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 2, 1999. 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 26, 1999, was $1,033,294,366 and $1,457,690,498, 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 26, 1999.
Class A Common Stock - 247,914,301
Class B Common Stock - 230,830,364
Exhibit index is located on sequential page 16 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 2, 1999,
or is incorporated by reference in Part II hereof.
2. Proxy Statement for the 1999 Annual Meeting of Shareholders of the
Company to be held on May 6, 1999, or is 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 in the southeastern and Mid-Atlantic
regions of the 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 names 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 care, prescriptions, 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 30,000 Stock
Keeping Units (SKU's) in its Food Lion locations and over 35,000 in its Kash n'
Karry locations. The Company's current Food Lion store prototype is a 38,000
square foot model. The current Kash n' Karry store prototype is a 46,000 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, warehouse clubs and drug stores. 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 2, 1999, 1,207 supermarkets were in operation as follows:
Delaware 12 North Carolina 409
Florida 186 Pennsylvania 7
Georgia 56 South Carolina 112
Kentucky 12 Tennessee 81
Maryland 49 Virginia 266
West Virginia 17
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As of March 26, 1999, the Company had opened 21 supermarkets since January 2,
1999, closed one supermarket, relocated four supermarkets and had signed leases
for 16 supermarkets which are expected to open in either 1999 or 2000.
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 2, 1999, the Company employed 32,991 full-time and 59,134
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
1998 79 (12) (17) 1,207
1997 164 (a) (94) (b) (25) 1,157
1996 64 ( 3) (22) 1,112
(a) Includes 100 stores acquired from Kash n' Karry
(b) Includes 61 Southwest store closings
Item 2. Properties.
Supermarkets operated by the Company in the southeastern and Mid-Atlantic
states average 32,218 square feet in size. The Company's current Food Lion
store prototype retail format is a 38,000 square foot model with a deli/bakery
department. The current Kash n' Karry store prototype is a 46,000 square foot
model. All of the Company's supermarkets are self-service stores which have off-
street parking facilities. With the exception of operating 66 owned
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 1998 the Company had $21.0 million (net 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 2, 1999.
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
-3-
Item 3. Legal Proceedings.
The Company has had no significant developments related to legal matters since
the Item 1 disclosure included in the Company's Form 10-Q for the quarter ended
September 12, 1998.
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 26, 1999, 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
26, 1999 Officer Present
Office
Tom E. Smith 57 1974 1981
President and Chief
Executive Officer
Joseph C. Hall, Jr. 49 1988 1995
Senior Vice President and
Chief Operating Officer
R. William McCanless 41 1993 1995
Senior Vice President,
Chief Administrative
Officer
and Secretary
Pamela K. Kohn 34 1995 1997
Senior Vice President of
Merchandising
A. Edward Benner, Jr. 57 1980 1996
Vice President and Chief
Information Officer
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Robert J. Brunory 44 1994 1994
Vice President
Procurement/Category
Management
Michael D. Byars 40 1997 1997
Vice President
of Operations, Food Lion,
Kash n' Karry Division
Robert E. Crosslin (1) 44 1997 1997
Vice President of
Distribution
W. Bruce Dawson 46 1995 1995
Vice President of
Operations/
Northern Division
Keith M. Gehl 40 1997 1997
Vice President of Real
Estate and
Store Development
Carol M. Herndon 36 1991 1994
Corporate Controller and
Director of Accounting
Richard A. James 39 1997 1997
Director of Finance and
Treasurer
L. Darrell Johnson 46 1997 1997
Vice President of Human
Resources
Laura C. Kendall (2) 47 1997 1997
Vice President of Finance
and Chief Financial Officer
C. Dave Morgan 48 1997 1997
Vice President of
Operations/
Southern Division
Elwyn G. Murray, III 32 1998 1998
Vice President of Marketing
Lester C. Nail (3) 39 1995 1995
Vice President Legal
Affairs
and Assistant Secretary
Thomas J. Robinson 38 1997 1997
Vice President of
Operations/
Central Division
Natalie M. Taylor 39 1997 1997
Vice President of Diversity
-5-
(1) Mr.Crosslin joined Food Lion in October 1996 and served as Corporate
Transportation Manager until his promotion to Vice President in May 1998. Prior
to joining Food Lion in 1996, Mr. Crosslin served as Director of Fleet Services
to Ralphs Grocery Company.
(2) 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.
(3) 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 2, 1999, 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 2,
1999, 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 2, 1999, 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 2, 1999, are hereby incorporated by
reference.
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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 1999
Annual Meeting of Shareholders to be held May 6, 1999 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
headings "Executive Compensation" and "Report of the Senior Management
Compensation Committee, Stock Option Committee and Board of Directors" in the
Proxy Statement for the 1999 Annual Meeting of Shareholders to be held on May 6,
1999, 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 1999
Annual Meeting of Shareholders to be held on May 6, 1999, 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", "Compensation Committee Interlocks and Insider Participation" and
"Certain Transactions" in the Proxy Statement for the 1999 Annual Meeting of
Shareholders to be held May 6, 1999, is hereby incorporated by reference.
-7-
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 2, 1999:
ANNUAL REPORT
PAGE NO.
Consolidated Statements of Income for the years
ended January 2, 1999, January 3, 1998 and
December 28, 1996 20
Consolidated Balance Sheets, as of January 2,
1999 and January 3, 1998 21
Consolidated Statements of Cash Flows for the
years ended January 2, 1999, January 3, 1998
and December 28, 1996 22
Consolidated Statements of Shareholders' Equity
for the years ended January 2, 1999,
January 3, 1998 and December 28, 1996 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 15
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.
-8-
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
1998 Annual Report to Shareholders of Food Lion, Inc. and incorporated by
reference into this Form 10-K Annual Report, the 1998 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 July 3, 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)
-9-
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)
-10-
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) 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)
-11-
10(y) 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(z) 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(aa) Deferral Agreement and Election, dated as of December
18, 1997, by and between Tom E. Smith and the Company
(incorporated by reference to 10(ac) of the Company's
Annual Report on Form 10-K dated April 8, 1998)
10(ab) Employment Agreement, dated as of October 1, 1997,
between Pamela K. Kohn and the Company (incorporated by
reference to 10(ad) of the Company's Annual Report on
Form 10-K dated April 8, 1998)
10(ac) Employment Agreement, dated as of October 1, 1997,
between A. Edward Benner and the Company (incorporated
by reference to 10(ae) of the Company's Annual Report
on Form 10-K dated April 8, 1998)
10(ad) Agreement, dated as of January 4, 1998, between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and the Company (incorporated by reference to
10(af) of the Company's Annual Report on Form 10-K
dated April 8, 1998)
10(ae) Credit Agreement dated as of December 15, 1998, among the
Company, the lenders party thereto, and The Chase Manhattan
Bank, N.A., as Documentation Agent
11 Computation of Earnings Per Share
13 Annual Report to Shareholders for the year
ended January 2, 1999
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 during the
period ended January 2, 1999.
-12-
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.
Food Lion, Inc.
Date: March 30, 1999 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: March 30, 1999 By Tom E. Smith
Tom E. Smith
President, Chief Executive
Officer, Principal
Executive Officer and Director
Date: March 30, 1999 By Pierre-Olivier Beckers
Pierre-Olivier Beckers
Director
Date: March 21, 1999 By Dr. Jacqueline K. Collamore
Dr. Jacqueline K. Collamore
Director
Date: March 30, 1999 By Jean-Claude Coppieters t' Wallant
Jean-Claude Coppieters t' Wallant
Director
Date: March 19, 1999 By William G. Ferguson
William G. Ferguson
Director
Date: March 19, 1999 By Dr. Bernard Franklin
Dr. Bernard Franklin
Director
Date: March 30, 1999 By Joseph C. Hall
Joseph C. Hall
Senior Vice President of Operations
Director
Date: March 30, 1999 By Margaret H. Kluttz
Margaret H. Kluttz
Director
Date: March 30, 1999 By Dominque Raquez
Dominque Raquez
Director
Date: March 30, 1999 By Gui de Vaucleroy
Gui de Vaucleroy
Director
-13-
Date: March 30, 1999 By R. William McCanless
R. William McCanless
Chief Administrative Officer
and Secretary
Date: March 25, 1999 By Laura Kendall
Laura Kendall
Vice President of Finance
Chief Financial Officer
Principal Financial Officer
-14-
REPORT OF INDEPENDENT ACCOUNTANTS
February 10, 1999
To the Shareholders of Food Lion, Inc.:
In our opinion, the consolidated financial statements of Food Lion, Inc. and
subsidiaries,which financial statements are included on pages 20 through 29
of the 1998 Annual Report to Shareholders of Food Lion, Inc. incorporated
by reference herein, present fairly, in all material respects, the financial
position of Food Lion, Inc. and subsidiaries at January 2, 1999 and January 3,
1998, and the results of its operations and its cash flows for each of the
three years in the period ended January 2, 1999, in conformity with generally
accepted accounting principles. 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 of these statements in accordance with
generally accepted auditing standards which 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,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
-15-
EXHIBIT INDEX
to
ANNUAL REPORT ON FORM 10-K of
Food Lion, Inc.
For Year Ended January 2, 1999
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 July 3, 1997 20-33
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) 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(y) 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(z) 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)
-3-
10(aa) Deferral Agreement and Election, dated as of
December 18, 1997, by and between Tom E. Smith and
the Company (incorporated by reference to Exhibit
10 (ac) of the Company's Annual Report on Form 10-K
dated April 8, 1998)
10(ab) Employment Agreement, dated as of October 1,1997,
between Pamela K. Kohn and the Company. (incorporated
by reference to Exhibit 10 (ad) of the Company's Annual
Report on Form 10-K dated April 8, 1998)
10(ac) Employment Agreement, dated as of October 1, 1997,
between A. Edward Benner and the Company (incorporated
by reference to Exhibit 10 (ae) of the Company's Annual
Report on Form 10-K dated April 8, 1998)
10(ad) Agreement, dated as of January 4, 1998, between
Etablissements Delhaize Freres et Cie "Le Lion"
S.A. and the Company. (incorporated
by reference to Exhibit 10 (af) of the Company's Annual
Report on Form 10-K dated April 8, 1998)
10(ae) Credit Agreement dated as of December 15, 1998, among
the Company, the lenders party thereto, and The Chase
Manhattan Bank,as Administrative Agent, and Wachovia
Bank, N.A., as Documentation Agent. 34-145
11 Computation of Earnings Per Share 146
13 Annual Report to Shareholders for the year ended
January 2, 1999 147-179
21 Subsidiaries of Registrant 180
23 Consent of Independent Accountants 181
27 Financial Data Schedules 182-183
99 Undertaking of the Company to file exhibits pursuant
to Item 601(b)(4)(iii)(A) of Regulation S-K 184
(b) Reports on Form 8-K:
The Company did not file a report on Form 8-K during the period
ended January 2, 1999.
-4-
BYLAWS
OF
FOOD LION, INC.
BYLAWS
OF
FOOD LION, INC.
ARTICLE 1
Offices
Section 1. Principal and Registered Office. The principal
office of the corporation shall be located at 2110 Executive Drive,
Salisbury, North Carolina, which shall also be the registered office
of the corporation.
Section 2. Other Offices. The corporation may have offices
at such other places, either within or without the State of North
Carolina, as the board of directors may from time to time determine.
ARTICLE 2
Meetings of Shareholders
Section 1. Place of Meeting. Meetings of shareholders
shall be held at the principal office of the corporation, or at such
other place, either within or without the State of North Carolina, as
shall be designated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of
shareholders shall be held on such date and at such time during the
month of May of each year as shall be set by the board of directors,
for the purpose of electing directors of the corporation and the
transaction of such other business as may be properly brought before
the meeting.
Section 3. Substitute Annual Meeting. If the annual
meeting is not held on the day designated by these bylaws, a
substitute annual meeting may be called in accordance with Section 4
of this Article. A meeting so called shall be designated and treated
for all purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the
shareholders may be called at any time by the president and chief
executive officer or by any two members of the board of directors.
Section 5. Notice of Meetings. At least 10 days and no
more than 60 days prior to any annual or special meeting of the
shareholders, the corporation shall notify shareholders of the date,
time and place of the meeting and, in the case of a special or
substitute annual meeting or where otherwise required by law, shall
briefly describe the purpose or purposes of the meeting. Only
business within the purpose or purposes described in the notice may be
conducted at a special meeting. Unless otherwise required by the
articles of incorporation or by law (for example, in the event of a
meeting to consider the adoption of a plan of merger or share
exchange, a sale of assets other than in the ordinary course of
business or a voluntary dissolution), the corporation shall be
required to give notice only to shareholders entitled to vote at the
meeting. If an annual or special shareholder's meeting is adjourned
to a different date, time or place, notice thereof need not be given
if the new date, time or place is announced at the meeting before
adjournment. If a new record date for the adjourned meeting is fixed
pursuant to Article 7, Section 5 hereof, notice of the adjourned
meeting shall be given to persons who are shareholders as of the new
record date. It shall be the primary responsibility of the secretary
to give the notice, but notice may be given by or at the direction of
the president and chief executive officer or other person or persons
calling the meeting. If mailed, such notice shall be deemed to be
effective when deposited in the United States mail with postage
thereon prepaid, correctly addressed to the shareholder's address
shown in the corporation's current record of shareholders.
Section 6. Advance Notice of Shareholder Proposals. No
business shall be transacted at a meeting of shareholders, except such
business as shall be (a) specified in the notice of meeting given as
provided in Section 5 of this Article 2, (b) otherwise brought before
the meeting by or at the direction of the board of directors, or (c)
otherwise brought before the meeting by a shareholder of record
entitled to vote at the meeting, in compliance with the procedure set
forth in this Section 6. For business to be brought before a meeting
by a shareholder pursuant to (c) above, the shareholder must have
given timely notice in writing to the Secretary. To be timely, a
shareholder's notice must be delivered to, or mailed to and received
by, the Secretary of the corporation not less than 10 days nor more
than 60 days prior to the meeting; provided, however, that if fewer
than 21 days' notice of the meeting is given to shareholders, such
written notice shall be received not later than the close of the tenth
day following the date on which notice of the meeting was mailed to
shareholders. Notwithstanding the foregoing, any shareholder who
wishes the board of directors to consider taking a position with
respect to the matter must deliver such notice to, or mail it so that
it is received by, the Secretary of the corporation not less than 90
nor more than 150 days prior to the meeting. Nothing in this Section
6 shall require the board of directors to recommend for adoption by
the shareholders, or give the shareholders notice of, any matter of
which notice is provided to the corporation pursuant to this Section
or otherwise. Notice of actions to be brought before the meeting
pursuant to (c) above shall set forth as to each matter the
shareholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting,
(ii) the name and address, as they appear on the corporation's books,
of each shareholder proposing such business, (iii) the classes and
number of shares of the corporation that are owned of record and
beneficially by such shareholder of the corporation. Notwithstanding
anything in these bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the provisions set
forth in this Section 6, except as otherwise may be required by law.
Nothing in this Section 6 shall be deemed to restrict, expand or
otherwise affect any rights or obligations of any party under Rule 14a-
8 of the Securities and Exchange Commission or any successor provision
to such rule. If the chairman of the meeting determines that any
business was not properly brought before the meeting in accordance
with provisions prescribed by these bylaws, he shall so declare to the
meeting, and to the extent permitted by law any such business not
properly brought before the meeting shall not be transacted.
Section 7. Quorum. A majority of the votes entitled to be
cast by a voting group on a matter, represented in person or by proxy
at a meeting of shareholders, shall constitute a quorum for that
voting group for any action on that matter, unless quorum requirements
are otherwise fixed by a court of competent jurisdiction acting
pursuant to Section 55-7-03 of the General Statutes of North Carolina.
Once a share is represented for any purpose at a meeting, it shall be
deemed present for quorum purposes for the remainder of the meeting
and any adjournment thereof, unless a new record date is or must be
set for the adjournment. Action may be taken by a voting group at
any meeting at which a quorum of that voting group is represented,
regardless of whether action is taken at that meeting by any other
voting group. In the absence of a quorum at the opening of any
meeting of shareholders, such meeting may be adjourned from time to
time by a vote of the majority of the shares voting on the motion to
adjourn.
Section 8. Shareholders' List. After a record date is
fixed for a meeting, the secretary of the corporation shall prepare an
alphabetical list of the names of all its shareholders who are
entitled to notice of the shareholders' meeting. Such list shall be
arranged by voting group (and within each voting group by class or
series of shares) and shall show the address of and number of shares
held by each shareholder. The shareholder's list shall be made
available for inspection by any shareholder, beginning two business
days after notice of the meeting is given for which the list was
prepared and continuing through the meeting, at the corporation's
principal office or at such other place identified in the meeting
notice and the city where the meeting will be held. The corporation
shall make the shareholders' list available at the meeting, and any
shareholder or his agent or attorney is entitled to inspect the list
at any time during the meeting or any adjournment thereof.
Section 9. Voting of Shares. Except as otherwise provided
by the articles of incorporation, each outstanding share of voting
capital stock of the corporation shall be entitled to one vote on each
matter submitted to a vote at a meeting of the shareholders. Action
on a matter by a voting group for which a quorum is present is
approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the vote of a
greater number is required by law or by the articles of incorporation.
Voting on all matters shall be by voice vote or by a show of hands,
unless the holders of one-tenth of the shares represented at the
meeting shall demand a ballot vote on a particular matter. Absent
special circumstances, the shares of the corporation are not entitled
to vote if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the corporation owns, directly
or indirectly, a majority of the shares entitled to vote for directors
of the second corporation, except that this provision shall not limit
the power of the corporation to vote shares held by it in a fiduciary
capacity.
Section 10. Proxies. Shares may be voted either in person
or by a proxy who has been appointed by the shareholder by signing an
appointment form, either personally or by his duly authorized attorney-
in-fact. An appointment of proxy is effective when received by the
secretary or other officer or agent authorized to tabulate votes. An
appointment of proxy is valid for 11 months unless a different period
is expressly provided in the appointment form.
Section 11. Action Without Meeting. Any action which the
shareholders could take at a meeting may be taken without a meeting if
one or more written consents, setting forth the action taken, shall be
signed, before or after such action, by all the shareholders who would
be entitled to vote upon the action at a meeting. The consent shall
be delivered to the corporation for inclusion in the minutes or filing
with the corporate records. The corporation must give its nonvoting
shareholders written notice of the proposed action at least 10 days
before the action is taken, which notice must contain or be
accompanied by the same material that would have been required by law
to be sent to nonvoting shareholders in a notice of meeting at which
the proposed action would have been submitted to the shareholders for
action.
ARTICLE 3
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed under the direction of the board of
directors except as otherwise provided by the articles of
incorporation or by a valid shareholders' agreement.
Section 2. Number, Term and Qualification. The number of
directors of the corporation shall be not less than eight persons nor
more than ten persons, with the exact number of directors within the
minimum and maximum to be established from time to time by the
shareholders or the board of directors; but, in the absence of such
action, the number of directors elected at the annual meeting of
shareholders, unless the number is previously changed by action of the
shareholders or the board of directors. Only shareholders may change
the range for the size of the board of directors or change from a
variable range to a fixed size board of directors. Each director
shall hold office until the next annual meeting of the shareholders
and until his successor is elected and qualifies, until there is a
decrease in the number of directors or until his earlier death,
resignation, removal or disqualification. Directors need not be
residents of the State of North Carolina or shareholders of the
corporation unless the articles of incorporation so provide. No
person after having attained the age of 70 years shall be allowed to
run for election, reelection or re-appointment to the board of
directors, excepting, however, that such retirement age shall not
apply to directors over the age of 65 years who were serving on such
board on July 3, 1997.
Section 3. Nomination of Directors. Only persons who are
nominated in accordance with the provisions set forth in these bylaws
shall be eligible to be elected as directors at the annual or special
meeting of shareholders. Nomination for election to the board of
directors shall be made or approved by the board of directors.
In addition, nomination for election of any person to the
board of directors may be made by a shareholder if written notice of
the nomination of such person shall have been delivered to the
Secretary of the corporation at the principal office of the
corporation not less than 10 days nor more than 60 days prior to any
meeting of the shareholders called for the election of directors;
provided, however, that if fewer than 21 days' notice of the meeting
is given to shareholders, such written notice shall be received not
later than the close of the tenth day following the day on which
notice of the meeting was mailed to shareholders. Notwithstanding the
foregoing, any shareholder who wishes the board of directors or a duly
authorized committee of the board of directors to consider nominating
for election to the board of directors a person recommended by a
shareholder must deliver such notice to, or mail it so that it is
received by, the Secretary of the corporation not less than 90 nor
more than 150 days prior to the meeting. Any notice provided pursuant
to this Section shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is
a holder of record of shares of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c)
a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission if the
nominee had been nominated by the board of directors; and (e) the
written consent of each nominee to serve as a director of the
corporation if so elected. Nothing in this Section shall require the
board of directors to nominate or approve, as one of its nominees, any
person recommended to be so nominated by a shareholder or to give the
shareholders notice of any proposed nomination by a shareholder. The
chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
Section 4. Election. Except as provided in Section 6 of
this article III (vacancies), the directors shall be elected at the
annual meeting of shareholders. Those persons who receive the highest
number of votes at a meeting at which a quorum is present shall be
deemed to have been elected.
Section 5. Removal. Directors may be removed from office
with or without cause (unless the articles of incorporation provide
that directors may be removed only for cause), provided the notice of
the shareholders' meeting at which such action is to be taken states
that a purpose of the meeting is removal of the director and the
number of votes cast to remove the director exceeds the number of
votes cast not to remove him.
Section 6. Vacancies. Except as otherwise provided in the
articles of incorporation, a vacancy occurring in the board of
directors, including, without limitation, a vacancy resulting from an
increase in the number of directors or from the failure by the
shareholders to elect the full authorized number of directors, shall
be filled by an affirmative vote of at least 70% of the remaining
directors in favor of a nominee selected by the Nominating Committee
of the board of directors, in accordance with the procedures set forth
in Article 5, Section 2, below. The shareholders may elect a director
at any time to fill a vacancy not filled by the directors. A director
elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 7. Compensation. The board of directors may
compensate directors for their services as such and may provide for
the payment of any or all expenses incurred by directors in attending
regular and special meetings of the board of directors.
ARTICLE 4
Meetings of Directors
Section 1. Annual and Regular Meetings. The annual meeting
of the board of directors shall be held immediately following the
annual meeting of the shareholders. The board of directors may by
resolution provide for the holding of regular meetings of the board on
specified dates and at specified times. Notice of regular meetings
held at the principal office of the corporation and at the usual
scheduled time shall not be required. If any date for which a regular
meeting is scheduled shall be a legal holiday, the meeting shall be
held on a date designated in the notice of the meeting, if any, during
either the same week in which the regularly scheduled date falls or
during the preceding or following week. Regular meetings of the board
shall be held at the principal office of the corporation or at such
other place as may be designated in the notice of the meeting.
Section 2. Special Meetings. Special meetings of the board
of directors may be called by or at the request of the chairman of the
board, the president and chief executive officer or any two directors.
Such meetings may be held at the time and place designated in the
notice of the meeting.
Section 3. Notice of Meetings. Unless the articles of
incorporation provide otherwise, the annual and regular meetings of
the board of directors may be held without notice of the date, time or
place. However, the president and chief executive officer or
secretary shall provide each director with a written agenda of the
items to be discussed at such meetings at least seven days prior
thereto. Any person or persons calling a special meeting shall give
notice by any usual means of communication to be sent at least seven
days before the meeting if notice is sent by means of telephone,
telecopy or personal delivery and at least ten days before the meeting
if notice is sent by mail. A director's attendance at, or
participation in, a meeting for which notice is required shall
constitute a waiver of notice, unless the director at the beginning of
the meeting (or promptly upon arrival) objects to holding the meeting
or transacting business at the meeting and does not thereafter vote or
assent to action taken at the meeting.
Section 4. Quorum. Except as otherwise provided in the
articles of incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business at a meeting of
the board of directors.
Section 5. Manner of Acting. Except as otherwise provided
in the articles of incorporation or these bylaws, the act of the
majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors.
Section 6. Special Vote. The board of directors may not,
without an affirmative vote of at least 70% of the number of
directors fixed by these bylaws ("Special Vote"), be empowered to
authorize the corporation to:
(a) Approve the nomination of any person or persons
for election to the board of directors or elect a chief executive
officer other than Tom E. Smith;
(b) Authorize any contract involving payment by the
corporation of cash or property valued in excess of $500,000,
including, without limitation, the purchase, sale or leasing of
property or the incurring of indebtedness, except transactions
relating to the leasing or construction of stores, warehouses and
related facilities or any other transaction in the ordinary
course of business;
(c) Approve or authorize capital expenditures of more
than $500,000 in any one instance or $1,000,000 in the aggregate
in any fiscal year, except expenditures relating to the leasing
or construction of stores, warehouses and related facilities or
any other transaction in the ordinary course of business;
(d) Authorize the issuance or sale of stock or other
securities of the corporation or any subsidiary of the
corporation, or options or warrants or obligations convertible
into such stock or securities, except the issuance of stock
options or stock or both, as the case may be, pursuant to the
corporation's 1981 Employee Stock Option Plan, 1983 Employee
Stock Option Plan, 1991 Employee Stock Option Plan, Employee
Stock Purchase Plan and Employee Stock Ownership Plan and other
employee benefit plans approved by the board of directors;
(e) Sell or otherwise dispose of a substantial part of
the corporation's assets other than in the ordinary course of
business;
(f) Amend the charter or the bylaws of the
corporation; or
(g) Approve for submission to the shareholders of the
corporation for their approval a proposal for the amendment of
the corporation's charter or the merger or consolidation of the
corporation with or into any other corporation or the
reorganization, recapitalization or liquidation of the
corporation;
Any Special Vote approving any such action may specify
other limitations which shall not be exceeded without a further
Special Vote.
Section 7. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors at
which action on any corporate matter is taken is deemed to have
assented to the action taken unless he objects at the beginning of the
meeting (or promptly upon arrival) to holding, or transacting business
at, the meeting, or unless his dissent or abstention is entered in the
minutes of the meeting or unless he shall file written notice of his
dissent or abstention to such action with the presiding officer of the
meeting before its adjournment or with the corporation immediately
after adjournment of the meeting. The right of dissent or abstention
shall not apply to a director who voted in favor of such action.
Section 8. Action Without Meeting. Unless otherwise
provided in the articles of incorporation, action required or
permitted to be taken at a meeting of the board of directors may be
taken without a meeting if the action is taken by all members of the
board. The action must be evidenced by one or more written consents
signed by each director before or after such action, describing the
action taken, and included in the minutes or filed with the corporate
records. Action taken without a meeting is effective when the last
director signs the consent, unless the consent specifies a different
effective date.
Section 9. Meeting by Communications Device. Unless
otherwise provided in the articles of incorporation, the board of
directors may permit any or all directors to participate in a regular
or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in
person at the meeting.
Section 10. Minutes of Meeting of the Board of Directors.
Minutes of all meetings of the board of directors shall be furnished
to all directors promptly after such meeting.
ARTICLE 5
Committees
Section 1. General. The board of directors may create, by
the affirmative vote of at least 70 % of the number of directors then
serving, one or more committees not otherwise provided for by these
bylaws. Such committees shall consist of two or more directors
appointed and removable by the affirmative vote of at least 70% of the
number of directors then serving. Such committees may meet at stated
times, or on notice to all by any of their own number. The board of
directors may by resolution provide that during intervals between
meetings of the board of directors, the committees shall have and may
exercise the powers of the board in the management of the business and
affairs of the corporation, except that the committees shall not have
authority to:
(a) Authorize distributions;
(b) Approve or propose to shareholders
action required to be approved by shareholders;
(c) Fill vacancies on the board of
directors or on any of its committees;
(d) Amend the articles of incorporation;
(e) Adopt, amend or repeal the bylaws;
(f) Approve a plan or merger not
requiring shareholder approval;
(g) Authorize or approve reacquisition
of shares, except according to a formula or method
prescribed by the board of directors; or
(h) Authorize or approve the issuance,
sale or contract for sale of shares, or determine
the designation and relative rights, preferences
and limitations of a class or series of shares,
except that the board of directors may authorize a
committee (or a senior executive officer of the
corporation) to do so within limits specifically
prescribed by the board of directors.
Section 2. Nominating Committee. There shall be a
Nominating Committee of the board of directors, which shall consist of
three directors, one of whom shall be designated by Etablissements
Delhaize Freres et Cie "Le Lion" S.A. ("Delhaize") and/or Delhaize the
Lion America, Inc., one of whom shall be the Chief Executive Officer
of the Company or his designee from among the members of the board of
directors of the Company, and one of whom shall be an independent
director. The Nominating Committee shall propose to the board of
directors (a) the slate of directors to be submitted to the
shareholders for election at the annual meeting of shareholders or at
any meeting of the shareholders at which a director or directors are
to be elected, and (b) persons to fill any vacancies that may arise
from time to time on the board of directors.
The slate of directors proposed by the Nominating Committee
shall consist of ten persons, four of whom shall be proposed by the
Chief Executive Officer of Delhaize (the "Delhaize Designees"), two of
whom shall be proposed by the Chief Executive Officer of the Company
or his representative on the Nominating Committee (the "CEO
Designees") and four of whom shall be independent directors. In the
event of a vacancy on the board of directors, the Nominating Committee
shall propose to the board of directors an appropriate person to fill
such vacancy such that the foregoing ratio of Delhaize Designees, CEO
Designees and independent directors is regained. Thus, if a Delhaize
Designee ceases to be a director, the vacancy left thereby shall be
filled by a new Delhaize Designee, if a CEO Designee ceases to be a
director, the vacancy left thereby shall be filled by a new CEO
Designee, and if an independent director ceases to be a director, the
vacancy left thereby shall be filled by a new independent director.
The Nominating Committee shall recommend its slate of
directors or any individual nominee to the board of directors of the
Company, which shall approve such nominations by Special Vote. If the
board of directors does not approve a slate of directors or any
individual nominee proposed by the Nominating Committee, the
Nominating Committee shall meet to propose another slate of directors
or nominee acceptable to the board of directors.
The Nominating Committee shall meet at least (a) annually,
prior to the annual meeting of shareholders, (b) prior to any special
meeting of shareholders called for the purpose of electing one or more
directors, (c) within thirty days' notice of any vacancy occurring on
the board of directors, and (d) at any time that it is determined that
the composition of the Company's board of directors does not comply
with any laws or rules that apply to the Company, including the rules
of the National Association of Securities Dealers or any national
securities exchange on which the Company's securities are listed.
Meetings of the Nominating Committee shall be held at such place as is
fixed by the chairman thereof in the notice of the meeting. The
provisions of Article 4 governing action without a meeting, notice,
waiver of notice and quorum requirements shall apply to the Nominating
Committee. All decisions of the Nominating Committee shall require
the affirmative vote of at least two members.
Section 3. Meetings. Except as otherwise provided in these
bylaws, the provisions of Article 4 governing meetings of the board of
directors, action without meeting, notice, waiver of notice,
presumption of assent and quorum and voting requirements shall apply
to the committees of the board and its members.
Section 4. Minutes. The committees shall keep minutes of
their proceedings and documentation of their decisions and shall
transmit copies thereof and report thereon to the board of directors
at or before the next meeting of the board.
ARTICLE 6
Officers
Section 1. Titles. The officers of the corporation shall
be a chairman of the board, a president and chief executive officer, a
secretary and a treasurer. The board of directors or the president
and chief executive officer (if authorized by the board) may appoint
one or more vice presidents, one or more assistant secretaries, one or
more assistant treasurers and such other officers as shall be deemed
necessary. The additional officers shall have the authority and
perform the duties as from time to time may be prescribed by the board
of directors or by direction of the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers). Any two or more offices may
be held by the same individual, but no officer may act in more than
one capacity where action of two or more officers is required.
Section 2. Election; Appointment. The officers of the
corporation shall be elected from time to time by the board of
directors or appointed from time to time by the president and chief
executive officer (to the extent that the president and chief
executive officer is authorized by the board to appoint officers).
Section 3. Removal. Any officer may be removed by the
board at any time with or without cause whenever in its judgment the
best interests of the corporation will be served, but removal shall
not itself affect the officer's contract rights, if any, with the
corporation.
Section 4. Vacancies. Vacancies among the officers may be
filled and new officers may be created and filled by the board of
directors, or by the president and chief executive officer (to the
extent authorized by the board).
Section 5. Compensation. Except as otherwise provided in
these bylaws, the compensation of the officers shall be fixed by the
board of directors.
Section 6. Chairman and Vice Chairman of the Board of
Directors. The chairman of the board of directors shall preside at
meetings of the shareholders and the board of directors and shall have
such other authority and perform such other duties as the board of
directors shall designate. The vice chairman, if elected, shall
preside at meetings of the board in the absence of the chairman and
shall have such other authority and perform such other duties as the
board of directors shall designate.
Section 7. President and Chief Executive Officer. In the
absence of the chairman of the board, the president and chief
executive officer shall preside at all meetings of the shareholders
and the board of directors. Subject to the board of directors, he
shall be the principal executive officer of the corporation and shall
have general charge of the business of the corporation; he shall keep
the board of directors fully informed of the business of the
corporation; he may sign and execute all authorized bonds, contracts,
or other obligations in the name of, and on behalf of, the
corporation, and with the secretary or assistant secretary, if one be
elected, may sign all certificates of stock, and without further
authorization than these presents, may sign all checks or drafts upon
funds of this corporation, in its name and on its behalf, and any bank
or depository in which funds of the corporation shall be deposited
shall be fully and conclusively protected in honoring any checks or
drafts on behalf of this corporation, signed by the president and
chief executive officer. Subject to the limitations of Section 6(e)
of Article 4 of these bylaws, he shall have the power to fix the
salaries of all other officers, agents and employees of the
corporation, except the chairman and vice presidents (including senior
vice presidents, if any); and shall have the power to employ and
discharge all agents and employees of the corporation, subject to the
control of the board of directors, except the chairman and vice
presidents. He shall generally conduct the affairs of the corporation
and shall do and perform such other duties as, from time to time, may
be assigned to him by the board of directors or by these bylaws.
Section 8. Vice Presidents. The vice presidents shall
perform such duties as from time to time may be assigned to them by
the chairman of the board or the president and chief executive
officer, the board of directors or by these bylaws.
Section 9. Secretary. The secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and of the board of directors and shall give all notices required by
law and by these bylaws. The secretary shall have general charge of
the corporate books and records and shall have the responsibility and
authority to maintain and authenticate such books and records. The
secretary shall have general charge of the corporate seal and shall
affix the corporate seal to any lawfully executed instrument requiring
it. The secretary shall have general charge of the stock transfer
books of the corporation and shall keep at the principal office of the
corporation a record of shareholders, showing the name and address of
each shareholder and the number and class of shares held by each. The
secretary shall sign such instruments as may require the signature of
the secretary, and in general shall perform the duties incident to the
office of secretary and such other duties as may be assigned from time
to time by the board of directors or the president and chief executive
officer (if authorized by the board of directors to prescribe the
authority and duties of other officers).
