Exhibit 10.29
[364-Day Agreement] EXECUTION VERSION
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 13, 2002
among
ALBERTSON'S, INC.,
BANK OF AMERICA, N.A.
as Administrative Agent,
BANK ONE, N.A.,
as Syndication Agent,
UNION BANK OF CALIFORNIA, N.A. and
XXXXX FARGO BANK, N.A.,
as Documentation Agents
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
Banc of America Securities LLC,
Sole Lead Arranger
and Sole Book Manager
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SFRLIBI\MMK\6146301.06 364-Day Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement (this "Agreement") is
entered into as of March 13, 2002, among Albertson's, Inc., a Delaware
corporation (the "Company"), the several financial institutions from time to
time party to this Agreement (individually, a "Bank" and, collectively, the
"Banks"), Bank One, N.A., as syndication agent (in such capacity, the
"Syndication Agent"), Union Bank of California, N.A. and Xxxxx Fargo Bank, N.A.,
as documentation agents (in such capacity, the "Documentation Agents") and Bank
of America, N.A., as administrative agent for itself and the Banks (in such
capacity, the "Agent").
WHEREAS, the Company, the Banks party thereto and the Agent entered
into a Credit Agreement dated as of March 22, 2000, as amended and restated as
of March 15, 2001 (as in effect as of the date of this Agreement, the "Original
Agreement") providing for a 364-day revolving credit facility; and
WHEREAS, the parties hereto desire to amend the Original Agreement as
set forth herein and to restate the Original Agreement in its entirety to read
as set forth in the Original Agreement with the amendments specified below,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term used herein
(including in the Recitals hereof) which is defined in the Original Agreement
shall have the meaning assigned to such term in the Original Agreement.
(b) Each reference to "this Agreement", "hereof", "hereunder", "herein" and
"hereby" and each other similar reference contained in the Original Agreement,
and each reference to "the Credit Agreement" and each other similar reference in
the other Loan Documents, shall from and after the Effective Date (as defined in
subsection 2) refer to the Original Agreement as amended and restated hereby.
(c) The rules of interpretation set forth in Section 1.02 of the Original
Agreement shall be applicable to this Agreement.
2. Amendments to Original Agreement. Subject to the terms and conditions
hereof, the Original Agreement is amended as follows, effective as of the date
of satisfaction of the conditions set forth in Section 4 (the "Effective Date"):
(a) Syndication Agent and Documentation Agents. References in the Original
Agreement to the Syndication Agent, the Documentation Agent, the Senior Managing
Agents and the Managing Agents shall be deemed to be references to the
Syndication Agent and the Documentation Agents named herein.
(b) Amendments to Article I of the Original Agreement.
SFRLIBI\MMK\6146301.06 2 364-Day Credit Agreement
(1) The term "Notes" defined in the Original Agreement shall include
from and after the Effective Date the Notes delivered under this Agreement.
(2) The definition of "Closing Date" is amended in its entirety to
provide as follows:
"Closing Date" means the date occurring on or before March 13,
2002 on which all conditions precedent set forth in Section 4.01 are
satisfied or waived by all Banks (or, in the case of subsection 4.01(e),
waived by the Person entitled to receive such payment).
(3) The definition of "Revolving Termination Date" is amended in its
entirety to provide as follows:
"Revolving Termination Date" means the earlier to occur of:
a. March 12, 2003 as the same may be extended from time to time
pursuant to Section 2.16; and
b. The date on which the Commitments terminate in accordance with
the provisions of this Agreement.
(4) The defined term, "Company's 1998 Form 10-K" shall be deleted, and
a new defined term, "Company's 2000 Form 10K" shall be added as follows:
"Company's 2000 Form 10-K" means the Company's Annual Report on
Form 10-K for the fiscal year ended February 1, 2001, as filed with the SEC
pursuant to the Exchange Act.
Accordingly, each reference to "Company's 1998 Form 10-K" in the Original
Agreement shall be deemed to refer to "Company's 2000 Form 10-K," and each
reference to February 3, 2000 in Sections 1.01, 4.02 and 5.10 of the Original
Agreement shall be deemed to refer to February 1, 2001.
