,902 116,451
Cash dividends declared:
Class A - $.1348 per share
Class B - $.1328 per share
Sale of stock 293 147 - -
Repurchase of common stock ( 235) ( 118) ( 175) ( 87)
Net income
Balances January 3, 1998 236,224 $118,112 232,727 $116,364
The accompanying notes are an integral part of the consolidated financial
statements
Additional Retained
Capital Earnings Total
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 - 215,220 215,220
Balances December 28, 1996, restated 1,708 988,846 1,225,088
Cash dividends declared:
Class A - $.1348 per share - ( 31,825) ( 31,825)
Class B - $.1328 per share - ( 30,923) ( 30,923)
Sale of stock 1,408 - 1,555
Repurchase of common stock ( 2,322) ( 433) ( 2,960)
Net income - 172,250 172,250
Balances January 3, 1998 $ 794 $1,097,915 $1,333,185
Notes to Consolidated Financial Statements
1. Summary of Significant Accounting Policies
Nature of Operations
As of January 3, 1998, the Company operated 1,157 retail food supermarkets and
eight distribution centers in 11 states in the Southeast United States. 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 wholly-owned subsidiaries. All significant intercompany accounts and
transactions are eliminated in consolidation.
Operating 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. The year
ended January 3, 1998 included 53 weeks. The years ended December 28, 1996 and
December 30, 1995 each included 52 weeks. The 1997 disclosed amounts represent
the year ended January 3, 1998.
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 86% and 83% of
inventories, in 1997 and 1996, 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 $114.4 million and $104.4 million
greater in 1997 and 1996, respectively. Application of the LIFO method resulted
in increases in the cost of goods sold of $10.0, $10.2 and $15.0 million for
1997, 1996 and 1995, respectively.
Statements of Cash Flows
Selected cash payments and noncash activities were as follows:
(Dollars in thousands) 1997 1996 1995
Cash payments for income taxes $158,543 $154,791 $130,907
Cash payments for interest,
net of amounts capitalized 108,743 76,631 70,095
Non-cash investing and financing activities:
Capitalized lease obligations
incurred for store properties 80,207 130,899 91,219
Capitalized lease obligations
terminated for store properties 31,633 25,710 9,615
Capitalized lease obligations for
store equipment purchases - - 3,069
Capitalized lease obligations terminated
for store equipment 7,148 - -
Conversion of long term debt to stock - 927 -
Property
Property is stated at historical 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
Intangible Assets
Intangible assets primarily include goodwill, tradenames and favorable leasehold
interests, all of which have been acquired in conjunction with purchase business
combinations. Intangible assets are amortized on a straight-line basis over the
estimated useful lives.
The Company evaluates, on an on-going basis, the carrying value of intangible
assets based on projections of undiscounted cash flows. If impairment is
identified, the Company compares the assets future discounted cash flows to its
current carrying value and records specific provisions as appropriate.
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.
Advertising Costs
Advertising costs are expensed as incurred.
Store Opening Costs
Costs associated with the opening of new stores are expensed as incurred.
Store Closing Costs
When a decision is made to close a store, the Company records a charge to cover
the estimated costs of the planned store closing including (1)the
unrecoverable portion of the present value of the remaining lease payments on
leased stores (recorded in Other Liabilities on the Company's Consolidated
Balance Sheet), (2) the write down of store assets (building, equipment, etc.)
to reflect estimated realizable values (recorded as a reduction of the recorded
asset cost on the Company's Consolidated Balance Sheet), and (3) other costs
associated with the store closing recorded in Accrued Expenses on the Company's
Consolidated Balance Sheet).
The Company intends to close stores within a year after the decision to close
is made.
Recoverable and realizable values are determined based on historical disposition
of similar assets and current economic conditions, and are
reviewed as new information becomes available or economic conditions change.
The Company makes adjustments to the valuation reserves as needed.
At the closing date the Company discontinues depreciation on all assets related
to closed store properties. Disposition efforts on these assets begin
immediately following the store closing.
Significant cash outflows associated with store closings relate to on-going rent
payments on leased stores. The principal portion of the rent payments is charged
against the lease liability established for closed stores (discussed above),
while the interest portion of the rent payments is recorded against current year
earnings and is recorded in Interest Expense.
Self Insurance
The Company is self-insured for workers' compensation, general liability and
vehicle accident claims. The self-insurance liability is determined
actuarially, based on claims filed and an estimate of claims incurred but not
yet reported, with a maximum per occurrence of $500,000 for workers'
compensation, $600,000 for general liability and $750,000 for vehicle
liability. The Company is insured for covered costs in excess of these
limits.
Self insurance expense related to the above totaled $32.9 million in 1997,
$30.4 million in 1996, and $35.3 million in 1995. Total claim payments
related to the above were $30.3 million in 1997,$25.8 million in 1996, and
$26.2 million in 1995.
Earnings Per Share
The Company adopted Financial Accounting Standards Board Statement No.128,
"Earnings per Share", which requires entities to present basic earnings per
share computed by dividing income available to common stockholders by the
weighted average number of common shares outstanding (468.9 million shares in
1997 and 470.2 million shares in 1996). The effect of stock options and
convertible subordinated debentures does not result in a material dilution of
earnings per share.
Reclassification
Certain financial statement items have been reclassified to conform to the
current year's format.
Year 2000 Disclosure
The Company has and will continue to make certain investments in software
systems and applications to ensure the Company is year 2000 compliant. The
financial impact to the Company has not been and is not anticipated to be
material to its financial position or results of operations in any given year.
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 operated 100 stores, for $121.6 million. The Company began
reporting consolidated results of operations, including Kash n' Karry, in the
first quarter of 1997.
The Kash n' Karry acquisition was accounted for using the purchase method of
accounting, and, accordingly, the purchase price was allocated to the assets
acquired and the liabilities assumed based upon their respective fair values at
the date of acquisition. In accordance with Accounting Principles Board Opinion
No. 17, the Company determined that the balance of the purchase price (goodwill,
including tradenames) had an unlimited useful life, and as a result, established
a 40-year straight-line amortization period for these intangible assets.
The acquisition strategy included 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. Eleven of these stores were closed in 1997. During the fourth
quarter of 1997, the Company finalized plans to close an additional 11 stores
during the next eighteen months.