Section 10. Assistant Secretaries. Each assistant
secretary shall have such powers and perform such duties as may be
assigned by the board of directors or the president and chief
executive officer (if authorized by the board of directors to
prescribe the authority and duties of other officers), and the
assistant secretaries shall exercise the powers of the secretary
during that officer's absence or inability to act.
Section 11. Treasurer. The treasurer shall have custody of
all funds and securities belonging to the corporation and shall
receive, deposit or disburse the same under the direction of the board
of directors. The treasurer shall keep full and accurate accounts of
the finances of the corporation and shall cause a true statement of
the assets and liabilities of the corporation as of the close of each
fiscal year and of the results of its operations and of changes in
surplus, all in reasonable detail, to be made and filed at the
principal office of the corporation within four months after the end
of the fiscal year. The statement shall be available for inspection
by any shareholder for a period of ten years, and the treasurer shall
mail or otherwise deliver a copy of the latest statement to any
shareholder upon written request. The treasurer shall in general
perform all duties incident to the office and such other duties as may
be assigned from time to time by the board of directors or the
president and chief executive officer (if authorized by the board of
directors to prescribe the authority and duties of other officers).
Section 12. Assistant Treasurers. Each assistant treasurer
shall have such powers and perform such duties as may be assigned by
the board of directors or the president and chief executive officer
(if authorized by the board of directors to prescribe the authority
and duties of other officers), and the assistant treasurers shall
exercise the powers of the treasurer during that officer's absence or
inability to act.
Section 13. Voting Upon Stocks. Unless otherwise ordered
by the board of directors, the president and chief executive officer
shall have full power and authority in behalf of the corporation to
attend, act and vote at meetings of the shareholders of any
corporation in which this corporation may hold stock, and at such
meetings shall possess and may exercise any and all rights and powers
incident to the ownership of such stock and which, as the owner, the
corporation might have possessed and exercised if present. The board
of directors may by resolution from time to time confer such power and
authority upon any other person or persons.
ARTICLE 7
Capital Stock
Section 1. Certificates. Shares of the capital stock of
the corporation shall be represented by certificates. The name and
address of the persons to whom shares of capital stock of the
corporation are issued, with the number of shares and date of issue,
shall be entered on the stock transfer records of the corporation.
Certificates for shares of the capital stock of the corporation shall
be in such form not inconsistent with the articles of incorporation of
the corporation as shall be approved by the board of directors. Each
certificate shall be signed (either manually or by facsimile) by (a)
the president and chief executive officer or any vice president and by
the secretary, assistant secretary, treasurer or assistant treasurer
or (b) any two officers designated by the board of directors. Each
certificate may be sealed with the seal of the corporation or a
facsimile thereof.
Section 2. Transfer of Shares. Transfer of shares shall be
made on the stock transfer records of the corporation, and transfers
shall be made only upon surrender of the certificate for the shares
sought to be transferred by the recordholder or by a duly authorized
agent, transferee or legal representative. All certificates
surrendered for transfer or reissue shall be canceled before new
certificates for the shares shall be issued.
Section 3. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents and one or more
registrars of transfers and may require all stock certificates to be
signed or countersigned by the transfer agent and registered by the
registrar of transfers.
Section 4. Regulations. The board of directors may make
rules and regulations as it deems expedient concerning the issue,
transfer and registration of shares of capital stock of the
corporation.
Section 5. Fixing Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any
other purpose, the board of directors may fix in advance a date as the
record date for the determination of shareholders. The record date
shall not be more than 70 days before the meeting or action requiring
a determination of shareholders. A determination of shareholders
entitled to notice of or to vote at the shareholders' meeting shall be
effective for any adjournment of the meeting unless the board of
directors fixes a new record date, which it shall do if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting. If no record date is fixed for the determination of
shareholders, the record date shall be the day the notice of the
meeting is mailed or the day the action requiring a determination of
shareholders is taken. If no record date is fixed for action without
a meeting, the record date for determining shareholders entitled to
take action without a meeting shall be the date the first shareholder
signs a consent to the action taken.
Section 6. Lost Certificates. The board of directors must
authorize the issuance of a new certificate in place of a certificate
claimed to have been lost, destroyed or wrongfully taken, upon receipt
of (a) an affidavit from the person explaining the loss, destruction
or wrongful taking, and (b) a bond from the claimant in a sum as the
corporation may reasonably direct to indemnify the corporation against
loss from any claim with respect to the certificate claimed to have
been lost, destroyed or wrongfully taken. The board of directors may,
in its discretion, waive the affidavit and bond and authorize the
issuance of a new certificate in place of a certificate claimed to
have been lost, destroyed or wrongfully taken.
ARTICLE 8
Indemnification of Officers and Directors
Section 1. Indemnification Provisions. Any person who at
any time serves or has served as a director or officer of the
corporation or of any wholly owned subsidiary of the corporation, or
in such capacity at the request of the corporation for any other
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or as a trustee or administrator under any employee
benefit plan of the corporation or of any wholly owned subsidiary
thereof (a "Claimant"), shall have the right to be indemnified and
held harmless by the corporation to the fullest extent from time to
time permitted by law against all liabilities and litigation expenses
(as hereinafter defined) in the event a claim shall be made or
threatened against that person in, or that person is made or
threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the
corporation, including all appeals therefrom (a "proceeding"), arising
out of that person's status as such or that person's activities in any
such capacity; provided, that such indemnification shall not be
effective with respect to (a) that portion of any liabilities or
litigation expenses with respect to which the Claimant is entitled to
receive payment under any insurance policy or (b) any liabilities or
litigation expenses incurred on account of any of the Claimant's
activities which were at the time taken known or believed by the
Claimant to be clearly in conflict with the best interests of the
corporation.
Section 2. Definitions. As used in this Article, (a)
"liabilities" shall include, without limitation, (1) payments in
satisfaction of any judgment, money decree, excise tax, fine or
penalty for which the Claimant had become liable in any proceeding and
(2) payments in settlement of any such proceeding subject, however, to
Section 3 of this Article 8; (b) "litigation expenses" shall include,
without limitation, (1) reasonable costs and expenses and attorneys'
fees and expenses actually incurred by the Claimant in connection with
any proceeding and (2) reasonable costs and expenses and attorneys'
fees and expenses in connection with the enforcement of rights to the
indemnification granted hereby or by applicable law, if such
enforcement is successful in whole or in part; and (c) "disinterested
directors" shall mean directors who are not party to the proceeding in
question.
Section 3. Settlements. The corporation shall not be
liable to indemnify the Claimant for any amounts paid in settlement of
any proceeding effected without the corporation's written consent.
The corporation will not unreasonably withhold its consent to any
proposed settlement.
Section 4. Litigation Expense Advances.
(a) Except as provided in subsection (b) below, any
litigation expenses shall be advanced to any Claimant within 30 days
of receipt by the secretary of the corporation of a demand therefor,
together with an undertaking by or on behalf of the Claimant to repay
to the corporation such amount unless it is ultimately determined that
Claimant is entitled to be indemnified by the corporation against such
expenses. The secretary shall promptly forward notice of the demand
and undertaking immediately to all directors of the corporation.
(b) Within 10 days after mailing of notice to the directors
pursuant to subsection (a) above, any disinterested director may, if
desired, call a meeting of all disinterested directors to review the
reasonableness of the expenses so requested. No advance shall be made
if a majority of the disinterested directors affirmatively determines
that the item of expense is unreasonable in amount; but if the
disinterested directors determine that a portion of the expense item
is reasonable, the corporation shall advance such portion.
Section 5. Approval of Indemnification Payments. Except as
provided in Section 4 of this Article, the board of directors of the
corporation shall take all such action as may be necessary and
appropriate to authorize the corporation to pay the indemnification
required by Section 1 of this Article, including, without limitation,
making a good faith evaluation of the manner in which the Claimant
acted and of the reasonable amount of indemnity due the Claimant. In
taking any such action, any Claimant who is a director of the
corporation shall not be entitled to vote on any matter concerning
such Claimant's right to indemnification.
Section 6. Suits by Claimant. No Claimant shall be
entitled to bring suit against the corporation to enforce his rights
under this Article until sixty days after a written claim has been
received by the corporation, together with any undertaking to repay as
required by Section 4 of this Article. It shall be a defense to any
such action that the Claimant's liabilities or litigation expenses
were incurred on account of activities described in clause (b) of
Section 1, but the burden of proving this defense shall be on the
corporation. Neither the failure of the corporation to have made a
determination prior to the commencement of the action to the effect
that indemnification of the Claimant is proper in the circumstances,
nor an actual determination by the corporation that the Claimant had
not met the standard of conduct described in clause (b) of Section 1,
shall be a defense to the action or create a presumption that the
Claimant has not met the applicable standard of conduct.
Section 7. Consideration; Personal Representatives and
Other Remedies. Any person who during such time as this Article or
corresponding provisions of predecessor bylaws is or has been in
effect serves or has served in any of the aforesaid capacities for or
on behalf of the corporation, shall be deemed to be doing so or to
have done so in reliance upon, and as consideration for, the right of
indemnification provided herein or therein. The right of
indemnification provided herein or therein shall inure to the benefit
of the legal representatives of any person who qualifies or would
qualify as a Claimant hereunder, and the right shall not be exclusive
of any other rights to which the person or legal representative may be
entitled apart from this Article.
Section 8. Scope of Indemnification Rights. The rights
granted herein shall not be limited by the provisions of Section 55-8-
51 of the General Statutes of North Carolina or any successor statute.
ARTICLE 9
General Provisions
Section 1. Dividends and other Distributions. The board of
directors may from time to time declare, and the corporation may pay
or make, dividends and other distributions with respect to its
outstanding shares in the manner and upon the terms and conditions
provided by law.
Section 2. Seal. The seal of the corporation shall consist
of two concentric circles between which is the name of the corporation
and in the center of which is inscribed SEAL; and such seal as is
impressed in the margin hereof is hereby adopted as the corporate seal
of the corporation.
Section 3. Waiver of Notice. Whenever notice is required
to be given to a shareholder, director or other person under the
provisions of these bylaws, the articles of incorporation or by
applicable law, a waiver in writing signed by the person or persons
entitled to the notice, whether before or after the date and time
stated in the notice and delivered to the corporation, shall be
equivalent to giving the notice.
Section 4. Checks. All checks, drafts or orders for the
payment of money shall be signed by the officer or officers or other
individuals that the board of directors may from time to time
designate.
Section 5. Contracts. The board of directors may authorize
any officer or officers, agent or agents to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be generally or confined to
specific instances.
Section 6. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit
of the corporation in such depositories as the board of directors may
select.
Section 7. Bond. The board of directors may by resolution
require any or all officers, agents and employees of the corporation
to give bond to the corporation, with sufficient sureties, conditioned
on the faithful performance of the duties of their respective offices
or positions, and to comply with such other conditions as may from
time to time be required by the board.
Section 8. Fiscal Year. The fiscal year of the corporation
shall be fixed by the board of directors.
Section 9. Amendments. Unless otherwise provided in the
articles of incorporation or a bylaw adopted by the shareholders or by
law, these bylaws may be amended or repealed by the board of directors
in accordance with the special voting provisions contained in Article
4, Section 6, except that a bylaw adopted, amended or repealed by the
shareholders may not be readopted, amended or repealed by the board of
directors if neither the articles of incorporation nor a bylaw adopted
by the shareholders authorizes the board of directors to adopt, amend
or repeal that particular bylaw or the bylaws generally. These bylaws
may also be amended or repealed by the board of directors. A bylaw
that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders, unless such bylaw as
originally adopted by the shareholders provides that such bylaw may be
amended or repealed by the board of directors of (b) if originally
adopted by the board of directors, either by the shareholders or by
the board of directors. A bylaw that fixes a greater quorum or voting
requirement may not be adopted by the board of directors by a vote
less than a majority of the directors then in office and may not
itself be amended by a quorum or vote of the directors less than a
quorum or vote prescribed in such bylaw or prescribed by the
shareholders.
THIS IS TO CERTIFY that the above bylaws of Food Lion, Inc. were
duly adopted by the board of directors of the corporation, effective
May 4, 1995, and duly amended by the board of directors of the
corporation, effective July 3, 1997, all by action taken at a meeting
of the board of directors in accordance with Section 55-8-2 of the
General Statutes of North Carolina.
This 3rd day of July, 1997.