(5) The following new defined terms shall be added:
"Consolidated Interest Expense" means as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis, all interest,
premium payments, fees, charges and related expenses of the Company and its
Subsidiaries in connection with borrowed money or in connection with the
deferred purchase price of assets, to the extent treated as interest and
net of interest income in accordance with GAAP, and the portion of rent
expense with respect to capitalized lease obligations that is treated as
interest in accordance with GAAP, but excluding amortization of discount
and deferred debt expense as determined in accordance with GAAP.
"Consolidated Rental Expense" means as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis the aggregate
SFRLIBI\MMK\6146301.06 3 364-Day Credit Agreement
rental expense (including any contingent or percentage rental expense and
any rent offsets, as applicable) of the Company and its Subsidiaries on a
consolidated basis for such period in respect of all rent obligations under
all operating leases for real or personal property minus any rental income
of the Company and its Subsidiaries on a consolidated basis for such period
(including licensee related income from licensees operating on the store
premises of Company and its Subsidiaries).
"EBITDAR" means, for any period, for the Company and its Subsidiaries
on a consolidated basis, an amount equal to (i) the sum of (a) net earnings
before One Time Charges for such period, (b) all income taxes for such
period, (c) Consolidated Interest Expense for such period, (d) depreciation
and amortization expense for such period, and (e) Consolidated Rental
Expense for such period, minus (ii) cash One Time Charges for such period.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis, the ratio of
(a) EBITDAR for the period of four fiscal quarters ending on such date to
(b) Total Fixed Charges for the period of four fiscal quarters ending on
such date.
"Initial Closing Date" means March 30, 1999.
"One Time Charges" means unusual material charges or credits against
earnings which the Company separately discloses in the discussion of the
"Results of Operations" (including but not limited to merger related
charges, restructuring charges, gains or losses from the disposition of
assets and accounting changes).
"Total Fixed Charges" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, (a) Consolidated Interest Expense for
such period and (b) Consolidated Rental Expense for such period.
(c) Amendments to Article II of the Original Agreement.
(1) The agreement of the Bid Loan Banks to accept requests for Bid
Loans from the Company pursuant to Sections 2.05 and 2.06 of the Original
Agreement shall be terminated effective as of the Closing Date.
(2) The reference to "$1,250,000,000" in Section 2.17(a)(G) of the
Original Agreement shall be deleted and "$625,000,000" shall be inserted in its
place.
(d) Amendments to Article V of the Original Agreement.
(1) The two references to October 29, 1999 in Section 5.10(b) of the
Original Agreement shall be deleted and replaced by "November 1, 2001" for each
such reference.
(2) Section 5.15 shall be deleted.
(e) Amendments to Article VII of the Original Agreement.
SFRLIBI\MMK\6146301.06 4 364-Day Credit Agreement
(1) The reference to "Closing Date" in Section 7.03(e) of the Original
Agreement shall be deleted and "Initial Closing Date" shall be inserted in its
place.
(2) The Minimum Consolidated Tangible Net Worth amount of
$2,100,000,000 set forth in Section 7.05 of the Original Agreement shall be
deleted and the amount "$3,000,000,000" shall be inserted in its place.
(3) A new Section 7.06 shall be added as follows:
7.06 Fixed Charge Coverage Ratio. The Company shall not
permit its Fixed Charge Coverage Ratio as determined as of
the last day of any fiscal quarter to be less than 2.70 to
1.00.
(f) Amendment to Article VIII of the Original Agreement. Subsection 8.01(c)
of the Original Agreement is amended in its entirety to provide as follows:
(c) Specific Defaults. The Company shall fail to
observe or perform any covenant contained in Sections 7.01
through 7.06, inclusive; or
(g) Amendment to Schedule 2.01 of the Original Agreement. Schedule 2.01 of
the Original Agreement is replaced in its entirety by Schedule 2.01 (Amended) of
this Agreement.
(h) Amendment to Schedule 10.02 of the Original Agreement. Schedule 10.02
of the Original Agreement is replaced in its entirety by Schedule 10.02
(Amended) of this Agreement.
(i) Amendment to Exhibit C of the Original Agreement. Exhibit C of the
Original Agreement is replaced in its entirety by Exhibit C (Amended) of this
Agreement.