The net purchase price was initially 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 ( 90,967)
Purchase price less cash received $ 99,852
3. Property
Property consists of the following:
(Dollars in thousands) 1997 1996
Land and improvements $160,543 $202,490
Buildings 397,496 401,717
Furniture, fixtures and equipment 1,265,085 1,163,099
Vehicles 98,529 99,745
Leasehold improvements 361,278 258,354
Construction in progress (estimated
costs to complete and equip at
January 3, 1998 are $64.8 million) 41,488 32,945
2,324,419 2,158,350
Less accumulated depreciation 941,298 824,560
1,383,121 1,333,790
Property under capital leases 569,855 526,954
Less accumulated depreciation 110,707 92,512
459,148 434,442
$1,842,269 $1,768,232
At January 3, 1998 the Company had $99.4 million (book value) in property
held for sale.
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 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 fair value of the assets if
they were sold. The implementation of FASB No. 121 created a non-cash charge
against 1996 earnings of $22.2 million (see Note 17).
4. Intangible Assets
Intangible Assets is comprised of the following:
1997 1996
Goodwill $205,809 $207,068
Tradenames 58,000 58,000
Leasehold interest 15,312 15,445
279,121 280,513
Accumulated amortization 11,465 1,787
$267,656 $278,726
During 1997, changes in Goodwill arose primarily from the acquisition of
individual store locations from competitors and purchase price allocation
adjustments for Kash n' Karry to finalize the acquisition accounting for the
opening balance sheet and to reduce store closing reserves, originally
established at the acquisition date, to reflect updated estimated recoverable
values and costs related to closed store properties.
5. Accrued Expenses
Accrued expenses consist of the following:
(Dollars in thousands) 1997 1996
Employee profit sharing $100,634 $ 99,581
Self insurance 75,735 89,249
Payroll 37,410 55,200
Reserves for store closings 7,436 1,000
Other 129,958 133,130
$351,173 $378,160
6. Employee Benefit Plan
The Company has a non-contributory 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. Expense related to the
plan totaled $97.8 million in 1997, $94.9 million in 1996 and $85.3 million in
1995.
7. Long-Term Debt
Long-term debt consists of the following:
(Dollars in thousands) 1997 1996
Medium-term notes, due from 1999 to
2006. Interest ranges from 8.32%
to 8.73%. $150,300 $150,300
Debt Securities, due 2007. Interest
is at 7.55% 150,000 -
Debt Securities, due 2027. Interest
is at 8.05% 150,000 -
Note purchase agreements, due 1998.
Interest is at 10.21%. - 50,000
Convertible subordinated debentures, due 2003.
Interest is at 5%. 114,073 114,073
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 payables due from 1999 through
2003. Interest ranges from 7.5% to 10.35%. 20,043 20,925
Other 4,464 41
588,880 496,084
Less current portion 2,525 973
$586,355 $495,111
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 8. Issuance of debt securities in April, 1997
were used to replace the borrowings made under the revolving credit facility.
During the fourth quarter of 1997, the note purchase agreement due in 1998
totaling $50.0 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 January 3,
1998, 117,341 shares had been converted.
At January 3, 1998, $22.8 million (book value) in property was pledged as
collateral for mortgage payables.
At January 3, 1998 and December 28, 1996, the Company estimated that the fair
value of its long-term debt was approximately $641.3 million and $535.7 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 1998 through 2002 are
$2.5, $42.5, $2.8, $106.3 and $1.6 million, respectively.
8. 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, 1998 and the remaining $350.0 million on
December 16, 2001. There were no borrowings outstanding at January 3, 1998 and
$250.0 million was outstanding at December 28, 1996.
Additionally, the Company had other committed short-term lines of credit with
banks totaling $35.0 million, of which no borrowings were outstanding at January
3, 1998.
The Company has a $250.0 million commercial paper program, of which no
borrowings were outstanding during the years ended January 3, 1998 and
December 28, 1996.
In addition, the Company has periodic short-term borrowings under other informal
arrangements. Outstanding borrowings under these arrangements were $80.0
million at January 3, 1998 at an average interest rate of 6.09% with no
borrowings outstanding at December 28, 1996.
9. Leases
The Company's stores operate principally in leased premises. Lease terms
generally range from ten to thirty years with renewal options ranging from five
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 non-cancelable
lease terms in excess of one year as of January 3, 1998.
Capital Operating Leases
(Dollars in thousands) Leases Open Stores Closed Stores
1998 $ 83,666 $ 129,118 $19,253
1999 83,283 129,093 18,861
2000 82,243 128,068 18,445
2001 81,397 126,990 18,145
2002 81,348 125,271 17,990
Thereafter 893,848 1,059,351 137,589
Total minimum payments 1,305,785 $1,697,891 $230,283
Less estimated executory
costs 71,163
Net minimum lease payments 1,234,622
Less amount representing
interest 724,267
Present value of net minimum
lease payments $ 510,355
Minimum payments have not been reduced by minimum sublease rentals of $18.4
million due in the future under non-cancelable subleases.
Total rent expense for operating leases, excluding those with terms of one year
or less, is as follows:
(Dollars in thousands) 1997 1996 1995
Minimum rents $133,786 $137,157 $108,457
Contingent rents,
based on sales 371 680 457
$134,157 $137,837 $108,914
In addition, the Company has signed lease agreements for additional store
facilities, the construction of which were not complete at January 3, 1998. The
leases expire on various dates extending to 2022 with renewal options generally
ranging from ten to twenty years. Total future minimum rents under these
agreements are approximately $639 million.
10. Income Taxes
Provisions for income taxes for 1997, 1996 and 1995 consist of the following:
(Dollars in thousands) Current Deferred Total
1997
Federal $119,553 $(30,327) $ 89,226
State 27,100 ( 6,200) 20,900
$146,653 $(36,527) $110,126
1996
Federal $134,000 $(19,550) $114,450
State 27,000 ( 3,900) 23,100
$161,000 $(23,450) $137,550
1995
Federal $ 90,500 $ 1,600 $ 92,100
State 18,200 400 18,600
$108,700 $ 2,000 $110,700
The Company's effective tax rate varied from the federal statutory rate as
follows:
1997 1996 1995
Federal statutory rate 35.0% 35.0% 35.0%
State income taxes, net of
federal tax benefit 4.8 4.3 4.3
Other ( 0.8) (0.3) (0.2)
39.0% 39.0% 39.1%
Deferred income tax expense relates to the following:
(Dollars in thousands) 1997 1996 1995
Excess tax depreciation $ 8,892 $ 2,774 $ 2,852
Provision for store closings (43,041) 7,793 5,399
Excess interest and amortization
over rent paid on capital leases ( 4,604) ( 3,003) ( 3,258)
Excess tax gain/loss ( 4,372) ( 9,277) ( 4,882)
Accrued expenses ( 2,258) ( 3,251) ( 2,635)
Tax loss carryforwards ( 1,959) - -
Asset impairment reserve 4,892 ( 8,713) -
Other 5,923 ( 9,773) 4,524
$ (36,527) $( 23,450) $ 2,000
The components of deferred income tax assets and liabilities at January 3, 1998
and December 28, 1996 are as follows:
(Dollars in thousands) 1997 1996
Current assets:
Inventories $ 10,436 $ 16,312
Accrued expenses 52,692 53,166
Provision for store closings ( 5) 6,329
Total current assets 63,123 75,807
Noncurrent assets/(liability):
Depreciation (105,483) (100,112)
Leases 50,937 40,435
Provision for store closings 76,970 35,270
Tax loss carryforwards 22,737 20,777
Other deferred charges 6,819 6,399
Total noncurrent assets 51,980 2,769
Net deferred taxes $ 115,103 $ 78,576
As of January 3, 1998, the Company had net operating loss carryforwards for tax
purposes of approximately $56 million related to Kash n' Karry. Due to certain
change of ownership requirements of Section 382 of the Internal Revenue Code,
utilization of the Kash n' Karry 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.