Bill McCanless
Assistant Secretary
[Corporate Seal]
EXECUTION COPY
CREDIT AGREEMENT
dated as of
December 14, 1998
among
FOOD LION, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
WACHOVIA BANK, N.A.,
as Documentation Agent
$625,000,000 364-DAY REVOLVING CREDIT FACILITY
AND COMPETITIVE ADVANCE FACILITY
__________________________________
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
Index
Page
1
ABR 1, 2, 12, 21, 22, 24-29
Adjusted LIBO Rate 1, 9, 18, 19, 28-31
Administrative Agent 1, 3, 10, 13, 16, 18-29, 31, 32, 34, 35,
38-43, 48, 49, 51-60, 9
Administrative Questionnaire 1, 54, 57
Affiliate 1, 21, 34, 42, 47, 51, 53, 55, 56, 60
Alternate Base Rate 1, 19, 28, 29
Amortization 1
Applicable Percentage 2, 55
Applicable Rate 2, 28
Assessment Rate 3
Assignment and Acceptance 3, 5, 13, 56, 57
Availability Period 3, 20, 22, 29
Base CD Rate 3, 18
Board 3, 18, 19, 38, 43
Borrower 1-3, 5-14, 16, 18-32, 34-39, 41-44, 46-60
Borrowing 1, 3, 5, 9, 12, 13, 19-27, 29, 38, 40
Borrowing Request 3, 21, 22, 24, 29
Business Day 3, 10, 13, 19, 21-23, 25-27, 33
Capital Lease Obligations 4, 8, 12
Capital Stock 4, 7, 18
Capitalized Lease 4, 15, 16
Change in Control 4, 51
Change in Law 5, 30
Class 5, 19, 21, 27
Code 5, 9, 16
Commitment 2, 3, 5, 6, 14, 17, 20-22, 26-29, 40, 41, 44, 51,
54, 56-58, 61
Competitive Bid 5, 10, 14, 20, 22, 23, 31
Competitive Bid Rate 5, 23
Competitive Bid Request 6, 12, 22-24
Competitive Loan 6, 9, 10, 14, 20, 22, 23, 27, 31
Consolidated 6
Consolidated Debt 6, 7, 48
Consolidated Fixed Charges 6, 48
Consolidated Interest Expense 6
Consolidated Net Income 6, 7, 47
Consolidated Net Worth 7
Consolidated Subsidiary 1, 4, 6, 7, 15-17
Consolidated Total Assets 7, 48
Consolidated Total Capitalization 7, 48
Contractual Obligation 8, 38, 43
Control 1, 5, 8
Controlled 1, 8, 18
Controlling 8
Debt 6, 8, 26
Default 8, 37, 40-42, 46, 51, 52, 54, 58
Delhaize 5, 8
Depreciation 8
Detla 5, 8
Disclosed Matters 8, 37
Documentation Agent 1, 8, 53, 1
Dollars 3, 8, 18, 33
Effective Date 3, 8, 39, 40, 62
Environmental Law 9, 11, 37
Environmental Liability 9, 37, 55
ERISA 9, 15, 16, 19, 37
ERISA Affiliate 9, 16
ERISA Event 9, 37, 42, 50
Eurodollar 9, 10, 12, 13, 18, 19, 25, 26
Event of Default 8, 10, 26, 31, 56, 59
Excluded Taxes 10, 12
Federal Funds Effective Rate 1, 10, 24, 34, 61
Financial Officer 10, 40-42, 61, 62
Fiscal Quarter 7, 10, 47, 48
Fiscal Year 10
Fixed Rate 5, 10, 19, 28
Fixed Rate Loan 10, 12, 21, 28, 30, 31
Foreign Lender 10, 11, 32, 57
GAAP 1, 4, 7, 8, 11, 18, 20, 36, 41, 43
Governmental Authority 5, 9, 11, 16, 17, 19, 32, 34-37, 42, 43
Guarantee 11, 12, 46, 47
Guarantor 11, 16, 39, 51, 61, 62
Hazardous Materials 9, 11, 55
Hedging Agreement 11, 14, 46, 47
Indebtedness 11, 12, 14, 45, 47, 50
Indemnified Taxes 12, 31, 32
Index Debt 2, 12
Interest Election Request 12, 25, 26, 29
Interest Payment Date 12, 29
Interest Period 1, 3, 12, 13, 21-23, 25-29, 31
Investment 6, 37, 46
Lenders 1-3, 13, 14, 20, 23-30, 33-36, 38-41, 44, 46, 48,
51-54, 56, 57, 60, 62, 1
LIBO Rate 1, 9, 13, 14, 19, 28, 29
Lien 8, 12, 13, 15, 36, 44, 45
Loans 1, 5, 9, 13, 14, 18-20, 23-30, 34, 35, 39, 40, 46, 51,
55-58, 61
LTF 14
Majority Lenders 14, 20, 26, 29, 39, 50-52, 54
Margin 5, 14, 28
Material Adverse Effect 14, 35-38, 42, 43, 50
Material Indebtedness 14, 49, 50
Maturity Date 3, 14, 16, 21, 26
Minority Interests 6, 15
Moody's 2, 4, 15
Multiemployer Plan 9, 15, 16, 19
Operating Lease 15, 16
Other Taxes 15, 31, 32
PBGC 9, 15
Permitted Encumbrances 15, 44
Permitted Investments 4, 46
Person 1, 4, 5, 8, 11-13, 16-18, 20, 33, 36, 44-47, 52, 55-57,
60
Plan 9, 16, 37, 38
Prime Rate 1, 16, 29
Redeemable Preferred Stock 8, 16, 18
Register 16, 57
Related Parties 16, 52, 56
Rentals 6, 16
Requirement of Law 17, 38
Revolving Credit Exposure 5, 14, 17, 20, 22, 26, 28
Revolving Loan 3, 5, 17, 19, 20, 26, 33, 34
S&P 2, 4, 17
Solvent 17, 38
Statutory Reserve Rate 1, 3, 18
Stockholder's Equity 7, 18
Subsidiary 7, 9, 14, 16, 18, 19, 34, 37, 42-51
Subsidiary Guarantee 16, 39, 61, 62
Taxes 19, 31, 37
Three-Month Secondary CD Rate 3, 19
Transactions 19, 35-37, 39, 47, 55, 59, 61, 62, 10
Type 3, 19, 21, 22, 24, 25, 27, 30
Withdrawal Liability 9, 19
Table of Contents
Page
ARTICLE I Definitions 1
SECTION 1.1 Defined Terms 1
SECTION 1.2 Classification of Loans and Borrowings 19
SECTION 1.3 Terms Generally 19
SECTION 1.4 Accounting Terms; GAAP 20
ARTICLE II The Credits 20
SECTION 2.1 Commitments 20
SECTION 2.2 Loans and Borrowings 20
SECTION 2.3 Requests for Revolving Borrowings 21
SECTION 2.4 Competitive Bid Procedure 22
SECTION 2.5 Funding of Borrowings 24
SECTION 2.6 Interest Elections 24
SECTION 2.7 Termination and Reduction of Commitments 26
SECTION 2.8 Repayment of Loans; Evidence of Debt 26
SECTION 2.9 Prepayment of Loans 27
SECTION 2.10 Fees 28
SECTION 2.11 Interest 28
SECTION 2.12 Alternate Rate of Interest 29
SECTION 2.13 Increased Costs 30
SECTION 2.14 Break Funding Payments 31
SECTION 2.15 Taxes 31
SECTION 2.16 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs 33
SECTION 2.17 Mitigation Obligations; Replacement of
Lenders 34
ARTICLE III Representations and Warranties 35
SECTION 3.1 Organization; Powers 35
SECTION 3.2 Authorization; Enforceability 35
SECTION 3.3 Governmental Approvals; No Conflicts 36
SECTION 3.4 Financial Condition; No Material Adverse Change 36
SECTION 3.5 Properties 36
SECTION 3.6 Litigation and Environmental Matters 36
SECTION 3.7 Compliance with Laws and Agreements 37
SECTION 3.8 Investment and Holding Company Status 37
SECTION 3.9 Taxes 37
SECTION 3.10 ERISA 37
SECTION 3.11 Disclosure 38
SECTION 3.12 Margin Stock 38
SECTION 3.13 No Burdensome Restrictions 38
SECTION 3.14 Subsidiaries 38
SECTION 3.15 Solvency 38
SECTION 3.16 Year 2000 Matters 38
ARTICLE IV Conditions to Funding 39
SECTION 4.1 Effective Date 39
SECTION 4.2 Each Credit Event 40
ARTICLE V Affirmative Covenants 41
SECTION 5.1 Financial Statements and Other Information 41
SECTION 5.2 Notices of Material Events 42
SECTION 5.3 Existence; Conduct of Business 43
SECTION 5.4 Payment of Obligations 43
SECTION 5.5 Maintenance of Properties; Insurance 43
SECTION 5.6 Books and Records; Inspection Rights 43
SECTION 5.7 Compliance with Laws and Material
Contractual Obligations 43
SECTION 5.8 Use of Proceeds 43
SECTION 5.9 Additional Related Guarantees 44
SECTION 5.10 Change in Ratings 44
ARTICLE VI Negative Covenants 44
SECTION 6.1 Liens 44
SECTION 6.1A Indebtedness 45
SECTION 6.2 Fundamental Changes 46
SECTION 6.3 Investments, Loans, Advances, Guarantees
and Acquisitions; Hedging Agreements 46
SECTION 6.4 Transactions with Affiliates 47
SECTION 6.5 Reserved 47
SECTION 6.6 Fixed Charges Coverage 47
SECTION 6.7 Ratio of Consolidated Debt to Consolidated
Total Capitalization 48
SECTION 6.8 Limitation on Sales of Assets 48
SECTION 6.9 Activities of Holdings 49
ARTICLE VII Events of Default 49
ARTICLE VIII The Administrative Agent 51
ARTICLE IX Miscellaneous 53
SECTION 9.1 Notices 53
SECTION 9.2 Waivers; Amendments 54
SECTION 9.3 Expenses; Indemnity; Damage Waiver 54
SECTION 9.4 Successors and Assigns 56
SECTION 9.5 Survival 58
SECTION 9.6 Counterparts; Integration; Effectiveness 58
SECTION 9.7 Severability 58
SECTION 9.8 Right of Setoff 59
SECTION 9.9 Governing Law; Jurisdiction; Consent to
Service of Process 59
SECTION 9.10 WAIVER OF JURY TRIAL 59
SECTION 9.11 Headings 60
SECTION 9.12 Confidentiality 60
SECTION 9.13 Interest Rate Limitation 60
ARTICLE X Provisions Relating to the Reorganization 61
SECTION 10.1 Consent to Reorganization 61
SECTION 10.2 Consent to Assumption 61
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 Related Guarantee
CREDIT AGREEMENT dated as of December 14, 1998, 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 SECTION 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 .5% 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 Parent 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 Spread Spread Rate
Ratings:
Category 1
A-/A3 or higher .00% .41% .09%
Category 2
BBB+/Baa1 .00% .50% .125%
Category 3
BBB/Baa2 .00% .60% .15%
Category 4
BBB-/Baa3 .00% .70% .175%
Category 5
BB+/Ba1 or .00% .80% .20%
lower
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, provided, that
notwithstanding any other provision set forth in this Agreement,
(x) during any period in which the ratings established or deemed
to have been established by Moody's and S&P for the Borrower's
senior, unsecured, short-term indebtedness for borrowed money
(including, without limitation, commercial paper) shall fall
below P-2 as rated by Moody's or A-2 as rated by S&P or (y) if
either Moody's or S&P shall not have in effect a rating for such
indebtedness, the Applicable Rate for Category 5 ratings shall
apply. 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.
"Assumption" means the assumption by Holdings, and the
transfer and assignment by Food Lion of all of its rights and
obligations as Borrower hereunder.
" 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, prior to the Assumption, Food Lion,
and thereafter, Holdings.
" 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 Parent
or any Consolidated Subsidiary (to the extent issued to a
Person other than the Parent), 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 Parent 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 Parent; (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
Parent; (c) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Parent by
Persons who were neither (i) nominated by the board of directors
of the Parent nor (ii) appointed by directors so nominated nor
(iii) were members of the board of directors of Food Lion prior
to the Reorganization and become members of the board of
directors of Holdings contemporaneously with, or immediately
following the consummation of, the Reorganization; or (d) the
acquisition of direct or indirect Control of the Parent 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.
"Charges" has the meaning set forth in Section 9.13.
" 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 Borrowing" means a Borrowing made pursuant
to Section 2.4.
" Competitive Loan" means a Loan made under the
Commitments pursuant to .
" Consolidated" means, when used in connection with any
defined term, and not otherwise defined, such term as it applies
to the Parent and its Subsidiaries on a consolidated basis, after
eliminating all intercompany items.
" Consolidated Debt" means at any date the Debt of the
Parent 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 Parent 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 Parent or any of its Consolidated Subsidiaries outstanding
during such period.
" Consolidated Net Income" for any period means the
gross revenues of the Parent 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 Parent 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
Parent or a Consolidated Subsidiary shall have
consolidated or which shall have merged into or with
the Parent 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 Parent or any Consolidated Subsidiary has an
ownership interest unless such net earnings shall have
actually been received by the Parent 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 Parent 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
four 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 Parent in
its consolidated financial statements as of such date.
" Consolidated Total Assets" means at any time the
total assets of the Parent and its Consolidated Subsidiaries,
determined on a consolidated basis, as set forth or reflected on
the most recent consolidated balance sheet of the Parent 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, all obligations of such Person for borrowed money,
all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, 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, all Capital Lease
Obligations, all obligations of such Person to reimburse any
bank or other Person in respect of amounts payable under a
banker's acceptance, all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), 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, 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 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 Parent 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 on
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 Parent 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 Parent, 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 Parent 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 Parent 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 Parent 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
Parent or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Parent 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).
"Existing Public Debt" means Food Lion's
$150,000,000 aggregate principal amount of 7.55% Notes due 2007
and its $150,000,000 aggregate principal amount of 8.05% Notes
due 2027.
" 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 Parent.
" Fiscal Quarter" means any fiscal quarter of the
Parent.
" Fiscal Year" means any fiscal year of the
Parent.
" 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.
" Food Lion" means Food Lion, Inc., a North
Carolina corporation.
" Foreign Lender" means any Lender that is
organized under the laws of a jurisdiction other than that in
which the Parent 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, at the date of any
determination thereof, each Person that has guaranteed the
obligations of the Borrower hereunder.
" 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.
"Holdings" means a newly formed North Carolina
corporation into which FLI Holding will merge in connection with
the Reorganization.
" 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.
"Indemnitee" has the meaning set forth in Section
9.3(b).
" 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.
"Information" has the meaning set forth in Section
9.12.
" 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 Food Lion, 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 Food Lion, 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 Change" means any event,
development or circumstance that has had or could reasonably be
expected to have a Material Adverse Effect.
" Material Adverse Effect" means a material
adverse effect on (a) the business, assets, operations, prospects
or condition, financial or otherwise, of the Parent 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, or
obligations in respect of one or more Hedging Agreements, of any
one or more of the Parent 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 Parent 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 Parent
or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
" Maturity Date" means December 13, 1999.
"Maximum Rate" has the meaning set forth in
Section 9.13.
"Medium Term Notes" means the medium term notes of
Food Lion having interest rates ranging from 8.32% to 8.73% with
due dates ranging from 1999 to 2006 and having an aggregate
principal balance of $153,300,000.
" 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
Parent 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.
"1997 Credit Agreement" means the Credit
Agreement, dated as of December 15, 1997, among Food Lion, the
lenders party thereto, the administrative agent thereunder and
the documentation agent thereunder.
" 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.
"Parent" means, prior to the Reorganization, Food
Lion, and thereafter, Holdings.
"Participant" has the meaning set forth in Section
9.4(e).
" 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 Parent 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 Maturity Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
" Register" has the meaning set forth in
Section 9.4(c).
" Related Guarantee" means a guarantee, in
substantially the form of Exhibit C, made by a Person in favor
of the Administrative Agent , as the same may be amended,
supplemented or otherwise modified from time to time.
" 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.
"Reorganization" means the collective reference to the
following series of related transactions: A subsidiary of Food
Lion, FLI Holding Corp., a Delaware corporation ("FLI Holding"),
will be merged into Holdings. After such merger, the existing
shareholders of Food Lion will exchange their shares of capital
stock of Food Lion for shares of capital stock of Holdings
pursuant to which they will become owners of all of the
outstanding shares of capital stock of Holdings, and Food Lion
will issue shares of its capital stock to Holdings pursuant to
which it will become a direct, wholly owned subsidiary of
Holdings. Prior to the consummation of the share exchange as
described above, Food Lion will contribute its direct, wholly
owned subsidiary, Risk Management Services, Inc., a North
Carolina corporation ("RMS") to either FLI Holding or Holdings,
making it a direct, wholly owned subsidiary thereof. Upon
consummation of such merger and share exchange, each of Food
Lion, Kash n' Karry Food Stores, Inc., a Delaware corporation
("Kash n' Karry"), RMS, FL Food Lion, Inc., a Florida corporation
("FL Food Lion") and Barnwell, Inc., a Delaware corporation
("Barnwell") will be direct, wholly owned subsidiaries of
Holdings.
" 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 Borrowing" means a Borrowing made pursuant
to Section 2.3.
" 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 Parent and its Consolidated
Subsidiaries, as set forth or reflected on the most recent
consolidated balance sheet of the Parent and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Parent 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 Parent.
" 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 SECTION 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 SECTION 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 SECTION 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 Parent
notifies the Administrative Agent that the Parent 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 Parent 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.
II ARTICLE
The Credits
2.1 SECTION 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 SECTION Loans and Borrowings. 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 SECTION 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 SECTION Competitive Bid Procedure . 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 SECTION Funding of Borrowings. 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 SECTION Interest Elections. 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 SECTION Termination and Reduction of Commitments.
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
Loans in accordance with Section 2.9, the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof.
Promptly following receipt of any notice, the 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 SECTION Repayment of Loans; Evidence of Debt.
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 SECTION 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 SECTION Fees. 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 Commitments terminate, commencing on the first
such date to occur after the date hereof; provided that any
facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be
computed 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 SECTION Interest. 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 SECTION 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 SECTION Increased Costs. 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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).
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
3.1 SECTION Organization; Powers. Each of the
Parent 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 SECTION 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. Each of this Agreement and the other
documents executed and delivered in connection with the
Transactions, 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 SECTION 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 SECTION Financial Condition; No Material Adverse Change.
Food Lion 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
January 3, 1998, 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 12,
1998, 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
Food Lion 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 January 3, 1998, there has been no
Material Adverse Change in the business, assets, operations,
prospects or condition, financial or otherwise, of the Parent and
its Subsidiaries, taken as a whole.
3.5 SECTION Properties. (a) Each of the Parent
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 Parent 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 Parent 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 SECTION 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 Parent, threatened against or affecting the
Parent 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 Parent 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 SECTION Compliance with Laws and Agreements.
Each of the Parent 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 SECTION Investment and Holding Company Status.
Neither the Parent 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 SECTION Taxes. Each of the Parent 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 Parent 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 SECTION 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 SECTION Disclosure. The Parent 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 Parent 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 Parent 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 cannot 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 SECTION Margin Stock. Not more than 25% of the
consolidated assets of the Parent 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 SECTION No Burdensome Restrictions. No
Requirement of Law or Contractual Obligation of the Parent or
any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
3.14 SECTION Subsidiaries. Schedule 3.14 sets forth
all of the Subsidiaries of the Parent at the date hereof.
3.15 SECTION Solvency. As of the date hereof and on
the occasion of any Borrowing , the Borrower is Solvent.
3.16 SECTION 3.16 Year 2000 Matters. Any
reprogramming required to permit the proper functioning (but only
to the extent that such functioning would otherwise be impaired
by the occurrence of the year 2000) in and following the year
2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Parent or any
of its Subsidiaries will be substantially completed by June 30,
1999. The costs to the Parent and its Subsidiaries that have not
been incurred as of the date hereof for such reprogramming and
testing and for the other reasonably foreseeable consequences to
them of any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence of
the year 2000 could not reasonably be expected to result in a
Default or Event of Default or to have a Material Adverse Effect.
Except for any reprogramming referred to above, the computer
systems of the Parent and its Subsidiaries are and, with ordinary
course of upgrading and maintenance, will continue for the term
of this Agreement to be sufficient for the conduct of their
business as currently conducted.
ARTICLE IV
Conditions to Funding
4.1 SECTION 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 Subsidiary either (i) a counterpart of the
Related Guarantee signed on behalf of such Subsidiary or
(ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed
signature page of the Related Guarantee) that each
Subsidiary has signed a counterpart of the Related
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 other legal opinions, documents and certificates as the
Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of
the Parent, 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 Lenders and 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 loans, extensions of credit and other amounts
outstanding under, and in respect of the LTF Credit
Agreement and the 1997 Credit Agreement, shall have been, or
shall contemporaneous with the effectiveness of this
Agreement, be repaid in full, and any and all commitments to
provide any loans, extensions of credit or any other amounts
under the LTF Credit Agreement or the 1997 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.
(i) There shall be no actions, suits or proceedings
by or before any arbitrator or Governmental Authority, or
any other legal or regulatory developments pending against
or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries or which involve this
Agreement or the Transactions, which, in the reasonable
judgment of the Administrative Agent, may prohibit or impose
burdensome conditions on the Transactions contemplated
hereby.
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 February 28, 1999 (and, in the event
such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).
4.2 SECTION 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, including,
without limitation, the representations and warranties set
forth in Sections 3.4 and 3.6, 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 or Event of Default
shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated
and the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, the Parent
covenants and agrees with the Lenders that:
5.1 SECTION Financial Statements and Other
Information. The Parent 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 PricewaterhouseCoopers 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 Parent 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 Parent
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 Parent (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 6.1A, 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 Parent 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 Parent 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 Parent 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 SECTION Notices of Material Events. The Parent
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 Parent 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
Parent 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 Parent 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 SECTION Existence; Conduct of Business. The
Parent 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 Parent 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 SECTION Payment of Obligations. The Parent
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 Parent 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 SECTION Maintenance of Properties; Insurance.
The Parent 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 SECTION Books and Records; Inspection Rights.
The Parent 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 Parent 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 SECTION Compliance with Laws and Material
Contractual Obligations. The Parent 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
Parent or any such Subsidiary from contesting any of the same by
appropriate proceedings.
5.8 SECTION Use of Proceeds. The proceeds of the
Loans will be used only for general corporate purposes of the
Parent and its Subsidiaries, including as credit support for the
Parent'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.