3. Representations and Warranties. The Company hereby represents and warrants
to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is continuing (or would
result from the amendment of the Original Agreement contemplated hereby).
(b) The execution, delivery and performance by the Company of this
Agreement and the Original Agreement (as amended and restated by this Agreement)
have been duly authorized by all necessary corporate and other action and do not
and will not require any registration with, consent or approval of, or notice to
or action by, any Person (including any Governmental Authority) in order to be
effective and enforceable.
(c) This Agreement, each Note delivered hereunder and the Original
Agreement (as amended and restated by this Agreement) constitute the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their respective terms.
(d) All representations and warranties of the Company contained in the
Original Agreement are true and correct (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date and except that this
subsection (d) shall be deemed instead to refer to (x) the last day of the most
SFRLIBI\MMK\6146301.06 5 364-Day Credit Agreement
recent quarter and year for which financial statements have then been delivered;
(y) to the most recent Form 10-K and Forms 10-Q filed subsequently thereto by
the Company with the SEC, in respect of the representations and warranties made
in Section 5.05 of the Original Agreement; and (z) to the most recent Form 10-K
filed by the Company with the SEC, in respect of the representations and
warranties made in Section 5.10(a) of the Original Agreement).
(e) There has occurred since February 1, 2001 (except as disclosed in any
public filings since such date), no event or circumstance that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(f) The Company is entering into this Agreement on the basis of its own
investigation and for its own reasons, without reliance upon the Agent and the
Banks or any other Person.
(g) The Company's obligations under the Original Agreement and under the
other Loan Documents are not subject to any defense, counterclaim, set-off,
right of recoupment, abatement or other claim.
4. Conditions of Effectiveness.
(a) The effectiveness of Section 2 of this Agreement shall be subject to
the satisfaction of each of the following conditions precedent:
(1) The Agent shall have received from the Company and each of the
Banks (i) a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Agreement; and (ii) if requested by any Bank, a Note (or
replacement Note) substantially in the form of Exhibit I to the Original
Agreement.
(2) The Agent shall have received evidence of payment by the Company
of all fees, costs and expenses due and payable as of the Effective Date
hereunder and under the Original Agreement, including any costs and expenses
payable under Section 7(g) of this Agreement (including the Agent's Attorney
Costs, to the extent invoiced on or prior to the Effective Date).
(3) The Agent shall have received from the Company a copy of the
resolutions passed by the board of directors of the Company, certified as of the
Effective Date by the Secretary or an Assistant Secretary of such Person,
authorizing the execution, delivery and performance of this Agreement, the Notes
to be delivered hereunder and the Original Agreement (as amended and restated by
this Agreement).
(4) The Agent shall have received an opinion of Xxxx Xxxxx, Group Vice
President, Business Law, and Acting General Counsel to the Company, dated the
Effective Date and addressed to the Agent and the Banks, in substantially the
form of Exhibit D to the Original Agreement.
(5) The Agent shall have received a favorable opinion of Xxxxxxx,
Phleger & Xxxxxxxx LLP, special counsel to the Agent, in substantially the form
of the opinion delivered in connection with the Original Agreement, dated as of
the Effective Date.
SFRLIBI\MMK\6146301.06 6 364-Day Credit Agreement
(6) The Agent shall have received all other documents it or any Bank
may reasonably request relating to any matters relevant hereto, all in form and
substance satisfactory to the Agent and each Bank.
(7) The representations and warranties in Section 3 of this Agreement
shall be true and correct on and as of the Effective Date with the same effect
as if made on and as of the Effective Date.
(b) For purposes of determining compliance with the conditions specified in
Section 4(a), each Bank that has executed this Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document or
other matter either sent, or made available for inspection, by the Agent to such
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such Bank.
(c) From and after the Effective Date, the Original Agreement is amended as
set forth herein and is restated in its entirety to read as set forth in the
Original Agreement with the amendments specified herein, and all outstanding
Notes under the Original Agreement shall be superseded and replaced by the Notes
delivered under this Agreement. All such previously outstanding Notes will be
deemed cancelled upon the occurrence of the Effective Date. The Original
Agreement (as amended and restated by this Agreement) is hereby ratified and
confirmed in all respects.