11. Other Liabilities
Other liabilities consist of the following:
(Dollars in thousands) 1997 1996
Remaining lease liability - Closed Stores $123,105 $150,093
Other 11,531 11,459
134,636 161,552
Less current portion 8,756 7,279
$125,880 $154,273
12. Stock Options and Restricted Stock Plans
The Company has a stock option plan under which options to purchase up to 10
million shares of Class A common stock may be granted to officers and key
employees at prices equal to fair market value on the date of the 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.
In addition, the Company established a restricted stock plan in 1996 for
executive employees pursuant to the 1996 Stock Incentive Plan. Under this stock
plan, the Company issued 133,393 shares in 1996 (1,803 shares forfeited) and
196,003 shares in 1997 (10,524 shares forfeited). Currently, the Company has
317,069 shares of restricted Class A Common Stock outstanding under the plan.
These shares of stock will vest over five years from grant date. The weighted
average grant date fair value for these shares is $7.03. At January 3, 1998 none
of these restricted shares had been issued.
A summary of shares reserved for outstanding options and restricted stock as of
January 3, 1998, changes during the year and related weighted average exercise
price is presented below:
1997 1997 1996 1996 1995 1995
Shares Weighted Shares Weighted Shares Weighted
Average Average Average
Exercise Exercise Exercise
Price Price Price
Outstanding 2,553,835 $6.08 2,658,069 $5.97 3,008,930 $5.55
at beginning
of year
Granted 1,401,509 8.13 931,715 7.38 146,650 5.81
Exercised (289,833) 5.27 (587,795) 6.19 (7,531) 5.25
Forfeited/
expired (342,719) 11.35 (448,154) 11.35 (489,980) 9.90
Outstanding
at end of
year 3,322,792 6.63 2,553,835 6.08 2,658,069 5.97
Options
exercisable
at end of
year 958,595 5.71 1,367,820 5.75 2,250,261 5.69
As of January 3, 1998, there were 5,814,153 shares of Class A common stock
available for future grants.
The following table summarizes options outstanding and options exercisable as of
January 3, 1998, and the related weighted average remaining contractual life
(years) and weighted average exercise price (excluding restricted stock).
Options Options
Outstanding Exercisable
Range of Number Weighted Weighted Number Weighted
exercise outstand- Average Average Exercisable Average
prices ing Remaining Exercise Exercise
Contractual Price Price
Life
$5.12 - $7.70 2,759,222 5.8 $6.35 903,745 $5.31
$7.71 - $11.55 171,501 8.8 8.64 2,350 7.86
$11.56 -$12.42 75,000 3.8 12.42 52,500 12.42
$ 5.12 -$12.42 3,005,723 6.0 $6.63 958,595 $5.71
The weighted average fair value at date of grant for options granted during
1997, 1996, and 1995 was $2.143, $2.350, and $1.606 per option, respectively.
The fair value of options at date of grant was estimated using the Black-Scholes
model with the following weighted average assumptions:
1997 1996 1995
Expected dividend yield (%) 1.50 1.50 1.50
Expected volatility (%) 25.00 25.00 25.00
Risk-free interest rate (%) 6.50 6.60 6.35
Expected term (years) 5.5 5.5 4.5
The Company has adopted the disclosure-only provisions of Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation."
Accordingly, no compensation cost has been recognized for the stock options
granted in 1997, 1996 or 1995. Had compensation cost been determined based
on the fair value at the grant date consistent with the provisions of this
statement, the Company's pro forma net earnings and earnings per share
would have been as follows (in thousands, except per share data):
1997 1996 1995
Net earnings - as reported $172,250 $215,220 $172,361
Net earnings - pro forma 171,656 214,986 172,337
Basic earnings per share -
as reported 0.37 0.46 0.36
Basic earnings per share -
pro forma 0.37 0.46 0.36
13. Common Stock
On January 3, 1998, 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.
14. Interest Expense
Interest expense consists of the following:
(Dollars in thousands) 1997 1996 1995
Interest on capital leases $56,809 $46,767 $38,995
Other interest (net of $2.0, $1.5
and $1.9 million capitalized in
1997, 1996, and 1995, respectively)
58,580 33,753 34,489
$115,389 $80,520 $73,484
15. Store Closing Costs
(Dollars in millions)
Reduction Lease Accrued
of Asset Liabilities Expenses Total
Values
Balance at December 31,1994 $ 80.2 $ 50.0 $ 27.3 $ 157.5
Additions 0.0 20.1 0.0 20.1
Reductions (24.7) (3.6) (2.1) (30.4)
Reclassifications (1.9) 6.6 (4.7) 0.0
Gain/(Loss) on Disposal of
Closed Properties 4.6 (6.1) 0.0 (1.5)
Balance at December 30,1995 58.2 67.0 20.5 145.7
Additions 20.9 89.3 3.0 113.2
Reductions (31.2) (4.6) (1.8) (37.6)
Reclassifications (0.8) 3.0 (2.2) 0.0
Gain/(Loss) on Disposal of
Closed Properties 0.1 (4.6) 0.6 (3.9)
Recognition of unused (8.5) 0.0 (19.1) (27.6)
reserves
Balance at December 38.7 150.1 1.0 189.8
28,1996
Additions 91.0 25.6 14.9 131.5
Reductions (12.9) (8.3) (3.6) (24.8)
Reclassifications 7.3 (3.0) (4.3) 0.0
Gain/(Loss) on Disposal of 0.5 (11.7) 3.1 (8.1)
Closed Properties
Recognition of unused (20.8) (29.6) (3.7) (54.1)
reserves
Balance at January 3,1998 $103.8 $123.1 $ 7.4 $234.3
The Company closed 119, 25, 13 and 87 stores during 1997, 1996 ,1995 and 1994,
respectively, and two distribution centers in 1997. The balances at the end
of each year, listed above, include the remaining closing costs related to
these stores, and 23 stores that the Company plans to close within the
next year.