5.9 SECTION Additional Related Guarantees. With
respect to any new Subsidiary created or acquired after the
Effective Date by the Parent, such Subsidiary will promptly
deliver to the Administrative Agent (a) an executed Related
Guarantee signed on behalf of such Subsidiary in favor of the
Administrative Agent and (b) such legal opinions, documents and
certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and
good standing of such Subsidiary, the authorization of the
Related Guarantee delivered by such Subsidiary and any other
legal matters relating to such Subsidiary, all in form and
substance satisfactory to the Administrative Agent and its
counsel.
5.10 SECTION Change in Ratings. The Borrower will
furnish to the Administrative Agent and each Lender prompt
written notice of any change in ratings established or deemed to
have been established by Moody's and S&P for any of its
indebtedness for borrowed money, including, without limitation,
the Index Debt or its senior, unsecured, short-term indebtedness
for borrowed money (including, without limitation, commercial
paper).
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and
the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Parent covenants and
agrees with the Lenders that:
6.1 SECTION Liens. The Parent 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 Parent
or any Subsidiary existing on the date hereof and set forth
on 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 Parent 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 Parent 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
Parent 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 Parent 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 Parent or any Subsidiary; and
(e) Liens not otherwise permitted pursuant to this
Section 6.1 securing Indebtedness of the Parent or any
Subsidiary (not otherwise prohibited hereunder) in an
aggregate principal amount not exceeding $20,000,000 at any
time outstanding.
SECTION 6.1A Indebtedness . After the Assumption, the
Borrower will not permit any Subsidiary to create, incur, assume,
become liable in respect of or suffer to exist any Indebtedness,
except to the extent otherwise permitted hereunder:
(a) Indebtedness (including, without limitation,
Capital Lease Obligations) secured by Liens permitted under
Section 6.1(b);
(b) Indebtedness (including, without limitation,
Capital Lease Obligations) secured by Liens permitted under
Section 6.1(c) and 6.1(d) in an aggregate principal amount
not to exceed $200,000,000 at any one time outstanding;
(c) Indebtedness of any Subsidiary to the Borrower or
any other Person that is a Guarantor;
(d) Related Guarantees by any Subsidiary for the
obligations hereunder or Guarantees of any Subsidiary for
the Debt of the Parent;
(e) Existing Public Debt plus Medium Term Notes in an
aggregate principal amount not to exceed $125,000,000; and
(f) additional Indebtedness of the Subsidiaries in an
aggregate principal amount (for all Subsidiaries) not to
exceed $20,000,000 at any one time outstanding, provided
that each such Subsidiary has or shall have executed a
Related Guarantee.
6.2 SECTION Fundamental Changes. The Parent
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
Parent 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 Parent in a transaction in which
the Parent 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 (other
than the Borrower) may liquidate or dissolve if the Parent
determines in good faith that such liquidation or dissolution is
in the best interests of the Parent 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 Parent 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
Parent and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related or incidental
thereto.
6.3 SECTION Investments,Loans, Advances,
Guarantees and Acquisitions; Hedging Agreements. (a) The
Parent 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 Parent and the Subsidiaries
existing on the date hereof;
(v) investments by the Parent existing on the date
hereof in the capital stock of its Subsidiaries;
(vi) loans, advances and other investments made by
the Parent to or in any Subsidiary and made by any
Subsidiary to or in the Parent or any other Subsidiary,
provided that in each case such Subsidiary (or any other
Person that is a Guarantor) 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 and, if
applicable, Section 6.1A;
(viii) acquisitions of a Person or the assets of
a Person constituting a business unit in the same line of
business conducted by the Parent on the date hereof in an
aggregate amount not to exceed $400,000,000 over the term of
this Agreement; provided however, acquisitions of equity
interests in a Person which does not result in such Person
constituting a Subsidiary shall not exceed an aggregate
amount of $100,000,000; 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 Parent 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 Parent or any
Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
6.4 SECTION Transactions with Affiliates. The
Parent 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
Parent or such Subsidiary than could be obtained on an arm's-
length basis from unrelated third parties and (b) transactions
between or among the Parent and its wholly owned Subsidiaries not
involving any other Affiliate.
6.5 SECTION Reserved.
6.6 SECTION Fixed Charges Coverage. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending
January 2, 1999, the ratio of (x) the sum of Consolidated Net
Income plus, in each case to the extent deducted in determining
such Consolidated Net Income and without duplication,
Consolidated Depreciation expenses of the Borrower, Consolidated
Amortization expenses of the Borrower, all federal, state, local
and foreign income taxes of the Parent 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 SECTION 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 SECTION Limitation on Sales of Assets. The
Parent 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 Parent '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
Parent 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.
6.9 SECTION Activities of Holdings. Prior to the
consummation of the Reorganization, the Borrower will not permit
Holdings to conduct any business or create, incur, assume, become
liable in respect of or suffer to exist any Indebtedness, except
as otherwise contemplated by, or required in connection with, the
Reorganization.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default")
shall occur:
(a) the Borrower shall fail to pay any principal of
any Loan when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on
any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable
under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied for
a period of five days;
(c) any representation or warranty made or deemed
made by or on behalf of the Parent 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 Parent shall fail to observe or perform any
covenant, condition or greement contained in Section 5.2,
5.3 (with respect to the Parent's existence) or 5.8 or in
Article VI;
(e) the Parent 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 Parent 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 Parent or any Subsidiary or their respective
debts, or of a substantial part of their respective assets,
under any federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent
or any Subsidiary or for a substantial part of their
respective assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall
be entered;
(i) the Parent 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 Parent or any Subsidiary or for a substantial part of
their respective assets, (iv) file an answer admitting the
material allegations of a petition filed against either of
them 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 Parent or any Subsidiary shall become
unable, or admit in writing or fail generally, to pay their
respective 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 Parent, 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 Parent 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 Related Guarantee shall cease, for any reason
(other than any act on the part of the Administrative Agent
or any Lender), to be binding and in effect (except in
accordance with its terms or as permitted hereunder) or any
Guarantor shall so assert;
then, and in every such event (other than an event with respect
to the Borrower described in clause (h) or (i) of this Article),
and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the
Majority Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times:
(i) terminate the Commitments , and thereupon the Commitments
shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender
as any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in
any kind of business with the Parent 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 Parent or
any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at
the request of the Majority Lenders or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and
until written notice thereof is given to the Administrative Agent
by the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument
or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative
Agent.
The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to
have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one
or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-
agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the
Majority Lenders shall have the right (so long as no Default has
occurred and is continuing with consent of the Borrower which
consent shall not be unreasonably withheld) to appoint a
successor. If no successor shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. The
fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After
the Administrative Agent's resignation hereunder, the provisions
of this Article and Section 9.3 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
The Documentation Agent shall have no duties or
responsibilities nor shall it incur any liabilities under this
Agreement.
ARTICLE IX
Miscellaneous
9.1 SECTION 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. 704-636-5024);
(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 Concetta Prainito (Telecopy No. (212) 552-
7500), with a copy to The Chase Manhattan Bank, 270 Park
Avenue, New York 10017, Attention of Joanne Roberts
(Telecopy No. (212) 270-7594); 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 SECTION 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, nor any Related
Guarantee 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 (or the relevant
Guarantor, as the case may be) and the Majority Lenders or by
the Borrower (or the relevant Guarantor, as the case may be) 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 adversely affected
thereby, 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 SECTION 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 SECTION 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 (other than as
expressly permitted in Article X) 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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 SECTION 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.
ARTICLE X
Provisions Relating to the Reorganization
10.1 SECTION Consent to Reorganization.
Notwithstanding anything to the contrary contained herein, upon
the satisfaction of the following conditions, Food Lion may
effect the Reorganization:
(a) No Default shall have occurred and be
continuing or would occur after giving effect to the
Reorganization.
(b) All governmental and third party
approvals necessary in connection with the Reorganization shall
have been obtained and be in full force and effect.
(c) The Administrative Agent shall have received
a certificate signed by the President, a Vice President or a
Financial Officer of Food Lion, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of this
Section 10.1
(d) If the Assumption is not occurring
concurrently with the Reorganization, the Administrative Agent
shall have received from Holdings either (i) a counterpart of a
Related Guarantee signed on behalf of Holdings or (ii) written
evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of the
Related Guarantee) that Holdings has signed a counterpart
thereof.
(e) The Administrative Agent shall have received
such legal opinions, documents and certificates as the
Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of
Holdings, the authorization of the Related Guarantee delivered
by Holdings (if applicable) and any other legal matters relating
to Holdings, this Agreement or the Reorganization, all in form
and substance satisfactory to the Administrative Agent and its
counsel.
SECTION 10.2 Consent to Assumption.
Notwithstanding anything to the contrary contained herein, upon
the satisfaction of the following conditions, Holdings may effect
the Assumption:
(a) Prior thereto or contemporaneously therewith,
the Reorganization shall have occurred and the conditions thereto
set forth in Section 10.1 shall have been satisfied.
(b) At least a majority of (i) the outstanding
principal amount of each separate issuance of Existing Public
Debt and (ii) the outstanding aggregate principal amount of the
Medium Term Notes shall, in each case, have been assumed by
Holdings.
(c) No Default shall have occurred and be
continuing or would occur after giving effect to the Assumption.
(d) All governmental and third party approvals
necessary in connection with the Assumption shall have been
obtained and be in full force and effect.
(e) All existing Indebtedness of Food Lion (other
than as permitted pursuant to Section 6.1A) shall have been
assumed by Holdings and Food Lion shall have been released from
its obligations thereunder (except in its capacity as guarantor
after the Assumption).
(f) The Administrative Agent shall have received
a certificate signed by the President, a Vice President or a
Financial Officer of Holdings, confirming compliance with the
conditions set forth in paragraphs (a), (b), (c), (d) and (e) of
this Section 10.2.
(g) The Administrative Agent shall have received
an assignment and assumption agreement, in a form satisfactory to
it, pursuant to which Holdings shall confirm the satisfaction of
the conditions to the Assumption and shall acknowledge the
Assumption, as Borrower, of all of the obligations of Food Lion
hereunder.
(h) The Administrative Agent shall have received
from Food Lion either (i) a counterpart of a Related Guarantee
signed on behalf of Food Lion or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of the Related
Guarantee) that Food Lion has signed a counterpart thereof.
(i) The Administrative Agent shall have received
such legal opinions, documents and certificates as the
Administrative Agent or its counsel may reasonably request
relating to the authorization of the agreements delivered
pursuant to this Section 10.2 and any other legal matters
relating to this Agreement or the Assumption, all in form and
substance satisfactory to the Administrative Agent and its
counsel.
The Administrative Agent shall notify Holdings and the
Lenders of the date on which the conditions set forth in this
Section 10.2 have been satisfied, and such notice shall be
conclusive and binding. On the date of satisfaction of such
conditions, Food Lion shall be released from all of its
obligations hereunder in its capacity as Borrower, without any
further action on the part of the parties hereto.
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: Richard James
Name: Richard James
Title: Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By: William P. Rindfuss
Name: William P. Rindfuss
Title: Vice President
WACHOVIA BANK, N.A.,
individually and as
Documentation Agent
By: Timothy R. Hileman
Name: Timothy R. Hileman
Title: Senior Vice President
BANCA DI ROMA
By: James B. Sieger
Name: James B. Sieger
Title: Vice President
By: William J. Fontana
Name: William J. Fontana
Title: Vice President
BANCA MONTE DEI PASCHI DI SIENA
S.p.A.
By: G. Nataliochl
Name: G. Nataliochl
Title: S.V.P and 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
BRANCH BANK & TRUST
By: Cory Boyte
Name: Cory Boyte
Title: Vice President
BW CAPITAL MARKETS, INC.
By: Thomas A. Lowe
Name: Thomas A. Lowe
Title: Vice President
By: Robert B.Herber
Name: Robert B. Herber
Title: Managing Director
CRESTAR BANK
By: James P. Duval, Jr.
Name: James P. Duval Jr
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH
By: Stefan Hafke
Name: Stefan Hafke
Title: Assistant Vice
President
By: Oliver Schwarz
Name: Oliver Schwarz
Title: Assistant Vice
President
FIRST AMERICAN NATIONAL BANK
By: H.Hope Stewart
Name: H.Hope Stewart
Title: Assistant Vice
President
THE FIRST NATIONAL BANK OF CHICAGO
By: Dave T. NcNeela
Name: Dave T. McNeela
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: Rosemary R. Moody
Name: Rosemary R. Moody
Title: Vice President
FIRST UNION NATIONAL BANK
By: Thomas J. McDonnell
Name: Thomas J. McDonnell
Title: Vice President
GENERALE BANK N.V., New York Branch
By: E.Matthews
Name: E. Matthews
Title: Senior Vice President
By: Hans Nenhowman
Name: Hans Nenhowman
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: Kazuo Iida
Name: Kazuo Lida
Title: General Manager
NATIONSBANK
By: E.Bradley Jones
Name: E. Bradley Jones
Title: Vice President
SUNTRUST BANK, Atlanta Agency
By: Charles C. Pick
Name: Charles C. Pick
Title: Vice President
By: Thomas A. Shanklin
Name: Thomas A. Shanklin
Title: Banking Officer
Schedule 2.1
Commitments
Administrative Agent
Chase Manhattan Bank $55,000,000
Syndication Agent
Wachovia Bank, N.A. $55,000,000
Managing Agents
Bank of America $50,000,000
Deutsche Bank, AG New York Branch 50,000,000
First National Bank of Chicago 50,000,000
First Union National Bank 50,000,000
Generale Bank 50,000,000
Co-Agent
SunTrust Bank, Atlanta $25,000,000
Participants
Bank of New York $25,000,000
Branch Bank & Trust 25,000,000
BW Capital Markets, Inc. 25,000,000
Crestar Bank 25,000,000
First American National Bank 25,000,000
First National Bank of Maryland 25,000,000
First Tennessee National Bank 25,000,000
Banca Di Roma 25,000,000
Banca monte Dei Paschi di Siena S.P.A. 20,000,000
Industrial Bank of Japan 20,000,000
Total $625,000,000
Schedule 3.6
Incorporated herein by reference is Part I, Item 3 of the Form
10K of the Borrower for the Fiscal Year ended January 3, 1998,
and Part II, Item 1 of the Forms 10Qs of the Borrower for the
Fiscal Quarters ended March 28, 1998, June 20, 1998 and September
12, 1998.
Schedule 3.14
SUBSIDIARIES OF BORROWER
FLI Holding Corp., a Delaware corporation ("FLI"), and a wholly-
owned subsidiary of the Borrower.
Risk Management Services, 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. (1)
FL Food Lion, Inc., a Florida corporation, and a wholly-owned
subsidiary of FLI.
Barnwell, Inc., a Delaware corporation, and a wholly-owned
subsidiary of FLI.
(1) KNK 702 Delaware Business Trust, KNK 886 Delaware Business
Trust, KNK 891 Delaware Business Trust, all Delaware business
trusts, are wholly-owned by Kash n' Karry Food Stores, Inc.
Schedule 6.1
EXISTING LIENS
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
$520,591,000. Kash n' Karry has Liens encumbering certain real
property listed on Annex A hereto.
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
December 14, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among FOOD LION,
INC., 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 Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned (1)
$ %
[Name of Assignee] [Name of Assignor]
By: By:
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as [BORROWER]
Administrative Agent
By: By:
Title: Title:
(1) Calculate the Commitment Percentage that is assigned to at least
15 decimal places and show as a percentage of the aggregate committments
of all Lenders.
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
FAX (214) 969-4343
DECEMBER 14, 1998
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 Lenders party thereto (the "Lenders"), The Chase
Manhattan Bank ("Chase"), as Administrative Agent,
and Wachovia Bank, N.A. ("Wachovia"), as
Documentation Agent, and as counsel for each of the
subsidiaries of the Borrower (collectively, the
"Guarantors"), in connection with their respective
Related Guarantees dated as of December 14, 1998
(each, a "Related Guarantee") made by the respective
Guarantors 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 Related
Guarantees (the Credit Agreement and the Related
Guaranties being collectively called the "Loan
Documents"), the certificate referred to in
Subsection 4.1 (f) of the Credit Agreement, and such
corporate documents and records of the Borrower and
the Guarantors 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 Guarantors, including the
representations contained in the Loan Documents, 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
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
The Chase Manhattan Bank,
as Administrative Agent
December 14, 1998
Page 2
than signatures of the Borrower and the Guarantors,
(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 instruments 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 Guarantors; and (iv)
the legal right and power of all such parties other
than the Borrower and the Guarantors under all
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 a 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,
Florida law and The North Carolina Business
Corporation Act. As to matters governed by the laws
of the State of Florida, we are relying on an opinion
of ___________________________
of even date herewith, a copy of which is attached
hereto. As to matters governed by the laws of the
State of North Carolina, we are relying upon an
opinion of Linn Evans, 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 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. Each Guarantor (a) is duly
incorporated, validly existing and in good standing
under the laws of the jurisdiction of its
incorporation listed on Schedule II and has all
requisite 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.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
The Chase Manhattan Bank,
as Administrative Agent
December 14, 1998
Page 3
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 by each Guarantor of the Related
Guarantee is within such Guarantor's corporate powers
and has been duly authorized by all necessary
corporate and , if required, stockholder action of
such Guarantor. Each Related Guarantee has been duly
executed and delivered by the Guarantor party thereto
and constitutes a legal, valid and binding obligation
of such Guarantor.