(d) The Agent will notify the Company and the Banks of the occurrence of
the Effective Date.
5. Fees. At Closing, the Company shall pay to the Agent for itself the fees
set forth in the Fee Letter dated as of February 15, 2002 by and between
the Company, the Lead Arranger and the Agent.
6. Certain Transitional Matters. On the Effective Date, the Banks party to the
Original Agreement, as amended and restated hereby, shall be the Banks listed on
the signature pages hereof and shall have the respective Commitments in the
amounts set forth in Schedule 2.01 (Amended) of this Agreement. Without limiting
the generality of the foregoing, on the Effective Date, any Banks party to the
Original Agreement not listed on the signature pages hereof shall cease to be
parties to the Original Agreement, and each new Bank listed on the signature
pages hereof not previously party to the Original Agreement shall be and become
a party to the Original Agreement and shall have all of the rights and be
obligated to perform all of the obligations of a Bank thereunder with a
Commitment in the amount set forth opposite such Bank's name in Schedule 2.01
(Amended) of this Agreement.
7. Miscellaneous.
(a) The Company acknowledges and agrees that the execution and delivery by
the Agent and the Banks of this Agreement shall not be deemed to create a course
of dealing or an obligation to execute similar amendments or provide any waivers
or other amendments under the same or similar circumstances in the future.
SFRLIBI\MMK\6146301.06 7 364-Day Credit Agreement
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns.
(c) This Agreement shall be governed by and construed in accordance with
the law of the State of New York provided that the Agent and the Banks shall
retain all rights arising under Federal law.
(d) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
(e) This Agreement contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This Agreement
supersedes all prior drafts and communications with respect hereto. This
Agreement may not be amended except in accordance with the provisions of Section
10.01 of the Original Agreement.
(f) If any term or provision of this Agreement shall be deemed prohibited
by or invalid under any applicable law, such provision shall be invalidated
without affecting the remaining provisions of this Agreement, the Original
Agreement or the Loan Documents.
(g) The Company agrees to pay or reimburse BofA (including in its capacity
as Agent), upon demand, for all reasonable costs and expenses (including
reasonable Attorney Costs) incurred by BofA (including in its capacity as Agent)
in connection with the development, preparation, negotiation, execution and
delivery of this Agreement.
[Signature pages follow]
SFRLIBI\MMK\6146301.06 8 364-Day Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXXXXX'X, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
----------------------------------
Title: Group Vice President
and Treasurer
----------------------------------
S-1 364-Day Credit Agreement
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Xxx Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
----------------------------------
Title: Managing Director
----------------------------------
S-2 364-Day Credit Agreement
BANK ONE, N.A. as Syndication Agent
and as a Bank
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Managing Director
----------------------------------
S-3 364-Day Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
as Documentation Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
S-4 364-Day Credit Agreement
XXXXX FARGO BANK, N.A.
as Documentation Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
S-5 364-Day Credit Agreement
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Assistant Vice President
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S-6 364-Day Credit Agreement
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Director
----------------------------------
S-7 364-Day Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Vice President
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S-8 364-Day Credit Agreement
XXXXXXX XXXXX BANK USA
By: /s/ D. Xxxxx Xxxxx
----------------------------------
Name: D. Xxxxx Xxxxx
----------------------------------
Title: Senior Credit Officer
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S-9 364-Day Credit Agreement
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxxxxxx XxXxxx
----------------------------------
Name: Xxxxxxxxxxx X. XxXxxx
----------------------------------
Title: Second Vice President
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S-10 364-Day Credit Agreement
TCF NATIONAL BANK
By: /s/ Xxxxxxx XxXxxx
----------------------------------
Name: Xxxxxxx X. XxXxxx
----------------------------------
Title: Senior Vice President
----------------------------------
S-11 364-Day Credit Agreement
UMB BANK, N.A.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
S-12 364-Day Credit Agreement
SCHEDULE 2.01 (AMENDED)
COMMITMENTS
AND PRO RATA SHARES
BANK COMMITMENT PRO RATA SHARE
--------------------------------- ------------------ ------------------
BANK OF AMERICA, N.A. $70,000,000.00 20.000000000%*
BANK ONE, N.A. 60,000,000.00 17.142857143%*
UNION BANK OF CALIFORNIA, N.A. 50,000,000.00 14.285714286%*
XXXXX FARGO BANK, N.A. 50,000,000.00 14.285714286%*
KEYBANK NATIONAL ASSOCIATION 25,000,000.00 7.142857143%*
XXXXXXX XXXXX BANK USA 25,000,000.00 7.142857143%*
THE NORTHERN TRUST COMPANY 25,000,000.00 7.142857143%*
TCF NATIONAL BANK 15,000,000.00 4.285714286%*
BANK OF OKLAHOMA, N.A. 10,000,000.00 2.857142857%*
FIRST UNION NATIONAL BANK 10,000,000.00 2.857142857%*
UMB BANK, N.A. 10,000,000.00 2.857142857%*
------------------- -----------------
TOTAL $350,000,000.00 100.000000000%*
* [9 DECIMAL PTS.]
