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Title: |
364-Day Credit Agreement |
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Entities: |
AmSouth Bank; Bank of Nova Scotia; Bank One, NA; Chase Manhattan Bank; Citibank, NA; Comerica Bank; First Union National Bank; Kroger Co.; McGraw-Hill Companies Inc.; PNC Bank, NA; Sumitomo Mitsui Banking Corp.; Bank of America, NA; Bank of New York; Shearman & Sterling |
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Date: |
2001 |
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Size: |
Preview shows 11KB of 260KB total |
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Price: |
$98 |
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ID: |
#253248 |
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364-DAY CREDIT AGREEMENT
Dated as of May 23, 2001
THE KROGER CO., an Ohio corporation (the "BORROWER"), the
banks, financial institutions and other institutional lenders (the "INITIAL
LENDERS") listed on the signature pages hereof, and CITIBANK, N.A. ("CITIBANK"),
as an administrative agent (in such capacity, an "ADMINISTRATIVE AGENT") for the
Lenders (as hereinafter defined) and paying agent (in such capacity, the "PAYING
AGENT") for the Lenders, THE CHASE MANHATTAN BANK ("CHASE"), as an
administrative agent (in such capacity, an "ADMINISTRATIVE AGENT"; the
Administrative Agents and the Paying Agent are, collectively, the "AGENTS") for
the Lenders, and BANK OF AMERICA, N.A., BANK ONE, NA and THE BANK OF NEW YORK as
co-syndication agents for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ACQUIRED EBITDA" means, for any period, with respect to any
Acquired Entity, (a) the sum of (i) Acquired Net Income for such
period, (ii) depreciation and amortization expense for such period,
(iii) interest expense net of interest income for such period, (iv)
Federal and state income taxes for such period as determined in
accordance with GAAP, (v) extraordinary losses that have been included
in the calculation of Acquired Net Income for such period, (vi) LIFO
charges included in the calculation of Acquired Net Income for such
period and (vii) non-cash charges made with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106 MINUS (b) the sum of (i)
extraordinary gains that have been included in the calculation of
Acquired Net Income for such period and (ii) LIFO credits included in
the calculation of Acquired Net Income for such period.
"ACQUIRED ENTITY" means any Person in the Borrower's line of
business or the assets of any Person in the Borrower's line of business
to be invested in or acquired.
"ACQUIRED ENTITY FISCAL QUARTER" means, with respect to any
Acquired Entity, any fiscal quarter of such Acquired Entity.
"ACQUIRED NET INCOME" means, for any period, with respect to
any Acquired Entity, the net income of such Acquired Entity for such
period before the payment of dividends on all capital stock, determined
in accordance with GAAP.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in the form of Exhibit D.
"ADVANCE" means a Revolving Credit Advance or a Competitive
Bid Advance.
"AFFILIATE" means, with respect to any designated Person, any
other Person that has a relationship with the designated Person whereby
either of such Persons directly or indirectly controls or is controlled
by or is under common control with the other of such Persons, or holds
or beneficially owns 10% or more of the equity interest in the other
Person or 10% or more of any class of voting securities of the other
Person. The term "control" means the possession, directly or
indirectly, of the power, whether or not exercised, to
1
{PAGE} 2
direct or cause the direction of the management or policies of any
Person, whether through ownership of voting securities, by contract or
otherwise.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender specified in a notice of such Lender to the
Paying Agent as such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance.
"APPLICABLE MARGIN" means, as of any date prior to the Term
Loan Conversion Date, a percentage per annum determined by reference to
the Borrower's Performance Level in effect on such date as set forth
below:
{TABLE}
{CAPTION}
-----------------------------------------------------------------------------------------------------------
Performance Applicable Margin for Applicable Margin for
Level Base Rate Advances Eurodollar Rate Advances
-----------------------------------------------------------------------------------------------------------
{S} {C} {C}
Level 1 0.0000% 0.330%
-----------------------------------------------------------------------------------------------------------
Level 2 0.0000% 0.525%
-----------------------------------------------------------------------------------------------------------
Level 3 0.0000% 0.625%
-----------------------------------------------------------------------------------------------------------
Level 4 0.0000% 0.800%
-----------------------------------------------------------------------------------------------------------
Level 5 0.0000% 1.000%
-----------------------------------------------------------------------------------------------------------
{/TABLE}
and, as of any date on or after the Term Loan Conversion Date, a
percentage per annum determined by reference to the Borrower's
Performance Level in effect on such date as set forth below:
{TABLE}
{CAPTION}
-----------------------------------------------------------------------------------------------------------
Performance Applicable Margin for Applicable Margin for
Level Base Rate Advances Eurodollar Rate Advances
-----------------------------------------------------------------------------------------------------------
{S} {C} {C}
Level 1 0.0000% 0.500%
-----------------------------------------------------------------------------------------------------------
Level 2 0.0000% 0.750%
-----------------------------------------------------------------------------------------------------------
Level 3 0.0000% 0.875%
-----------------------------------------------------------------------------------------------------------
Level 4 0.0000% 1.125%
-----------------------------------------------------------------------------------------------------------
Level 5 0.0000% 1.500%
-----------------------------------------------------------------------------------------------------------
{/TABLE}
PROVIDED that, in each case, the Applicable Margin for Eurodollar Rate
Advances set opposite the Performance Level 1 and Performance Level 2
above shall be increased by 0.125% until the date that the Borrower's
Commercial Paper is rated at least A2 by S&P or P2 by Moody's.
"APPLICABLE PERCENTAGE RATIO" means the ratio (determined as
of the last day of each Fiscal Quarter for the Rolling Period ending on
such day) of (a) Consolidated EBITDA for such Rolling Period to (b)
Consolidated Total Interest Expense for such Rolling Period.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee, and to the extent required by
Section 8.06, accepted by the Borrower and the Administrative Agents,
in substantially the form of Exhibit C hereto or such other form as
shall be approved by the Administrative Agents.
"ASSUMING LENDER" has the meaning specified in Section
2.16(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section
2.16(c).
"BASE RATE" means a fluctuating rate per annum equal to the
highest from time to time of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
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