1997 Activity:
In September of 1997, the Company finalized its plan to exit the Southwest
market by closing its 61 stores located in Louisiana, Oklahoma, and Texas and
its distribution center in Roanoke, Texas. In previous periods, the Southwest
market negatively impacted the Company's operating results by approximately
$0.01 per share annually. After an extensive review of operations in the
Southwest market and an evaluation of alternative operating strategies, the
Company determined in the third quarter of 1997 that it was in its best interest
to exit the market. During 1997 the Company recorded a pre-tax charge of $116.5
million related to the divestiture of its Southwest market. This charge included
the write-down of store and distribution center assets to reflect estimated
realizable values ($92.1 million), the present value (calculated by applying an
8% discount rate) of remaining rent payments on leased stores ($17.1 million)
included in Other Liabilities above, and other costs associated with the store
closings such as legal fees, commissions, severance costs, and certain other
costs that represent incremental direct costs to sell the related assets and/or
expenses arising from contractual obligations ($7.3 million) included in
Accrued Expenses above. As of January 3, 1998 all 61 stores and the distribution
center in the Southwest market were closed and related disposition efforts were
underway.
During 1997, the Company reduced store closing costs by $54.1 million in unused
reserves which arose primarily from changes in estimated liabilities on
remaining lease obligations and in estimated recoverable values of owned
properties. Of this amount, $14.4 million related to stores closed in previous
years and $17.7 million related to the 1997 store closings in the Southwest
market. These unused reserves were recorded into income. The remaining $22.0
million related to Kash n' Karry store closings and was reflected as an
adjustment to Goodwill.
The remaining 1997 activity represents store closing costs incurred, the
disposition of properties held for sale, and payments made on remaining lease
obligations, related to store closings in the normal course of business.
1996 Activity:
Significant additions to the reserve represent store closing reserves for Kash
n' Karry established at the date of acquisition. The acquisition strategy
included 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. See Note 2 for related information.
During 1996, the Company recognized $27.6 million in unused reserves related to
a $170.5 million pre-tax store closing charge against 1993 earnings.
The remaining 1996 activity represents store closing costs incurred, the
disposition of properties held for sale, and payments made on remaining lease
obligations, related to store closings in the normal course of business.
1995 Activity:
Significant additions relate to store closing costs incurred for closings in the
normal course of business. The 1995 reductions primarily include the diposition
of owned assets related to stores closed in conjunction with the Company's 1994
store closing plan.
16. Commitments and Contingencies
The Company is involved in various claims and lawsuits arising out of the normal
conduct of its business. Although the ultimate outcome of these legal
proceedings cannot be predicted with certainty, the management of the Company
believes that the resulting liability, if any, will not have a material effect
upon the Company's consolidated financial statements or liquidity.
17. Restatement of 1996 Financial Statements
The Company has determined that its financial statements for the fiscal year
ended December 28, 1996 should be restated to reflect an adjustment of charges
originally recorded in 1997 related to store closing reserves. As a result, the
Company is restating its 1996 financial statements to reflect a $12.6 million
charge for an asset impairment reserve for certain stores in the Company's
Southwest market, and a $27.6 million reversal of unused reserves related to the
1993 store closing reserve.
The impact of the restatement on the consolidated balance sheet as of December
28, 1996, and on the consolidated statement of income for the year then ended is
as follows:
1996 1996
Amounts Restated
Previously Reported Amounts
(Dollars in thousands)
Operating income $418,290 $433,290
Net income 206,070 215,220
Basic earnings per common share .44 .46
Property at cost, less
accumulated depreciation 1,772,503 1,768,232
Deferred tax asset,non-current 8,619 2,769
Accrued expenses 397,431 378,160
Report of Independent Accountants
To the Shareholders of Food Lion, Inc.:
We have audited the accompanying consolidated balance sheets of Food Lion, Inc.
and subsidiaries as of January 3, 1998 and December 28, 1996 and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three fiscal years in the period ended January 3, 1998. 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 subsidiaries as of January 3, 1998 and December 28, 1996 and the results of
their operations and their cash flows for each of the three fiscal years in the
period ended January 3, 1998 in conformity with generally accepted accounting
principles.
As discussed in Note 17, the 1996 financial statements have been revised to
reflect adjustments related to store closing reserves.
Coopers & Lybrand L.L.P.
Charlotte, North Carolina
February 10, 1998
Results by Quarter
(unaudited)
(Dollars in thousands except per share amounts)
1997 First First Second Second
Quarter Quarter Quarter Quarter
As Restated As Restated
Reported (12 Weeks) Reported (12 Weeks)
(12 Weeks) (12 Weeks)
Net sales $2,276,746 $2,276,746 $2,324,719 $2,324,719
Gross profit 496,861 493,683 506,847 503,670
Selling and 346,841 346,841 345,413 345,413
administrative
expenses
Depreciation and 48,697 48,697 52,150 52,150
amortization
Store closing 0 0 0 0
charge
Operating income 101,323 98,145 109,284 106,107
Net income(loss) $45,529 $43,591 $ 49,729 $ 47,791
Basic earnings $0.10 $0.09 $0.11 $0.10
per common share
1997 Third Third Fourth
Quarter Quarter Quarter
As Restated Reported
Reported (12 Weeks) (17
(12 Weeks) Weeks)*
Net sales $2,366,905 $2,366,905 $3,226,015
Gross profit 516,609 513,432 707,941
Selling and 346,059 346,059 478,413
administrative
expenses
Depreciation and 52,153 52,153 66,833
amortization
Store closing 87,114 96,414 (12,012)
charge
Operating income 31,283 18,806 174,707
Net income(loss) $ 1,229 $ (6,382) $87,250
Basic earnings $0.00 $ (0.01) $0.19
per common share
*Note: The 1997 fourth quarter comprised 17 weeks; the 1996 fourth quarter
comprised 16 weeks.
1996 First First Second Second
Quarter Quarter Quarter Quarter
As Restated As Restated
Reported (12 Weeks) Reported (12 Weeks)
(12 Weeks) (12 Weeks)
Net sales $2,024,453 $2,024,453 $2,084,414 $2,084,414
Gross profit 411,623 411,623 443,646 443,646
Selling and 279,269 279,269 306,410 306,410
administrative
expenses
Depreciation and 37,019 37,019 37,951 37,951
amortization
Asset impairment 9,359 13,259 0 0
reserve
Store closing 0 0 0 (5,800)
charge
Operating income 85,976 82,076 99,285 105,085
Net income $ 40,853 $ 38,474 $ 48,584 $ 52,122
Basic earnings $0.09 $0.08 $0.10 $0.11
per common share
1996 Third Third Fourth Fourth
Quarter Quarter Quarter Quarter
As Restated As Restated
Reported (12 Weeks) Reported (12 Weeks)
(12 Weeks) (12 Weeks)
Net sales $2,124,390 $2,124,390 $2,772,675 $2,772,675
Gross profit 462,061 462,061 601,425 601,425
Selling and 322,498 322,498 417,415 417,415
administrative
expenses
Depreciation and 38,370 38,370 51,946 51,946
amortization
Asset impairment 0 0 228 8,928
reserve
Store closing 0 (5,700) 0 (16,100)
charge
Operating income 101,193 106,893 131,836 139,236
Net income $ 50,018 $ 53,495 $ 66,615 $ 71,129
Basic earnings $0.11 $0.12 $0.14 $0.15
per common share
Market Price of Common Stock
Year Ended January 3, 1998 Year Ended December 28, 1996
Class A Class B Class A Class B
Quarter High Low High Low High Low High Low
First 9.78 7.63 10.13 8.00 5.81 5.38 5.81 5.38
Second 8.25 6.47 8.38 6.56 8.31 5.50 8.06 5.50
Third 7.50 6.94 7.56 6.91 9.06 7.75 8.56 7.31
Fourth 8.75 7.44 8.53 7.44 9.69 8.38 9.69 8.13
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 January 3, 1998 were $8.50
and $8.31, respectively compared with $9.69 for both Class A and Class B common
stock at December 28, 1996. 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 March 31, 1998, there were 28,649
holders of record of Class A common stock and 19,571 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 March 31, 1998 were $10.69 and $10.97, respectively.
Dividends Declared Per Share of Common Stock
Year Ended January 3, 1998 Year Ended December 28, 1996
Quarter Class A Class B Class A Class B
First $.0337 $.0332 $.0280 $.0276
Second .0337 .0332 .0280 .0276
Third .0337 .0332 .0280 .0276
Fourth .0337 .0332 .0280 .0276
Total $.1348 $.1328 $.1120 $.1104
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Results of Operations
During 1997, the Company had record sales of $10.2 billion and net earnings
(giving effect to a charge against earnings related to the Company's divestiture
of its Southwest market) of $172.3 million, compared with sales of $9.0 billion
and net earnings of $215.2 million in fiscal 1996. The 13.2% increase in sales
in the 53-week fiscal 1997 resulted from the acquisition of 100 Kash n' Karry
stores in December of 1996 and the opening of 64 new stores, offset by the
relocation of 25 older stores and the closing of 94 stores (including 61 store
closings in the Southwest market). At the end of 1997, the Company operated
1,157 stores compared with 1,112 stores in operation at the end of 1996. The
Company renovated 99 existing stores in 1997, which included expanding square
footage and adding deli/bakery departments in most of the stores.
In September of 1997, the Company finalized its plan to exit the Southwest
market by closing its 61 stores located in Louisiana, Oklahoma, and Texas and
its distribution center in Roanoke, Texas. In previous periods, the Southwest
market negatively impacted the Company's operating results by approximately
$0.01 per share annually. After extensive review of operations in the Southwest
market and an evaluation of alternative operating strategies, the Company
determined in the third quarter of 1997 that it was in the best interests of the
Company and its shareholders to exit the market and deploy the related capital
in its growth markets in the Southeast and Mid-Atlantic states. The Company
recorded a pre-tax charge of $96.4 million against third quarter 1997 earnings,
representing $110.8 million related to the divestiture of the Southwest, less
$14.4 million in unused reserves related to store closings that have occurred
since 1993. During the fourth quarter of 1997, the Company reduced the store
closing costs for the Southwest divestiture by $17.7 million to reflect changes
in estimated recoverable values of owned assets based on contract and
offer prices received on the related properties. Net cash proceeds from the
sale of assets are expected to approximate $100 million. Net income for 1997,
exclusive of the store closing charge, reached a record level of $223.7
million, or basic earnings per common share of $0.48.
Sales
Sales reached a record level of $10.2 billion for the 53 weeks ended
January 3, 1998 compared with $9.0 billion and $8.2 billion for the 52 week
periods in 1996 and 1995, resulting in annual increases of 13.2%, 9.7% and 3.5%,
respectively. In 1997, same store sales, or sales for stores open in comparable
periods, increased 0.2% as compared with increases of 5.7% for 1996 and 2.3% for
1995. Excluding the Southwest market, same store sales increased 0.6% for the
year 1997.
During 1997, the Company's sales increase resulted primarily from the
acquisition of 100 Kash n' Karry stores in late 1996. The Company operates West
Central Florida-based Kash n' Karry as a wholly owned subsidiary. In addition
1997 included an extra week of sales, 53 weeks compared with 52 weeks in 1996.
Excluding this extra week, sales would have increased 11.0% for 1997. Store
renovations also continued to boost sales, as 99 existing stores were renovated
to update equipment and properties, and in most locations, to add square footage
and deli/bakery departments.
The Company continued to enhance the MVP Customer card program, which
rewards Food Lion shoppers with discounts on Food Lion's everyday Extra Low
Prices on a monthly selection of items featured by the program. In 1997, the
MVP Customer program was expanded to offer customers weekly bonus buys on
individual products regardless of the total transaction size. The number of
items highlighted on the program currently totals approximately 1,200. In 1998
the Company plans to increase usage of the expansive MVP customer database to
support targeted marketing and promotional activity.
Same Store Sales performance during 1997 was impacted by several
additional factors:
- Continued minimum level of food price inflation. The Company
experienced a 1.0% inflation rate in 1997.
- Increased level of promotional activity and unusual marketing strategies
by supermarket operators in the highly competitive Southeast market. The
Company made a decision in early 1997 not to react to such competitive
activities with unplanned promotional and marketing events. Instead,
the Company reiterated its promise of everyday Extra Low Prices, delivering
a consistent message to customers throughout the year. As a result, the
Company was able to preserve and increase its operating profits in spite
of the soft sales environment during 1997 without costly unplanned marketing
efforts.
- During 1997 the Company cycled many of the initiatives that boosted
sales in 1996, including the conversion to 24-hour operations and
the implementation of debit/credit card processing.
The 1998 business plan currently includes opening 75 new stores
(approximately 17 of these replacing older stores) and renovating
approximately 133 existing stores. The Company is committed to a growth
strategy which includes plans to open new stores and strengthen existing stores
through renovations in order to maintain a competitive edge in the Company's
current markets. In addition, the Company 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. Expansion by acquisition
is likely to continue to be a part of the Company's growth strategy and will be
evaluated as appropriate. Acquisition activity can range from individual
location takeovers to large transactions like the Kash n' Karry purchase. The
Company's growth strategy is flexible, and the Company will listen to its
consumers and revise its strategy accordingly in an effort to meet the needs of
current and future customers.