SFRLIBI\MMK\6146301.06 S-2.01(Amended)-1. 364-Day Credit Agreement
SCHEDULE 10.02 (AMENDED)
PAYMENT OFFICES; ADDRESSES FOR NOTICES; LENDING OFFICES
COMPANY
Address for Notices:
Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxx.
Xxx 00
Xxxxx, Xxxxx 00000
Attention: Finance Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as Agent
----------------------
Notices for Borrowing, Conversions/Continuations, and Payments:
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Other Notices:
Bank of America, N.A.
Mail Code: CA5-701-05-19
Agency Services #5596
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-1 364-Day Credit Agreement
with a copy to:
Bank of America, N.A.
Portfolio Management - Retail Group
Mail Code: TX1-492-66-01
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agent's Payment Office:
Bank of America, N.A.
ABA No. 000000000
Attention: Agency Administrative Services Unit #5596
Reference: Xxxxxxxxx'x, Inc.
For credit to Acct. No. 00000-00000
BANK OF AMERICA, N.A., as a Bank
-----------------------
Domestic and Offshore Lending Office:
(Borrowing Notices, Notices of Conversion/Continuation and Payments)
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All other Notices:
Bank of America, N.A.
Portfolio Management - Retail Group
Mail Code: TX1-492-66-01
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-2 364-Day Credit Agreement
BANK ONE, N.A., as Syndication Agent and as a Bank
--------------
Domestic and Offshore Lending Office:
Bank One, NA
1 Bank One Plaza
IL1-0088
Xxxxxxx, Xxxxxxxx 00000
Attention: April Yebd
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank One, NA
1 Bank One Plaza
IL1-0086
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A., as Documentation Agent and as a Bank
------------------------------
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
Commercial Customer Service Unit
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-3 364-Day Credit Agreement
XXXXX FARGO BANK, N.A., as Documentation Agent and as a Bank
----------------------
Domestic and Offshore Lending Office:
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxx
MAC A0187-081
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxx, 11th Floor
MAC P6540-11E
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Secondary Contact:
Xxxxx Fargo Bank, N.A.
0000 XX 0xx Xxx., 7th Floor
MAC P6101-076
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF OKLAHOMA, N.A.
Domestic and Offshore Lending Office:
Bank of Oklahoma, N.A.
Xxx Xxxxxxxx Xxxxxx 00
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-4 364-Day Credit Agreement
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank of Oklahoma, N.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST UNION NATIONAL BANK
Domestic and Offshore Lending Office:
First Union National Bank
000 Xx. Xxxxxxx Xx.
XX-00
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
First Union National Bank
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
KeyBank National Association
000 X. Xxxxxxxxxx Xxxx.
Xxxxx, XX 00000
Attention: Western Loan Services, Specialty Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-5 364-Day Credit Agreement
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
KeyBank National Association
000 000xx Xxxxxx, X.X., 5th Floor
Mailstop: WA-31-18-0512
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXXX XXXXX BANK USA
Domestic and Offshore Lending Office:
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, VP - Corp. Lending Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE NORTHERN TRUST COMPANY
Domestic and Offshore Lending Office:
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-6 364-Day Credit Agreement
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TCF NATIONAL BANK
Domestic and Offshore Lending Office:
TCF National Bank
000 X. Xxxxx Xxxx Xxxx
P.O. Box 170995
Milwaukee, WI 53217-8096
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
TCF National Bank
000 X. Xxxxx Xxxx Xxxx
P.O. Box 170995
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. XxXxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UMB BANK, N.A.