5. To our knowledge, neither the
Transactions to be effected on the date hereof nor
the execution, delivery and performance of the
Related Guarantees (a) require any consent or
approval of, registration or filing with, or any
other action by, any Federal, New York, Delaware,
North Carolina or Florida 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, North Carolina
corporate or Florida corporate law or regulations or
the charter, bylaws or other organizational documents
of the Borrower or any of the Guarantors 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 the Guarantors or their
respective 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 under any indenture, agreement or
other instrument binding upon the Borrower or any of
the Guarantors to any requirement for any payments
be made by the Borrower or any of the Guarantors, or
(e) will result in the creation or imposition of any
Lien on any asset of the Borrower or any of the
Guarantors.
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 the Guarantors (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 Related Guarantees or the Transactions to be
effected on the date hereof.
7. Neither the Borrower nor any of
the Guarantors 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.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
The Chase Manhattan Bank,
as Administrative Agent
December 14, 1998
Page 4
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 bank-
ruptcy, 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 in 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 opinions as
to enforceability of any provisions (i) purporting to
vest jurisdiction on any property of the Borrower or
any 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 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 or 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 any Guarantor in connection with the
Transactions.
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,
any 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 Thatcher & Bartlett
in connection with such transaction and may not be
relied upon in any manner or for any purpose by any
other person without our prior written consent.
Very truly yours,
AKIN, GUMP, STRAUSS, HAUER & FELD
EXHIBIT C
FORM OF RELATED GUARANTEE
RELATED GUARANTEE, dated as of December 14, 1998, made by
[SUBSIDIARY]/[HOLDINGS]2[FOOD LION, INC.]3 (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
14, 1998 (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 Guarantor4;
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. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
(b) As used herein:
"Material Adverse Effect" means a material adverse
effect on the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the
Subsidiaries taken as a whole, the ability of the Guarantor to
perform any of its obligations under this Guarantee or 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 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, 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, 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,
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 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 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
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. 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.
[SUBSIDIARY]/[HOLDINGS]/[FOOD LION]
By: _________________________
Title:
Address for Notices:
Attention:
Fax:
_______________________________
1 A Related Guarantee shall be executed by Holdings in the
event that the Assumption does not occur concurrently with
the Reorganization.
2 A Related Guarantee shall be executed by Food Lion as a
condition precedent to the Assumption.
3 This clause should be deleted in the event that the
Assumption does not occur concurrently with the
Reorganization.
EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE
(Amounts in thousands except Years Ended
per share amounts)
January 2, January 3, December 28,
1999 1998 1996
BASIC
NET INCOME $272,585 $172,250 $215,220
WEIGHTED AVERAGE COMMON
STOCK OUTSTANDING 478,084 468,916 470,216
BASIC EARNINGS PER SHARE $ .57 $ .37 $ .46
DILUTED
NET INCOME $272,585 $172,250 $215,220
ELIMINATION OF INTEREST EXPENSE,
NET OF RELATED TAX EFFECT,
APPLICABLE TO 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE 2003 - 3,479 3,499
ADJUSTED INCOME APPLICABLE TO
COMMON STOCK $272,585 $175,729 $218,719
WEIGHTED AVERAGE COMMON
SHARES AND OTHER COMMON
STOCK EQUIVALENTS:
COMMON STOCK OUTSTANDING 478,084 468,916 470,216
STOCK OPTIONS 1,037 737 573
SHARES ISSUABLE UPON
CONVERSION OF 5% CONVERTIBLE
SUBORDINATED DEBENTURES DUE
2003 (1) - 14,440 14,440
479,121 484,093 485,229
DILUTED EARNINGS PER SHARE $ .57 $ .36 $ .45
(1) During the second quarter of 1998, the Company's convertible
subordinated debentures were redeemed.
Exhibit 21
Subsidiaries of Food Lion, Inc.:
Entity State of Incorporation
Kash n' Karry Food Stores, Inc. DE
FLI Holding Corp. DE
Barnwell, Inc. DE
Risk Management Services, Inc. NC
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 33-03669) and Form S-3 (File Nos. 33-40457,33-50037 and 33-49620)
of our report dated February 10, 1999, on our audits of the
consolidated financial statements of Food Lion, Inc. and subsidiaries
as of January 2, 1999, and January 3, 1998, and for the fiscal years
ended January 2, 1999, January 3, 1998, and December 28, 1996, which
report is included in this Annual Report on Form 10-K.
PRICEWATERHOUSECOOPERS, LLP
Charlotte, North Carolina
February 10, 1999
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 2, 1999, 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.
This is the 25th day of March, 1999.
FOOD LION, INC.
Laura Kendall
Laura Kendall
Vice President of Finance
Chief Financial Officer
Principal Financial Officer
Consolidated Statements of Income
Year Ended Year Ended Year Ended
January 2, January 3, December 28,
(Dollars in thousands 1999 1998 1996
except per share amounts)
Net sales $10,219,474 $10,194,385 $9,005,932
Cost of goods sold 7,925,844 7,975,659 7,087,177
Gross profit 2,293,630 2,218,726 1,918,755
Selling and administrative
expenses 1,534,293 1,516,726 1,325,592
Depreciation and amortization 236,021 219,833 165,286
Asset impairment reserve - - 22,187
Store closing charge/(income) - 84,402 (27,600)
Operating income 523,316 397,765 433,290
Interest expense 95,334 115,389 80,520
Income before income taxes 427,982 282,376 352,770
Provision for income taxes 155,397 110,126 137,550
Net income $ 272,585 $ 172,250 $ 215,220
Basic and diluted earnings per
common share $ .57 $ .37 $ .46
(Results as a percentage
of net sales)
Net sales 100.00% 100.00% 100.00%
Cost of goods sold 77.56 78.24 78.69
Gross profit 22.44 21.76 21.31
Selling and administrative
expenses 15.01 14.88 14.72
Depreciation and amortization 2.31 2.16 1.84
Asset impairment reserve - - .25
Store closing charge/(income) - .82 (.31)
Operating income 5.12 3.90 4.81
Interest expense .93 1.13 .89
Income before income taxes 4.19 2.77 3.92
Provision for income taxes 1.52 1.08 1.53
Net income 2.67% 1.69% 2.39%
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Balance Sheets
January 2, January 3,
(Dollars in thousands 1999 1998
except per share amounts)
Assets
Current assets:
Cash and cash equivalents $ 123,592 $ 93,340
Receivables 199,101 166,790
Inventories 1,103,635 982,744
Prepaid expenses 20,552 22,514
Deferred tax asset 65,397 63,123
Total current assets 1,512,277 1,328,511
Property, at cost, less accumulated
depreciation 1,897,080 1,842,269
Deferred tax asset 4,707 51,980
Intangible assets less accumulated amortization 258,402 267,656
Other assets 3,495 5,720
Total assets $3,675,961 $3,496,136
Liabilities and Shareholders' Equity
Current liabilities:
Short-term borrowings $ 61,000 $ 80,000
Accounts payable, trade 545,015 497,907
Accrued expenses 360,105 351,173
Capital lease obligations - current 21,940 20,427
Long term debt - current 42,518 2,525
Other liabilities - current 9,839 8,756
Total current liabilities 1,040,417 960,788
Long-term debt 429,763 586,355
Capital lease obligations 492,660 489,928
Other liabilities 114,199 125,880
Total liabilities 2,077,039 2,162,951
Shareholders' equity:
Class A non-voting common stock,
$.50 par value; authorized 1,500,000,000
shares; issued and outstanding 247,893,000
shares at January 2, 1999 and
236,224,000 shares at January 3, 1998 123,946 118,112
Class B voting common stock, $.50
par value; authorized 1,500,000,000 shares;
issued and outstanding 230,830,000 shares at
January 2, 1999 and 232,727,000 shares at
January 3, 1998 115,415 116,364
Additional capital 60,332 794
Retained earnings 1,299,229 1,097,915
Total shareholders' equity 1,598,922 1,333,185
Total liabilities and
shareholders' equity $3,675,961 $3,496,136
The accompanying notes are an integral part of the consolidated financial
statements.
Consolidated Statements of Cash Flows
January 2, January 3,
1999 1998
(Dollars in thousands)
Cash flows from operating activities
Net income $272,585 $172,250
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization 236,021 219,833
(Gain)loss on disposals of property (8,953) 964
Store closing charge - 84,402
Asset impairment reserve - -
Deferred income taxes 44,999 (36,527)
Changes in operating assets
and liabilities net of effect of
acquisition of subsidiary:
Receivables (32,311) (15,627)
Inventories (120,891) 82,999
Prepaid expenses 1,962 8,377
Other assets 2,225 (2,951)
Accounts payable and accrued expenses 56,040 (116,816)
Income taxes payable - (5,578)
Other liabilities (10,598) (36,416)
Total adjustments 168,494 182,660
Net cash provided by operating
activities 441,079 354,910
Cash flows from investing activities
Capital expenditures (356,058) (346,134)
Proceeds from sale of property 109,850 32,572
Investment in subsidiary, net of cash received - -
Net cash used in investing
activities (246,208) (313,562)
Cash flows from financing activities
Net (payments) proceeds under short-term
borrowings (19,000) (170,010)
Principal payments on long-term debt (6,154) (212,027)
Proceeds from issuance of long-term debt - 304,823
Principal payments under capital
lease obligations (22,172) (22,076)
Dividends paid (71,271) (62,748)
Repurchase of common stock (50,192) (2,960)
Proceeds from issuance of common stock 4,170 1,555
Net cash (used in) provided by
financing activities (164,619) (163,443)
Net increase (decrease) in cash and
cash equivalents 30,252 (122,095)
Cash and cash equivalents at beginning
of year 93,340 215,435
Cash and cash equivalents at end of year $123,592 $ 93,340
The accompanying notes are an integral part of the consolidated financial
statements
Consolidated Statements of Cash Flows
December 28,
1996
(Dollars in thousands)
Cash flows from operating activities
Net income $215,220
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization 165,286
Loss on disposals of property 466
Store closing (income) (27,600)
Asset impairment reserve 22,187
Deferred income taxes (23,450)
Changes in operating assets
and liabilities:
Receivables (50,845)
Inventories (90,484)
Prepaid expenses (6,940)
Other assets 409
Accounts payable and accrued expenses 184,415
Income taxes payable 5,578
Other liabilities 34,099
Total adjustments 213,121
Net cash provided by operating
activities 428,341
Cash flows from investing activities
Capital expenditures (283,564)
Proceeds from sale of property 27,464
Investment in subsidiary, net of cash received (99,852)
Net cash used in investing
activities (355,952)
Cash flows from financing activities
Net proceeds under short-term
borrowings 250,000
Principal payments on long-term debt (65,656)
Proceeds from issuance of long-term debt -
Principal payments under capital
lease obligations (17,764)
Dividends paid (52,310)
Repurchase of common stock (44,345)
Proceeds from issuance of common stock 3,086
Net cash provided by
financing activities 73,011
Net increase in cash and cash
equivalents 145,400
Cash and cash equivalents at beginning
of year 70,035
Cash and cash equivalents at end of year $215,435
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 30, 1995 238,509 $119,255 236,625 $118,313
Cash dividends declared:
Class A - $.1120 per share
Class B - $.1104 per share
Sale of stock 587 293 - -
Repurchase of common stock (3,047) (1,524) (3,723) (1,862)
Converted debt 117 59
Net income
Balances December 28, 1996 236,166 118,083 232,902 116,451
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
Cash dividends declared:
Class A - $.1500 per share
Class B - $.1480 per share
Sale of stock 746 373 - -
Repurchase of common stock (3,086) (1,543) (1,897) (949)
Restricted shares 29 14
Converted debt 13,980 6,990
Net income
Balances January 2, 1999 247,893 $123,946 230,830 $115,415
The accompanying notes are an integral part of the consolidated financial
statements
Additional Retained
Capital Earnings Total
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 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
Cash dividends declared:
Class A - $.1500 per share (36,832) (36,832)
Class B - $.1480 per share (34,439) (34,439)
Sale of stock 3,585 3,958
Repurchase of common stock (47,700) - (50,192)
Restricted shares 198 212
Converted debt 103,455 110,445
Net income 272,585 272,585
Balances January 2, 1999 $60,332 $1,299,229 $1,598,922
Notes to Consolidated Financial Statements
1. Summary of Significant Accounting Policies
Nature of Operations
As of January 2, 1999, the Company operated 1,207 retail food supermarkets and
eight distribution centers in 11 states in the Southeast and Mid-Atlantic 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 care, prescriptions, 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 years
ended January 2, 1999 and December 28, 1996 each included 52 weeks. The year
ended January 3, 1998 included 53 weeks. The 1998 disclosed amounts represent
the year ended January 2, 1999.
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 87% and 86% of
inventories, in 1998 and 1997, 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 $139.1 million and $114.4 million
greater in 1998 and 1997, respectively. Application of the LIFO method resulted
in increases in the cost of goods sold of $24.7, $10.0 and $10.2 million for
1998, 1997 and 1996, respectively.
Statements of Cash Flows
Selected cash payments and non-cash activities were as follows:
(Dollars in thousands) 1998 1997 1996
Cash payments for income taxes $127,352 $158,543 $154,791
Cash payments for interest,
net of amounts capitalized 103,820 108,743 76,631
Non-cash investing and financing activities:
Capitalized lease obligations
incurred for store properties 62,608 80,207 130,899
Capitalized lease obligations
terminated for store properties 30,026 31,633 25,710
Capitalized lease obligations terminated
for store equipment 6,165 7,148 -
Conversion of long term debt to stock 110,445 - 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
Annually, the value of all long-lived assets 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).
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 ongoing basis, the carrying value of intangible
assets based on projections of undiscounted cash flows. If impairment is
identified, the Company compares the asset's 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 store 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 ongoing 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 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.
Maximum per occurrence is $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 $34.2 million in 1998, $32.9
million in 1997, and $30.4 million in 1996. Total claim payments were $31.2
million in 1998, $30.3 million in 1997, and $25.8 million in 1996.
Earnings Per Share
Basic earnings per share is computed by dividing income available
to common shareholders by the weighted average number of common shares
outstanding (478.1 million shares in 1998, 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.
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 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) 1998 1997
Land and improvements $ 103,820 $ 160,543
Buildings 377,736 397,496
Furniture, fixtures and equipment 1,343,514 1,265,085
Vehicles 100,370 98,529
Leasehold improvements 478,848 361,278
Construction in progress (estimated
costs to complete and equip at
January 2, 1999 are $80.0 million) 44,895 41,488
2,449,183 2,324,419
Less accumulated depreciation 1,012,193 941,298
1,436,990 1,383,121
Property under capital leases 584,931 569,855
Less accumulated depreciation 124,841 110,707
460,090 459,148
$1,897,080 $1,842,269
At January 2, 1999 and January 3, 1998, the Company had $21.0 million and $99.4
million (net book value), respectively, in property held for sale.
4. Intangible Assets
Intangible assets is comprised of the following:
(Dollars in thousands) 1998 1997
Goodwill $203,286 $205,809
Tradenames 58,000 58,000
Leasehold interests 18,438 15,312
279,724 279,121
Accumulated amortization 21,322 11,465
$258,402 $267,656
During 1998, changes in Goodwill arose primarily from adjustments to reduce
store closing reserves for Kash n' Karry, originally established at the
acquisition date, to reflect updated recoverable values and costs related to the
Company's current plans to close stores as part of the acquisition strategy.
5. Accrued Expenses
Accrued expenses consist of the following:
(Dollars in thousands) 1998 1997
Employee profit sharing $100,647 $100,634
Self insurance 76,207 75,735
Payroll 66,887 37,410
Reserves for store closings 1,126 7,436
Other 115,238 129,958
$360,105 $351,173
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 $94.9 million in 1998, $97.8 million in 1997 and $94.9 million in
1996.
7. Long-Term Debt
Long-term debt consists of the following:
(Dollars in thousands) 1998 1997
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%. 150,000 150,000
Debt Securities, due 2027. Interest
is at 8.05%. 150,000 150,000
Convertible subordinated debentures
converted May 1998. - 114,073
Mortgage payables due from 1999 through
2003. Interest ranges from 7.50% to 10.35%. 19,029 20,043
Other 2,952 4,464
472,281 588,880
Less current portion 42,518 2,525
$429,763 $586,355
During the second quarter of 1998, the Company redeemed its outstanding
convertible subordinated debentures totaling $113.8 million through either (1)
payment to the bond holders at 101% of the principal together with accrued
interest or (2) conversion of the debentures into shares of the Company's Class
A Stock. Most bond holders elected conversion resulting in the issuance of 13.9
million shares of Class A Common Stock. The Company paid $3.8 million in
principal, premium and accrued interest to remaining bond holders.
At January 2, 1999, $23.2 million (net book value) in property was pledged as
collateral for mortgage payables.
At January 2, 1999 and January 3, 1998, the Company estimated that the fair
value of its long-term debt was approximately $522.0 million and $641.3 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 1999 through 2003 are
$42.5, $2.8, $106.3, $1.6 and $11.0 million, respectively.
8. Credit Arrangements
The Company maintains a revolving credit facility with a syndicate of commercial
banks providing $625.0 million in committed lines of credit, which will expire
on December 13, 1999. These lines replaced the previous $700.0 million revolving
credit facility. There were no borrowings outstanding under each of the
facilities for the years ended January 2, 1999 and January 3, 1998.
Additionally, the Company had other committed short-term lines of credit with
banks totaling $20.0 million, of which $20.0 million was outstanding at January
2, 1999. There were no borrowings outstanding at January 3, 1998. During 1998,
the Company had average borrowings of $100,000 at a daily weighted average
interest rate of 5.37% with a maximum amount outstanding of $20.0 million.
The Company has a $250.0 million commercial paper program. No borrowings were
outstanding during the years ended January 2, 1999 and
January 3, 1998.
In addition, the Company has periodic short-term borrowings under other informal
arrangements. Outstanding borrowings under these arrangements were $41.0
million at January 2, 1999 at an average interest rate of 5.64% and $80.0
million at January 3, 1998 at an average interest rate of 6.09%.
9. Leases
The Company's stores operate principally in leased premises. Lease terms
generally range from 10 to 20 years with renewal options ranging from five to 20
years. The following schedule shows, as of January 2, 1999, the 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.
Capital Operating Leases
(Dollars in thousands) Leases Open Stores Closed Stores
1999 $ 83,463 $149,181 $ 19,920
2000 83,208 148,371 19,535
2001 82,627 147,330 19,145
2002 82,599 145,408 18,724
2003 82,354 142,018 17,964
Thereafter 845,502 1,234,793 128,053
Total minimum payments 1,259,753 1,967,101 $223,341
Less estimated executory
costs 59,864
Net minimum lease payments 1,199,889
Less amount representing
interest 685,289
Present value of net minimum
lease payments $ 514,600
Minimum payments have not been reduced by minimum sublease income of $22.8
million due in the future over the term of non-cancelable subleases.
Total rent expense for operating leases, excluding those with terms of one year
or less, is as follows:
(Dollars in thousands) 1998 1997 1996
Minimum rents $172,481 $133,786 $137,157
Contingent rents,
based on sales 255 371 680
$172,736 $134,157 $137,837
In addition, the Company has signed lease agreements for additional store
facilities, the construction of which were not complete at January 2, 1999. The
leases expire on various dates extending to 2023 with renewal options generally
ranging from 10 to 20 years. Total future minimum rents under these agreements
are approximately $673 million.
10. Income Taxes
Provisions for income taxes for 1998, 1997 and 1996 consist of the following:
(Dollars in thousands) Current Deferred Total
1998
Federal $ 95,839 $40,199 $136,038
State 14,559 4,800 19,359
$110,398 $44,999 $155,397
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
The Company's effective tax rate varied from the federal statutory rate as
follows:
1998 1997 1996
Federal statutory rate 35.0% 35.0% 35.0%
State income taxes, net of
federal tax benefit 2.9 4.8 4.3
Federal refund (1.7) 0.0 0.0
Other 0.1 (0.8) (0.3)
36.3% 39.0% 39.0%
Deferred income tax expense relates to the following:
(Dollars in thousands) 1998 1997 1996
Excess tax depreciation $21,868 $ 8,892 $ 2,774
Provision for store closings 11,745 (43,041) 7,793
Excess interest and depreciation
over rent paid on capital leases (2,743) (4,604) (3,003)
Excess tax loss/(gain) 14,964 (4,372) (9,277)
Accrued expenses 6,342 (2,258) (3,251)
Tax loss carryforwards - (1,959) -
Asset impairment reserve 184 4,892 (8,713)
Other (7,361) 5,923 (9,773)
$44,999 $(36,527) $(23,450)
The components of deferred income tax assets and liabilities at January 2, 1999
and January 3, 1998 are as follows:
(Dollars in thousands) 1998 1997
Current assets:
Inventories $ 14,818 $ 10,436
Accrued expenses 50,579 52,692
Provision for store closings 0 (5)
Total current assets 65,397 63,123
Non-current assets/(liability):
Depreciation (142,389) (105,483)
Leases 43,560 50,937
Provision for store closings 73,777 76,970
Tax loss carryforwards 22,737 22,737
Other deferred charges 7,022 6,819
Total non-current assets 4,707 51,980
Net deferred taxes $ 70,104 $ 115,103
As of January 2, 1999, 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 net operating losses is expected to be limited
to approximately $3.6 million or $6.9 million per year, depending upon the year
in which the loss was generated. If the full amount of the 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 2006 through 2011.
11. Other Liabilities
Other liabilities consist of the following:
(Dollars in thousands) 1998 1997
Remaining lease liability - closed stores $113,161 $123,105
Other 10,877 11,531
124,038 134,636
Less current portion 9,839 8,756
$114,199 $125,880
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 161,545 shares in 1998 (26,760 shares forfeited),
196,003 shares in 1997 (10,524 shares forfeited), and 133,393 shares in 1996
(1,803 shares forfeited). Currently, the Company has 423,034 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 $8.14. At January 2, 1999, 28,820 of these
restricted shares had been issued.
Changes in the shares reserved for outstanding options and restricted stock as
of January 2, 1999, and related weighted average exercise price are presented
below:
Weighted
Average
Shares Exercise Price
1998
Outstanding at beginning of 3,322,792 $6.63
year
Granted 1,180,589 8.73
Exercised (771,135) 5.10
Forfeited/expired (490,060) 6.43
Outstanding at end of year 3,242,186 7.14
Options exercisable at end of
year 136,604 8.77
1997
Outstanding at beginning of 2,553,835 $6.08
year
Granted 1,401,509 8.13
Exercised (289,833) 5.27
Forfeited/expired (342,719) 11.35
Outstanding at end of year 3,322,792 6.63
Options exercisable at end of
year 958,595 5.71
1996
Outstanding at beginning of 2,658,069 $5.97
year
Granted 931,715 7.38
Exercised (587,795) 6.19
Forfeited/expired (448,154) 11.35
Outstanding at end of year 2,553,835 6.08
Options exercisable at end of 1,367,820 5.75
year
As of January 2, 1999, there were 5,111,257 shares of Class A common stock
available for future grants.
The following table summarizes options outstanding and options exercisable as of
January 2, 1999, and the related weighted average remaining contractual life
(years) and weighted average exercise price (excluding restricted stock).
Options Outstanding
Range of Weighted
exercise Number Weighted Average
prices Outstanding Average Exercise
Remaining Price
Contractual
Life
$ 5.12 - $7.70 1,674,269 7.4 $ 6.86
$ 7.71 -$11.55 1,069,883 8.6 10.03
$11.56 -$12.42 75,000 2.8 12.42
$ 5.12 -$12.42 2,819,152 7.7 $ 8.21
Options Exercisable
Range of exercise Number Weighted
prices Exercisable Average
Exercise
Price
$ 5.12 - $ 7.70 76,571 $ 5.92
$ 7.71 - $11.55 33 8.56
$11.56 - $12.42 60,000 12.42
$ 5.12 - $12.42 136,604 $ 8.77
The weighted average fair value at date of grant for options granted during
1998, 1997, and 1996 was $2.62, $2.14, and $2.35 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:
1998 1997 1996
Expected dividend yield (%) 1.50 1.50 1.50
Expected volatility (%) 30.00 25.00 25.00
Risk-free interest rate (%) 5.60 6.50 6.60
Expected term (years) 5.0 5.5 5.5
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 1998, 1997 or 1996. 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:
(Dollars in thousands,
except per share data) 1998 1997 1996
Net earnings - as reported $272,585 $172,250 $215,220
Net earnings - pro forma 272,144 171,656 214,986
Basic earnings per share - as reported 0.57 0.37 0.46
Basic earnings per share - pro forma 0.57 0.37 0.46
13. Common Stock
On January 2, 1999, approximately 23.2% and 14.4% of the issued and outstanding
Class A non-voting common stock and 24.7% and 27.5% 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 52.2% of the Class B voting
common stock and 37.6% of the 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 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) 1998 1997 1996
Interest on capital leases $58,774 $ 56,809 $46,767
Other interest 36,560 58,580 33,753
$95,334 $115,389 $80,520
15. Reserves for Closed Stores
(Dollars in millions)
Reduction Lease Accrued
of Asset Liabilities Expenses Total
Values
Balance at December 30, 1995 $ 58.2 $ 67.0 $ 20.5 $145.7
Additions 20.2 92.3 1.4 113.9
Reductions (31.2) (9.2) (1.8) (42.2)
Recognition of unused (8.5) 0.0 (19.1) (27.6)
reserves
Balance at December 28,1996 38.7 150.1 1.0 189.8
Additions 98.8 22.6 13.7 135.1
Reductions (12.9) (20.0) (3.6) (36.5)
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
Additions 2.7 19.2 9.4 31.3
Reductions (90.7) (21.9) (15.7) (128.3)
Recognition of unused 0.0 (7.2) 0.0 (7.2)
reserves
Balance at January 2, 1999 $ 15.8 $113.2 $ 1.1 $130.1
1998 Activity:
During the year, the Company recorded $15.2 million in store closing costs
(included in Selling and Administrative Expenses on the Company's Consolidated
Statement of Income), related to planned store closings in the normal course of
business. These costs are included in the "Additions" line in the table above.
Significant additions also include gains ($11.1 million) related to the disposal
of various properties ($5.1 million) and the sale of the Company's distribution
center in the Southwest market ($6 million). The Company recorded these gains to
the store closing reserve pending the results of disposition efforts on
remaining closed store properties.
Significant reductions include the disposition of 51 owned stores and the
distribution center facility in the Southwest market, which the Company closed
in 1997 (see discussion under 1997 Activity). Other significant reductions
include (1) ongoing rent payments made on remaining lease obligations, (2) fees
for lease terminations, (3) incremental direct costs to dispose of closed store
properties, and (4) expenses arising from contractual obligations.
The Company made a decision in 1998 not to close three Kash n' Karry stores due
to improved performance. These stores were included in the store closing
reserves established at the date of the Kash n' Karry acquisition. These unused
reserves totaling $7.2 million were reflected as a reduction of Goodwill.
During 1998, the Company closed 29 stores in the normal course of business,
including 17 relocation closings and 12 closings due to poor performance. The
revenues and operating results of these stores were not significant to the
Company's total revenues and operating results.
During 1998, the Company completed disposition efforts related to 74 closed
stores.
At the end of 1998, the Company had $130.1 million in store closing costs
related to 157 stores and one distribution center.
1997 Activity:
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. These
other costs include legal fees, commissions, severance costs, and certain other
costs to sell the related assets and/or expenses arising from contractual
obligations ($7.3 million) included in Accrued Expenses above. The Southwest
market had negatively impacted the Company's operating results by approximately
$0.01 per share annually.
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.
During 1997, the Company closed 58 stores in the normal course of business
including 25 relocation closings and 33 closings due to poor performance. The
revenues and operating results of these stores were not significant to the
Company's total revenues and operating results.
During 1997, the Company completed disposition efforts related to 33 closed
stores.
1996 Activity:
Significant additions to the reserve represent store closing reserves for Kash
n' Karry established at the date of acquisition.
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 relates to store closings in the normal course of
business and represents store closing costs incurred, the disposition of
properties held for sale, and payments made on remaining lease obligations.
During 1996, the Company closed 25 stores in the normal course of business
including 22 relocation closings and three closings due to poor performance. The
revenues and operating results of these stores were not significant to the
Company's total revenues and operating results.
During 1996, the Company completed disposition efforts related to 39 closed
stores.
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.
Report of Independent Accountants
To the Shareholders of Food Lion, Inc.:
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of income, shareholders' equity, and cash flows present
fairly, in all material respects, the financial position of Food Lion, Inc. and
subsidiaries (the "Company") at January 2, 1999 and January 3, 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended January 2, 1999, in conformity with generally accepted
accounting principles. 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 of these
statements in accordance with generally accepted auditing standards which
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, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Charlotte, North Carolina
February 10, 1999
Results by Quarter
(unaudited)
(Dollars in thousands except per share amounts)
1998 First Second Third Fourth
Quarter Quarter Quarter Quarter
(12 Weeks) (12 Weeks) (12 Weeks) (16 Weeks)
Net sales $2,305,473 $2,353,260 $2,378,922 $3,181,819
Gross profit 505,358 526,603 534,934 726,735
Selling and
administrative 336,295 352,609 356,043 489,346
expenses
Depreciation and
amortization 52,418 54,012 55,777 73,814
Operating income 116,645 119,982 123,114 163,575
Net income $ 55,234 $ 60,033 $ 72,769 $ 84,549
Basic and
diluted earnings
per common share $0.12 $0.13 $0.15 $0.18
(Dollars in thousands except per share amounts)
1997 First Second Third Fourth
Quarter Quarter Quarter Quarter
(12 Weeks) (12 Weeks) (12 Weeks) (17 Weeks)*
Net sales $2,276,746 $2,324,719 $2,366,905 $3,226,015
Gross profit 493,683 503,670 513,432 707,941
Selling and
administrative 346,841 345,413 346,059 478,413
expenses
Depreciation and
amortization 48,697 52,150 52,153 66,833
Store closing
charge/(income) 0 0 96,414 (12,012)
Operating income 98,145 106,107 18,806 174,707
Net income(loss) $ 43,591 $ 47,791 $ (6,382) $ 87,250
Basic and
diluted earnings
per common share $0.09 $0.10 $(0.01) $0.19
*Note: The 1998 fourth quarter comprised 16 weeks; the 1997 fourth quarter
comprised 17 weeks.
Market Price of Common Stock
Year Ended January 2, 1999 Year Ended January 3, 1998
Class A Class B Class A Class B
Quarter High Low High Low High Low High Low
First 11.25 8.47 11.38 8.13 9.78 7.63 10.13 8.00
Second 10.88 9.25 11.06 9.13 8.25 6.47 8.38 6.56
Third 11.44 8.81 11.06 9.00 7.50 6.94 7.56 6.91
Fourth 11.06 8.38 10.81 7.88 8.75 7.44 8.53 7.44
The Company's Class A and Class B common stock trade on the Nasdaq stock market
under the symbols: 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 2, 1999 were $10.63 and $10.06,
respectively compared with $8.50 and $8.31, respectively for both Class A and
Class B common stock at January 3, 1998. 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 19, 1999, there
were 24,319 holders of record of Class A common stock and 16,676 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 19, 1999 were $9.47 and $9.31,
respectively.
Dividends Declared Per Share of Common Stock
Year Ended January 2, 1999 Year Ended January 3, 1998
Quarter Class A Class B Class A Class B
First $.0375 $.0370 $.0337 $.0332
Second .0375 .0370 .0337 .0332
Third .0375 .0370 .0337 .0332
Fourth .0375 .0370 .0337 .0332
Total $.1500 $.1480 $.1348 $.1328
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Results of Operations
The Company posted a record level of sales and earnings during 1998. Sales
totaled $10.2 billion as earnings reached $272.6 million. The Company was able
to achieve these strong operating results despite highly competitive conditions.
In addition, the Company was able to accomplish these results while preserving
its continued commitment to delivering low price leadership to its customers in
all markets. During 1998, the Company complimented its guarantee of low price
leadership with increased variety and selection, which not only addressed the
demands of its customers but also helped to boost operating profits. Finally,
the Company's continued focus on gaining operating efficiencies and increased
productivity through its low cost structure rounded out the completion of Food
Lion's most successful year.
During 1998, the Company opened 79 new stores and closed 29 existing stores
(including 17 relocations). As a result, at the end of 1998, the Company
operated 1,207 stores compared with 1,157 stores in operation at the end of
1997. The Company renovated 141 existing stores in 1998.
Sales
Sales were $10.2 billion for the 52 weeks of fiscal 1998 compared with
$10.2 billion during the 53 week period of fiscal 1997, and $9.0 billion for the
52 week period in 1996, resulting in annual increases of 0.2%, 13.2% and 9.7%,
respectively. The Company's 1998 total sales are not comparable to 1997 total
sales due to (1) the extra week included in fiscal 1997, (2) $249.1 million in
prior year sales from stores in the Southwest market which closed during the
fourth quarter of 1997 and (3) a change in the method of collecting sales tax on
products discounted through the MVP customer ("MVP") and Preferred customer
("PCC") loyalty card programs. On a comparable basis, total sales increased
6.1% for fiscal 1998. In 1998, same store sales increased 2.6% as compared with
increases of 0.2% for 1997 and 5.7% for 1996.
Beginning in May 1998, after receiving permission from all state
departments of revenue, the Company began collecting sales tax on the net sales
price, after considering the MVP/PCC discount granted, rather than the full
retail price of the MVP/PCC items. The related impact to fiscal 1998 was to
reduce reported sales by approximately $127.1 million. This change does not
impact the same store sales calculation or the Company's net income, as gross
profit and expense dollars are the same under either method. The only
difference is that under the new method the discount granted is reflected in
sales as opposed to in cost of goods sold under the original method. The
following table illustrates the impact of the change.
Fiscal 1998 1998
1998 Dollars % %
Dollars Comparable Comparable
As to 1996 - As to 1996 -
Reported 1997 Reported 1997
(Dollars and shares (New (Original (New (Original
in thousands) Method) Method) Method) Method)
Net sales $10,219,474 $ 10,346,538 100.00% 100.00%
Cost of goods sold 7,925,844 8,052,908 77.56 77.83
Gross profit 2,293,630 2,293,630 22.44 22.17
Selling and
administrative 1,534,293 1,534,293 15.01 14.83
expenses
Depreciation and 236,021 236,021 2.31 2.28
amortization
Operating income 523,316 523,316 5.12 5.06
Interest expense 95,334 95,334 .93 .92
Income before income 427,982 427,982 4.19 4.14
taxes
Provision for income 155,397 155,397 1.52 1.51
taxes
Net income $272,585 $272,585 2.67% 2.63%
Basic and diluted
earnings per share $.57 $.57
Weighted average
number of shares 478,084 478,084
outstanding
During 1998, the sales increase of 6.1% (on a comparable basis) resulted
from the Company's new store additions and renovations of existing stores, as
well as category management and marketing initiatives. The Company opened 79 new
stores in 1998 and closed 29 existing stores (including 17 relocations), a net
increase of 50 stores. Store renovations also increased sales, as 141 existing
stores were renovated to update equipment and properties, and in many locations,
to add square footage and deli/bakery departments. The Company's stores
currently have an average age of only five years, compared with an industry
average of seven years, as a result of its continued aggressive new store
construction and renovation program.