Gross Profit
In fiscal 1997, gross profit was 21.76% of sales compared with 21.31% and
20.63% in 1996 and 1995, respectively. The gross profit increase of 0.45% of
sales in 1997 is attributable to the continued implementation of category
management (merchandising stores for maximum performance). Product analysis,
selection and strategic pricing all contributed to gross profit increases in the
grocery, perishable and meat departments in 1997. In addition, gross profits
were positively impacted by the Company's private label sales, which currently
represent 16.5% of total sales. The Company continues to focus on providing
customers with quality, freshness and convenience through Extra Low Prices and
More at Food Lion and Fresh, Fast, n' Friendly operations at Kash n' Karry.
The LIFO charge, as a percent of sales, decreased gross profit by 0.10% in
1997, 0.11% in 1996 and 0.18% in 1995. The Company experienced a 1.0%
inflation rate in 1997. FIFO gross profits were 21.86%, 21.42% and 20.81%,
respectively in 1997, 1996 and 1995.
Selling and Administrative Expenses
Selling and administrative expenses as a percentage of sales were 14.88%,
14.72% and 14.51% in 1997, 1996, and 1995, respectively. Selling and
administrative expenses increased 0.16% of sales in 1997 as a result of expenses
related to technology improvements for stores, and the acquisition of Kash n'
Karry (the Kash n' Karry format commands a higher expense structure).
In addition, advertising costs increased during 1997 primarily due to
planned print and broadcast media advertising targeted to certain market areas.
Using the themes Extra Low Prices and More and Fresh, Fast, n' Friendly, and
the MVP Customer Card program, the Company continued its marketing strategies
focused on a commitment to its customers through value, convenience, quality,
freshness, service and friendliness. In addition, the Company
also had two successful promotional campaigns associated with NASCAR ("National
Association for Stock Car Auto Racing") race events and participated in other
advertising opportunities as the "Official Supermarket of NASCAR," a
relationship the Company began in 1996.
Food Lion's 1997 business plan reflected the Company's commitment to
maintaining its existing store base as 99 store renovations were completed in
1997 compared with 124 in 1996 and 121 in 1995. The Company anticipates
completing approximately 133 renovations to existing stores in 1998. Store
renovations add value to customers as demonstrated by an average sales increase
of 10% - 20% in the year following the renovation. Deli/bakery departments
command a higher gross margin, but also create additional expenses related to
rent, supplies, salaries and maintenance. The Company plans to continue an
aggressive renovation program to maintain a modern and convenient shopping
environment for customers in all Food Lion and Kash n' Karry stores.
Store Closing Costs
As discussed previously, 119 stores were closed during 1997 (including the
61 store closings related to the divestiture of the Company's Southwest market).
With over 1,100 retail outlets, the Company must constantly evaluate its store
base, and make decisions about store openings and closings that are in the best
interest of shareholders. These store closings consist of both relocations,
where a new store is opened to replace an older location in the same
neighborhood, and the closing of stores due to poor performance.
In September of 1997, the Company finalized its plan to exit the Southwest
market by closing its 61 stores located in Louisiana, Oklahoma, and Texas and
its distribution center in Roanoke, Texas. In previous periods, the Southwest
market negatively impacted the Company's operating results by approximately
$0.01 per share annually. After an extensive review of operations in the
Southwest market and an evaluation of alternative operating strategies, the
Company determined in the third quarter of 1997 that it was in its best interest
to exit the market. During 1997 the Company recorded a pre-tax charge of $116.5
million related to the divestiture of its Southwest market. This charge included
the write-down of store and distribution center assets to reflect estimated
realizable values ($92.1 million), the present value (calculated by applying an
8% discount rate) of remaining rent payments on leased stores ($17.1 million),
and other costs associated with the store closings such as legal fees,
commissions, severance costs, and certain other costs that represent incremental
direct costs to sell the related assets and/or expenses arising from contractual
obligations ($7.3 million). As of January 3, 1998 all 61 stores and the
distribution center in the Southwest market were closed and related disposition
efforts were underway.
During 1997, the Company reduced store closing costs by $54.1 million in
unused reserves which arose primarily from changes in estimated liabilities on
remaining lease obligations and in estimated recoverable values of owned
properties. Of this amount, $14.4 million related to stores closed in previous
years and $17.7 million related to the 1997 store closings in the Southwest
market. These unused reserves were recorded into income. The remaining $22.0
million related to Kash n' Karry store closings and was reflected as an
adjustment to Goodwill.
The remaining 1997 activity represents store closing costs incurred, the
disposition of properties held for sale, and payments made on remaining lease
obligations, related to store closings in the normal course of business.
The average cost to close a store as part of the Company's normal business
strategy is approximately $500,000 to $900,000. Store closing costs in the
Southwest market have generally exceeded this level. The Southwest is a non-
contiguous market which makes employee relocation and product and equipment
transfers more difficult to effectuate.
Significant cash outflows associated with store closings relate to on-
going rent payments on leased stores. These rent payments are funded by income
from operations. The projected rental payments on closed stores are included in
Note 9 to the financial statements included herein.
At the end of each year, the value of all owned assets related to store
properties remaining to be disposed is reviewed in conjunction with the
Company's compliance with 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").
Interest Expense
Interest Expense as a percent of sales was 1.13% in 1997 and 0.89% in 1996
and 1995. The 1997 increase in Interest Expense relates to the second quarter
1997 issuance of $300 million in debt securities ($150 million at 7.55% due in
2007, and $150 million at 8.05% due in 2027). These funds replaced the short-
term borrowings (at 6.22%) made in earlier periods to fund the Kash n' Karry
transaction.
Depreciation Expense
Depreciation expense as a percent of sales was 2.16% in 1997 compared with
1.84% in 1996 and 1.78% in 1995. Depreciation increased in 1997 due to the
acquisition of Kash n' Karry as well as an extensive capital expenditure program
totaling $346 million. During 1997, the Company constructed and equipped 61
leased stores and 3 owned stores, and renovated 99 existing stores. During
1996, the Company equipped 55 leased stores and renovated 124 existing stores.
During 1995, the Company constructed and equipped 38 leased stores and nine
owned stores, and renovated 121 stores. In addition, the Company completed an
expansion of its Greencastle, Pennsylvania distribution center in 1995.
