EX-10 14 abs10k2000exhibit10-281.txt AMENDMENT TO CREDIT AGREEMENT 5 YEAR Exhibit 10.28.1 [EXECUTION COPY] AMENDMENT AGREEMENT This AMENDMENT AGREEMENT (this "Agreement") is entered into as of March 15, 2001 by and among Albertson's, Inc., a Delaware corporation (the "Company"), the several financial institutions party to this Agreement (individually, a "Bank" and, collectively, the "Banks"), and Bank of America, N.A., as Swingline Bank and as administrative agent for itself, the Designated Bidders 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 in effect as of the date of this Agreement, the "Credit Agreement") providing for a multiyear revolving credit facility; and WHEREAS, the parties hereto desire to amend the Credit Agreement as set forth herein, 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 Credit Agreement shall have the meaning assigned to such term in the Credit Agreement. (b) Each reference to "this Agreement", "hereof", "hereunder", "herein" and "hereby" and each other similar reference contained in the Credit 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 Credit Agreement as amended hereby. (c) The rules of interpretation set forth in Section 1.02 of the Credit Agreement shall be applicable to this Agreement. 2. Amendments to Credit Agreement. Subject to the terms and conditions hereof, the Credit Agreement is amended as follows, effective as of the date of satis- faction of the conditions set forth in Section 4 (the "Effective Date"): (a) Amendments to Article I of the Credit Agreement. The term "364-Day Credit Agreement" defined in the Credit Agreement shall mean the Amended and Restated Credit Agreement dated as of the date hereof, among the Company, BofA as agent, and the other financial institutions party thereto, providing for a 364 day revolving credit facility. (b) Amendment to Annex I of the Credit Agreement. Annex I of the Credit Agreement is replaced in its entirety by Annex I (Amended) attached to this Agreement. (c) Amendment to Schedule 10.02 of the Credit Agreement. Schedule 10.02 of the Credit Agreement is replaced in its entirety by Schedule 10.02 (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 Credit Agreement contemplated hereby). (b) The execution, delivery and performance by the Company of this Agreement and the Credit Agreement (as amended 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 and the Credit Agreement (as amended 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 Credit 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 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 Credit 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 Credit Agreement). (e) There has occurred since February 3, 2000, 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 Credit 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: 2 (1) The Agent shall have received from the Company and each of the Banks a duly executed original (or, if elected by the Agent, an executed facsimile copy) of this 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 Credit Agreement, including any costs and expenses payable under Section 5(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 and the Credit Agreement (as amended by this Agreement). (4) The Agent shall have received an opinion of Thomas R. Saldin, Executive Vice-President and General Counsel to the Company, dated the Effective Date and addressed to the Agent and the Banks, in form and substance satisfactory to the Agent and the Banks. (5) The Agent shall have received a favorable opinion of Brobeck, Phleger & Harrison LLP, special counsel to the Agent, dated as of the Effective Date. (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 Credit Agreement is amended as set forth herein. The Credit Agreement (as amended 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. 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. 