The Company continued to enhance the Food Lion MVP Customer card program
and implemented the Kash n' Karry Preferred Customer Club card (PCC) program in
1998. These programs, which are primarily vendor supported, reward customers
with additional discounts on the Company's everyday low prices on a selection of
featured items. Up to 1,500 items are highlighted on the programs each week.
In 1998, the Company created special promotions for customer card users,
including the MVP Million Dollar Giveaway and direct mail offers, which have
resulted in increased card usage and higher sales. During 1999, the Company
plans increased usage of the expansive MVP and PCC customer databases to support
targeted marketing efforts.
The 1999 business plan currently includes opening 80 new stores
(approximately 20 of these will replace older stores) and renovating
approximately 140 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 its 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. 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 current and future customer needs.
Gross Profit
In fiscal 1998, gross profit was 22.44% (22.17% adjusted to the original
method of reporting sales tax) of sales compared with 21.76% and 21.31% in 1997
and 1996, respectively. The gross profit increase of 0.68% (0.41% increase on a
comparable basis) of sales in 1998 is attributable to a continued focus on
category management initiatives (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 1998. In
addition, gross profits were positively impacted by the Company's private label
sales, which currently represent 16.0% of consolidated total sales.
The LIFO charge, as a percentage of sales, decreased gross profit by 0.24%
in 1998, 0.10% in 1997 and 0.11% in 1996. Current year inflation totaled 2.3%
due primarily to the increase in the cost of cigarettes imposed by tobacco
manufacturers during 1998. Cigarette costs increased $6.35 per carton, or 49%
during 1998. Excluding cigarettes, all other merchandise categories experienced
little or no inflation. The 1998 inflation rate excluding the cigarette cost
increase was 0.7%.
Selling and Administrative Expenses
Selling and administrative expenses as a percentage of sales were 15.01% in
1998 (14.83% adjusted to the original method of reporting sales tax) and 14.88%
and 14.72% in 1997 and 1996, respectively. The comparable decrease is
attributable to decreases in 1) administrative costs, due to having Kash n'
Karry fully integrated for the entire year of 1998 compared with only five
months in 1997, and 2) a decrease in advertising costs as the Company increased
the number of vendor-supported marketing programs. These decreases were
partially offset by an increase in store utilities and an increase in store rent
expense related primarily to 72 new leased stores and expansions of existing
stores.
The Company believes it is important to maintain flexibility with regard to
expense levels and will take advantage of additional opportunities to grow sales
profitably through new marketing and customer service programs. The Company
expects to continue to perform at an expense ratio in the range of 15.0% -
15.5%.
Food Lion's 1998 business plan reflected the Company's commitment to
maintaining its existing store base as 141 store renovations were completed in
1998 compared with 99 in 1997 and 124 in 1996. The Company anticipates
completing approximately 140 renovations to existing stores in 1999. Store
renovations result in an average sales increase of 10% - 20% in the year
following the renovation. The Company plans to continue an aggressive renovation
program to maintain a modern and convenient shopping environment for customers
in all stores.
Store Closings
With over 1,200 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. During
1998, 29 stores were closed in the normal course of business as discussed above.
The average cost to close a store as part of the Company's normal business
strategy is approximately $500,000 to $1,000,000. During 1998, the Company
recorded $15.2 million in store closing costs (included in Selling and
administrative expenses on the Company's Consolidated Statement of Income),
related to planned store closings (see Note 15 to the consolidated financial
statements).
In 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 to sell the related assets and/or expenses
arising from contractual obligations ($7.3 million). The Southwest market had
negatively impacted the Company's operating results by approximately $0.01 per
share annually.
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 consolidated financial statements.
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"). No adjustments were recorded during 1998.
Interest Expense
Interest expense as a percent of sales was 0.93% in 1998 and 1.13% and
0.89% in 1997 and 1996, respectively. During 1998, the Company reached an
agreement with the U.S. Internal Revenue Service ("IRS") regarding its
examination of tax years 1991-1994. As a result of this agreement, the Company
received a refund related to tax paid in previous years. The refund included
$7.2 million in tax (recorded during the year as a reduction to the Provision
for Income Taxes) and related interest income of $7.6 million (recorded during
the year as a reduction to Interest expense). In addition, Interest expense was
impacted by (1) the conversion of the Company's convertible subordinated
debentures in 1998, and (2) the pre-payment of $50 million in note purchase
agreements in late 1997.
Depreciation Expense
Depreciation expense as a percent of sales was 2.31% in 1998 compared with
2.16% in 1997 and 1.84% in 1996. Depreciation increased in 1998 due to an
extensive capital expenditure program totaling $356.1 million. During 1998, the
Company constructed and equipped 72 leased stores and seven owned stores, and
renovated 141 existing stores. During 1997, the Company constructed and
equipped 61 leased stores and three owned stores, and renovated 99 existing
stores. In 1996, the Company equipped 55 leased stores and renovated 124
existing stores.
LIFO
The LIFO reserve increased $24.7 million in 1998 as compared with increases
of $10.0 million in 1997 and $10.3 million in 1996. The 1998 increase was
primarily due to a significant increase in cigarette costs (see discussion
above). In 1997, increased coffee, paper and cigarette costs were the primary
contributors to the LIFO increase, while in 1996, the increased costs of
grocery, frozen food and dairy items supported the LIFO increase.
Income Taxes
The provision for income taxes was $155.4 million in 1998, $110.1 million
in 1997 and $137.6 million in 1996. The Company's effective tax rate was 36.3%
in 1998 and 39.0% in 1997 and 1996. The effective tax rate for 1998 was reduced
by a $7.2 million tax refund received from the IRS (see discussion above under
Interest Expense). The Company expects its continuing effective tax rate to be
38%.
Liquidity and Capital Resources
Cash provided by operating activities was $441.1 million in 1998 compared
with $354.9 million in 1997 and $428.3 million in 1996. The increase in 1998
was due to improved earnings, an increase in inventory levels, net of trade
payables, an increase in accrued expenses, and a reduction in deferred taxes.
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 from 1995 was primarily due to increased inventory
levels, net of trade payables, resulting from the Kash n' Karry acquisition and
increased receivables.
Cash flows used in investing activities decreased to $246.2 million in 1998
compared with $313.6 million in 1997 and $356.0 million in 1996. The decrease
in investing activities in 1998 compared to 1997 is the result of an increase in
the proceeds received from the disposition of the assets related to stores in
the Southwest market. 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. In December of 1996, Food Lion
purchased the stock of Kash n' Karry for $121.6 million.
Capital expenditures increased to $356.1 million in 1998, compared with
$346.1 million in 1997 and $283.6 million in 1996. During 1998, the Company
equipped a total of 79 new stores and renovated 141 existing stores (including
expanding square footage and adding deli/bakeries in many of these stores).
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.
Total store square footage increased 7.7% from 36.1 million in 1997 to 38.9
million in 1998. The total distribution space operated by the Company was 8.7
million square feet at the end of both 1998 and 1997, compared with 10.7 million
at the end of 1996. The decrease in distribution space 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 1999, 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, as appropriate. The Company anticipates opening 80
new stores (20 of these will replace older stores) and renovating approximately
140 stores in 1999. 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 1999. Capital
expenditures for 1999 are expected to total $390 million, which includes
approximately $160 million for store expansion and new store construction and
$160 million to equip new and renovated stores.
The Company plans to finance capital expenditures for 1999 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.
Cash flows used in financing activities increased to $164.6 million in
1998, compared with $163.4 million in 1997 and cash provided from financing of
$73.0 in 1996. The increase in 1998 was primarily the result of shares
purchased under the Company's share repurchase plan as described below,
partially offset by a decrease in net payments on debt. The increase in cash
used in 1997 compared to 1996 was related primarily to principal payments on
debt.
Under the Company's current share repurchase program, which expires in May
1999, the Company may repurchase up to $100.0 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.
During 1998, the Company expended $50.2 million (including commissions) for the
purchase of Class A and Class B shares, as part of its repurchase program
compared to $3.0 million in 1997, and $44.3 million in 1996. See table below.
Class A Class B
1998
Shares purchased 3,085,700 1,897,000
Average purchase $10.37 $ 9.60
price
Total purchased $31,998,709 $18,211,200
1997
Shares purchased 235,000 175,000
Average purchase $ 7.34 $ 7.06
price
Total purchased $1,724,900 $1,235,000
1996
Shares purchased 3,047,000 3,722,250
Average purchase $ 5.89 $ 7.09
price
Total purchased $17,946,830 $26,390,753
Additional purchases may be made in the open market under the current program as
deemed in the best interest of shareholders.
Debt
In 1998, the Company redeemed its outstanding convertible subordinated
debentures totaling $113.8 million through either (1) payment to the bond
holders at 101% of the principal together with accrued interest or (2)
conversion of the debentures into shares of the Company's Class A Stock at $7.90
per share. Most bond holders elected conversion resulting in the issuance of
13.9 million shares of Class A Common Stock with $3.8 million in principal,
premium and accrued interest paid to the remaining bond holders. The conversion
election had no impact on the Company's basic or diluted earnings per share.
The Company currently has outstanding medium-term notes of $150.3 million
due from 1999 to 2006 at interest rates of 8.32% to 8.73%. Additionally, the
Company has long-term debt securities of $300.0 million of which $150.0 million
is due 2007 at 7.55% and $150.0 million matures in 2027 at an interest rate of
8.05%.
In December 1998, the Company replaced its $700.0 million revolving credit
facility. The current credit facility with a syndicate of commercial banks
provides for $625.0 million in committed lines of credit, which will expire on
December 13, 1999. As of January 2, 1999, the Company had no outstanding
borrowings related to this credit facility.
The Company also maintains additional committed lines of credit totaling
$20.0 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. As of January 2, 1999, the Company had outstanding
borrowings of $20.0 million. During 1998, the Company had average borrowings of
$100,000 at a daily weighted average interest rate of 5.37% with a maximum
amount outstanding of $20.0 million.
The Company has a $250.0 million commercial paper program, of which no
borrowings were outstanding at January 2, 1999, January 3, 1998, and December
28, 1996, 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)
1998 1997 1996
Outstanding borrowings $41.0 $80.0 $0.0
at year end
Average borrowings 12.2 8.2 3.0
Maximum amount 100.0 80.0 55.0
outstanding
Daily weighted average 5.47% 5.76% 5.48%
interest rate
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.
Impact of Inflation
During 1998, the inflation rate on merchandise purchases was 2.3%.
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
In 1996, the Company began evaluating both its information technology
systems, and other systems and equipment in order to identify and adjust date
sensitive systems for Year 2000 compliance. As part of this undertaking, the
Company created a Year 2000 Project Team to address the issues related to Year
2000 compliance. The Year 2000 Team is led by representatives from the
Company's Information Technology department and includes key representatives
from other areas of the Company. The Year 2000 Team has developed a three-phase
plan to identify and remediate all existing systems to ensure the Company's
readiness for the century change. These phases consist of assessment, system
remediation and integration testing.
Project Phase One primarily focused on assessing the business impact of the
century change on the Company's operating environment. This assessment included
information technology systems, non-information technology systems and supply
chain readiness. The assessment was conducted based on an analysis of the
Company's individual business processes and the potential material risks
associated with the Company's operations. Project Phase Two primarily focused
on code and system conversion (remediation) of date impacted applications and
systems. Remediation or replacement was conducted for all information
technology and embedded systems impacted by Year 2000 issues. Project Phase
Three involves the execution of various testing protocol, analysis of test
results and the development of contingency plans for each of the impacted
systems.
The Company has completed Project Phase One for all systems and Project
Phase Two for all systems not scheduled for replacement. The Company expects to
complete installation of certain replacement systems impacted by Year 2000
issues by mid-1999 and has included the cost of these systems in its estimates
for the Year 2000 Project. The Company has commenced Project Phase Three, which
includes testing and validation of impacted systems, and anticipates this phase
will be substantially complete by mid-1999. However, the Company anticipates
testing and validation procedures, as well as development of contingency plans,
will continue throughout 1999.
Except for the cost of replacement systems, the Company will expense the
cost of the Year 2000 Project as incurred. The Company is funding the costs
associated with the Year 2000 Project through operating cash flows and has not
deferred any Information Technology projects in order to complete the Year 2000
Project.
The Company estimates the total incremental cost of the Year 2000 Project
is approximately $17.0 million which includes equipment and software
replacements, reprogramming, systems testing, and outside consulting services.
Approximately $4.0 million of the total cost for the Year 2000 Project is
related to reprogramming or remediation of existing software and new systems,
while the remaining cost of approximately $13.0 million is related to the
implementation of certain replacement systems. At the end of fiscal year 1998,
the Company had incurred approximately $8.9 million of the total cost of the
Year 2000 project of which $2.8 million had been expensed as incurred and $6.1
million had been capitalized for replacement systems.
The Company has not materially increased the number of its employees in
order to complete the Year 2000 Project. Although the Company has utilized
external contractors in various phases of the Year 2000 Project, the Company
does not consider any of these contracts or relationships material for the
completion of the Year 2000 Project. The Company has assigned certain employees
from its Information Technology department to the Year 2000 Project (averaging
approximately 20 employees during Phase One and 22 employees during Phase Two of
the project and less than 15 employees from its user departments). As discussed
above, the Company has created a Year 2000 Project Team composed of
representatives from all areas of the Company. Members of the Year 2000 Project
Team have completed the tasks associated with the Year 2000 Project as part of
their normal duties. Although the Company has discussed its Year 2000 Project
with certain of its consultants third parties were not retained to perform
independent verification and validation processes regarding the risks and cost
estimates of the Year 2000 Project.
As part of the Year 2000 Project, the Company has identified relationships
with third parties, including vendors, suppliers, and service providers, which
the Company believes are critical to its business operations. Although the
Company considered several factors in identifying these critical relationships,
the Company has concentrated its communication efforts as discussed below with
suppliers and vendors from whom the company makes annual purchases in excess of
$10 million. The Company is in the process of communicating with these third
parties through questionnaires, letters and interviews in an effort to determine
the extent to which they are addressing their Year 2000 compliance issues. Based
on the responses received to date from these efforts, the Company understands
that all critical suppliers have indicated they anticipate being Year 2000
compliant. A small percentage of these critical suppliers have indicated they
are Year 2000 compliant, however, a majority have indicated they are still
addressing Year 2000 issues. Where appropriate, the Company has developed
strategies to work with its suppliers to verify Year 2000 readiness and create
contingency plans as discussed below.
The Company has identified its operational and supply chain activities as
its most critical functions potentially impacted by Year 2000 issues. The
Company will conduct testing within a parallel operating environment created to
simulate business processes and integrated systems functionality, including
front-end operations and supply chain activities. Validation of integrated
systems functionality will be performed by comparing test results to actual
processes and data.
The Company cannot assure that there will not be an adverse impact on the
Company if third parties do not appropriately address their Year 2000 issues in
a timely manner. Such other possible consequences include, but are not limited
to, loss of communications with stores, loss of electric power, and an inability
to process customer transactions or otherwise engage in similar normal business
activities. As discussed below, the Company has developed contingency plans with
its critical suppliers in order to arrange for the timely delivery of inventory.
The Company will continue to communicate with, assess and monitor the progress
of these third parties in resolving Year 2000 issues.
Although the Company does not believe the actual impact of any system
failures related to the century change will be material, the Company has
developed various contingency plans with its critical suppliers and certain
other vendors in order to assure the timely delivery of inventory and prepare
for normal business activities following the century change. In the event the
Company or a key supplier is adversely impacted by the century change, the
Company will implement its contingency plan for such situation. These plans
include alternate means of communication with suppliers, such as facsimile,
telephone and hand delivery, manual operation of certain systems, as well as the
implementation of certain established ordering procedures. Under the terms of
these established ordering procedures, the Company's critical suppliers will
provide inventory to the Company based on historical ordering patterns. These
suppliers will also substitute products and adjust inventory levels of
substitute items based on the availability of certain products. The Company
will continue to develop and finalize the implementation of its contingency
plans with third parties throughout 1999.
The projections and project completion dates are based on management's best
estimates and may be updated from time to time as additional information becomes
available. This section discussing Year 2000 issues contains forward-looking
statements (refer to "Other" below which addresses forward-looking statements
made by the Company).
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
issues and uncertainties related to Year 2000 detailed from time-to-time in the
Company's filings with the Securities and Exchange Commission.
<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>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JAN-02-1999
<PERIOD-START> JAN-04-1998
<PERIOD-END> JAN-02-1999
<CASH> 123,592<F1>
<SECURITIES> 0
<RECEIVABLES> 199,101
<ALLOWANCES> 0
<INVENTORY> 1,103,635
<CURRENT-ASSETS> 1,512,277<F1>
<PP&E> 3,034,114
<DEPRECIATION> 1,137,034
<TOTAL-ASSETS> 3,675,961<F1>
<CURRENT-LIABILITIES> 1,040,417<F1>
<BONDS> 429,763
0
0
<COMMON> 299,693
<OTHER-SE> 1,299,229
<TOTAL-LIABILITY-AND-EQUITY> 3,675,961<F1>
<SALES> 10,219,474
<TOTAL-REVENUES> 10,219,474
<CGS> 7,925,844
<TOTAL-COSTS> 7,925,844
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 95,334
<INCOME-PRETAX> 427,982
<INCOME-TAX> 155,397
<INCOME-CONTINUING> 272,585
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 272,585
<EPS-PRIMARY> .57
<EPS-DILUTED> .57
<FN>
<F1>At the end of 1998, the Company began reclassing bank overdrafts from
Cash to Accounts Payable.
</FN>
</TABLE>