LIFO
The LIFO reserve increased $10.0 million in 1997 as compared with increases
of $10.3 million in 1996 and $15.0 million in 1995. The 1997 increase was
primarily due to increased coffee, paper, and cigarette prices. In 1996,
increased costs of grocery, frozen food and dairy items were the primary
contributors to the LIFO increase while in 1995, paper, plastic products and
packaging were the primary contributors to the LIFO increase.
Income Taxes
The provision for income taxes was $110.1 million in 1997, $137.6 million in
1996 and $110.7 million in 1995. The Company's effective tax rate was 39.0% in
1997 and 1996, and 39.1% in 1995.
Liquidity and Capital Resources
Cash provided by operating activities was $430.8 million in 1997 compared
with $315.3 million in 1996 and $330.6 million in 1995. The increase in 1997
over the prior years was due primarily to a decrease in inventory levels
resulting from continued inventory management efforts, the consolidation of the
Kash n' Karry warehouse operation into Food Lion's Plant City, Florida
distribution center, and closing the Southwest distribution center. The
decrease in 1996 was primarily due to increased inventory levels resulting from
the Kash n' Karry acquisition and increased receivables. The decrease in 1995
from 1994, was primarily due to an increase in inventory as a result of more
store openings, an increase in prepaid expenses and a decrease in taxes payable,
offset by a decrease in receivables and an increase in payables.
Cash flows used in investing activities decreased to $313.6 million in 1997
compared with $356.0 million in 1996 and $199.1 million in 1995. The decrease
in investing activities in 1997 compared to 1996 reflects the investment in Kash
n' Karry during 1996 partially offset by an increase in capital expenditures in
1997 (see discussion below). In December of 1996, Food Lion purchased the stock
of Kash n' Karry for $121.6 million.
Capital expenditures increased to $346.1 million in 1997, compared with
$283.6 million in 1996 and $219.9 million in 1995. During 1997, the Company
equipped a total of 64 new stores and renovated 99 existing stores (including
expanding square footage and adding deli/bakeries in most of these stores).
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 Food Lion
stores. During 1995, the Company equipped a total of 47 new stores, constructed
nine Company-owned stores, completed 121 store renovations and completed
construction on an expansion of the Greencastle, Pennsylvania distribution
center.
As a result of 64 new store openings, the acquisition of 100 Kash n' Karry
stores at the end of 1996, and the closing of 119 stores in 1997, total stores
increased from 1,112 at the end of 1996 to 1,157 at the end of 1997. Total
store square footage increased 10.7% from 32.6 million in 1996 to 36.1 million
in 1997. The total distribution space operated by the Company was 8.7 million
square feet in 1997 compared with 10.7 million and 9.9 million in 1996 and
1995, respectively. The decrease in distribution space of 2 million square feet
from 1996 to 1997 was the result of closing the distribution center in the
Company's Southwest market, and the consolidation of the Kash n' Karry warehouse
operation into Food Lion's Plant City, Florida distribution center.
In 1998 the Company plans to continue its three-fold growth plan, which
focuses on a combination of new store openings and renovations, as well as
growth through acquisitions, if and when appropriate. The Company anticipates
opening 75 new stores (17 of these will replace older stores) and renovating
approximately 133 stores in 1998. 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 1998.
Capital expenditures for 1998 are expected to total $360 million which includes
approximately $150 million for store expansion and new store construction and
$150 million to equip new and renovated stores.
The Company plans to finance capital expenditures for 1998 through funds
generated from operations and existing bank and credit lines. 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.
Under the Company's current share repurchase program, which expires in
April, 1998, the Company can repurchase up to $100 million in outstanding
securities. The share repurchase program allows the Company the flexibility to
repurchase securities as it deems appropriate in the best interests of its
shareholders and in consideration of all other possible uses of funds generated
by operations. Due to the acquisition of Kash n' Karry which was finalized in
December, 1996, there has been minimal repurchase activity during the past
eighteen months. During 1997, the Company expended $3.0 million for the
purchase of Class A and Class B shares, as part of its repurchase program
compared to $44.3 million in 1996 and $50.9 million in 1995. See table below.
Class A Class B
1997
Shares purchased 235,000 175,000
Average purchase price $7.34 $7.06
Total purchased $1,724,900 $1,235,500
1996
Shares purchased 3,047,000 3,722,250
Average purchase price $5.89 $7.09
Total purchased $17,946,830 $26,390,753
1995
Shares purchased 5,640,615 2,946,500
Average purchase price $5.94 $5.92
Total purchased $33,505,253 $17,443,280
Additional purchases may be made in the open market under the current program as
deemed in the best interest of shareholders.
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
amount, $350.0 million will expire on December 15, 1998 and $350.0 million will
expire on December 16, 2001. As of January 3, 1998, the Company had no
outstanding borrowings. During 1997, the Company had average borrowings of
$97.5 million at a daily weighted average interest rate of 5.71% with a maximum
amount outstanding of $410 million. As of December 28, 1996, the Company had
outstanding borrowings of $250 million related to this credit facility.
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 January 3, 1998. During 1997, the Company had average borrowings of
$5.40 million at a daily weighted average interest rate of 5.68% with a maximum
amount outstanding of $35 million.
The Company has a $250.0 million commercial paper program, of which no
borrowings were outstanding at January 3, 1998, December 28, 1996 and December
30, 1995, 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)
1997 1996 1995
Outstanding borrowings at year end $ 80 $ 0 $0
Average borrowings 8.2 3.0 .4
Maximum amount outstanding 80.0 55.0 20.0
Daily weighted average interest rate 5.76% 5.48% 6.04%
In 1997, the Company repurchased privately issued notes totaling $50
million, which were due on July 1, 1998.
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 January 3, 1998, 117,341
shares had been converted. The Company also currently has outstanding medium-
term notes of $150.3 million.
The Company assumed $230.8 million in debt related to the acquisition of
Kash n' Karry. Kash n' Karry's Senior Fixed-Rate Notes bearing interest at
11.5% accounted for the majority ($136.8 million) of this debt. The Senior
Fixed Rate Notes, and the majority of the remaining debt securities were repaid
during the first quarter of 1997. The Company funded this repayment of debt,
along with additional acquisition-related short-term borrowings, with the April
1997 issuance of $300 million in debt securities (discussed in the Interest
Expense section above).
Impact of Inflation
During 1997, the impact of inflation on the Company's operating results was
moderate as the Company posted an inflation rate of 1.0%. Inventory and labor,
the Company's primary costs, increase with inflation and, where possible, will
be recovered through operating efficiencies and gross profits.