3 (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 Credit 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 Credit 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] 4 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. ALBERTSON'S, INC. By: _______________________________ Title: ____________________________ BANK OF AMERICA, N.A., as Administrative Agent By: _______________________________ Title: ____________________________ BANK OF AMERICA, N.A., as Swingline Bank and as a Bank By: _______________________________ Title: ____________________________ BANK ONE, NA, as Documentation Agent and as a Bank By: _______________________________ Title: ____________________________ WACHOVIA BANK, N.A., as Syndication Agent and as a Bank By: _______________________________ Title: ____________________________ BANCA DI ROMA, SAN FRANCISCO BRANCH By: _______________________________ Title: ____________________________ THE BANK OF NEW YORK By: _______________________________ Title: ____________________________ BANK OF OKLAHOMA, N.A. By: _______________________________ Title: ____________________________ FIRST UNION NATIONAL BANK By: _______________________________ Title: ____________________________ THE HUNTINGTON NATIONAL BANK By: _______________________________ Title: ____________________________ INTERNATIONAL BANK OF COMMERCE By: _______________________________ Title: ____________________________ KEYBANK NATIONAL ASSOCIATION By: _______________________________ Title: ____________________________ THE NORTHERN TRUST COMPANY By: _______________________________ Title: ____________________________ SOUTHTRUST BANK, N.A. By: _______________________________ Title: ____________________________ SUNTRUST BANK By: _______________________________ Title: ____________________________ UMB BANK, N.A. By: _______________________________ Title: ____________________________ UNION BANK OF CALIFORNIA, N.A. By: _______________________________ Title: ____________________________ US BANK NATIONAL ASSOCIATION By: _______________________________ Title: ____________________________ WELLS FARGO BANK, N.A. By: _______________________________ Title: ____________________________ MERRILL LYNCH BANK USA By: _______________________________ Title: ____________________________ ANNEX I (AMENDED) PRICING GRID Applicable Margin and Applicable Fee Amount (Facility Fee): The Facility Fee and the Applicable Margin for Offshore Rate Committed Loans and Base Rate Committed Loans shall be, at any time, the rate per annum set forth in the tables below. "Indebtedness Rating" means the long term unsecured senior, non-credit enhanced debt rating of the Company by Standard & Poor's Ratings Group or Moody's Investors Service Inc. (in the case of a split rating, the higher rating will apply, unless the split results in a difference of more than one rating, in which case the rating one rating below the highest rating will apply). Any change in the Applicable Margin or Applicable Fee Amount for the Facility Fee shall become effective five Business Days after any public announcement of Indebtedness Rating requiring such a change.
------------------------------ ---------------------- ------------------------- ----------------------------- Indebtedness Offshore Rating Facility Fee Rate Spread Base Rate Spread ------------------------------ ---------------------- ------------------------- ----------------------------- => A or A2 8.0 bps 17.0 bps 0 bps ------------------------------ ---------------------- ------------------------- ----------------------------- => A- or A3 9.0 bps 28.5 bps 0 bps ------------------------------ ---------------------- ------------------------- ----------------------------- => BBB+ or Baa1 10.0 bps 40.0 bps 0 bps ------------------------------ ---------------------- ------------------------- ----------------------------- => BBB or Baa2 12.5 bps 50.0 bps 0 bps ------------------------------ ---------------------- ------------------------- ----------------------------- <= BBB- or Baa3 20.0 bps 80.0 bps 0 bps ------------------------------ ---------------------- ------------------------- -----------------------------
Applicable Fee Amount (Utilization Fee): The Utilization Fee applicable to Loans shall be, at any time, the rate per annum set forth in the table below, determined in accordance with usage: -------------------------- ----------------------- Facility Utilization Fee Usage % -------------------------- ----------------------- 50% 12.5 bps -------------------------- ----------------------- If usage shall equal or exceed the applicable percentage specified above, the utilization fee corresponding to such percentage shall apply with respect to all outstanding Loans. Annex I (Amended) -1. SCHEDULE 10.02 (AMENDED) PAYMENT OFFICES; ADDRESSES FOR NOTICES; LENDING OFFICES COMPANY Address for Notices: Albertson's, Inc. 250 Park Center Blvd. Box 20 Boise, Idaho 83726 Attention: Finance Department Telephone: (208) 395-6534 Facsimile: (208) 395-6631 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 1850 Gateway Boulevard Concord, California 94520 Attention: Jeff Khamsivone Telephone: (925) 675-8432 Facsimile: (925) 969-2869 Other Notices: Bank of America, N.A. Retail Industry Group Mail Code: IL1-231-09-44 231 South LaSalle Street Chicago, IL 60697 Attention: Bridget Garavalia Telephone: (312) 828-1259 Facsimile: (312) 828-6269 S-10.02 (Amended) -1. Agent's Payment Office: Bank of America, N.A. Attention: Agency Services #5596 Reference: Albertson's, Inc. For credit to Acct. No. 3750836479 ABA No. 111000012 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 1850 Gateway Boulevard Concord, California 94520 Attention: Jeff Khamsivone Telephone: (925) 675-8432 Facsimile: (925) 969-2869 All other Notices: Bank of America, N.A. Retail Industry Group Mail Code: IL1-231-09-44 231 South LaSalle Street Chicago, IL 60697 Attention: Bridget Garavalia Telephone: (312) 828-1259 Facsimile: (312) 828-6269 WACHOVIA BANK, N.A. as Syndication Agent and as a Bank Domestic and Offshore Lending Office: Wachovia Bank, N.A. 191 Peachtree Street NE MC-GA 370 Atlanta, Georgia 30303 Attention: Bill Allen Telephone: (404) 332-5271 Facsimile: (404) 332-4320 S-10.02 (Amended) -2. Notices (other than Borrowing Notice and Notices of Conversion/Continuation): Wachovia Bank, N.A. 191 Peachtree Street NE MC-GA 370 Atlanta, Georgia 30303 Attention: John A. Whitner Telephone: (404) 332-6738 Facsimile: (404) 332-6898 BANK ONE, NA as Documentation Agent and as a Bank Domestic and Offshore Lending Office: Bank One, NA 1 Bank One Plaza IL1-0088, 14th Floor Chicago, Illinois 60670 Attention: Mike Parisi Telephone: (312) 732-8588 Facsimile: (312) 732-2715 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Bank One, NA 1 Bank One Plaza IL1-0086, 14th Floor Chicago, Illinois 60670 Attention: Paul E. Rigby Telephone: (312) 732-6132 Facsimile: (312) 336-4380 E-mail: paul.rigby@Bankone.com WELLS FARGO BANK, N.A. as Senior Managing Agent and as a Bank Domestic and Offshore Lending Office: Wells Fargo Bank, N.A. 707 Wilshire Boulevard, 16th Floor MAC E28-18-165 Los Angeles, California 90017 Attention: Matthew Frey Telephone: (213) 614-5038 Facsimile: (213) 614-2305 S-10.02 (Amended) -3. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Wells Fargo Bank, N.A. 999 Third Avenue Seattle, Washington 98104 Attention: Steve Andersen Telephone: (206) 292-3666 Facsimile: (206) 292-3595 US BANK NATIONAL ASSOCIATION as Senior Managing Agent and as a Bank Domestic and Offshore Lending Office: U.S. Bank National Association 101 South Capital Boulevard Boise, Idaho 83702 Attention: Kathy O'Grady Telephone: (503) 275-3805 Facsimile: (503) 275-8181 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): U.S. Bank National Association 101 South Capital Boulevard Boise, Idaho 83702 Attention: James W. Henken Telephone: (208) 383-7823 Facsimile: (208) 383-7563 FIRST UNION NATIONAL BANK as Senior Managing Agent and as a Bank Domestic and Offshore Lending Office: First Union National Bank 301 South College Street, 4th Floor Charlotte, North Carolina 28288-0479 Attention: Todd Tucker Telephone: (704) 383-0905 Facsimile: (704) 383-7999 S-10.02 (Amended) -4. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): First Union National Bank One First Union Center Charlotte, North Carolina 28288 Attention: Mike Grady Telephone: (704) 383-7514 Facsimile: (704) 383-7236 UNION BANK OF CALIFORNIA, N.A. as Senior Managing Agent and as a Bank Domestic and Offshore Lending Office: Union Bank of California, N.A. Commercial Customer Service Unit 1980 Saturn Street Monterey Park, California 91755 Attention: Ruby Gonzales Telephone: (323) 720-7055 Facsimile: (323) 724-6198 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Union Bank of California, N.A. 350 California Street, 6th Floor San Francisco, California 94104 Attention: Timothy P. Streb Telephone: (415) 705-7021 Facsimile: (415) 705-7085 THE NORTHERN TRUST COMPANY as Managing Agent and as a Bank Domestic and Offshore Lending Office: The Northern Trust Company 50 South LaSalle Chicago, Illinois 60675 Attention: Linda Honda Telephone: (312) 444-3532 Facsimile: (312) 630-1566 S-10.02 (Amended) -5. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): The Northern Trust Company 50 South LaSalle Chicago, Illinois 60675 Attention: Patrick J. Connelly Telephone: (312) 444-5048 Facsimile: (312) 444-5055 THE BANKS SUNTRUST BANK, CENTRAL FLORIDA, N.A. Domestic and Offshore Lending Office: Suntrust Bank, Central Florida, N.A. 200 South Orange Avenue Orlando, Florida 32801 Attention: Joanna Contreras Telephone: (407) 237-5283 Facsimile: (407) 237-5342 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Suntrust Bank, Central Florida, N.A. 303 Peachtree Street, 3rd Floor Atlanta, Georgia 30308 Attention: Ann Ford Telephone: (407) 724-3899 Facsimile: (407) 827-6270 KEYBANK NATIONAL ASSOCIATION Domestic and Offshore Lending Office: KeyBank National Association 831 East Parkcenter Boulevard Boise, Idaho 88705 Attention: Specialty Services Team Telephone: (800) 297-5518 Facsimile: (800) 297-5495 S-10.02 (Amended) -6. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): KeyBank National Association 700 Fifth Avenue WA31-10-4612 Seattle, Washington 98104 Attention: Patrick Kennedy Telephone: (206) 684-6079 Facsimile: (206) 684-6035 THE HUNTINGTON NATIONAL BANK Domestic and Offshore Lending Office: The Huntington National Bank 7450 Huntington Park Drive Mail Code HZ0338 Columbus, Ohio 43235 Attention: Alla Kier Telephone: (614) 480-1200 Facsimile: (614) 480-2533 Notices (other than Borrowing Notice and Notices of Conversion/Continuation): The Huntington National Bank 240 South Pineapple Avenue Mail Code FL631 Sarasota, Florida 34236 Attention: James C. Wardlaw Telephone: (941) 951-4686 Facsimile: (941) 951-4659 THE BANK OF NEW YORK Domestic and Offshore Lending Office: The Bank of New York One Wall Street, 8th Floor New York, New York 10286 Attention: Charlotte Sohn Telephone: (212) 635-7869 Facsimile: (212) 635-1481/1483 S-10.02 (Amended) -7. Notices (other than Borrowing Notice and Notices of Conversion/Continuation): The Bank of New York One Wall Street, 8th Floor New York, New York 10286 Attention: Charlotte Sohn Telephone: (212) 635-7869 Facsimile: (212) 635-1481/1483 INTERNATIONAL BANK OF COMMERCE Domestic and Offshore Lending Office: International Bank of Commerce 130 East Travis San Antonio, Texas 78205 Attention: Christine D. McCullar Telephone: (210) 518-2507 Facsimile: (210) 518-2591 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): International Bank of Commerce 130 East Travis San Antonio, Texas 78205 Attention: Thomas Travis Telephone: (210) 518-2502 Facsimile: (210) 518-2590 UMB BANK, N.A. Domestic and Offshore Lending Office: UMB Bank, n.a. 1010 Grand Boulevard Kansas City, Missouri 64106 Attention: Vaughnda Ritchie Telephone: (816) 860-7019 Facsimile: (816) 860-3772 S-10.02 (Amended) -8. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): UMB Bank, n.a. 1010 Grand Boulevard Kansas City, Missouri 64106 Attention: David A. Proffitt Telephone: (816) 860-7935 Facsimile: (816) 860-7143 SOUTHTRUST BANK Domestic and Offshore Lending Office: SouthTrust Bank 600 West Peachtree Street, 27th Floor Atlanta, Georgia 30308 Attention: Robert M. Searson Telephone: (404) 853-5754 Facsimile: (404) 853-5766 Notices (other than Borrowing Notice and Notices of Conversion/Continuation): SouthTrust Bank 600 West Peachtree Street, 27th Fl Atlanta, Georgia 30308 Attention: Donna King Telephone: (404) 853-5763 Facsimile: (404) 853-5766 BANCA DI ROMA, SAN FRANCISCO BRANCH Domestic and Offshore Lending Office: Banca di Roma, San Francisco Branch One Market Steuart Tower, Suite 1000 San Francisco, California 94105 Attention: Richard G. Dietz Telephone: (415) 977-7320 Facsimile: (415) 357-9869 S-10.02 (Amended) -9. Notices (other than Borrowing Notice and Notices of Conversion/Continuation): Banca di Roma, San Francisco Branch One Market Steuart Tower, Suite 1000 San Francisco, California 94105 Attention: Thomas C. Woodruff Telephone: (415) 977-7308 Facsimile: (415) 357-9869 BANK OF OKLAHOMA, N.A. Domestic and Offshore Lending Office: Bank Of Oklahoma, N.A. P.O. Box 2300 Tulsa, Oklahoma 74192 Attention: Sharon Shannon Telephone: (918) 588-6335 Facsimile: (918) 588-8231 Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Bank Of Oklahoma, N.A. One Williams Tower Tulsa, Oklahoma 74192 Attention: Jane Faulkenberry Telephone: (918) 588-6272 Facsimile: (918) 588-8231 MERRILL LYNCH BANK USA Domestic and Offshore Lending Office: Merrill Lynch Bank USA 15 W. South Temple Suite 300 Salt Lake City, UT 84101 Attention: Frank Stepan Telephone: (801) 526-8316 Facsimile: (801) 521-6466 S-10.02 (Amended) -10. Notices (other than Borrowing Notices and Notices of Conversion/Continuation): Merrill Lynch Bank USA 15 W. South Temple Suite 300 Salt Lake City, UT 84101 Attention: Butch Alder Telephone: (801) 526-8324 Facsimile: (801) 526-6466 S-10.02 (Amended) -11.