Domestic and Offshore Lending Office:
UMB Bank, N.A.
000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-7 364-Day Credit Agreement
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
UMB Bank, N.A.
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SFRLIBI\MMK\6146301.06 S-10.02(Amended)-8 364-Day Credit Agreement
EXHIBIT C (AMENDED)
FORM OF COMPLIANCE CERTIFICATE
XXXXXXXXX'X, INC.
Financial Statements Date: ______________
Reference is made to that certain Amended and Restated Credit
Agreement dated as of March 13, 2002 (as extended, renewed, amended or restated
from time to time, the "364-Day Credit Agreement"), among Xxxxxxxxx'x, Inc. (the
"Company"), the several financial institutions from time to time party thereto
(the "Banks") and Bank of America, N.A., as Agent (in such capacity, the
"Agent"). Unless otherwise defined herein, capitalized terms used herein have
the respective meanings assigned to them in the 364-Day Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as
of the date hereof that he/she is the [_______________] of the Company, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Banks and the Agent on the behalf of the Company and its consolidated
Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(a) of the 364-Day Credit
Agreement.]
1. Attached hereto are true and correct copies of the audited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at the end of the fiscal year ended _______________ and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the SEC,
accompanied by the unqualified opinion of the Independent Auditor, which opinion
(a) shall state that such consolidated financial statements present fairly the
financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years and (b) is not qualified as to (i) going
concern, or (ii) any limitation in the scope of audit.
or
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(b) of the 364-Day Credit
Agreement.]
1. Attached hereto are true and correct copies of the unaudited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of the fiscal quarter ended _________ and the related consolidated
statements of income, shareholders' equity and cash flows for the period
SFRLIBI\MMK\6146301.06 C-1 364-Day Credit Agreement
commencing on the first day and ending on the last day of such quarter, which
are complete and accurate in all material respects and fairly present, in
accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position, the results of operations and the cash
flows of the Company and the Consolidated Subsidiaries.
2. The undersigned has reviewed and is familiar with the terms of the
364-Day Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The Company and its Subsidiaries, during such period, have observed,
performed or satisfied all of the covenants and other agreements, and satisfied
every condition in the 364-Day Credit Agreement to be observed, performed or
satisfied by the Company and its Subsidiaries, and the undersigned has no
knowledge of any Default or Event of Default.
4. The financial covenant analyses and information set forth on Schedule 1
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
the ____________ of the Company as of ______________, _______.
XXXXXXXXX'X, INC.
By:
-----------------------------------
Title:
---------------------------------
SFRLIBI\MMK\6146301.06 C-2 364-Day Credit Agreement
SCHEDULE 1
to the Compliance Certificate
XXXXXXXXX'X, INC.
364-DAY CREDIT AGREEMENT DATED AS OF MARCH 13, 2002
Dated _________________
For the fiscal quarter ended __________
(in thousands)
Consolidated Tangible Net Worth Calculation:
Common stock $___________
Capital in excess ___________
Retained earnings ___________
Stockholders' equity ___________
Plus: Deferred investment tax credits ___________
Minus: Intangible assets:
(specify) ___________
Plus: CTNW Adjustments, if any:
(specify) ___________
Consolidated Tangible Net Worth $___________
Section 7.05: Consolidated Tangible Net Worth shall be not $___________
less than $3.0 billion
SFRLIBI\MMK\6146301.06 C-1 364-Day Credit Agreement
Fixed Charge Coverage Ratio Calculation:
Net Earnings before One Time Charges $___________
Income Taxes ___________
Consolidated Interest Expense ___________
Depreciation & Amortization ___________
Consolidated Rental Expense ___________
Minus:
Cash One Time Charges $___________
EBITDAR $___________
Consolidated Interest Expense $___________
Consolidated Rental Expense ___________
Total Fixed Charges $___________
Fixed Charge Coverage ___________
Section 7.06: Fixed Charge Coverage Ratio shall be not
less than 2.70 to 1.00. ___________
SFRLIBI\MMK\6146301.06 C-2 364-Day Credit Agreement