Year 2000
The Company has evaluated its internal systems and is implementing a
software conversion program to address Year 2000 issues that the Company
believes could significantly impact the business. The software conversion
process is expected to be completed and tested during 1999. Based on current
estimates, the Company does not anticipate that the costs of this remediation
will be material to the Company's financial results. The Company is in the
process of evaluating the risks associated with embedded software in equipment
and potential problems affecting the information processing systems of vendors
and others with whom the Company does business.
Self Insurance
The Company is self-insured for its workers' compensation, general
liability and vehicle accident claims. The Company establishes reserves based
on an independent actuary's valuation of open claims reported and an estimate of
claims incurred but not yet reported. It is possible that the final resolution
of some of these claims may require significant expenditures by the Company in
excess of its existing reserves, over an extended period of time and in a range
of amounts that cannot be reasonably estimated.
New Accounting Standard
During 1997, the Financial Accounting Standards Board issued Statement
no. 131 "Disclosures about Segments of an Enterprise and Related Information"
("FASB no. 131"). This statement is effective for fiscal years beginning after
December 15, 1997, or fiscal 1998 for Food Lion, Inc. The implementation of
this standard will not have a material impact on the Company's financial
statements. In accordance with FASB no. 131, the Company will continue to
report one operating segment which will include all stores (Food Lion and Kash
n' Karry).
Other:
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 statements. 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, including filings with the Securities and Exchange Commission of
Forms 10-Q, 10-K and 8-K.
Important assumptions and other important factors that could cause actual
results to differ materially from those set forth in the forward-looking
statements include: changes in the general economy or in the Company's primary
markets, changes in consumer spending, competitive factors, the nature and
extent of continued consolidation in the industry, 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 - supply or quality control problems with the Company's vendors, and
uncertainties detailed from time-to-time in the Company's filings with the
Securities and Exchange Commission. In addition, with respect to the
anticipated proceeds from the disposition of assets in the Southwest, additional
factors that could cause results to differ materially include conditions in the
real estate market and general economic conditions in the local communities
where the assets are located.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule 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.
</LEGEND>
<RESTATED>
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<S> <C> <C> <C> <C>
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<FISCAL-YEAR-END> DEC-30-1995 DEC-28-1996 DEC-28-1996 DEC-28-1996
<PERIOD-START> JAN-01-1995 DEC-31-1995 DEC-31-1995 DEC-31-1995
<PERIOD-END> DEC-30-1995 MAR-23-1996 JUN-15-1996 SEP-7-1996
<CASH> 70,035 135,119 75,690 149,448
<SECURITIES> 0 0 0 0
<RECEIVABLES> 127,995 130,483 123,494 137,869
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<INVENTORY> 881,021 875,719 871,203 886,842
<CURRENT-ASSETS> 1,152,413 1,211,834 1,172,349 1,250,538
<PP&E> 2,333,744 2,373,896 2,417,108 2,470,952
<DEPRECIATION> 840,892 864,785 882,070 906,631
<TOTAL-ASSETS> 2,645,265 2,720,945 2,707,387 2,814,859
<CURRENT-LIABILITIES> 698,695 795,078 741,599 785,052
<BONDS> 355,300 315,300 315,300 314,689
0 0 0 0
0 0 0 0
<COMMON> 237,568 235,704 234,581 234,366
<OTHER-SE> 864,942 871,197 894,229 930,751
<TOTAL-LIABILITY-AND-EQUITY> 2,645,265 2,720,945 2,707,387 2,814,859
<SALES> 8,210,884 2,024,453 4,108,867 6,233,257
<TOTAL-REVENUES> 8,210,884 2,024,453 4,108,867 6,233,257
<CGS> 6,516,637 1,612,830 3,253,598 4,915,927
<TOTAL-COSTS> 6,516,637 1,612,830 3,253,598 4,915,927
<OTHER-EXPENSES> 0 0 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 73,484 19,004 38,643 57,840
<INCOME-PRETAX> 283,061 63,072 148,518 236,214
<INCOME-TAX> 110,700 24,598 57,922 92,123
<INCOME-CONTINUING> 172,361 38,474 90,596 144,091
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 172,361 38,474 90,596 144,091
<EPS-PRIMARY> .36 .08 .19 .31
<EPS-DILUTED> .35 .08 .19 .30
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule 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.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C> <C> <C>
<PERIOD-TYPE> YEAR 3-MOS 6-MOS 9-MOS
<FISCAL-YEAR-END> DEC-28-1996 JAN-03-1998 JAN-03-1998 JAN-03-1998
<PERIOD-START> DEC-31-1995 DEC-29-1996 DEC-29-1996 DEC-29-1996
<PERIOD-END> DEC-28-1996 MAR-22-1997 JUN-14-1997 SEP-6-1997
<CASH> 102,371 101,205 26,638 106,088
<SECURITIES> 0 0 0 0
<RECEIVABLES> 151,163 142,509 142,006 149,951
<ALLOWANCES> 0 0 0 0
<INVENTORY> 1,065,743 974,861 974,953 984,482
<CURRENT-ASSETS> 1,428,744 1,324,845 1,287,198 1,387,204
<PP&E> 2,965,817 2,734,422 2,828,536 2,834,939
<DEPRECIATION> 918,859 955,141 997,349 1,027,005
<TOTAL-ASSETS> 3,478,471 3,389,499 3,401,121 3,476,961
<CURRENT-LIABILITIES> 1,134,964 1,179,276 861,849 996,469
<BONDS> 495,111 334,085 633,905 583,802
0 0 0 0
0 0 0 0
<COMMON> 236,242 235,957 234,421 234,640
<OTHER-SE> 988,846 1,016,744 1,048,406 1,026,328
<TOTAL-LIABILITY-AND-EQUITY> 3,478,471 3,389,499 3,401,121 3,476,961
<SALES> 9,005,932 2,276,746 4,601,466 6,968,371
<TOTAL-REVENUES> 9,005,932 2,276,746 4,601,466 6,968,371
<CGS> 7,087,177 1,783,062 3,604,111 5,457,584
<TOTAL-COSTS> 7,087,177 1,783,062 3,604,111 5,457,584
<OTHER-EXPENSES> 0 0 0 0
<LOSS-PROVISION> 0 0 0 0
<INTEREST-EXPENSE> 80,520 26,685 54,446 83,714
<INCOME-PRETAX> 352,770 71,461 149,807 139,345
<INCOME-TAX> 137,550 27,870 58,425 54,345
<INCOME-CONTINUING> 215,220 43,591 91,382 85,000
<DISCONTINUED> 0 0 0 0
<EXTRAORDINARY> 0 0 0 0
<CHANGES> 0 0 0 0
<NET-INCOME> 215,220 43,591 91,382 85,000
<EPS-PRIMARY> .46 .09 .19 .18
<EPS-DILUTED> .45 .09 .19 .18
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