Exhibit 10(aw)
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT dated as of September 6, 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 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, Kash n' Xxxxx Food Stores, Inc., a Delaware corporation ("Kash n'
Xxxxx"), is a wholly-owned subsidiary of the Borrower; and
WHEREAS, Hannaford Bros. Co., a Maine corporation ("Target") is a wholly-
owned subsidiary 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 "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):
"Hannaford Guaranty" means the guaranty agreement between Target and the
Administrative Agent for the benefit of the Lenders, substantially in the form
of Exhibit A to Amendment No. 2 to this Agreement, as amended from time to time.
"Kash n' Xxxxx" means Kash n' Xxxxx Food Stores, Inc. a Delaware
corporation.
"Kash n' Xxxxx Guaranty" means the guaranty agreement between Kash n' Xxxxx
and the Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit B to Amendment No. 2 to this Agreement, as amended from time
to time.
"Loan Documents" means this Agreement, the Food Lion Guaranty, the Kash n'
Xxxxx Guaranty and the Hannaford Guaranty.
"Subsidiary Guarantees" means any of the Food Lion Guaranty, the Kash n'
Xxxxx Guaranty or the Hannaford Guaranty.
"Subsidiary Guarantors" means any of Food Lion, Kash n' Xxxxx or Target.
Section 3. Amended Subsidiary Debt Covenant. (a) Section 6.02(b)(4) of the
Credit Agreement is amended by deleting the word "and" at the end thereof.
(b) Section 6.02(b)(5) of the Credit Agreement is renamed Section
6.02(b)(7).
(c) New Sections 6.02(b)(5) and 6.02(b)(6) of the Credit Agreement are
inserted immediately following Section 6.02(b)(4) thereof, to read in their
entirety as follows:
"(5) Indebtedness of Kash n' Xxxxx under the Kash n' Xxxxx Guaranty,
Indebtedness of Kash n' Xxxxx constituting a Guaranty of the Borrower's
obligations under the 364-Day Agreement and Indebtedness of Kash n' Xxxxx
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;"
"(6) Indebtedness of Target under the Hannaford Guaranty,
Indebtedness of Target constituting a Guaranty of the Borrower's
obligations under the 364-Day Agreement and Indebtedness of Target
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 Fundamental Changes. (a) Clauses (iii) and (iv) of
Section 6.03(a) of the Credit Agreement are amended to read in its entirety as
follows:
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"(iii) any Subsidiary may merge into any Subsidiary in a transaction
in which the surviving entity is a Subsidiary (and, if any Subsidiary
Guarantor is a party to such merger, the surviving entity shall agree to be
bound by the provisions of the Subsidiary Guarantee to which such
Subsidiary Guarantor is a party), (iv) (x) any Subsidiary may merge into
any other Person in a transaction in which the surviving entity is a
Subsidiary (and, if any Subsidiary Guarantor is a party to such merger, the
surviving entity shall agree to be bound by the provisions of the
Subsidiary Guarantee to which such Subsidiary Guarantor is a party) or (y)
any Subsidiary (other than any Subsidiary Guarantor) may merge into any
other Person in a transaction permitted by Section 6.09 and in which the
surviving Person is not a Subsidiary;"
The last sentence of Section 6.03(a) of the Credit Agreement is amended to
read in its entirety as follows:
"In addition to the requirements set forth in the immediately
preceding sentence, the Borrower will not permit any Subsidiary Guarantor
to sell, transfer, lease or otherwise dispose of (in one transaction or a
series of transactions) all or substantially all of its assets to any
Person except to (1) the Borrower, (2) an entity that is a Subsidiary prior
to such sale, lease, transfer or other disposition or (3) any other Person
in a transaction not constituting a sale, lease, transfer or other
disposition of all or substantially all of the assets of the Borrower and
its Subsidiaries taken as a whole, and in which the surviving entity is a
Subsidiary so long as, in the case of clauses (2) or (3), such Subsidiary
or other Person shall agree to be bound by the provisions of the Subsidiary
Guarantee to which such Subsidiary Guarantor is a party."
Section 5. Amendment Events of Default. Section 7.01(n) of the Credit
Agreement is amended to read in its entirety as follows:
"(n) Any Subsidiary Guarantee shall cease to be enforceable, or any
Subsidiary Guarantor or any of its Affiliates shall so assert in writing;
or "
Section 6. Amended Waivers; Amended Amendments. (a) Section 9.02(c) of the
Credit Agreement is amended to read in its entirety as follows:
"(c) None of the Subsidiary Guarantees nor any provision thereof may
be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Subsidiary Guarantor party
thereto and the Administrative Agent with the consent of the Majority
Lenders; provided that no such agreement
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shall release any Subsidiary Guarantor from its obligations under the
Subsidiary Guarantee to which such Subsidiary Guarantor is a party without
the consent of each Lender."
Section 7. 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, Kash n' Xxxxx and
Target 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 8. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
Section 9. 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 a
Hannaford Guaranty substantially in the form set forth on Exhibit A hereto;
(c) receipt by the Administrative Agent of duly executed counterparts of a
Kash n' Xxxxx Guaranty substantially in the form set forth on Exhibit B hereto;
(d) receipt by the Administrative Agent of an opinion of Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P. in form and substance reasonably satisfactory to
the Administrative Agent; and
(e) receipt by the Administrative Agent of all documents it may reasonably
request relating to the existence of the Borrower, Kash n' Xxxxx and Target, the
corporate authority for and the validity of the Credit Agreement as amended
hereby and the Kash n' Xxxxx Guaranty and the Hannaford Guaranty
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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.
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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: /s/ G. Xxxx Xxxxx
-------------------------------------
Title: Asst. Secretary
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Administrative Agent
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Managing Director
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
BBL INTERNATIONAL (U.K.) LIMITED
By: _____________________________________
Name:
Title:
BNP PARIBAS (HOUSTON)
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxx
-------------------------------------
Title: Managing Director
DEUTSCHE BANK, AG, BRUSSELS BRANCH
By: /s/ Xxxx XxXxxx
-------------------------------------
Title: Director
FORTIS (USA) FINANCE LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL", NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxx
-------------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Managing Director
Chief Risk Officer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Title: Vice President
BANK ONE, NA
By: _____________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxx XxXxxxx
-------------------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Title: Vice President
COBANK, ACB
By: /s/ S. Xxxxxxx Xxxx
-------------------------------------
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: Senior Vice President
THE FUJI BANK, LIMITED
By: _____________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Title: Vice President
BNP PARIBAS (BRUSSELS)
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Title: General Manager
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
-------------------------------------
Title: Vice President
CREDIT COMMERCIALE DE FRANCE S.A.
By: _____________________________________
Name:
Title:
DEXIA BANK S.A
By: _____________________________________
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Director
UNION BANK OF CALIFORNIA, NA
By: /s/ J. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President
CIBC INC.
By: ______________________________________
Name:
Title:
BANCA DI ROMA -- NEW YORK BRANCH
By: /s/ X. Xxxxx
-------------------------------------
Title: Asst. Treasurer
By: /s/ C. Strike
-------------------------------------
Title: Asst. Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: _____________________________________
Name:
Title:
Acknowledged and Agreed to by:
FOOD LION, LLC
By: /s/ G. Xxxx Xxxxx
--------------------------
Title: Asst. Secretary
