EXHIBIT 10(ax)
FORM OF AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT dated as of November __, 2001, amending the $500,000,000
5-Year Credit Agreement dated as of January 26, 2000, as heretofore amended
(the "Credit Agreement"), among DELHAIZE AMERICA, INC. (the "Borrower"),
the LENDERS party hereto (the "Lenders") and JPMORGAN CHASE BANK (successor
by merger to ▇▇▇▇▇▇ Guaranty Trust Company of New York), as Administrative
Agent (the "Administrative Agent").
WITNESSETH:
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇ & Sons, Inc., a North Carolina corporation, FL
Food Lion, Inc., a Florida corporation, Hannaford Procurement Corp., a
Maine corporation, Hannbro Company, a Maine corporation, ▇▇▇▇▇▇'▇ Foods of
South Burlington, Inc., a Vermont corporation, Risk Management Services,
Inc., a North Carolina corporation and Shop `n Save-Mass., Inc., a
Massachusetts corporation are each wholly-owned direct or indirect
subsidiaries of the Borrower; and
WHEREAS, the parties hereto desire to amend the Credit Agreement, as
set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement. Each reference to "▇▇▇▇▇▇ Guaranty Trust Company of New York"
and each reference to "▇▇▇▇▇▇" contained in the Credit Agreement and the
other Loan Documents shall from and after the date hereof be deemed to be a
reference to JPMorgan Chase Bank. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each reference
to "this Agreement" and each other similar reference contained in the
Credit Agreement shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
SECTION 2. Additional Definitions. The following definitions are added
in alphabetical order in Section 1.01 of the Credit Agreement (and, where
appropriate, amend and restate any prior definition in its entirety):
"Additional Guaranty" means the guaranty agreement among the Additional
Guarantors and the Administrative Agent for the benefit of the
Lenders, substantially in the form of Exhibit A to Amendment No. 3 to this
Agreement, as amended from time to time.
"Additional Guarantors" means ▇▇▇▇▇ ▇▇▇▇▇▇ & Sons, Inc., a North
Carolina corporation, FL Food Lion, Inc., a Florida corporation, Hannaford
Procurement Corp., a Maine corporation, Hannbro Company, a Maine
corporation, ▇▇▇▇▇▇'▇ Foods of South Burlington, Inc., a Vermont
corporation, Risk Management Services, Inc., a North Carolina corporation
and Shop `n Save-Mass., Inc., a Massachusetts corporation.
"Loan Documents" means this Agreement, the Food Lion Guaranty, the
Kash n' ▇▇▇▇▇ Guaranty, the Hannaford Guaranty and the Additional Guaranty.
"Subsidiary Guarantees" means any of the Food Lion Guaranty, the Kash
n' ▇▇▇▇▇ Guaranty, the Hannaford Guaranty or the Additional Guaranty.
"Subsidiary Guarantors" means any of Food Lion, Kash n' ▇▇▇▇▇, Target,
or any of the Additional Guarantors.
SECTION 3. Amended Subsidiary Debt Covenant. (a) Section 6.02(b)(6) of
the Credit Agreement is amended by deleting the word "and" at the end
thereof.
(b) Section 6.02(b)(7) of the Credit Agreement is renamed Section
6.02(b)(8).
(c) The following new Section 6.02(b)(7) of the Credit Agreement is
inserted immediately following Section 6.02(b)(6) thereof, to read in its
entirety as follows:
"(7) Indebtedness of each Additional Guarantor under the
Additional Guaranty and Indebtedness of each Additional Guarantor
constituting a Guaranty of the Borrower's senior unsecured
$600,000,000 7.375% Notes due 2006, $1,100,000,000 8.125% Notes due
2011 and $900,000,000 9% Debentures due 2031; and"
SECTION 4. Amended Notices. Section 9.01(a) of the Credit Agreement is
amended to read in its entirety as follows:
"(a) if to the Borrower or to any Subsidiary Guarantor, to it at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇▇
▇▇▇▇▇, Treasurer/Director of Finance (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇);"
SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(a) no Default or Event of Default has occurred and is continuing; and
(b) each representation and warranty of the Borrower and each
Subsidiary Guarantor set forth in the Loan Documents after giving effect to
this Amendment is true and correct as though made on and as of such date,
except for any such representation and warranty made as of a specific date,
which are true and correct as of such specific date.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts; Effectiveness. This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective as of the date hereof
when each of the following conditions shall have been satisfied:
(a) receipt by the Administrative Agent of duly executed counterparts
hereof signed by the Borrower and the Majority Lenders (or, in the case of
any party as to which an executed counterpart shall not have been received,
the Agent shall have received telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Administrative Agent of duly executed counterparts
of the Additional Guaranty (as defined in the Credit Agreement as amended
hereby) substantially in the form set forth on Exhibit A hereto;
(c) receipt by the Administrative Agent of an opinion of Akin, Gump,
Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P. in form and substance reasonably satisfactory
to the Administrative Agent; and
(d) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence of the Borrower and each
Additional Guarantor (as defined in the Credit Agreement as amended
hereby), the corporate authority for and the validity of the Credit
Agreement as amended hereby and the Additional Guaranty referred to above,
and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrower and the
Lenders of the effectiveness of this Amendment, and such notice shall be
conclusive and binding on all parties hereto.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
DELHAIZE AMERICA, INC.
By:
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
WACHOVIA BANK, N.A.
By:
Name:
Title:
BBL INTERNATIONAL (U.K.) LIMITED
By:
Name:
Title:
BNP PARIBAS (HOUSTON)
By:
Name:
Title:
DEUTSCHE BANK, AG, BRUSSELS BRANCH
By:
Name:
Title:
FORTIS (USA) FINANCE LLC
By:
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Name:
Title:
By:
Name:
Title:
FIRST UNION NATIONAL BANK
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
Name:
Title:
COBANK, ACB
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
BNP PARIBAS (BRUSSELS)
By:
Name:
Title:
BRANCH BANKING & TRUST COMPANY
By:
Name:
Title:
CREDIT COMMERCIALE DE FRANCE S.A.
By:
Name:
Title:
DEXIA BANK S.A
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
UNION BANK OF CALIFORNIA, NA
By:
Name:
Title:
CIBC INC.
By:
Name:
Title:
BANCA DI ROMA -- NEW YORK BRANCH
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
Acknowledged and Agreed to by:
FOOD LION, LLC
By:
Name:
Title:
KASH N' ▇▇▇▇▇ FOOD STORES, INC.
By:
Name:
Title:
HANNAFORD BROS. CO.
By:
Name:
Title:
