Exhibit 10.1

EXECUTION VERSION

AMENDMENT NO. 7

AMENDMENT NO. 7, dated as of November 16, 2018 (this “Amendment”), to the Second Amended and Restated Term Loan Agreement, dated as of August 25, 2014 and effective as of January 30, 2015 (as amended by that certain Amendment No. 1, dated as of December 21, 2015, that certain Amendment No. 2, dated as of December 21, 2015, that certain Amendment No. 3 and Consent, dated as of February 11, 2016, that certain Amendment No. 4, dated as of June 22, 2016, that certain Amendment No. 5, dated as of December 23, 2016, that certain Amendment No. 6, dated as of June 27, 2017 and as the same may be further amended, supplemented, amended and restated or otherwise modified from time to time, the “Existing Term Loan Agreement”, and the Existing Term Loan Agreement as amended by Section 2(a) of this Amendment, the “Amended Term Loan Agreement”) among ALBERTSONS COMPANIES, INC. (as successor to Albertsons Companies, LLC by way of merger) (“ACI” or “Holdings”), ALBERTSON’S LLC, a Delaware limited liability company (the “Parent Borrower”), the co-borrowers party thereto (together with the Parent Borrower, the “Borrowers” and each, a “Borrower”), the guarantors party thereto, the parties thereto from time to time as lenders (each individually, a “Lender” and collectively, “Lenders”) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, in its capacity as administrative agent and collateral agent (in such capacities, “Agent” as further defined in the Existing Term Loan Agreement).

W I T N E S S E T H

Replacement 2018 Term B-7 Loans

WHEREAS, immediately prior to the effectiveness of this Amendment, the Borrowers have, together with any accrued and unpaid interest thereon $2,975,950,243.75 in aggregate principal amount of 2017-1 Term B-4 Loans (as defined in the Existing Term Loan Agreement) outstanding;

WHEREAS, immediately prior to the effectiveness of this Amendment, the Borrowers will repay $975,950,243.75, together with any accrued and unpaid interest, of the 2017-1Term B-4 Loans (the “Paydown”);

WHEREAS, after giving effect to the Paydown, the aggregate principal amount of the 2017-1 Term B-4 Loans will be $2,000,000,000;

WHEREAS, pursuant to Section 2.9 and/or Section 12.3(i) of the Existing Term Loan Agreement, the Borrowers may obtain Credit Agreement Refinancing Indebtedness (as defined in the Existing Term Loan Agreement) by, among other things, entering into a Refinancing Amendment (as defined in the Existing Term Loan Agreement) pursuant to the terms and conditions of the Existing Term Loan Agreement with each person agreeing to provide such Credit Agreement Refinancing Indebtedness;

WHEREAS, each 2017-1 Term B-4 Lender (as defined in the Existing Term Loan Agreement) that shall have executed and delivered a consent to this Amendment substantially in the form of Exhibit B hereto (a “Consent”) and checks the “2017-1 Term B-4 Cashless Settlement Option” on such Consent will thereby (i) agree to the terms of this Amendment, (ii) be deemed, upon effectiveness of this Amendment, to have exchanged all of its 2017-1 Term B-4 Loans (or such lesser amount allocated to it by the Agent) for Replacement 2018 Term B-7 Loans (as defined below) and shall be deemed a Replacement 2018 Term B-7 Lender (as defined below) and (iii) agree to the terms of that certain 2018 Term B-7 Cashless Roll Letter dated as of the date hereof among the Borrowers, the Additional 2018 Term B-7 Lender (as defined below) party thereto and the Agent (the “2018 Term B-7 Cashless Roll Letter”), and shall be deemed a party to the 2018 Term B-7 Cashless Roll Letter and be bound thereby for all purposes hereof and thereof;

 

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WHEREAS, the Borrowers have requested a borrowing of Credit Agreement Refinancing Indebtedness (such loans, the “Replacement 2018 Term B-7 Loans” and the lenders thereto, including any Lenders who have executed Consents or any Additional 2018 Term B-7 Lenders who have executed Joinders, the “Replacement 2018 Term B-7 Lenders” (for the avoidance of doubt, such term includes any assignees of the Replacement 2018 Term B-7 Lenders)), together with other financing and cash on hand, to finance the repayment in full of the amounts outstanding under the 2017-1 Term B-4 Loans as of the Amendment No. 7 Effective Date;

WHEREAS, each lender that executes and delivers a joinder agreement, substantially in the form of Exhibit A to this Amendment (a “Joinder”), as an “Additional Lender” thereto (an “Additional 2018 Term B-7 Lender”) (i) shall be deemed to be a Replacement 2018 Term B-7 Lender and (ii) will make Replacement 2018 Term B-7 Loans in the amount set forth on the signature page of such lender’s Joinder on the Amendment No. 7 Effective Date to the Borrowers, the proceeds of which will be used by the Borrowers to repay in full the outstanding principal amount of Non-Exchanged 2017-1 Term B-4 Loans (as defined in Amended Existing Term Loan Agreement) and to repay in full any outstanding principal amount of 2017-1 Term B-4 Loans as of the Amendment No. 7 Effective Date;

WHEREAS, solely for purposes of this Amendment and the transactions contemplated herein (including, but not limited to, the Paydown), the parties hereto agree (i) that the prepayment notice requirements in Section 2.3(a) of the Existing Term Loan Agreement are hereby satisfied and (ii) that the Borrowers shall not be obligated to pay any “breakage” fees to any of the parties hereto pursuant to Section 3.3 of the Existing Term Loan Agreement in connection with this Amendment and the transactions contemplated hereby;

WHEREAS, on the Amendment No. 7 Effective Date after giving effect to the transactions contemplated herein, the outstanding aggregate principal amount of 2018 Term B-7 Loans (as defined in the Amended Term Loan Agreement) will be $2,000,000,000;

Proposed Amendments

WHEREAS, Section 12.3 of the Existing Term Loan Agreement provides that the Borrowers may, with consent of the Required Lenders (as defined in the Existing Term Loan Agreement) and/or each Lender directly affected thereby, amend certain provisions of the Existing Term Loan Agreement or any other Financing Agreements (as defined in the Existing Term Loan Agreement), including the Proposed Amendments (as defined below) provided for herein;

WHEREAS, the Borrowers are hereby requesting consents to the Proposed Amendments from the Replacement 2018 Term B-7 Lenders;

WHEREAS, each Replacement 2018 Term B-7 Lender, either by the execution of a Consent or a Joinder, desires to grant a continuing consent to the Proposed Amendments; and

WHEREAS, upon receipt of consents from Lenders (which include the Replacement 2018 Term B-7 Lenders) comprising (i) at least the Required Lenders, the Proposed Amendments (other than with respect to the LIBOR Discontinuation Amendment (as defined below)) shall become effective and (ii) all Lenders, the LIBOR Discontinuation Amendment shall become effective.

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:

 

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SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Existing Term Loan Agreement.

SECTION 2. Amendments.

(a) Replacement 2018 Term B-7 Loans. Subject to the satisfaction of the conditions set forth in Section 3 below, the Existing Term Loan Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following examples: stricken text or stricken text) and to add the double-underlined text (indicated textually in the same manner as the following examples: double-underlined text or double-underlined text) as set forth in the pages of the Existing Term Loan Agreement attached as Exhibit C hereto.

(b) Proposed Amendments. Each of the parties hereto (i) agrees (and provides a continuing consent) that the Amended Term Loan Agreement shall be amended in the manner set forth in Exhibit D hereto (the “Proposed Amendments”) and (ii) acknowledges and agrees that each Replacement 2018 Term B-7 Lender, either by the execution of a Consent or a Joinder, shall be deemed to have provided a continuing consent to the Proposed Amendments pursuant to this Amendment. The Proposed Amendments (other than the proposed amendments with respect to Section 2.11 and Section 3.4 as set forth in Exhibit D hereto, the “LIBOR Discontinuation Amendment”) shall automatically become effective and operative on the earlier of (x) the date on which the Agent (or its counsel) shall have received executed counterparts to an amendment, consent or other agreement implementing the Proposed Amendments signed on behalf of the Borrowers, the Agent and additional Lenders that, when taken together with the Replacement 2018 Term B-7 Lenders consenting to such Proposed Amendments pursuant to this Amendment, constitute the Required Lenders as of such date or (y) the date on which the Replacement 2018 B-7 Lenders constitute the Required Lenders (such date, the “Amendment No. 7 Proposed Amendments Effective Date”; provided that solely with respect to the LIBOR Discontinuation Amendment, the “Amendment No. 7 Proposed Amendments Effective Date” shall mean the date on which each Lender directly affected thereby has provided its consent regarding such amendment). The parties hereto further acknowledge and agree that any assignee of any Replacement 2018 Term B-7 Loan, shall take such Replacement 2018 Term B-7 Loan subject to, and such assignee shall be bound by, the consent to the Proposed Amendments provided by such Replacement 2018 Term B-7 Lender pursuant to this Amendment.

SECTION 3. Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “Amendment No. 7 Effective Date”) that the following conditions have been satisfied:

(a) the Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each Loan Party (as defined in the Existing Term Loan Agreement);

(b) the Agent shall have received (i) Consents from Lenders constituting Replacement 2018 Term B-7 Lenders and/or (ii) executed Joinders, each entered into by an Additional 2018 Term B-7 Lender, Holdings and the Borrowers, and acknowledged by the Agent;

(c) the Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (i) from Schulte Roth & Zabel LLP, counsel to the Loan Parties and (ii) from Greenberg Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, in each case addressed to the Agent and the Lenders;

 

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(d) the Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority (as defined in the Existing Term Loan Agreement) and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 7 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 7 Effective Date or, if applicable, that no modifications have been made to such documents since June 27, 2017, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the incumbency and specimen signature of each officer executing this Amendment on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;

(e) the Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 7 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 7 Effective Date, except to the extent such representations and warranties expressly relate to an earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty is true and correct in all respects; provided, further, that each reference to the Existing Term Loan Agreement therein shall be deemed to be a reference to the Existing Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default (each as defined in the Existing Term Loan Agreement) shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect (as defined in the Existing Term Loan Agreement);

(f) the Parent Borrower shall have paid (or have caused to be paid), (i) to the Amendment No. 7 Arrangers (as defined below) in immediately available funds, all fees owing to the Amendment No. 7 Arrangers in connection with arranging Term Loans (as defined in the Existing Term Loan Agreement) as separately agreed to in writing by Holdings and the Amendment No. 7 Arrangers and (b) to the extent invoiced, all reasonable and documented out-of-pocket expenses of the Amendment No. 7 Arrangers and the Agent in connection with this Amendment and the transactions contemplated hereby (but limited, in the case of legal fees and expenses, to the reasonable and documented fees and expenses of Cahill Gordon & Reindel LLP);

(g) subject to subsection (e) above, the conditions precedent set forth in Section 4.2 of the Existing Term Loan Agreement shall have been satisfied both before and after giving effect to the borrowing of Replacement 2018 Term B-7 Loans;

(h) the Agent shall have received a solvency certificate signed by the Chief Financial Officer of Holdings substantially in the form attached as Exhibit O to the Existing Term Loan Agreement;

(i) if requested by the Agent, the Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens (as defined in the Existing Term Loan Agreement) on the

 

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assets of the Loan Parties, except for Permitted Liens (as defined in the Existing Term Loan Agreement) and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 7 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;

(j) the Agent shall have received a Committed Loan Notice (as defined in the Existing Term Loan Agreement) for the Replacement 2018 Term B-7 Loans;

(k) the Agent shall have received, at least five (5) Business Days (as defined in the Existing Term Loan Agreement) prior to the Amendment No. 7 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act, that has been reasonably requested by the Lenders at least ten (10) Business Days prior to the Amendment No. 7 Effective Date;

(l) to the extent any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and at least five (5) Business Days prior to the Amendment No. 7 Effective Date, such Borrower shall deliver to each Lender that so requests (which request is made through the Agent), a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (the “Beneficial Ownership Certification”) in relation to such Borrower; provided that the Agent has provided such Borrower a list of each such Lender and its electronic delivery requirements at least ten (10) Business Days prior to the Amendment No. 7 Effective Date;

(m) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (as defined in the Existing Term Loan Agreement), and to the extent any Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 9.4 of the Existing Term Loan Agreement and the applicable provisions of the Collateral Documents (as defined in the Existing Term Loan Agreement); and

(n) the Paydown shall have been consummated prior to or substantially concurrently with the effectiveness of this Amendment.

SECTION 4. [Reserved].

SECTION 5. Post-Closing Obligations. The Parent Borrower and Holdings shall or shall cause to be delivered to the Agent within 180 days after the Amendment No. 7 Effective Date (or such later date as the Agent in its reasonable discretion may agree) each of the items listed on Schedule I attached hereto.

SECTION 6. Representations and Warranties. The Borrowers hereby represent and warrant that:

(a) before and after giving effect to the borrowing of Replacement 2018 Term B-7 Loans, (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 7 Effective Date, except to the extent such representations and warranties expressly relate to an earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such

 

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representation or warranty is true and correct in all respects; provided, further, that each reference to the Existing Term Loan Agreement therein shall be deemed to be a reference to the Existing Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may reasonably be likely to have a Material Adverse Effect; and

(b) As of the Amendment No. 7 Effective Date, the information included in any Beneficial Ownership Certification is true and correct in all material respects.

SECTION 7. Extension of Loan. The parties hereto hereby acknowledge and agree that, subject to Section 3 above, the Replacement 2018 Term B-7 Lenders shall make the Replacement 2018 Term B-7 Loans available to the Parent Borrower on the date specified therefor in the related Committed Loan Notice in accordance with instructions provided by the Parent Borrower to (and reasonably acceptable to) the Agent.

SECTION 8. Effects on Financing Agreements. Except as specifically amended herein, all Financing Agreements shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as otherwise expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Financing Agreements, nor constitute a waiver of any provision of the Financing Agreements.

SECTION 9. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN SECTION 12.1 OF THE EXISTING TERM LOAN AGREEMENT AS IF SUCH SECTION WAS SET FORTH IN FULL HEREIN.

SECTION 10. Financing Agreement. This Amendment shall constitute a “Financing Agreement” for all purposes of the Existing Term Loan Agreement and the other Financing Agreements.

SECTION 11. Amendments; Execution in Counterparts; Notice. This Amendment shall not constitute an amendment of any other provision of the Existing Term Loan Agreement not referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Loan Parties that would require a waiver or consent of the Required Lenders or the Agent. Except as expressly amended hereby, the provisions of the Existing Term Loan Agreement are and shall remain in full force and effect. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, including by means of facsimile or electronic transmission, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

SECTION 12. Roles. The parties hereto acknowledge and agree that each of Credit Suisse Loan Funding LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Barclays Bank PLC and Wells Fargo Securities, LLC shall act as joint lead arrangers and joint lead bookrunners for the Replacement 2018 Term B-7 Loans (collectively, the “Joint Lead Arrangers”). The parties hereto further acknowledge and agree that each of U.S. Bank National Association, MUFG Union Bank, N.A., Royal Bank of Canada, SunTrust Robinson Humphrey, Inc. and TD Securities (USA) LLC shall act as co-managers for the Replacement 2018 Term B-7 Loans (collectively and together with the Joint Lead Arrangers, the “Amendment No. 7 Arrangers”). The parties

 

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hereto agree that Section 12.5 of the Existing Term Loan Agreement is incorporated herein mutatis mutandis as if set forth herein in full.

SECTION 13. Acknowledgement and Reaffirmation. Holdings, each Borrower and each Subsidiary Guarantor hereby (i) expressly acknowledges the terms of the Existing Term Loan Agreement as amended hereby, (ii) to the extent party thereto or covered thereunder, ratifies and affirms after giving effect to this Amendment its obligations under the Financing Agreements (including guarantees, security agreements, mortgages and deeds of trusts) executed by Holdings, the Borrowers and/or such Subsidiary Guarantor and (iii) to the extent applicable, after giving effect to this Amendment, acknowledges, renews and extends its continued liability under all such Financing Agreements and agrees such Financing Agreements remain in full force and effect.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

 

 

[Signature Page to Amendment No. 7]

 

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EXHIBIT A

JOINDER AGREEMENT

JOINDER AGREEMENT, dated as of [            ], 2018 (this “Agreement”), by and among [                    ] (the “Additional Lender”), ALBERTSON’S LLC, a Delaware limited liability company (the “Parent Borrower”), SAFEWAY INC., NEW ALBERTONS L.P., UNITED SUPERMARKETS, L.L.C., SPIRIT ACQUISITION HOLDINGS LLC (the “Co-Borrowers”, and together with the Parent Borrower, the “Borrowers” and each, a “Borrower”), ALBERTSONS COMPANIES, INC. (“Holdings”), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (the “Administrative Agent”).

RECITALS:

WHEREAS, reference is hereby made to the Second Amended and Restated Term Loan Agreement, dated as of August 25, 2014 and effective as of January 30, 2015 (as amended by that certain Amendment No. 1, dated as of December 21, 2015, that certain Amendment No. 2, dated as of December 21, 2015, that certain Amendment No. 3 and Consent, dated as of February 11, 2016, that certain Amendment No. 4, dated as of June 22, 2016, that certain Amendment No. 5, dated as of December 23, 2016, that certain Amendment No. 6, dated as of June 27, 2017 and that certain Amendment No. 7, to be dated as of the date hereof (“Amendment No. 7”) and as the same may be further amended, supplemented, amended and restated or otherwise modified from time to time, the “Term Loan Agreement”), among Holdings, the Borrowers, the guarantors from time to time party thereto, each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), Credit Suisse AG, Cayman Islands Branch, as administrative agent and the other agents named therein (capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Term Loan Agreement);

WHEREAS, subject to the terms and conditions of the Term Loan Agreement, the Borrowers desire to establish Credit Agreement Refinancing Indebtedness (as defined in the Term Loan Agreement) that it shall designate as 2018 Term B-7 Loans with existing 2017-1 Term B-4 Lenders and/or Additional 2018 Term B-7 Lenders (each as defined in the Term Loan Agreement);

WHEREAS, subject to the terms and conditions of Amendment No. 7, the Additional Lender shall consent to Amendment No. 7, including the Proposed Amendments (as defined in Amendment No. 7) therein; and

WHEREAS, subject to the terms and conditions of the Term Loan Agreement, the Additional Lender shall become a Lender (as defined in the Term Loan Agreement) pursuant a joinder agreement;

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

The Additional Lender hereby agrees to provide the Additional 2018 Term B-7 Commitment (as defined in the Term Loan Agreement) set forth on its signature page hereto pursuant to and in accordance with Section 2.1(k) of the Term Loan Agreement. The Additional 2018 Term B-7 Commitments provided pursuant to this Agreement shall be subject to all of the terms and conditions in the Term Loan Agreement and shall be entitled to all the benefits afforded by the Term Loan Agreement and the other Financing Agreements (as defined in the Term Loan Agreement) and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees (as defined in the Term Loan Agreement) and security interests created by the Collateral Documents (as defined in the Term Loan Agreement).

The Additional Lender, Holdings, the Borrowers and the Administrative Agent acknowledge and agree that the Additional 2018 Term B-7 Commitments provided pursuant to this Agreement shall constitute 2018 Term B-7 Commitments (as defined in the Term Loan Agreement) for all purposes of the Term Loan Agreement and the other applicable Financing Agreements. Each Additional Lender hereby agrees to make a 2018 Term B-7 Loan to the Borrowers in an amount equal to its Additional 2018 Term B-7 Commitment on the Amendment No. 7 Effective Date (as defined in Amendment No. 7) in accordance with Section 2.1(k) of the Term Loan Agreement.

The Additional Lender (i) confirms that it has received a copy of the Term Loan Agreement and the other Financing Agreements, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Amendment No. 7 Arrangers (as defined in Amendment No. 7) or any other Additional 2018 Term B-7 Lender or any other Lender or Agent Party (as defined in the Term Loan Agreement) and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Term Loan Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Term Loan Agreement and the other Financing Agreements as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Term Loan Agreement are required to be performed by it as a Lender.

Upon (i) the execution of a counterpart of this Agreement by the Additional Lender, the Administrative Agent, Holdings and the Borrowers and (ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of telecopy or other electronic transmission) hereof, the undersigned Additional Lenders shall become an Additional 2018 Term B-7 Lender and a Lender under the Term Loan Agreement and shall have the Additional 2018 Term B-7 Commitment set forth on its signature page hereto, effective as of the Amendment No. 7 Effective Date.

The Additional Lender shall deliver to the Administrative Agent such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Additional Lender may be required to deliver to the Administrative Agent pursuant to Section 6.1 of the Term Loan Agreement.

The Additional Lender hereto agrees (and provides a continuing consent) to the Proposed Amendments. Each of the parties hereto acknowledge and agree that the Additional Lender and its assignees, if any, shall be deemed to have provided such continuing consent under Amendment No. 7.

This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.

This Agreement shall constitute a Financing Agreement for all purposes under the Term Loan Agreement and each of the other Financing Agreements.

This Agreement, the Term Loan Agreement and the other Financing Agreements constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first written above.

 

 

[Signature Page to Joinder to Amendment No. 7]

 

[Signature Page to Joinder to Amendment No. 7]

Accepted:   CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent
By:
		Name:
		Title:
By:
		Name:
		Title:

 

[Signature Page to Joinder to Amendment No. 7]

EXHIBIT B

CONSENT TO AMENDMENT NO. 7

CONSENT TO AMENDMENT NO. 7 (this “Consent”) to Amendment No. 7 (the “Amendment”) to that certain Second Amended and Restated Term Loan Agreement, dated as of August 25, 2014 and effective as of January 30, 2015 (as amended by that certain Amendment No. 1, dated as of December 21, 2015, that certain Amendment No. 2, dated as of December 21, 2015, that certain Amendment No. 3 and Consent, dated as of February 11, 2016, that certain Amendment No. 4, dated as of June 22, 2016, that certain Amendment No. 5, dated as of December 23, 2016, that certain Amendment No. 6, dated as of June 27, 2017 and as the same may be further amended, supplemented, amended and restated or otherwise modified from time to time, the “Term Loan Agreement”), among ALBERTSON’S COMPANIES, INC. (“Holdings”), ALBERTSON’S LLC, a Delaware limited liability company (“Parent Borrower”), the co-borrowers party thereto (together with Parent Borrower, the “Borrowers” and each, a “Borrower”), the guarantors party thereto, the parties thereto from time to time as lenders (each individually, a “Lender” and collectively, “Lenders”) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, in its capacity as administrative agent and collateral agent (in such capacities, the “Agent”) and the other agents parties thereto. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Term Loan Agreement or the Amendment, as applicable.

2017-1 Term B-4 Lenders

The undersigned Lender hereby irrevocably and unconditionally (i) approves the Amendment, (ii) provides a continuing consent to the Proposed Amendments (as defined in the Amendment) and acknowledges and agrees that such continuing consent shall be binding upon any of its assignees and (iii) consents as follows:

2017-1 Term B-4 Cashless Settlement Option

 

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to convert 100% of the aggregate outstanding principal amount of the 2017-1 Term B-4 Loans (as defined in the Term Loan Agreement) held by such Lender (or such lesser amount as notified to such Lender in writing by the Agent) into Replacement 2018 Term B-7 Loans (as defined in the Amendment) in a like principal amount. By selecting this option, the undersigned Lender agrees to (i) the terms of the 2018 Term B-7 Cashless Roll Letter (as defined in the Amendment) and (ii) be deemed a party to such 2018 Term B-7 Cashless Roll Letter and be bound thereby for all purposes hereof and thereof.

2017-1 Term B-4 Assignment Settlement Option

 

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to have 100% of the outstanding principal amount of the 2017-1 Term B-4 Loans held by such Lender repaid on the Amendment No. 7 Effective Date (as defined in the Amendment) and to purchase by assignment a like principal amount of Replacement 2018 Term B-7 Loans committed to separately by the undersigned (or such lesser amount as notified to such Lender in writing by the Agent).

IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed and delivered by a duly authorized officer.

 

[Signature Page to Consent to Amendment No. 7]

EXHIBIT C

[See attached]

EXHIBIT C

SECOND AMENDED AND RESTATED

TERM LOAN AGREEMENT

by and among

ALBERTSONS COMPANIES, LLCINC.,

as Holdings,

ALBERTSON’S LLC,

as Parent Borrower,

SAFEWAY INC., NEW ALBERTSON’S, INCALBERTSONS L.P., UNITED SUPERMARKETS, L.L.C. and SPIRIT ACQUISITION HOLDINGS LLC

as Co-Borrowers,

THE OTHER CO-BORROWERS FROM TIME TO TIME PARTY HERETO

THE GUARANTORS NAMED HEREIN

THE LENDERS FROM TIME TO TIME PARTY HERETO

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

as Agent

and

CREDIT SUISSE SECURITIES (USA) LLC

CITIGROUP GLOBAL MARKETS INC.

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

MORGAN STANLEY SENIOR FUNDING, INC.

BARCLAYS BANK PLC

and

DEUTSCHE BANK SECURITIES INC.

as Joint Lead Arrangers and Joint Bookrunners

and

PNC CAPITAL MARKETS LLC

and

SUNTRUST ROBINSON HUMPHREY, INC.

as Co-Documentation Agents

Dated: August 25, 2014

Effective: January 30, 2015

As Amended on December 21, 2015

As Amended on February 11, 2016

As Amended on June 22, 2016

As Amended on December 23, 2016

As Amended on June 27, 2017

As Amended on November 16, 2018

Deal CUSIP # 01310TAA7

Term B-2 Loan CUSIP # 01310TAC3

Term B-3 Loan CUSIP # 01310TAG4

Term B-4 Loan CUSIP # 01310TAH2

Term B-5 Loan CUSIP # 01310TAK5

2016-1 Term B-4 Loan CUSIP # 01310TAN9

2016-1 Term B-5 Loan CUSIP # 01310TAM1

Term B-6 Loan CUSIP # 01310TAL3

2016-2 Term B-4 Loan CUSIP # 01310TAP4

2016-2 Term B-5 Loan CUSIP # 01310TAQ2

2016-1 Term B-6 Loan CUSIP # 01310TAR0

2017-1 Term B-4 Loan CUSIP # 01310TAS8

2017-1 Term B-5 Loan CUSIP # 01310TAT6

2017-1 Term B-6 Loan CUSIP # 01310TAU3

2018 Term B-7 Loan CUSIP # 01310TAV1

TABLE OF CONTENTS

 

				Page
SECTION 1.		DEFINITIONS			2
SECTION 2.		CREDIT FACILITIES			7274
2.1		Loans			7274
2.2		Repayment of Loans			7982
2.3		Prepayments			8183
2.4		Termination or Reduction of Commitments			8790
2.5		Evidence of Indebtedness			8790
2.6		Payments Generally			8891
2.7		Sharing of Payments			8992
2.8		Incremental Credit Extensions			9093
2.9		Refinancing Amendments			9194
2.10		Extension of Term Loans			9295
SECTION 3.		INTEREST AND FEES			9497
3.1		Interest			9497
3.2		Fees			9598
3.3		Changes in Laws and Increased Costs of Loans			9598
SECTION 4.		CONDITIONS PRECEDENT			97100
4.1		[Reserved]			97100
4.2		Conditions Precedent to All Loans			97100
4.3		Conditions to the Escrow Release Date			98101
SECTION 5.		[RESERVED]			100103
SECTION 6.		TAXES			100103
6.1		Taxes			100103
6.2		Replacement of Lenders under Certain Circumstances			103106
SECTION 7.		[RESERVED]			103106
SECTION 8.		REPRESENTATIONS AND WARRANTIES			103106
8.1		Existence, Qualification and Power			104106
8.2		Authorization; No Contravention			104107
8.3		Financial Statements			104107
8.4		Ownership of Property; Liens			105108
8.5		Taxes			105108
8.6		Litigation			106108
8.7		Compliance with Laws			106109
8.8		Environmental Compliance			106109
8.9		ERISA Compliance			107109
8.10		Governmental Authorization; Other Consents			107110
8.11		Intellectual Property; Licenses, Etc.			107110
8.12		Subsidiaries; Equity Interests			107110
8.13		Labor Matters			108111
8.14		Anti-Money Laundering			108111
8.15		Material Contracts			109111

 

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				Page
8.16		Solvency			109112
8.17		Investment Company Act; Margin Regulations			109112
8.18		Disclosure			109112
8.19		FCPA			109112
8.20		Office of Foreign Assets Control			110112
8.21		USA PATRIOT Act Notice			110113
8.22		Use of Proceeds			110113
8.23		Deposit Accounts; Credit Card Arrangements			110113
8.24		Binding Effect			110113
8.25		No Material Adverse Effect			111113
8.26		No Default			111114
8.27		Collateral Documents			111114
8.28		Pharmaceutical Laws			112115
8.29		HIPAA Compliance			112115
8.30		Compliance With Health Care Laws			112115
8.31		Notices from Farm Products Sellers, etc.			1131156
SECTION 9.		AFFIRMATIVE COVENANTS			114117
9.1		Preservation of Existence			114117
9.2		Compliance with Laws			114117
9.3		Payment of Obligations			114117
9.4		Insurance			114117
9.5		Financial Statements			115118
9.6		Certificates; Other Information			116119
9.7		Notices			118121
9.8		Further Assurances			118121
9.9		Additional Loan Parties			119123
9.10		Maintenance of Ratings			119123
9.11		Use of Proceeds			119123
9.12		Maintenance of Properties			120123
9.13		Environmental Laws and Insurance			120123
9.14		Books and Records; Accountants			120124
9.15		Inspection Rights			121125
9.16		Information Regarding the Collateral			121125
9.17		[Reserved]			121125
9.18		ERISA			121125
9.19		Quarterly Lender Meetings			121125
9.20		[Reserved]			121125
9.21		Post-Closing Requirements			121125
SECTION 10.		NEGATIVE COVENANTS			121125
10.1		Liens			122126
10.2		Investments			126130
10.3		Indebtedness; Disqualified Stock			130134
10.4		Fundamental Changes			133137
10.5		Dispositions			134138
10.6		Restricted Payments			137141
10.7		Change in Nature of Business			140145
10.8		Transactions with Affiliates			141145
10.9		Burdensome Agreements			146150
10.10		Accounting Changes			146150

 

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				Page
10.11		Prepayments Etc., of Indebtedness			146150
10.12		Permitted Activities			148152
10.13		Amendments of Organization Documents			148152
10.14		Designation of Subsidiaries			148152
SECTION 11.		EVENTS OF DEFAULT AND REMEDIES			149153
11.1		Events of Default			149153
11.2		Remedies			150154
11.3		Application of Proceeds			151155
SECTION 12.		JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW			152156
12.1		Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver			152156
12.2		Waiver of Notices			153157
12.3		Amendments and Waivers			153157
12.4		Waiver of Counterclaims			156160
12.5		Indemnification			156160
12.6		Costs and Expenses			157161
SECTION 13.		THE AGENT			158162
13.1		Appointment and Authority			158162
13.2		Rights as a Lender			158162
13.3		Exculpatory Provisions			158162
13.4		Reliance by Agent			159164
13.5		Delegation of Duties			159164
13.6		Resignation of Agent			160164
13.7		Non-Reliance on Agent and Other Lenders			160165
13.8		No Other Duties, Etc.			160165
13.9		Agent May File Proofs of Claim			160165
13.10		Collateral and Guaranty Matters			161165
13.11		Withholding Tax Indemnity			162167
13.12		Notice to Agent			167
13.13		Intercreditor Agreements			167
SECTION 14.		TERM OF AGREEMENT; MISCELLANEOUS			163167
14.1		Term			163167
14.2		Interpretative Provisions			163168
14.3		Notices			164169
14.4		Partial Invalidity			166171
14.5		Confidentiality			166171
14.6		Successors			168173
14.7		Assignments; Participations			168173
14.8		Entire Agreement			173178
14.9		USA PATRIOT Act			173178
14.10		Counterparts, Etc.			174179
14.11		Payments Set Aside			174179
14.12		Guarantee			174179
14.13		Pro Forma Calculations			180185
14.14		Setoff			182187
14.15		No Waiver; Cumulative Remedies			182187
14.16		Interest Rate Limitation			182187

 

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				Page
14.17		Survival of Representations and Warranties			183188
14.18		No Advisory or Fiduciary Responsibility			183188
14.19		Binding Effect			183188
14.20		Amendment and Restatement			183188
14.21		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			184189

 

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INDEX

TO

EXHIBITS AND SCHEDULES

 

Exhibit A		Form of Assignment and Acceptance
Exhibit B		Form of Compliance Certificate
Exhibit C		Form of Committed Loan Notice
Exhibit D		Form of Term Note
Exhibit E		Form of Security Agreement
Exhibit F		[Reserved]
Exhibit G		[Reserved]
Exhibit H-1		Form of United States Tax Compliance Certificate For Foreign Lenders That Are Not Treated As Partnerships For U.S. Federal Income Tax Purposes
Exhibit H-2		Form of United States Tax Compliance Certificate For Foreign Lenders That Are Treated As Partnerships For U.S. Federal Income Tax Purposes
Exhibit H-3		Form of United States Tax Compliance Certificate For Foreign Participants That Are Not Treated As Partnerships For U.S. Federal Income Tax Purposes
Exhibit H-4		Form of United States Tax Compliance Certificate For Foreign Participants That Are Treated As Partnerships For U.S. Federal Income Tax Purposes
Exhibit I		Form of Discounted Prepayment Option Notice
Exhibit J		Form of Lender Participation Notice
Exhibit K		Form of Discounted Voluntary Prepayment Notice
Exhibit L		Form of Affiliated Lender Assignment and Acceptance
Exhibit M		[Reserved]
Exhibit N-1		Form of ABL Intercreditor Agreement
Exhibit N-2		Form of Term Loan Intercreditor Agreement
Exhibit O		Form of Solvency Certificate
Exhibit P		Form of Escrow Agreement
Schedule I		Subsidiary Guarantors
Schedule 1.01		Commitments
Schedule 1.02		Accounting Period
Schedule 1.03		Real Estate Subsidiaries
Schedule 1.04		Unrestricted Subsidiaries
Schedule 1.05		Debt Refinancing
Schedule 8.1		Loan Parties
Schedule 8.4(b)(1)		Owned Real Estate
Schedule 8.4(b)(2)		Leased Real Estate
Schedule 8.6		Litigation
Schedule 8.8		Environmental Matters
Schedule 8.11		Intellectual Property
Schedule 8.12		Subsidiaries; Other Equity Investments
Schedule 8.13		Labor Matters
Schedule 8.15		Material Contracts
Schedule 8.23(a)		Deposit Accounts
Schedule 8.23(b)		Credit Card Agreements
Schedule 8.26		Defaults
Schedule 8.30		Participation Agreements
Schedule 9.6		Financial Reporting
Schedule 9.21		Post-Closing Matters
Schedule 10.1		Existing Liens

 

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Schedule 10.2		Existing Investments
Schedule 10.3		Existing Indebtedness
Schedule 10.8		Transactions with Affiliates
Schedule 10.9		Certain Contractual Obligations
Schedule 10.14		Designation of Unrestricted Subsidiaries

 

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SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT

This Second Amended and Restated Term Loan Agreement dated as of August 25, 2014 and effective as of January 30, 2015 (as amended, amended and restated, modified or supplemented from time to time, this “Agreement”) is entered into by and among ALBERTSON’S LLC, a Delaware limited liability company (“Parent Borrower”), ALBERTSONS COMPANIES, LLCINC. (“Holdings”), the parties hereto from time to time as Co-Borrowers, the other Guarantors party hereto, the parties hereto from time to time as lenders, whether by execution of this Agreement or an Assignment and Acceptance (each individually, a “Lender” and collectively, “Lenders” as hereinafter further defined) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, in its capacity as administrative agent and collateral agent (in such capacity, “Agent” as hereinafter further defined).

PRELIMINARY STATEMENTS

WHEREAS, the Parent Borrower, Holdings, certain of the Lenders and Citibank, N.A., as agent for such lenders, are parties to the Existing Debt Facility (defined below) pursuant to which certain term loans have been made available to the Parent Borrower and the Parent Borrower has requested to amend and restate the Existing Debt Facility in its entirety;

WHEREAS, Parent Borrower and Guarantors have requested that Agent and Lenders enter into financing arrangements with Parent Borrower pursuant to which Lenders may make loans to Parent Borrower;

WHEREAS, each Lender is willing to agree severally and not jointly to make such loans to Parent Borrower on a pro rata basis according to such Lender’s Commitment as defined below on the terms and conditions set forth herein and in the other Financing Agreements and Agent is willing to act as agent for Lenders on the terms and conditions set forth herein;

WHEREAS, AB Acquisition, LLC, a Delaware limited liability company (“AB LLC”), Parent Borrower, Holdings, Saturn Acquisition Merger Sub, Inc., a newly formed, wholly owned subsidiary of Holdings (“Merger Sub”), and Safeway Inc., a Delaware corporation (“Safeway”) are parties to the Agreement and Plan of Merger dated as of March 6, 2014 (the “Safeway Merger Agreement”) pursuant to which Holdings will, directly or indirectly, acquire Safeway and its Subsidiaries (the “Safeway Acquisition”);

WHEREAS, Safeway will enter into the Membership Interest Purchase Agreement contemporaneously with the closing of the Safeway Acquisition, by and between NAI and Safeway (the “Eastern Division Sale Agreement”), pursuant to which Safeway will sell the assets, operations and real estate relating to the stores constituting the Eastern Division of Safeway (including the Equity Interests of NAI Saturn Eastern LLC, the Subsidiary of Safeway that owns such assets, the “Eastern Division Assets”) to NAI (the “Eastern Division Sale”).

WHEREAS, in connection therewith, it is intended that (a) the Sponsor will make the Equity Contribution; (b) the Parent Borrower and certain of its Affiliates will obtain Commitments in an initial aggregate principal amount of $6,000,000,000 pursuant to this Agreement; (c) the Parent Borrower and certain of its Affiliates will obtain an initial aggregate principal amount of $3,000,000,000 of loans pursuant to the ABL Credit Agreement (the “ABL Loans”); (d) Holdings and Merger Sub (to be merged with and into Safeway) will issue $1,625,000,000 of Senior Secured Notes due 2022 (the “Senior Secured Notes”) and (e) the proceeds of (i) the Equity Contribution, (ii) the proceeds of the Borrowings released from the Escrow Account, (iii) the ABL Loans, (iv) the Senior Secured Notes and (v) the Eastern Division Sale will be used to finance the Transactions.

 

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WHEREAS, the Parent Borrower and the Escrow Agent entered into an Escrow Agreement, pursuant to which the proceeds of the Term B-3 Loans and the Term B-4 Loans were deposited in the Escrow Account on the Lender Funding Dates (as defined in Amendment No. 5);

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. DEFINITIONS

For purposes of this Agreement the following terms shall have the respective meanings given to them below:

“2016-1 Term B-4 Borrowing” shall mean a borrowing consisting of 2016-1 Term B-4 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2016-1 Term B-4 Lenders pursuant to Section 2.1(b).

“2016-1 Term B-4 Commitment” shall mean any Exchange 2016-1 Term B-4 Commitment or Additional 2016-1 Term B-4 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2016-1 Term B-4 Lenders” shall mean, collectively, the Term Lenders with 2016-1 Term B-4 Commitments on the Amendment No. 1 (B-5) Effective Date.

“2016-1 Term B-4 Loan” shall mean any Exchange 2016-1 Term B-4 Commitment or Additional 2016-1 Term B-4 Commitment.

“2016-1 Term B-4 Maturity Date” shall mean August 25, 2021 or, if such date is not a Business Day, the first Business Day thereafter.

“2016-1 Term B-4 Repricing Event” shall mean (i) any prepayment or repayment of 2016-1 Term B-4 Loans with the proceeds of, or any conversion of such 2016-1 Term B-4 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings (excluding indebtedness incurred in connection with a change of control or acquisition (or similar investment) not otherwise permitted under this Agreement) and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2016-1 Term B-4 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2016-1 Term B-4 Loans made with cash on hand or the proceeds of any revolving loans under the ABL Facility and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2016-1 Term B-4 Loans.

“2016-1 Term B-5 Borrowing” shall mean a borrowing consisting of 2016-1 Term B-5 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2016-1 Term B-5 Lenders pursuant to Section 2.1(c).

“2016-1 Term B-5 Commitment” shall means any Exchange 2016-1 Term B-5 Commitment or Additional 2016-1 Term B-5 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or

 

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to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2016-1 Term B-5 Lenders” shall mean, collectively, the Term Lenders with 2016-1 Term B-5 Commitments on the Amendment No. 1 (B-5) Effective Date.

“2016-1 Term B-5 Loan” shall mean any Exchange 2016-1 Term B-5 Commitment or Additional 2016-1 Term B-5 Commitment.

“2016-1 Term B-5 Maturity Date” shall mean December 21, 2022 or, if such date is not a Business Day, the first Business Day thereafter.

“2016-1 Term B-5 Repricing Event” shall mean (i) any prepayment or repayment of 2016-1 Term B-5 Loans with the proceeds of, or any conversion of such 2016-1 Term B-5 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings (excluding indebtedness incurred in connection with a change of control or acquisition (or similar investment) not otherwise permitted under this Agreement) and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2016-1 Term B-5 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2016-1 Term B-5 Loans made with cash on hand or the proceeds of any revolving loans under the ABL Facility and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2016-1 Term B-5 Loans.

“2016-1 Term B-6 Borrowing” shall mean a borrowing consisting of 2016-1 Term B-6 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2016-1 Term B-6 Lenders pursuant to Section 2.1(g).

“2016-1 Term B-6 Commitment” shall means any Exchange 2016-1 Term B-6 Commitment or Additional 2016-1 Term B-6 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2016-1 Term B-6 Lenders” shall mean, collectively, the Term Lenders with 2016-1 Term B-6 Commitments on the Amendment No. 5 (2016-2) Effective Date.

“2016-1 Term B-6 Loan” shall mean any Exchange 2016-1 Term B-6 Commitment or Additional 2016-1 Term B-6 Commitment.

“2016-1 Term B-6 Maturity Date” shall mean June 22, 2023, or if such date is not a Business Day, the first Business Day thereafter.

“2016-1 Term B-6 Repricing Event” shall mean (i) any prepayment or repayment of 2016-1 Term B-6 Loans with the proceeds of, or any conversion of such 2016-1 Term B-6 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2016-1 Term B-6 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2016-1 Term B-6 Loans made with cash on hand or the proceeds of any revolving loans under the ABL Facility and (ii) any amendment to this Agreement that reduces the effective applicable margin for the

 

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2016-1 Term B-6 Loans (in each case in clauses (i) and (ii) other than in connection with a Change of Control, an initial public offering, or any acquisition or investment not otherwise permitted hereby).

“2016-2 Term B-4 Borrowing” shall mean a borrowing consisting of 2016-2 Term B-4 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2016-2 Term B-4 Lenders pursuant to Section 2.1(e).

“2016-2 Term B-4 Commitment” shall mean any Exchange 2016-2 Term B-4 Commitment or Additional 2016-2 Term B-4 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2016-2 Term B-4 Lenders” shall mean, collectively, the Term Lenders with 2016-2 Term B-4 Commitments on the Amendment No. 5 (2016-2) Effective Date.

“2016-2 Term B-4 Loan” shall mean any Exchange 2016-2 Term B-4 Commitment or Additional 2016-2 Term B-4 Commitment.

“2016-2 Term B-4 Maturity Date” shall mean August 25, 2021 or, if such date is not a Business Day, the first Business Day thereafter.

“2016-2 Term B-4 Repricing Event” shall mean (i) any prepayment or repayment of 2016-2 Term B-4 Loans with the proceeds of, or any conversion of such 2016-2 Term B-4 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2016-2 Term B-4 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2016-2 Term B-4 Loans made with cash on hand or the proceeds of any revolving loans under the ABL Facility and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2016-2 Term B-4 Loans (in each case in clauses (i) and (ii) other than in connection with a Change of Control, an initial public offering, or any acquisition or investment not otherwise permitted hereby).

“2016-2 Term B-5 Borrowing” shall mean a borrowing consisting of 2016-2 Term B-5 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2016-2 Term B-5 Lenders pursuant to Section 2.1(f).

“2016-2 Term B-5 Commitment” shall means any Exchange 2016-2 Term B-5 Commitment or Additional 2016-2 Term B-5 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2016-2 Term B-5 Lenders” shall mean, collectively, the Term Lenders with 2016-2 Term B-5 Commitments on the Amendment No. 5 (2016-2) Effective Date.

“2016-2 Term B-5 Loan” shall mean any Exchange 2016-2 Term B-5 Commitment or Additional 2016-2 Term B-5 Commitment.

“2016-2 Term B-5 Maturity Date” shall mean December 21, 2022 or, if such date is not a Business Day, the first Business Day thereafter.

 

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“2016-2 Term B-5 Repricing Event” shall mean (i) any prepayment or repayment of 2016-2 Term B-5 Loans with the proceeds of, or any conversion of such 2016-2 Term B-5 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2016-2 Term B-5 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2016-2 Term B-5 Loans made with cash on hand or the proceeds of any revolving loans under the ABL Facility and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2016-2 Term B-5 Loans (in each case in clauses (i) and (ii) other than in connection with a Change of Control, an initial public offering, or any acquisition or investment not otherwise permitted hereby).

“2017-1 Term B-4 Borrowing” shall mean a borrowing consisting of 2017-1 Term B-4 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2017-1 Term B-4 Lenders pursuant to Section 2.1(h).

“2017-1 Term B-4 Commitment” shall means any Exchange 2017-1 Term B-4 Commitment or Additional 2017-1 Term B-4 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2017-1 Term B-4 Lenders” shall mean, collectively, the Term Lenders with 2017-1 Term B-4 Commitments on the Amendment No. 6 (2017-1) Effective Date.

“2017-1 Term B-4 Loan” shall mean any Exchange 2017-1 Term B-4 Commitment or Additional 2017-1 Term B-4 Commitment.

“2017-1 Term B-4 Maturity Date” shall mean August 25, 2021 or, if such date is not a Business Day, the first Business Day thereafter.

“2017-1 Term B-4 Repricing Event” shall mean, other than in connection with a change of control or acquisition (or similar investment) not otherwise permitted under this Agreement, (i) any prepayment or repayment of 2017-1 Term B-4 Loans with the proceeds of, or any conversion of such 2017-1 Term B-4 Loans into, any new or replacement tranche of any new or additional term loans under this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2017-1 Term B-4 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2017-1 Term B-4 Loans made with cash on hand, the proceeds of any revolving loans under the ABL Facility or any loans incurred or assumed (or to be assumed) by one or more non-Guarantors and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2017-1 Term B-4 Loans.

“2017-1 Term B-5 Borrowing” shall mean a borrowing consisting of 2017-1 Term B-5 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2017-1 Term B-5 Lenders pursuant to Section 2.1(i).

“2017-1 Term B-5 Commitment” shall means any Exchange 2017-1 Term B-5 Commitment or Additional 2017-1 Term B-5 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

 

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“2017-1 Term B-5 Lenders” shall mean, collectively, the Term Lenders with 2017-1 Term B-5 Commitments on the Amendment No. 6 (2017-1) Effective Date.

“2017-1 Term B-5 Loan” shall mean any Exchange 2017-1 Term B-5 Commitment or Additional 2017-1 Term B-5 Commitment.

“2017-1 Term B-5 Maturity Date” shall mean December 21, 2022 or, if such date is not a Business Day, the first Business Day thereafter.

“2017-1 Term B-5 Repricing Event” shall mean, other than in connection with a change of control or acquisition (or similar investment) not otherwise permitted under this Agreement (i) any prepayment or repayment of 2017-1 Term B-5 Loans with the proceeds of, or any conversion of such 2017-1 Term B-5 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2017-1 Term B-5 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2017-1 Term B-5 Loans made with cash on hand, the proceeds of any revolving loans under the ABL Facility or any loans incurred or assumed (or to be assumed) by one or more non-Guarantors and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2017-1 Term B-5 Loans.

“2017-1 Term B-6 Borrowing” shall mean a borrowing consisting of 2017-1 Term B-6 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2017-1 Term B-6 Lenders pursuant to Section 2.1(j).

“2017-1 Term B-6 Commitment” shall means any Exchange 2017-1 Term B-6 Commitment or Additional 2017-1 Term B-6 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2017-1 Term B-6 Lenders” shall mean, collectively, the Term Lenders with 2017-1 Term B-6 Commitments on the Amendment No. 6 (2017-1) Effective Date.

“2017-1 Term B-6 Loan” shall mean any Exchange 2017-1 Term B-6 Commitment or Additional 2017-1 Term B-6 Commitment.

“2017-1 Term B-6 Maturity Date” shall mean June 22, 2023 or, if such date is not a Business Day, the first Business Day thereafter.

“2017-1 Term B-6 Repricing Event” shall mean, other than in connection with a change of control or acquisition (or similar investment) not otherwise permitted under this Agreement, (i) any prepayment or repayment of 2017-1 Term B-6 Loans with the proceeds of, or any conversion of such 2017-1 Term B-6 Loans into, any new or replacement tranche of any new or additional term loans under the this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2017-1 Term B-6 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2017-1 Term B-6 Loans made with cash on hand, the proceeds of any revolving loans under the ABL Facility or any loans incurred or assumed (or to be assumed) by one or more non-Guarantors and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2017-1 Term B-6 Loans.

 

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“2018 Term B-7 Borrowing” shall mean a borrowing consisting of 2018 Term B-7 Loans of the same Type and, in the case of Eurodollar Rate Loans, have the same Interest Period made by each of the 2018 Term B-7 Lenders pursuant to Section 2.1(k).

“2018 Term B-7 Commitment” shall means any Exchange 2018 Term B-7 Commitment or Additional 2018 Term B-7 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Lender pursuant to an Assignment and Acceptance, (ii) an Incremental Amendment or (iii) an Extension Election.

“2018 Term B-7 Lenders” shall mean, collectively, the Term Lenders with 2018 Term B-7 Commitments on the Amendment No. 7 (2018) Effective Date.

“2018 Term B-7 Loan” shall mean any Exchange 2018 Term B-7 Commitment or Additional 2018 Term B-7 Commitment.

“2018 Term B-7 Maturity Date” shall mean November 17, 2025 or, if such date is not a Business Day, the first Business Day thereafter.

“2018 Term B-7 Repricing Event” shall mean, other than in connection with (x) a change of control, (y) an acquisition (or similar investment) not otherwise permitted under this Agreement or (z) a Transformative Acquisition, (i) any prepayment or repayment of 2018 Term B-7 Loans with the proceeds of, or any conversion of such 2018 Term B-7 Loans into, any new or replacement tranche of any new or additional term loans under this Agreement that is broadly marketed or syndicated to banks and other institutional investors in similar financings and bearing interest at an effective interest rate less than the effective “yield” applicable to the 2018 Term B-7 Loans then in effect, and excluding for the avoidance of doubt, any prepayment or repayment of the 2018 Term B-7 Loans made with cash on hand, the proceeds of any revolving loans under the ABL Facility or any loans incurred or assumed (or to be assumed) by one or more non-Guarantors and (ii) any amendment to this Agreement that reduces the effective applicable margin for the 2018 Term B-7 Loans.

“AB LLC” shall have the meaning set forth in the Preamble hereto.

“ABL Agent” shall mean Bank of America, N.A., in its capacity as administrative agent and collateral agent under the ABL Facility Documentation, or any successor agent or under the ABL Facility Documentation.

“ABL Credit Agreement” shall mean the Credit Agreement, dated as of Original Closing Date, among the Parent Borrower, the other borrowers party thereto, the guarantors party thereto, Bank of America, N.A., as agent and the lenders and issuing banks from time to time party thereto, as such agreement may be amended, amended and restated, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time.

“ABL Facility” shall mean that credit facility made available to the Parent Borrower and certain of its Affiliates pursuant to the ABL Credit Agreement.

“ABL Facility Documentation” shall mean the ABL Credit Agreement and all security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith, as the same may be amended, amended and restated, supplemented, waived or otherwise

 

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modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time.

“ABL Facility Indebtedness” shall mean (i) Indebtedness of Holdings, the Parent Borrower or any Restricted Subsidiary outstanding under the ABL Facility Documentation, (ii) any Swap Contract permitted pursuant to Article 10 hereof that is entered into by and between the Parent Borrower or any Restricted Subsidiary and any Person that is a lender under the ABL Credit Agreement or an Affiliate of a lender under the ABL Credit Agreement at the time such Swap Contract is entered into and (iii) any agreement with respect to Cash Management Obligations permitted under Article 10 that is entered into by and between the Parent Borrower or any Restricted Subsidiary and any Person that is a lender under the ABL Credit Agreement or an Affiliate of a lender under the ABL Credit Agreement at the time such agreement is entered into.

“ABL Intercreditor Agreement” shall mean the intercreditor agreement dated the Original Closing Date, among the Agent, the ABL Agent, the Parent Borrower and the Guarantors, substantially in the form attached as Exhibit N-1, as amended as of the Escrow Release Date in a manner reasonably satisfactory to the Agent and as the same may be further amended, amended and restated, supplemented, waived or otherwise modified from time to time in accordance with the terms hereof and thereof.

“ABL Loans” shall have the meaning set forth in the Preamble hereto.

“Acceptable Price” shall have the meaning set forth in Section 2.3(c)(iii) hereto.

“Acceptance Date” shall have the meaning set forth in Section 2.3(c)(ii) hereto.

“Account” shall mean “accounts” as defined in the UCC, and also shall mean a right to payment of a monetary obligation, whether or not constituting “accounts” as defined in the UCC, whether or not earned by performance, (a) for property that, has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card. The term “Account” includes Health-Care-Insurance Receivables (as defined in the UCC).

“Accounting Period” shall mean, subject to Section 10.10, Holdings’ four (4) week accounting periods as set forth on Schedule 1.02 hereto.

“ACH” shall mean automated clearing house transfers.

“Acquisition” shall mean, with respect to any Person (a) a purchase of a Controlling interest in, the Equity Interests of any other Person, (b) a purchase or other acquisition of all or substantially all of the assets or properties of, another Person or of any business unit of another Person, (c) any merger or consolidation of such Person with any other Person or other transaction or series of transactions resulting in the acquisition of all or substantially all of the assets, or a Controlling interest in the Equity Interests, of any Person, or (d) any acquisition of any Store locations or other operating assets of any Person (other than Stores received in an exchange or acquired with the proceeds of a Disposition described in Section 10.5 (q)), in each case, for which the aggregate consideration payable in connection with such acquisition or group of transactions which are part of a common plan is $75,000,000 or more.

“Additional 2016-1 Term B-4 Commitment” means, with respect to each Additional 2016-1 Term B-4 Lender, the obligation of such Additional 2016-1 Term B-4 Lender to make an Additional 2016-1 Term B-4 Loan on the Amendment No. 4 (B-6) Effective Date, in the amount set forth on the Additional 2016-1 Term B-4 Lender Joinder Agreement. The aggregate amount of the Additional 2016-1

 

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Term B-4 Commitments of all Additional 2016-1 Term B-4 Lenders on the Amendment No. 4 (B-6) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged Term B-4 Loans.

“Additional 2016-1 Term B-4 Lender” means a Person with an Additional 2016-1 Term B-4 Commitment to make Additional 2016-1 Term B-4 Loans to the Borrowers on the Amendment No. 4 (B-6) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2016-1 Term B-4 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 4 (B-6) Effective Date, between the Additional 2016-1 Term B-4 Lender, Holdings, the Borrowers and the Agent.

“Additional 2016-1 Term B-4 Loan” means a 2016-1 Term B-4 Loan that is made pursuant to Section 2.1(db) on the Amendment No. 4 (B-6) Effective Date.

“Additional 2016-1 Term B-5 Commitment” means, with respect to each Additional 2016-1 Term B-5 Lender, the obligation of such Additional 2016-1 Term B-5 Lender to make an Additional 2016-1 Term B-5 Loan on the Amendment No. 4 (B-6) Effective Date, in the amount set forth on the Additional 2016-1 Term B-5 Lender Joinder Agreement. The aggregate amount of the Additional 2016-1 Term B-5 Commitments of all Additional 2016-1 Term B-5 Lenders on the Amendment No. 4 (B-6) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged Term B-5 Loans.

“Additional 2016-1 Term B-5 Lender” means a Person with an Additional 2016-1 Term B-5 Commitment to make Additional 2016-1 Term B-5 Loans to the Borrowers on the Amendment No. 4 (B-6) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2016-1 Term B-5 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 4 (B-6) Effective Date, between the Additional 2016-1 Term B-5 Lender, Holdings, the Borrowers and the Agent.

“Additional 2016-1 Term B-5 Loan” means a 2016-1 Term B-5 Loan that is made pursuant to Section 2.1(dc) on the Amendment No. 4 (B-6) Effective Date.

“Additional 2016-1 Term B-6 Commitment” means, with respect to each Additional 2016-1 Term B-6 Lender, the obligation of such Additional 2016-1 Term B-6 Lender to make an Additional 2016-1 Term B-6 Loan on the Amendment No. 5 (2016-2) Effective Date, in the amount set forth on the Additional 2016-1 Term B-6 Lender Joinder Agreement. The aggregate amount of the Additional 2016-1 Term B-6 Commitments of all Additional 2016-1 Term B-6 Lenders on the Amendment No. 5 (2016-2) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged Term B-6 Loans.

“Additional 2016-1 Term B-6 Lender” means a Person with an Additional 2016-1 Term B-6 Commitment to make Additional 2016-1 Term B-6 Loans to the Borrowers on the Amendment No. 5 (2016-2) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2016-1 Term B-6 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 5 (2016-2) Effective Date, between the Additional 2016-1 Term B-6 Lender, Holdings, the Borrowers and the Agent.

“Additional 2016-1 Term B-6 Loan” means a 2016-1 Term B-6 Loan that is made pursuant to Section 2.1(dg) on the Amendment No. 5 (2016-2) Effective Date.

 

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“Additional 2016-2 Term B-4 Commitment” means, with respect to each Additional 2016-2 Term B-4 Lender, the obligation of such Additional 2016-2 Term B-4 Lender to make an Additional 2016-2 Term B-4 Loan on the Amendment No. 5 (2016-2) Effective Date, in the amount set forth on the Additional 2016-2 Term B-4 Lender Joinder Agreement. The aggregate amount of the Additional 2016-2 Term B-4 Commitments of all Additional 2016-2 Term B-4 Lenders on the Amendment No. 5 (2016-2) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2016-1 Term B-4 Loans.

“Additional 2016-2 Term B-4 Lender” means a Person with an Additional 2016-2 Term B-4 Commitment to make Additional 2016-2 Term B-4 Loans to the Borrowers on the Amendment No. 5 (2016-2) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2016-2 Term B-4 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 5 (2016-2) Effective Date, between the Additional 2016-2 Term B-4 Lender, Holdings, the Borrowers and the Agent.

“Additional 2016-2 Term B-4 Loan” means a 2016-2 Term B-4 Loan that is made pursuant to Section 2.1(be) on the Amendment No. 5 (2016-2) Effective Date.

“Additional 2016-2 Term B-5 Commitment” means, with respect to each Additional 2016-2 Term B-5 Lender, the obligation of such Additional 2016-2 Term B-5 Lender to make an Additional 2016-2 Term B-5 Loan on the Amendment No. 5 (2016-2) Effective Date, in the amount set forth on the Additional 2016-2 Term B-5 Lender Joinder Agreement. The aggregate amount of the Additional 2016-2 Term B-5 Commitments of all Additional 2016-2 Term B-5 Lenders on the Amendment No. 5 (2016-2) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2016-1 Term B-5 Loans.

“Additional 2016-2 Term B-5 Lender” means a Person with an Additional 2016-2 Term B-5 Commitment to make Additional 2016-2 Term B-5 Loans to the Borrowers on the Amendment No. 5 (2016-2) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2016-2 Term B-5 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 5 (2016-2) Effective Date, between the Additional 2016-2 Term B-5 Lender, Holdings, the Borrowers and the Agent.

“Additional 2016-2 Term B-5 Loan” means a 2016-2 Term B-5 Loan that is made pursuant to Section 2.1(cf) on the Amendment No. 5 (2016-2) Effective Date.

“Additional 2017-1 Term B-4 Commitment” means, with respect to each Additional 2017-1 Term B-4 Lender, the obligation of such Additional 2017-1 Term B-4 Lender to make an Additional 2017-1 Term B-4 Loan on the Amendment No. 6 (2017-1) Effective Date, in the amount set forth on the Additional 2017-1 Term B-4 Lender Joinder Agreement. The aggregate amount of the Additional 2017-1 Term B-4 Commitments of all Additional 2017-1 Term B-4 Lenders on the Amendment No. 6 (2017-1) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2016-2 Term B-4 Loans.

“Additional 2017-1 Term B-4 Lender” means a Person with an Additional 2017-1 Term B-4 Commitment to make Additional 2017-1 Term B-4 Loans to the Borrowers on the Amendment No. 6 (2017-1) Effective Date, which for the avoidance of doubt may be an existing Lender.

 

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“Additional 2017-1 Term B-4 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 6 (2017-1) Effective Date, between the Additional 2017-1 Term B-4 Lender, Holdings, the Borrowers and the Agent.

“Additional 2017-1 Term B-4 Loan” means a 2017-1 Term B-4 Loan that is made pursuant to Section 2.1(bh) on the Amendment No. 6 (2017-1) Effective Date.

“Additional 2017-1 Term B-5 Commitment” means, with respect to each Additional 2017-1 Term B-5 Lender, the obligation of such Additional 2017-1 Term B-5 Lender to make an Additional 2017-1 Term B-5 Loan on the Amendment No. 6 (2017-1) Effective Date, in the amount set forth on the Additional 2017-1 Term B-5 Lender Joinder Agreement. The aggregate amount of the Additional 2017-1 Term B-5 Commitments of all Additional 2017-1 Term B-5 Lenders on the Amendment No. 6 (2017-1) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2016-2 Term B-5 Loans.

“Additional 2017-1 Term B-5 Lender” means a Person with an Additional 2017-1 Term B-5 Commitment to make Additional 2017-1 Term B-5 Loans to the Borrowers on the Amendment No. 6 (2017-1) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2017-1 Term B-5 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 6 (2017-1) Effective Date, between the Additional 2017-1 Term B-5 Lender, Holdings, the Borrowers and the Agent.

“Additional 2017-1 Term B-5 Loan” means a 2017-1 Term B-5 Loan that is made pursuant to Section 2.1(bi) on the Amendment No. 6 (2017-1) Effective Date.

“Additional 2017-1 Term B-6 Commitment” means, with respect to each Additional 2017-1 Term B-6 Lender, the obligation of such Additional 2017-1 Term B-6 Lender to make an Additional 2017-1 Term B-6 Loan on the Amendment No. 6 (2017-1) Effective Date, in the amount set forth on the Additional 2017-1 Term B-6 Lender Joinder Agreement. The aggregate amount of the Additional 2017-1 Term B-6 Commitments of all Additional 2017-1 Term B-6 Lenders on the Amendment No. 6 (2017-1) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2016-1 Term B-6 Loans.

“Additional 2017-1 Term B-6 Lender” means a Person with an Additional 2017-1 Term B-6 Commitment to make Additional 2017-1 Term B-6 Loans to the Borrowers on the Amendment No. 6 (2017-1) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2017-1 Term B-6 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 6 (2017-1) Effective Date, between the Additional 2017-1 Term B-6 Lender, Holdings, the Borrowers and the Agent.

“Additional 2017-1 Term B-6 Loan” means a 2017-1 Term B-6 Loan that is made pursuant to Section 2.1(bj) on the Amendment No. 6 (2017-1) Effective Date.

“Additional 2018 Term B-7 Commitment” means, with respect to each Additional 2018 Term B-7 Lender, the obligation of such Additional 2018 Term B-7 Lender to make an Additional 2018 Term B-7 Loan on the Amendment No. 7 (2018) Effective Date, in the amount set forth on the Additional 2018 Term B-7 Lender Joinder Agreement. The aggregate amount of the Additional 2018 Term B-7 Commitments of all Additional 2018 Term B-7 Lenders on the Amendment No. 7 (2018) Effective Date shall equal to the outstanding principal amount of all Non-Exchanged 2017-1 Term B-4 Loans.

 

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“Additional 2018 Term B-7 Lender” means a Person with an Additional 2018 Term B-7 Commitment to make Additional 2018 Term B-7 Loans to the Borrowers on the Amendment No. 7 (2018) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional 2018 Term B-7 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 7 (2018) Effective Date, between the Additional 2018 Term B-7 Lender, Holdings, the Borrowers and the Agent.

“Additional 2018 Term B-7 Loan” means a 2018 Term B-7 Loan that is made pursuant to Section 2.1(k) on the Amendment No. 7 (2018) Effective Date.

“Additional Refinancing Lender” shall mean, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of Refinancing Term Loans pursuant to a Refinancing Amendment in accordance with Section 2.9, provided that each Additional Refinancing Lender shall be subject to the approval of (i) the Agent, such approval not to be unreasonably withheld or delayed, to the extent that such Additional Refinancing Lender is not then an Affiliate of a then existing Lender or an Approved Fund and (ii) the Parent Borrower.

“Additional Term B-6 Commitment” means, with respect to each Additional Term B-6 Lender, the obligation of such Additional Term B-6 Lender to make an Additional Term B-6 Loan on the Amendment No. 4 (B-6) Effective Date, in the amount set forth on the Additional Term B-6 Lender Joinder Agreement. The aggregate amount of the Additional Term B-6 Commitments of all Additional Term B-6 Lenders on the Amendment No. 4 (B-6) Effective Date shall equal the sum of (i) the outstanding principal amount of Non-Exchanged Term B-2 Loans and (ii) the outstanding principal amount of Non-Exchanged Term B-3 Loans.

“Additional Term B-6 Lender” means a Person with an Additional Term B-6 Commitment to make Additional Term B-6 Loans to the Borrowers on the Amendment No. 4 (B-6) Effective Date, which for the avoidance of doubt may be an existing Lender.

“Additional Term B-6 Lender Joinder Agreement” means the joinder agreement, dated as of the Amendment No. 4 (B-6) Effective Date, between the Additional Term B-6 Lender, Holdings, the Borrowers and the Agent.

“Additional Term B-6 Loan” means a Term B-6 Loan that is made pursuant to Section 2.1(d) on the Amendment No. 4 (B-6) Effective Date.

“Administrative Questionnaire” shall mean an Administrative Questionnaire in a form supplied by the Agent.

“Affiliate” shall mean, with respect to any Person, (a) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, (b) any director, officer, managing member, partner, trustee, or beneficiary of that Person, and (c) any Person which beneficially owns or holds ten percent (10%) or more of any class of Voting Stock of such Person; provided that it is understood that SVU shall not be deemed an Affiliate of any Loan Party solely due to the transactions contemplated by the Transition Services Agreement or other relationships, facts or circumstances existing on the Escrow Release Date (including, but not limited to, representation on the board of directors of SVU).

 

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“Affiliated Lender Assignment and Acceptance” shall have the meaning set forth in Section 14.7(h)(B) hereto.

“Agent” shall mean Credit Suisse AG, Cayman Islands Branch, in its capacity as administrative agent and collateral agent on behalf of Lenders pursuant to the terms hereof and any replacement or successor agent hereunder.

“Agent Parties” shall mean the Agent, the Arrangers and each of their respective Related Parties.

“Agent’s Office” shall mean the Agent’s address and, as appropriate, account as set forth in Section 14.3, or such other address or account as the Agent may from time to time notify to the Parent Borrower and the Lenders.

“Agreement” shall have the meaning set forth in the introductory paragraph hereto.

“Albertson’s Credit Card” shall mean any private label credit card issued by any Loan Party to customers or prospective customers.

“Albertson’s Group” shall mean, collectively, Holdings and its Subsidiaries (but excluding, for all purposes other than the financial statements, Unrestricted Subsidiaries).

“Albertson’s Private Label Accounts” shall mean all Accounts (including rights to payment of finance charges, interest or fees) due to any Loan Party pursuant to an Albertson’s Credit Card and any revolving charge accounts maintained by any Loan Party for any of its retail customers.

“Amendment No. 1” shall mean Amendment No. 1 to the Existing Debt Facility, dated as of May 9, 2013.

“Amendment No. 1 (B-5)” shall mean Amendment No. 1 to this Agreement.

“Amendment No. 1 (B-5) Effective Date” means the date on which Amendment No. 5 shall have become effective in accordance with its terms.

“Amendment No. 1 Effective Date” shall mean the date on which Amendment No. 1 shall have become effective in accordance with its terms.

“Amendment No. 4” means Amendment No. 4 to the Existing Debt Facility, dated as of May 5, 2014.

“Amendment No. 4 (B-6)” means Amendment No. 4 to this Agreement, dated as of the Amendment No. 4 (B-6) Effective Date.

“Amendment No. 4 (B-6) Arrangers” means Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Barclays Bank PLC, Guggenheim Securities, LLC, RBC Capital Markets, LLC, Wells Fargo Securities, LLC and SunTrust Robinson Humphrey, Inc.

“Amendment No. 4 (B-6) Effective Date” means June 22, 2016, the date on which all conditions precedent set forth in Section 4 of Amendment No. 4 (B-6) are satisfied.

 

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“Amendment No. 4 Effective Date” means the date on which Amendment No. 4 shall have become effective in accordance with its terms.

“Amendment No. 5” shall mean Amendment No. 5 to the Existing Debt Facility, dated as of the Restatement Effective Date, by and among Holdings, the Parent Borrower, the Guarantors, each of the lenders party thereto and Citibank, N.A.

“Amendment No. 5 (2016-2)” means Amendment No. 5 to this Agreement, dated as of the Amendment No. 5 (2016-2) Effective Date

“Amendment No. 5 (2016-2) Arrangers” means Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Barclays Bank PLC, MUFG Union Bank, N.A., RBC Capital Markets, LLC, Wells Fargo Securities, LLC and SunTrust Robinson Humphrey, Inc.

“Amendment No. 5 (2016-2) Effective Date” means December 23, 2016, the date on which all conditions precedent set forth in Section 3 of Amendment No. 5 (2016-2) are satisfied.

“Amendment No. 6 (2017-1)” means Amendment No. 6 to this Agreement, dated as of the Amendment No. 6 (2017-1) Effective Date.

“Amendment No. 6 (2017-1) Arrangers” means Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Barclays Bank PLC, MUFG Union Bank, N.A., Royal Bank of Canada, Wells Fargo Securities, LLC, SunTrust Robinson Humphrey, Inc., U.S. Bank National Association and TD Securities (USA) LLC.

“Amendment No. 6 (2017-1) Effective Date” means June 27, 2017, the date on which all conditions precedent set forth in Section 3 of Amendment No. 6 (2017-1) are satisfied.

“Amendment No. 7 (2018)” means Amendment No. 7 to this Agreement, dated as of the Amendment No. 7 (2018) Effective Date.

“Amendment No. 7 (2018) Arrangers” means Credit Suisse Loan Funding LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Deutsche Bank Securities Inc., Barclays Bank PLC, Wells Fargo Securities, LLC, U.S. Bank National Association, MUFG Union Bank, N.A., Royal Bank of Canada, SunTrust Robinson Humphrey, Inc. and TD Securities (USA) LLC.

“Amendment No. 7 (2018) Effective Date” means November 16, 2018, the date on which all conditions precedent set forth in Section 3 of Amendment No. 7 (2018) are satisfied.

“Applicable Discount” shall have the meaning set forth in Section 2.3(c)(iii) hereto.

“Applicable Disposition Loan-to-Value Ratio” shall mean, as of any date of receipt of Net Proceeds from any Applicable Disposition, the ratio of (a) the aggregate principal amount of all Term Loans and other Indebtedness that is outstanding and secured by a Lien on the Pari Term Debt Priority Collateral (as defined in the ABL Intercreditor Agreement) (ranking pari passu with the Lien thereon securing the Obligations) on such date to (b) the aggregate amount of the Valuations for each of the Mortgaged Properties that has been completed not earlier than 18 calendar months prior to such date.

 

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“Applicable Disposition Percentage” shall mean, as of the date of receipt of any Net Proceeds from any Applicable Disposition, (a) if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended four fiscal quarter period of Holdings for which financial statements have been delivered to the Agent pursuant to Section 9.5 is greater than or equal to 3.50:1.00, 100%, or (b) if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended four fiscal quarter period of Holdings for which financial statements have been delivered pursuant to Section 9.5 is less than 3.50:1.00 and (i) the Applicable Disposition Loan-to-Value Ratio as of such date is greater than 0.40:1.00, 100% or (ii) the Applicable Disposition Loan-to-Value Ratio as of such date is less than or equal to 0.40:1.00, 50%.

“Applicable Dispositions” shall mean any Dispositions consummated after the Escrow Release Date, the Net Proceeds of which are required to be applied to prepay any Loans pursuant to Section 2.3(b)(ii)(1) hereto.

“Applicable ECF Percentage” shall mean, for any Fiscal Year, (a) 75% if the Consolidated First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is greater than 3.25:1.00, (b) 50% if the Consolidated First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 3.25:1.00 and greater than 2.75:1:00, (c) 25% if the Consolidated First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 2:75:1.00 and greater than 2.25:1:00 and (c) 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 2.25:1.00.

“Applicable Margin” shall mean a percentage per annum equal to (Aa) (i) for Term B-2 Loans which are Eurodollar Rate Loans, 4.500%, (Bii) for Term B-3 Loans which are Eurodollar Rate Loans, 4.125%, (Ciii) for Term B-4 Loans which are Eurodollar Loans, 4.500%, (Div) for the Term B-5 Loans that are Eurodollar Rate Loans, 4.50%, (Ev) for the 2016-1 Term B-4 Loans that are Eurodollar Rate Loans, 3.50%, (Fvi) for the 2016-2 Term B-4 Loans that are Eurodollar Rate Loans, 3.00%, (Gvii) for the 2017-1 Term B-4 Loans that are Eurodollar Rate Loans, 2.75%, (Hviii) for the 2016-1 Term B-5 Loans that are Eurodollar Rate Loans, 3.75%, (Iix) for the 2016-2 Term B-5 Loans that are Eurodollar Rate Loans, 3.25%, (Jx) for the 2017-1 Term B-5 Loans that are Eurodollar Rate Loans, 3.00%, (Kxi) for the Term B-6 Loans that are Eurodollar Rate Loans, 3.75%, (Lxii) for the 2016-1 Term B-6 Loans that are Eurodollar Rate Loans, 3.25%, (Mxiii) for the 2017-1 Term B-6 Loans that are Eurodollar Rate Loans, 3.00%, (Nxiv) for the 2018 Term B-7 Loans that are Eurodollar Rate Loans, 3.00%, (b) (i) for Term B-2 Loans which are Base Rate Loans, 3.50 %, (Oii) for Term B-3 Loans which are Base Rate Loans, 3.125%, (Piii) for Term B-4 Loans which are Base Rate Loans, 3.50%, (Qiv) for Term B-5 Loans which are Base Rate Loans, 3.50%, (Rv) for the 2016-1 Term B-4 Loans that are Base Rate Loans, 2.50%, (Svi) for the 2016-2 Term B-4 Loans that are Base Rate Loans, 2.00%, (Tvii) for the 2017-1 Term B-4 Loans that are Base Rate Loans, 1.75%, (Uviii) for the 2016-1 Term B-5 Loans that are Base Rate Loans, 2.75%, (Vix) for the 2016-2 Term B-5 Loans that are Base Rate Loans, 2.25%, (Wx) for the 2017-1 Term B-5 Loans that are Base Rate Loans, 2.00%, (Xxi) for the Term B-6 Loans that are Base Rate Loans, 2.75%, (Yxii) for the 2016-1 Term B-6 Loans that are Base Rate Loans, 2.25% and, (Zxiii) for the 2017-1 Term B-6 Loans that are Base Rate Loans, 2.00% and (xiv) for the 2018 Term B-7 Loans that are Base Rate Loans, 2.00%.

“Appropriate Lender” shall mean, at any time, with respect to Loans of any Class, the Lenders of such Class.

“Approved Broker” shall mean any firm nominated by the Parent Borrower and approved by the Agent.

 

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“Approved Fund” shall mean any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages any Fund that is a Lender.

“Arrangers” shall mean, collectively, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC and Deutsche Bank Securities Inc. in their capacities as joint lead arrangers and joint book managers. For purposes of Sections 12.5, 12.6, 13.7, 13.8, 14.18 and 14.22, the reference to “Arrangers” shall include the Amendment No. 4 (B-6) Arrangers and the Amendment No. 7 (2018) Arrangers.

“Assignment and Acceptance” shall mean an Assignment and Acceptance substantially in the form of Exhibit A attached hereto (with blanks appropriately completed) delivered to Agent in connection with an assignment of Lender’s interest hereunder in accordance with the provisions of Section 14.7 hereof.

“Attributable Indebtedness” shall mean, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

“Audited Financial Statements” shall mean the financial statements of Parent Borrower and Safeway delivered pursuant to Section 4.1(c) of the Existing Debt Facility.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank Products” shall mean any services or facilities provided to any Loan Party by the Agent, any Arranger, any Lender, or any of their respective Affiliates (or any Person that was the Agent, an Arranger, a Lender, or an Affiliate of the Agent, an Arranger or a Lender, at the time it entered into such Bank Products or, with respect to Bank Products entered into prior to the Escrow Release Date, on the Escrow Release Date or in connection with the initial syndication of the Loans), including, without limitation, on account of (a) Swap Contracts and (b) purchase cards, but excluding Cash Management Services.

“Base Rate” shall mean the highest of (i) the Federal Funds Effective Rate plus 0.50%; provided that in no event shall the Base Rate be less than 1.00% plus the Eurodollar Rate applicable to one month Interest Periods on the date of determination of the Base Rate, (ii) the rate of interest determined by the Agent as its “prime rate,” as established from time to time at its New York office and notified to the Parent Borrower, subject to each increase or decrease in such prime rate, effective as of the day any such change occurs and (iii) the one-month Eurodollar Rate on each day (or, if such day is not a Business Day, the preceding Business Day) plus 1.00% (after taking into account the Eurodollar Rate floor).

“Base Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Base Rate in accordance with the terms thereof.

“Borrower” shall mean the Parent Borrower or a Co-Borrower, as the context may require.

 

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“Borrowing” shall mean a borrowing consisting of Term Loans of the same Type and currency and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.1.

“Business Day” shall mean any day other than Saturday, Sunday, or other day on which commercial banks are authorized or required to close under the laws of, or are in fact closed in, the state where the Agent’s office is located, except that if determination of Business Day shall relate to any Eurodollar Rate Loans the term Business Day shall also exclude any day on which banks are closed for dealings in dollar deposits in the London interbank market or other applicable Eurodollar Rate market.

“Capital Expenditures” shall mean without duplication and with respect to the Albertson’s Group for any period, all expenditures made (whether made in the form of cash or other property) or costs incurred for the acquisition or improvement of fixed or capital assets of the Albertson’s Group (excluding normal replacements and maintenance which are properly charged to current operations), in each case that are (or should be) set forth as capital expenditures in a Consolidated statement of cash flows of the Albertson’s Group for such period, in each case prepared in accordance with GAAP; provided that Capital Expenditures shall not include (i) expenditures by the Albertson’s Group in connection with the Safeway Acquisition and Permitted Acquisitions, (ii) any such expenditure made to restore, replace or rebuild property, to the extent such expenditure is made with (x) Net Proceeds from a Disposition or (y) insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation and (iii) any such expenditure funded or financed with the proceeds of Permitted Indebtedness (other than any revolving indebtedness).

“Capital Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

“Capital Leases” shall mean, as applied to any Person, any lease of (or any agreement conveying the right to use) any property (whether real, personal or mixed) by such Person as lessee which in accordance with GAAP, is required to be reflected as liability on the balance sheet of such Person.

“Captive Insurance Subsidiary” means any Restricted Subsidiary of Holdings that is subject to regulation as an insurance company (or any Subsidiary thereof).

“Casa Ley” shall mean Casa Ley, S.A. de C.V.

“Cash Equivalents” shall mean:

(1) U.S. dollars, pounds sterling, euros, the national currency of any participating member state of the European Union or, in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

(2) securities issued or directly and fully guaranteed or insured by the government of the United States or any country that is a member of the European Union or any agency or instrumentality thereof in each case with maturities not exceeding two years from the date of acquisition;

(3) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $500,000,000, or the foreign currency

 

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equivalent thereof, and whose long-term debt is rated “A” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency);

(4) repurchase obligations for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

(5) commercial paper issued by a corporation (other than an Affiliate of Holdings) rated at least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within one year after the date of acquisition;

(6) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;

(7) Indebtedness issued by Persons (other than the Sponsor or any of its Affiliates) with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s in each case with maturities not exceeding two years from the date of acquisition; and

(8) investment funds investing at least 95% of their assets in securities of the types described in clauses (1) through (7) above.

“Cash Management Obligations” shall mean obligations owed by any Borrower or any Restricted Subsidiary in respect of any overdraft and related liabilities arising from treasury, depository and Cash Management Services.

“Cash Management Services” shall mean any cash management services or facilities provided to any Loan Party by the Agent, any Arranger or any Lender or any of their respective Affiliates (or any Person that was an Agent, an Arranger, a Lender or an Affiliate of the Agent, an Arranger, or a Lender at the time it entered into Cash Management Services), including, without limitation: (a) ACH transactions, (b) controlled disbursement services, or treasury, depository, overdraft, and electronic funds transfer services, (c) foreign exchange facilities, (d) credit card processing services, and (e) credit or debit cards.

“Casualty Event” shall mean any event that gives rise to the receipt by any Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace, restore or repair such equipment, fixed assets or real property.

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.

“CERCLIS” shall mean the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States Environmental Protection Agency.

 

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“CFC” shall mean a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“Change of Control” shall mean an event or series of events by which:

(a) any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any Permitted Holder, acquires directly or indirectly, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, more than 50% of the total voting power of the voting Equity Interests of Holdings; or

(b) the sale, lease, transfer, conveyance or other disposition (other than by way of merger, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of Holdings and its Restricted Subsidiaries taken as a whole to a Person, other than a Restricted Subsidiary or any Permitted Holder; or

(c) Holdings fails at any time to own, directly or indirectly, of record and beneficially, 100% of the Equity Interests of any Co-Borrower, free and clear of all Liens other than Permitted Liens; provided that for purposes of this clause (c) a “Change of Control” shall not be deemed to have occurred if (i) either one or more Co-Borrowers consolidate with and into Holdings or (ii) any such Co-Borrower consolidates with and into another Co-Borrower or a Subsidiary Guarantor.

“Change of Control Purchase Offer” shall mean any offer to purchase the Existing Safeway Notes upon a “Change of Control Triggering Event” pursuant to the indenture and other documents governing the Existing Safeway Notes.

“Class” (a) when used with respect to any Lender, shall refer to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Term B-3 Commitments, Term B-4 Commitments, Term B-5 Commitments, 2016-1 Term B-4 Commitments, 2016-1 Term B-5 Commitments, Term B-6 Commitments, 2016-2 Term B-4 Commitments, 2016-2 Term B-5 Commitments, 2016-1 Term B-6 Commitments, 2017-1 Term B-4 Commitments, 2017-1 Term B-5 Commitments, 2017-1 Term B-6 Commitments, 2018 Term B-7 Commitments, Term Commitments, Other Term Loan Commitments or Refinancing Term Commitments of a given Refinancing Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing are Term B-2 Loans, Term B-3 Loans, Term B-4 Loans, Term B-5 Loans, 2016-1 Term B-4 Loans, 2016-1 Term B-5 Loans, Term B-6 Loans, 2016-2 Term B-4 Loans, 2016-2 Term B-5 Loans, 2016-1 Term B-6 Loans, 2017-1 Term B-4 Loans, 2017-1 Term B-5 Loans, 2017-1 Term B-6 Loans, 2018 Term B-7 Loans, Incremental Term Loans, Other Term Loans, Refinancing Term Loans of a given Refinancing Series or Extended Term Loans of a given Term Loan Extension Series. Term B-3 Commitments, Term B-4 Commitments, Term B-5 Commitments, 2016-1 Term B-4 Commitments, 2016-1 Term B-5 Commitments, Term B-6 Commitments, 2016-2 Term B-4 Commitments, 2016-2 Term B-5 Commitments, 2016-1 Term B-6 Commitments, 2017-1 Term B-4 Commitments, 2017-1 Term B-5 Commitments, 2017-1 Term B-6 Commitments, 2018 Term B-7 Commitments, Other Term Loan Commitments and Term Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions (including, without limitation, different maturity dates and/or interest rates) shall be construed to be in different Classes.

 

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Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.

“Co-Borrower” shall mean (a) New Albertson’s, IncAlbertsons L.P., Safeway Inc., United Supermarkets, L.L.C. and Spirit Acquisition Holdings LLC and (b) any wholly owned Domestic Subsidiary of Holdings that is a Restricted Subsidiary of Holdings and is designated by the Parent Borrower as a “Co-Borrower”; provided that such designation as a “Co-Borrower” is agreed upon in writing between the Parent Borrower and the Agent.

“Co-Documentation Agents” shall mean PNC Capital Markets LLC and SunTrust Robinson Humphrey, Inc. in their capacities as co-documentation agents.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Collateral” shall mean the “Collateral” as defined in the Security Agreement and all the “Collateral” or “Pledged Assets” or similar term as defined in any other Collateral Document and any other assets pledged pursuant to any Collateral Document.

“Collateral and Guarantee Requirement” shall mean, at any time, the requirement that:

(a) the Agent shall have received each Collateral Document required to be delivered (i) on the Escrow Release Date, pursuant to Section 4.3 and (ii) at such time as may be designated therein, pursuant to the Collateral Documents, Section 9.8, Section 9.9 or Section 9.21, in each case, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;

(b) all Obligations shall have been unconditionally guaranteed by each Guarantor, including those listed on Schedule I hereto on the Escrow Release Date; provided that, in addition, notwithstanding anything to the contrary contained in this Agreement, any Subsidiary of Holdings that is an obligor under any ABL Facility Indebtedness, any Junior Financing, Incremental Equivalent Debt, Permitted Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt, Permitted Junior Priority Refinancing Debt or any Permitted Refinancing of any thereof, shall be a Guarantor hereunder for so long as it is an obligor under such Indebtedness;

(c) on the Escrow Release Date (or with respect to Safeway and its Restricted Subsidiaries only, within 90 days after the Escrow Release Date (or such longer period as the Agent may agree in its sole discretion) with respect to Equity Interests where a security interest cannot be perfected by the filing of financing statements, delivery of the applicable certificated Equity Interests or notation on the books of the applicable issuer) the Obligations shall have been secured by a first-priority security interest in (i) all the Equity Interests of the Parent Borrower and each Co-Borrower, (ii) all Equity Interests of each Restricted Subsidiary that is not an Excluded Subsidiary and (iii) 65% of the voting Equity Interests and 100% of the nonvoting Equity Interests of each Restricted Subsidiary that is an Excluded Subsidiary described in clause (c) or (d) of the definition thereof directly owned by Parent Borrower, a Co-Borrower or any Guarantor, in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction);

(d) on the Escrow Release Date (or with respect to Safeway and its Restricted Subsidiaries only, within 90 days after the Escrow Release Date (or such longer period as the

 

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Agent may agree in its sole discretion) with respect to assets in which a security interest cannot be perfected by the filing of financing statements under the UCC or appropriate security agreements in the United States Patent and Trademark Office or the United States Copyright Office) the Obligations shall have been secured by a perfected security interest in substantially all tangible and intangible personal property of the Loan Parties (including Equity Interests and intercompany debt, accounts, inventory, machinery and equipment, accounts receivable, chattel paper, insurance proceeds, hedge agreement documents, instruments, indemnification rights, Tax refunds, cash, investment property, contract rights, Intellectual Property in the United States, other general intangibles, and proceeds of the foregoing), in each case with the priority required by the Collateral Documents and in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction); and

(e) (1) within 180 days following the Original Closing Date (or such longer period as the Agent may have agreed in its sole discretion) the Agent shall have received, with respect to each Existing Mortgaged Property, to the extent customary and appropriate (as determined by the Agent in its reasonable discretion) in the applicable jurisdiction, each of the following with respect to each property noted as a mortgaged property on Schedule 7(a)(ii) to the Perfection Certificate dated as of the Original Closing Date, and (2) within 180 days after the Escrow Release Date (or such longer period as the Agent may have agreed in its sole discretion), the Agent shall have received each of the following with respect to each property noted as a mortgaged property on Schedule 7(a)(ii) to the Perfection Certificate dated as of the Escrow Release Date, as such Perfection Certificate may be supplemented in accordance with Section 9.21 and (3) otherwise in accordance with Section 9.8(c), the Agent shall receive with respect to each Material Real Property each of the following in each of the cases set forth in clauses (1), (2) and (3) of this clause (e), subject to the limitations and exceptions of this Agreement and the Collateral Documents: (i) counterparts of a Mortgage with respect to such Mortgaged Property duly executed and delivered by the record owner or leasehold holder of such property in form suitable for filing or recording in all filing or recording offices that the Agent may reasonably deem necessary in order to create a valid and subsisting perfected first-priority Lien (subject only to Permitted Liens and other exceptions reasonably acceptable to the Agent) on the Mortgaged Property and/or rights described therein in favor of the Agent for the benefit of the Secured Parties and otherwise approved by the applicable local counsel for filing in the appropriate jurisdiction (which approval may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Agent), and evidence that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Agent (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited to the Fair Market Value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such Fair Market Value), (ii) in the case of any such Mortgaged Property located in the United States or to the extent customary in the jurisdiction of where such Mortgaged Property is located, fully paid policies of title insurance (or marked-up title insurance commitments having the effect of policies of title insurance) on the Mortgaged Property naming the Agent as the insured for its benefit and that of the Secured Parties and respective successors and assigns (the “Mortgage Policies”) issued by a nationally recognized title insurance company selected by the Parent Borrower and reasonably acceptable to the Agent (it being agreed that Fidelity National Title Company and First American Title Insurance Company are acceptable to the Agent) in form and substance and in an amount reasonably acceptable to the Agent (not to exceed the Fair Market Value of the real properties covered thereby), insuring the Mortgages to be valid subsisting first-priority Liens on the property described therein, free and clear of all Liens other than Permitted Liens and other Liens

 

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reasonably acceptable to the Agent, each of which shall (A) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount) and at commercially reasonable rates and (B) have been supplemented by such endorsements as shall be reasonably requested by the Agent if available in the jurisdiction in which the Mortgaged Property is located and if available on commercially reasonable terms; provided, however, the applicable Loan Party shall not be obligated to obtain a “creditor’s rights” or zoning endorsement; it being understood, however, that a “use verification” from the Planning & Zoning Resource Corporation will be provided in lieu thereof with respect to each Mortgaged Property in form and substance reasonably acceptable to the Agent), (iii) customary, favorable opinions of counsel to the Loan Parties with respect to the valid existence, corporate power and authority of such Loan Parties with respect to the granting of the Mortgages, each in form and substance reasonably satisfactory to the Agent (consistent with those required by Section 4.3(a)(xi)), (iv) (A) in the case of any such Mortgaged Property located in the United States having a Fair Market Value less than $15,000,000, either (i) such documentation required by the title insurance company or (ii) a survey or express map (or an existing survey or express map together with an “affidavit of no change”) of each Mortgaged Property, each sufficient in form to delete the standard survey exception in the title insurance policy insuring the Mortgage and provide the Agent with a “location” endorsement to such policy as shall be reasonably requested by the Agent to the extent customary in the jurisdiction where the Mortgaged Property is located and available at commercially reasonable rates and (B) in the case of any such Mortgaged Property located in the United States having a Fair Market Value equal to or in excess of $15,000,000, a survey or express map (or an existing survey or express map together with an “affidavit of no change”) of each Mortgaged Property, each sufficient in form to delete the standard survey exception in the title insurance policy and provide the Agent with endorsements to such policy as shall be reasonably requested by the Agent to the extent customary in the jurisdiction where the Mortgaged Property is located and available at commercially reasonable rates, (v) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto), duly executed and acknowledged by the appropriate Loan Parties, and (vi) in the case of any such Mortgaged Property located in the United States or to the extent customary in the jurisdiction of where such Mortgaged Property is located, a copy of a certificate as to coverage under the insurance policies required by Section 9.4, including, without limitation, flood insurance policies and the applicable provisions of the Collateral Documents, each of which shall be endorsed or otherwise amended to include a “Standard” or “New York” lender’s loss payable or mortgage endorsement (as applicable) and shall name the Agent, on behalf of the Secured Parties, as additional insured, and such other evidence of insurance related thereto, in each case, in form and substance reasonably satisfactory to the Agent; and (vii) with respect to any ground leased properties, to the extent they are required by the applicable lease and can be obtained with commercially reasonable efforts, estoppel and consent agreements executed by each of the lessors of the ground leased Material Real Properties along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) reasonable evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Agent’s reasonable judgment, to give constructive notice to third party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Agent;

 

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provided, however, that the foregoing definition shall not require, and the Financing Agreements shall not contain, any requirements as to the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with respect to any Excluded Property and any real property that does not constitute Material Real Property.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Financing Agreement to the contrary, the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the delivery of Mortgages, obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Restricted Subsidiary, if, and for so long as the Agent and the Parent Borrower reasonably agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or delivery of Mortgages, obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any adverse tax consequences to Holdings and its Affiliates (including the imposition of withholding or other material taxes)), shall be excessive or commercially unreasonable in view of the benefits to be obtained by the Lenders therefrom.

The Agent may grant extensions of time for the perfection of security interests in, or the delivery of the Mortgages and the obtaining of title insurance and surveys with respect to, particular assets and the delivery of assets (including extensions beyond the Escrow Release Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

No actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction).

“Collateral Documents” shall mean, collectively, the Escrow Agreement, the Security Agreement, each of the Mortgages, the Intercreditor Agreements, collateral assignments, security agreements, pledge agreements, intellectual property security agreements or other similar agreements delivered to the Agent pursuant to Section 4.3, Section 9.8, Section 9.9 or Section 9.21, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Agent for the benefit of the Secured Parties.

“Committed Loan Notice” shall mean a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.1(a), which, if in writing, shall be substantially in the form of Exhibit C hereto.

“Commitment” shall mean an Incremental Term Loan Commitment, Term B-3 Commitment, Term B-4 Commitment, Term B-5 Commitment, 2016-1 Term B-4 Commitment, 2016-2 Term B-4 Commitment, 2017-1 Term B-4 Commitment, 2016-1 Term B-5 Commitment, 2016-2 Term B-5 Commitment, 2017-1 Term B-5 Commitment, Term B-6 Commitment, 2016-1 Term B-6 Commitment, 2017-1 Term B-6 Commitment, 2018 Term B-7 Commitment, Term Commitment, Other Term Loan Commitment, Refinancing Term Commitment of a given Refinancing Series or Extended Term Loan of a given Term Loan Extension Series, as the context may require.

“Company Material Adverse Effect” shall mean (with each capitalized term other than “Safeway Merger Agreement” in this definition being defined pursuant to its definition in the Safeway

 

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Merger Agreement) any change, event, occurrence, development, effect, condition, circumstance or matter that, individually or in the aggregate, (i) has materially and adversely affected the assets, properties, business, financial condition or results of operation of the Company and Company Subsidiaries, taken as a whole, or (ii) would reasonably be expected to prevent or materially impair or delay the performance by the Company prior to the Effective Time of its obligations to consummate the transactions contemplated by the Safeway Merger Agreement; provided, however, that any change, event, occurrence, development, effect, condition, circumstance or matter resulting from or relating to any of the following shall not be considered, or taken into account in determining whether there has been a Company Material Adverse Effect: (a) except as it relates to clause (ii) above, the pendency, negotiation, consummation or public announcement of the Merger, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, Governmental Entities or employees; (b) global or national economic, monetary or financial conditions, including changes or developments in credit markets (including changes in prevailing interest or exchange rates), financial or securities markets (including the disruption thereof and any decline in the price of any security or market index), or economic, business or regulatory conditions anywhere in the world; (c) national or international political or social conditions; (d) the commencement, continuation or escalation of a war, armed hostilities or other international or national emergency, calamity or act of terrorism or any weather-related or other force majeure event or natural disaster or act of God or other comparable events or the worsening thereof; (e) any change in applicable Laws, GAAP, applicable stock exchange listing requirements, accounting principles or in the interpretation or enforcement thereof, in each case, after the date of the Safeway Merger Agreement; (f) the industries in which the Company and the Company Subsidiaries operate; (g) any failure to meet any internal or external projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position (except that the underlying cause of any such failure may be considered and taken into account in determining whether there has been a Company Material Adverse Effect); (h) any action taken or not taken by the Company or the Company Subsidiaries pursuant to the Safeway Merger Agreement (except as it relates to clause (ii) above) or at Ultimate Parent’s written request; (i) the identity of, or any facts or circumstances relating to, the Parent Entities or their respective Subsidiaries or (j) any change, event, occurrence, development, effect, condition, circumstance or matter arising out of or relating to any action taken in compliance with Section 5.9 of the Safeway Merger Agreement; provided, that the incremental extent of any disproportionate change, event, occurrence, development, effect, condition, circumstance or matter described in clauses (b), (c), (d), (e) or (f) with respect to the Company and the Company Subsidiaries, taken as a whole, relative to other similarly situated Persons in the food and drug retail business may be considered and taken into account in determining whether there has been a Company Material Adverse Effect.

“Compensation Period” shall have the meaning set forth in Section 2.6(c)(ii) hereto.

“Compliance Certificate” shall mean a compliance certificate in the form of Exhibit B hereto.

“Consolidated” shall mean, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.

“Consolidated First Lien Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date that is then secured by Liens on property or assets of the Albertson’s Group but excluding any such Indebtedness (other than obligations under the ABL Facility) in which the applicable Liens are expressly subordinated or junior to the Liens securing the Obligations, as of any date of determination to (b) EBITDA of the Albertson’s Group for the most recently ended Test Period on or prior to such date.

 

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“Consolidated Interest Expense” shall mean, for any Test Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Contracts, but excluding any non-cash or deferred interest or Swap Contract costs and (b) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Albertson’s Group for the most recently completed Test Period, all as determined on a Consolidated basis in accordance with GAAP.

“Consolidated Net Income” shall mean for any Test Period, the aggregate of the Net Income of the Albertson’s Group for such period, determined on a Consolidated basis in accordance with GAAP; provided, however, that:

(1) any net after-tax extraordinary, nonrecurring or unusual gains or losses shall be excluded;

(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;

(3) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by the Parent Borrower) shall be excluded;

(4) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness shall be excluded;

(5) the Net Income for such period of any Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period;

(6) an amount equal to the maximum amount of tax distributions permitted to be made to the holders of Equity Interests of such Person or any parent company of such Person in respect of such period in accordance with Section 10.6(i) shall be included as though such amounts had been paid as income taxes directly by such Person for such period;

(7) (a) the non-cash portion of “straight-line” rent expense shall be excluded and (b) the cash portion of “straight-line” rent expense which exceeds the amount expensed in respect of such rent expense shall be included;

(8) unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of ASC 830 shall be excluded;

(9) the income (or loss) of any non-consolidated entity during such Test Period in which any other Person has a joint interest shall be excluded, except to the extent of the amount of cash dividends or other distributions actually paid in cash to any of Albertson’s Group during such period; and

 

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(10) the income (or loss) of a Subsidiary during such Test Period and accrued prior to the date it becomes a Subsidiary of any of Albertson’s Group or is merged into or consolidated with any of Albertson’s Group or that Person’s assets are acquired by any of Albertson’s Group shall be excluded.

“Consolidated Non-cash Charges” shall mean, with respect to Albertson’s Group for any period, the aggregate depreciation, amortization, impairment, compensation, rent and other non-cash expenses of such Person and its Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and otherwise determined in accordance with GAAP (including non-cash charges resulting from purchase accounting in connection with the Original Closing Transactions, the Transactions or with any Acquisition or Disposition that is consummated after the Original Closing Date), but excluding (i) any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future period and (ii) the non-cash impact of recording the change in fair value of any embedded derivatives under ASC 815 and related interpretations as a result of the terms of any agreement or instrument to which such Consolidated Non-cash Charges relate.

“Consolidated Taxes” shall mean, with respect to Albertson’s Group on a consolidated basis for any period, provision for taxes based on income, profits or capital, including, without limitation, state franchise and similar taxes and including, without duplication, an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of such Person or any direct or indirect parent of such Person in respect of such period in accordance with Section 10.6(i), which shall be included as though such amounts had been paid as income taxes directly by such Person.

“Consolidated Total Debt” shall mean, as of any date of determination, (x) the aggregate principal amount of Indebtedness, including, without limitation, Capital Lease Obligations, of the Albertson’s Group outstanding on such date (with respect to the ABL Facility, the principal amount of Indebtedness of the Albertson’s Group outstanding on such date shall be based upon the amount drawn thereunder as of the applicable date of determination) minus (y) unrestricted cash and Cash Equivalents of the Albertson’s Group of up to $500,000,000 in aggregate principal amount (including cash restricted in favor of the Lenders and/or the lenders under the ABL Facility); provided that Consolidated Total Debt shall not include Indebtedness in respect of letters of credit, except to the extent of unreimbursed amounts thereunder.

“Consolidated Total Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date that is then secured by Liens on property or assets of the Albertson’s Group as of any date of determination to (b) EBITDA of the Albertson’s Group for the most recently ended Test Period on or prior to such date.

“Consolidated Working Capital” shall mean, with respect to the Albertson’s Group on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that, increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.

“Contractual Obligation” shall mean, as to any Person, any provision of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

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“Contribution Indebtedness” means Indebtedness, Disqualified Stock or Preferred Stock of Holdings or any of its Subsidiaries in an aggregate principal amount not greater than the aggregate amount of cash contributions made to the capital of the Borrowers or the Guarantors, provided that:

(1) such Contribution Indebtedness shall be Indebtedness with a stated maturity later than the stated maturity of the Term Loans at such time, and

(2) such Contribution Indebtedness (a) is incurred within 210 days after the making of such cash contributions and (b) is so designated as Contribution Indebtedness.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Credit Agreement Refinancing Indebtedness” shall mean (a) Permitted First Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt or (c) Permitted Unsecured Refinancing Debt, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, existing Term Loans, or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness has a maturity no earlier, and a Weighted Average Life to Maturity equal to or greater, than 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) such Indebtedness shall not have a greater principal amount (or accreted value, if applicable) than the principal amount (or accreted value, if applicable) of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees and expenses associated with the refinancing, (iii) the terms and conditions of such Indebtedness (except as otherwise provided in clause (ii) above and with respect to pricing, rate floors, discounts, premiums and optional prepayment or redemption terms) are substantially identical to, or (taken as a whole) are no more favorable to the lenders or holders providing such Indebtedness, than those applicable to the Refinanced Debt being refinanced (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness) (provided that a certificate of a Responsible Officer delivered to the Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Parent Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Agent notifies the Parent Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)), and (iv) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.

“Credit Card Issuer” shall mean any Person (other than a Loan Party) who issues or whose members issue credit cards or debit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc. or Discover Financial Services, Inc.

“Credit Card Processor” shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer

 

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and/or payment procedures with respect to any Loan Party’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.

“Credit Suisse” shall mean Credit Suisse AG, Cayman Islands Branch.

“Cumulative Credit” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:

(a) 50% of Consolidated Net Income for the period (treated as one accounting period) beginning the first day of the fiscal quarter after May 31, 2016 to the end of the most recent Test Period; plus

(b) the cumulative amount of cash and Cash Equivalent proceeds from (i) the sale of Qualified Capital Stock of Holdings or of any direct or indirect parent of Holdings after the Escrow Release Date and on or prior to such time (including upon exercise of warrants or options) which proceeds have been contributed as common equity to the capital of Holdings and (ii) the Qualified Capital Stock of a Borrower (or of Holdings or of any direct or indirect parent of Holdings) issued upon conversion of Indebtedness incurred after the Escrow Release Date of Holdings or any Restricted Subsidiary owed to a Person other than Holdings or a Restricted Subsidiary, in the case of each of subclause (i) and subclause (ii), not previously applied for a purpose other than use in the Cumulative Credit; plus

(c) 100% of the aggregate amount of contributions to the common capital of Holdings (other than from a Restricted Subsidiary) received in cash and Cash Equivalents after the Escrow Closing Date;

(d) the Net Proceeds of the sale or other Disposition of any Unrestricted Subsidiary received by Holdings or any Restricted Subsidiary; plus;

(e) Investments of Holdings or any Restricted Subsidiary in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into Holdings or any of the Restricted Subsidiaries (up to the greater of (i) the Fair Market Value of the Investments of Holdings and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (ii) the Fair Market Value of the original Investment by Holdings and its Restricted Subsidiaries in such Unrestricted Subsidiary); plus;

(f) to the extent not included in Consolidated Net Income, dividends or other distributions or returns on capital received from Holdings or any Restricted Subsidiary from an Unrestricted Subsidiary;

(g) returns, profits, distributions and similar amounts received in cash or Permitted Investments by Holdings and the Restricted Subsidiaries made using the Cumulative Credit;

(h) minus any amount of the Cumulative Credit used to make Restricted Payments pursuant to Section 10.6(f) after the Escrow Release Date and prior to such time.

provided that the use of the Cumulative Credit shall be subject to compliance with a minimum Interest Coverage Ratio of at least 2.00 to 1.00, calculated on a Pro Forma Basis.

“Cumulative Retained Disposition Amount” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to (a) the aggregate cumulative sum of the Retained Disposition Amounts with respect to all Applicable Dispositions after the Escrow Release Date and prior to such date minus (b) any amount of the Cumulative Retained Disposition Amount used to

 

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make Restricted Payments pursuant to Section 10.6(c) after the Escrow Release Date and prior to such date.

“Cumulative Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to the aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods ending after the Escrow Release Date and prior to such date.

“Current Assets” shall mean, with respect to the Albertson’s Group on a consolidated basis at any date of determination, all assets (other than cash and Cash Equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Albertson’s Group as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding assets held for sale, loans (permitted) to third parties, Pension Plan assets, deferred bank fees and derivative financial instruments).

“Current Liabilities” shall mean, with respect to the Albertson’s Group on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Albertson’s Group as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) the current portion of interest, (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves and (e) deferred revenue.

“DDA” shall mean each checking, savings or other demand deposit account maintained by any of the Loan Parties. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.

“Debt Fund Affiliate” shall mean any Affiliate of any Sponsor that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course.

“Debt Refinancing” means all obligations under any Indebtedness of Safeway and its Subsidiaries other than Indebtedness set forth on Schedule 1.05 hereto shall have been repaid on the Escrow Release Date, and all Liens securing such indebtedness shall have been released.

“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” shall mean an act condition or event which with notice or passage of time or both would constitute an Event of Default.

“Designated Non-Cash Consideration” means the Fair Market Value of non-cash consideration received by a Borrower or one of its Restricted Subsidiaries in connection with a Disposition that is so designated as Designated Non-Cash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to

 

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be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 10.5.

“Discount Range” shall have the meaning set forth in Section 2.3(c)(ii) hereto.

“Discounted Prepayment Option Notice” shall have the meaning set forth in Section 2.3(c)(ii) hereto.

“Discounted Voluntary Prepayment” shall have the meaning set forth in Section 2.3(c)(i) hereto.

“Discounted Voluntary Prepayment Notice” shall have the meaning set forth in Section 2.3(c)(v) hereto.

“Disposition” or “Dispose” shall mean the sale, transfer, assignment, exclusive license, lease or other disposition (including any sale and leaseback transaction) (whether in one transaction or in a series of transactions) of any property by any Person, including (i) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and (ii) any sale, transfer, assignment, or other disposition of any Equity Interests of another Person, but, for the avoidance of doubt, not the issuance by such Person of its Equity Interests).

“Disqualified Stock” shall mean, with respect to any Person, any Equity Interests that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event:

(1) matures or is mandatorily redeemable (other than solely for Equity Interests that do not constitute Disqualified Stock), pursuant to a sinking fund obligation or otherwise,

(2) is convertible or exchangeable for Indebtedness or Disqualified Stock at the option of the holder thereof, or

(3) is redeemable at the option of the holder thereof, in whole or in part,

in each case prior to 91 days after the Latest Maturity Date; provided, however, that only the portion of Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Equity Interests is issued to any employee or to any plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdings in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability; provided, further, that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that is not Disqualified Stock shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Stock solely because the holders thereof have the right to require Holdings or its Subsidiaries to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock.

“Divested Properties” shall mean the stores required to be divested, transferred or otherwise sold by the Albertson’s Group in connection with the Safeway Acquisition pursuant to an agreement with

 

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or order issued by the Department of Justice, the Federal Trade Commission or similar regulatory authority.

“Dollar” and “$” shall mean lawful money of the United States.

“Domestic Subsidiary” shall mean any Subsidiary of a Borrower that is organized under the Laws of the United States, any state thereof or the District of Columbia.

“Earn-Out Obligations” shall mean, with respect to any Acquisition, all obligations of any Loan Party or any Subsidiary thereof to make any cash earn-out payment, performance payment or similar obligation that is payable only in the event certain future performance goals are achieved with respect to the assets or business acquired pursuant to the documentation relating to such Acquisition, but excluding any working capital adjustments, indemnity obligations or payments for services or licenses provided by such sellers in such Acquisition.

“Eastern Division Assets” shall have the meaning given to such term in the recitals to this Agreement.

“Eastern Division Sale” shall mean the sale of the Eastern Division Assets to NAI pursuant to the Eastern Division Sale Agreement.

“Eastern Division Sale Agreement” shall have the meaning given to such term in the recitals to this Agreement.

“EBITDA” shall mean at any date of determination, an amount equal to the Consolidated Net Income of Albertson’s Group for the most recently completed Test Period plus, without duplication, to the extent the same was deducted in calculating such Consolidated Net Income:

(1) Consolidated Taxes; plus

(2) Consolidated Interest Expense; plus

(3) Consolidated Non-cash Charges; plus

(4) the amount of management, monitoring, consulting and advisory fees and related expenses paid to the Sponsor (or any accruals relating to such fees and related expenses) during such period to the extent otherwise permitted under Section 10.8; plus

(5) the Original Closing Date Transaction Payments and the Escrow Release Date Transaction Payments; plus

(6) any expenses or charges (other than Consolidated Non-cash Charges) related to any issuance of Equity Interests, Investment, Acquisition, Disposition, recapitalization or the incurrence or repayment or amendment of Indebtedness permitted to be incurred hereunder (including a refinancing thereof) (whether or not successful or meeting the dollar amount thresholds specified herein), including (i) such fees, expenses or charges related to the issuance of the Term Loans or ABL Facility Indebtedness, (ii) any amendment or other modification of this Agreement or other Indebtedness, and (iii) commissions, discounts, yield or other fees and charges (including any interest expense) related to any Qualified Receivables Financing; plus

 

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(7) the amount of loss on sale of receivables and related assets to a Receivables Subsidiary in connection with a Qualified Receivables Financing; plus

(8) any costs or expense incurred pursuant to any management equity plan or stock option plan or other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Parent Borrower or Safeway or the net cash proceeds of an issuance of Equity Interests of the Parent Borrower or Safeway (other than Disqualified Stock); plus

(9) the amount of any minority interest expense consisting of income of a Subsidiary attributable to minority equity interests of third parties in any non-wholly owned Subsidiary deducted in such period in calculating Consolidated Net Income, net of any cash distributions made to such third parties in such period; plus

(10) the amount of “run-rate” cost savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies projected by the Borrower in good faith to be realized as a result of actions taken or expected to be taken during, or expected to be taken within 18 months of the end of, such period (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (1) such cost savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies are reasonably identifiable and factually supportable, (2) no cost savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies may be added pursuant to this clause (10) to the extent duplicative of any expenses or charges relating thereto that are either excluded in computing Consolidated Net Income or included (i.e., added back) in computing EBITDA for such period, (3) such adjustments may be incremental to (but not duplicative of) pro forma adjustments made pursuant to Section 14.13 and (4) the aggregate amount of cost savings, operating expense reductions, restructuring charges and expenses and cost saving synergies added pursuant to this clause (10) shall not exceed (A) 25.0% of EBITDA for such four-quarter period plus (B) the amount of any such cost savings, operating expense reductions, restructuring charges and expenses and cost-savings synergies that would be permitted to be included in financial statements prepared in accordance with Regulation S-X under the Securities Act during such four-quarter period; plus

(11) Public Company Costs; plus

(12) any unusual, non-recurring or extraordinary expenses, losses or charges;

less, without duplication, (i) non-cash income or gain increasing Consolidated Net Income for such period, excluding any such items to the extent they represent (1) the reversal in such period of an accrual of, or reserve for, potential cash expense in a prior period, (2) any non-cash gains with respect to cash actually received in a prior period to the extent such cash did not increase Consolidated Net Income in a prior period or (3) items representing ordinary course accruals of cash to be received in future periods; plus (ii) any net gain from discontinued operations or net gains from the disposal of discontinued operations to the extent increasing Consolidated Net Income.

In addition, to the extent not already included in the Consolidated Net Income of Albertson’s Group, notwithstanding anything to the contrary in the foregoing, EBITDA shall include the amount of net cash proceeds received by Albertson’s Group from business interruption insurance.

 

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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Yield” shall mean, as to any Loans of any Class, the effective yield on such Loans, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the original stated life of such Loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such Loans, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared ratably with all relevant Lenders and consent fees paid generally to consenting Lenders.

“Eligible Transferee” shall mean (a) a Person that is a Lender, a U.S. based Affiliate of a Lender or an Approved Fund; (b) any other Person with the prior written consent of (i) the Agent (such approval not to be unreasonably withheld) and (ii) unless an Event of Default under Section 11.1(a)(i), 11.1(a)(ii), 11.1(g) or 11.1(h) exists, the Parent Borrower (such approval by the Parent Borrower, when required, not to be unreasonably withheld or delayed and to be deemed given by the Parent Borrower if no objection is received by the assigning Lender and Agent from the Parent Borrower within the earlier to occur of (x) three (3) Business Days after notice of such proposed assignment has been provided by the assigning Lender as set forth in Section 14.7 of this Agreement and acknowledged by the Parent Borrower or (y) five (5) Business Days after such notice has been provided to the Parent Borrower); provided that no consent of the Parent Borrower shall be required prior to the completion of primary syndication settlement of the Term B Loans; provided, further that no Person shall be an Eligible Transferee pursuant to this clause (b) if such Person is a direct competitor of any Loan Party identified in writing to the Agent by the Borrower prior to the effective time of the applicable assignment (unless at the time of assignment there is in process a liquidation of all or substantially all of the assets of the Parent Borrower, whether conducted by the Parent Borrower, Agent, a trustee for the Parent Borrower or a representative of creditors of the Parent Borrower), or is a Person identified as an ineligible transferee on a written list of such Persons that is delivered by the Parent Borrower to Agent prior to the Restatement Effective Date and (c) Sponsor, as provided in Section 14.7(h). Except as set forth in Section 2.3(c) and Section 14.7(h), no Loan Party shall be an Eligible Transferee. No natural person shall be an Eligible Transferee.

“Environmental Laws” shall mean any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution, the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials, air emissions and waste water discharges.

“Environmental Liability” shall mean any liability, obligation, damage, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise (including any liability for

 

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damages, natural resource damages, costs of environmental remediation, regulatory oversight fees, fines, penalties or indemnities), of any Loan Party or any of their respective Subsidiaries resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equipment” shall have the meaning set forth in the UCC.

“Equity Contribution” shall mean the new cash contributions (directly or indirectly) by the Sponsor to AB LLC, in an amount equal to $1,250,000,000 which will be contributed to Holdings as common and/or preferred equity of Holdings (provided that any such preferred equity shall be reasonably acceptable to the Arrangers).

“Equity Interests” shall mean with respect to any Person, all of the shares of capital stock of (or other ownership interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other ownership interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) under common control with Holdings within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Holdings or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent or in reorganization (within the meaning of Title IV of ERISA); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) with respect to a Pension Plan, a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived, a failure to make by its due date a required installment under Section 430(j) of the Code with respect to a Pension Plan or a failure to make a required contribution to a Multiemployer Plan; (g) a determination that a Pension Plan is, or is expected to be, in “at-risk” status (as defined in Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA); or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Borrower or any ERISA Affiliate.

“Escrow Account” shall mean the escrow account established with the Escrow Agent pursuant to the Escrow Agreement.

 

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“Escrow Account Funds” shall mean all cash, securities and other property held in or credited to the Escrow Account.

“Escrow Agent” shall mean Wilmington Trust, National Association.

“Escrow Agreement” shall mean the Escrow Agreement dated as of the Restatement Effective Date among the Parent Borrower, the Agent and the Escrow Agent, substantially in the form of Exhibit P.

“Escrow Collateral” shall mean “Collateral” as defined in the Escrow Agreement.

“Escrow Release Date Transaction Payments” shall mean transaction closing fees in an aggregate amount of $35,000,000 payable contemporaneously with the Escrow Release Date to the Sponsor (directly, or indirectly through AB LLC) and to management of the Loan Parties.

“Escrow Release Conditions” shall mean, collectively, the conditions set forth in Section 4.3.

“Escrow Release Date” shall mean the date on which the conditions set forth in Section 4.3 are satisfied and the proceeds of the Term B-3 Loans and the Term B-4 Loans are released from the Escrow Account to the Parent Borrower.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Eurodollar Rate” (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the ICE Benchmark Administration LIBOR Rate (“ICE LIBOR”), as published by Reuters (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Credit Suisse and with a term equivalent to such Interest Period would be offered by Credit Suisse’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) ICE LIBOR, at approximately 11:00 a.m., London time determined on such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by Credit Suisse’s London Branch to major banks in the London interbank Eurodollar market at their request at the date and time of determination; provided, in each case, that Eurodollar Rate shall not be less than 0.75% per annum.

“Eurodollar Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Eurodollar Rate in accordance with the terms hereof.

“Event of Default” shall mean the occurrence and continuation or existence of any event or condition described in Section 11.1 hereof after giving effect to the giving of any notice or any passage of time or both specified in such section with respect to such event or condition.

 

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“Excess Cash Flow” shall mean, for any period, an amount equal to:

(a) the sum, without duplication, of

(i) Consolidated Net Income for such period,

(ii) an amount equal to the amount of all Consolidated Non-cash Charges to the extent deducted in arriving at such Consolidated Net Income,

(iii) decreases in Consolidated Working Capital of the Albertson’s Group for such period (other than any such decreases arising from acquisitions or dispositions by the Albertson’s Group completed during such period including, without limitation, as a result of the Transactions), and

(iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Albertson’s Group during such period (other than sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income minus

(b) the sum, without duplication, of

(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges excluded pursuant to clauses (1) through (10) of the definition of “Consolidated Net Income,”

(ii) without duplication of amounts deducted pursuant to clause (xi) below in prior Fiscal Years, the amount of Capital Expenditures accrued or made in cash during such period, to the extent that such Capital Expenditures or acquisitions were financed with Internally Generated Cash,

(iii) the aggregate amount of all principal payments of Indebtedness of the Albertson’s Group (including (A) the principal component of payments in respect of Capital Leases and (B) the amount of any scheduled repayment of Loans pursuant to Section 2.2 and any mandatory prepayment of Term Loans pursuant to Section 2.3(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (X) all other voluntary and mandatory prepayments of Loans and (Y) all payments in respect of the ABL Credit Agreement or any other revolving credit facility made during such period (except to the extent there is an equivalent permanent reduction in commitments thereunder), to the extent financed with Internally Generated Cash,

(iv) an amount equal to the aggregate net non-cash gain on Dispositions by the Albertson’s Group during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,

(v) increases in Consolidated Working Capital of the Albertson’s Group for such period (other than any such increases arising from acquisitions or dispositions by the Albertson’s Group during such period including, without limitation, as a result of the Transactions),

(vi) scheduled cash payments by the Albertson’s Group during such period in respect of long-term liabilities of the Albertson’s Group other than Indebtedness,

 

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(vii) without duplication of amounts deducted pursuant to clause (xi) below in prior Fiscal Years, the amount of Investments and acquisitions made during such period by the Albertson’s Group pursuant to Section 10.2, and any expense for deferred compensation and bonuses, deferred purchase price or earn-out obligations paid in cash in connection with any such Investments or acquisitions, to the extent that such Investments and acquisitions were financed with Internally Generated Cash,

(viii) the amount of Restricted Payments paid during such period pursuant to Sections 10.6(e), 10.6(f)(x), 10.6(g) and 10.6(h) to the extent such Restricted Payments were financed with Internally Generated Cash,

(ix) the aggregate amount of expenditures actually made by the Albertson’s Group with Internally Generated Cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period,

(x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Albertson’s Group during such period that are required to be made in connection with any prepayment of Indebtedness,

(xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration including related fees and expenses required to be paid in cash by the Albertson’s Group pursuant to binding contracts or executed letters of intent (the “Contract Consideration”) entered into prior to or during such period relating to acquisitions and Investments permitted pursuant to Section 10.2, Permitted Acquisitions or Capital Expenditures or acquisitions of intellectual property to be consummated or made to the extent not expensed, plus any restructuring cash expenses, pension payments or tax contingency payments that have been added to Excess Cash Flow pursuant to clause (a)(ii) above required to be made, in each case during the period of four consecutive fiscal quarters of Holdings following the end of such period; provided that to the extent the aggregate amount of Internally Generated Cash actually utilized to finance such acquisitions, Investments, Permitted Acquisitions, Capital Expenditures or acquisitions of Intellectual Property during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,

(xii) the amount of cash taxes paid in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and any cash taxes to be paid within six months after the close of such Excess Cash Flow Period, (xiii) cash expenditures in respect of Swap Contracts during such Fiscal Year to the extent not deducted in arriving at such Consolidated Net Income and

(xiii) any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset.

Notwithstanding anything in the definition of any term used in the definition of “Excess Cash Flow” to the contrary, all components of Excess Cash Flow shall be computed for the Albertson’s Group on a consolidated basis.

 

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“Excess Cash Flow Period” shall mean each Fiscal Year of Holdings commencing with and including the Fiscal Year ending February 26, 2015 (but in the case of the Fiscal Year ending February 26, 2015, the period starting on the first day of the first full Quarterly Accounting Period commencing after the Escrow Release Date and ending February 26, 2015).

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Exchange 2016-1 Term B-4 Commitment” means, with respect to a 2016-1 Term B-4 Lender, the agreement of such 2016-1 Term B-4 Lender to exchange the entire principal amount of its 2016-1 Term B-4 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2016-2 Term B-4 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange 2016-1 Term B-4 Lender” means a 2016-1 Term B-4 Lender with an Exchange 2016-1 Term B-4 Commitment to exchange 2016-1 Term B-4 Loans into Exchange 2016-2 Term B-4 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange 2016-1 Term B-4 Loan” means a Loan that is deemed made pursuant to Section 2.1(b).

“Exchange 2016-1 Term B-5 Commitment” means, with respect to a 2016-1 Term B-5 Lender, the agreement of such 2016-1 Term B-5 Lender to exchange the entire principal amount of its 2016-1 Term B-5 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2016-2 Term B-5 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange 2016-1 Term B-5 Lender” means a 2016-1 Term B-5 Lender with an Exchange 2016-1 Term B-5 Commitment to exchange 2016-1 Term B-5 Loans into Exchange 2016-2 Term B-5 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange 2016-1 Term B-5 Loan” means a Loan that is deemed made pursuant to Section 2.1(c).

“Exchange 2016-1 Term B-6 Commitment” means, with respect to a 2016-1 Term B-6 Lender, the agreement of such 2016-1 Term B-6 Lender to exchange the entire principal amount of its 2016-1 Term B-6 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2017-1 Term B-6 Loans on the Amendment No. 6 (2017-1) Effective Date.

“Exchange 2016-1 Term B-6 Lender” means a 2016-1 Term B-6 Lender with an Exchange 2016-1 Term B-6 Commitment to exchange 2016-1 Term B-6 Loans into Exchange 2017-1 Term B-6 Loans on the Amendment No. 6 (2017-1) Effective Date.

“Exchange 2016-1 Term B-6 Loan” means a Loan that is deemed made pursuant to Section 2.1(g).

“Exchange 2016-2 Term B-4 Commitment” means, with respect to a 2016-2 Term B-4 Lender, the agreement of such 2016-2 Term B-4 Lender to exchange the entire principal amount of its 2016-2 Term B-4 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2017-1 Term B-4 Loans on the Amendment No. 6 (2017-1) Effective Date.

 

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“Exchange 2016-2 Term B-4 Lender” means a 2016-2 Term B-4 Lender with an Exchange 2016-2 Term B-4 Commitment to exchange 2016-2 Term B-4 Loans into Exchange 2017-1 Term B-4 Loans on the Amendment No. 6 (2017-1) Effective Date.

“Exchange 2016-2 Term B-4 Loan” means a Loan that is deemed made pursuant to Section 2.1(e).

“Exchange 2016-2 Term B-5 Commitment” means, with respect to a 2016-2 Term B-5 Lender, the agreement of such 2016-2 Term B-5 Lender to exchange the entire principal amount of its 2016-2 Term B-5 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2017-1 Term B-5 Loans on the Amendment No. 6 (2017-1) Effective Date.

“Exchange 2016-2 Term B-5 Lender” means a 2016-2 Term B-5 Lender with an Exchange 2016-2 Term B-5 Commitment to exchange 2016-2 Term B-5 Loans into Exchange 2017-1 Term B-5 Loans on the Amendment No. 6 (2017-1) Effective Date.

“Exchange 2016-2 Term B-5 Loan” means a Loan that is deemed made pursuant to Section 2.1(f).

“Exchange 2017-1 Term B-4 Commitment” means, with respect to a 2017-1 Term B-4 Lender, the agreement of such 2017-1 Term B-4 Lender to exchange the entire principal amount of its 2017-1 Term B-4 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2018 Term B-7 Loans on the Amendment No. 7 (2018) Effective Date.

“Exchange 2017-1 Term B-4 Lender” means a 2017-1 Term B-4 Lender with an Exchange 2017-1 Term B-4 Commitment to exchange 2017-1 Term B-4 Loans into Exchange 2018 Term B-7 Loans on the Amendment No. 7 (2018) Effective Date.

“Exchange 2017-1 Term B-4 Loan” means a Loan that is deemed made pursuant to Section 2.1(h).

“Exchange 2017-1 Term B-5 Loan” means a Loan that is deemed made pursuant to Section 2.1(i).

“Exchange 2017-1 Term B-6 Loan” means a Loan that is deemed made pursuant to Section 2.1(j).

“Exchange 2018 Term B-7 Loan” means a Loan that is deemed made pursuant to Section 2.1(k).

“Exchange Term B-2/B-3 Commitment” means, with respect to a Term B-2 Lender or a Term B-3 Lender, the agreement of such Term B-2 Lender or Term B-3 Lender to exchange the entire principal amount of its Term B-2 Loans and/or or Term B-3 Loans (or, in each case, such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange Term B-6 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-2 Lender” means a Term B-2 Lender with an Exchange Term B-2/B-3 Commitment to exchange its Term B-2 Loans into Exchange Term B-6 Loans on the Amendment No. 4 (B-6) Effective Date.

 

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“Exchange Term B-3 Lender” means a Term B-3 Lender with an Exchange Term B-2/B-3 Commitment to exchange Term B-3 Loans into Exchange Term B-6 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-4 Commitment” means, with respect to a Term B-4 Lender, the agreement of such Term B-4 Lender to exchange the entire principal amount of its Term B-4 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2016-1 Term B-4 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-4 Lender” means a Term B-4 Lender with an Exchange Term B-4 Commitment to exchange Term B-4 Loans into Exchange 2016-1 Term B-4 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-5 Commitment” means, with respect to a Term B-5 Lender, the agreement of such Term B-5 Lender to exchange the entire principal amount of its Term B-5 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2016-1 Term B-5 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-5 Lender” means a Term B-5 Lender with an Exchange Term B-5 Commitment to exchange Term B-5 Loans into Exchange 2016-1 Term B-5 Loans on the Amendment No. 4 (B-6) Effective Date.

“Exchange Term B-6 Commitment” means, with respect to a Term B-6 Lender, the agreement of such Term B-6 Lender to exchange the entire principal amount of its Term B-6 Loans (or such lesser amount allocated to it by the Administrative Agent) for an equal principal amount of Exchange 2016-1 Term B-6 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange Term B-6 Lender” means a Term B-6 Lender with an Exchange Term B-6 Commitment to exchange Term B-6 Loans into Exchange 2016-1 Term B-6 Loans on the Amendment No. 5 (2016-2) Effective Date.

“Exchange Term B-6 Loan” means a Loan that is deemed made pursuant to Section 2.1(d).

“Exchanged 2016-1 Term B-4 Loan” means each 2016-1 Term B-4 Loan as to which the Lender thereof has consented to exchange into an Exchange 2016-2 Term B-4 Loan and the Administrative Agent has allocated into an Exchange 2016-2 Term B-4 Loan.

“Exchanged 2016-1 Term B-5 Loan” means each Term 2016-1 B-5 Loan as to which the Lender thereof has consented to exchange into an Exchange 2016-2 Term B-5 Loan and the Administrative Agent has allocated into an Exchange 2016-2 Term B-5 Loan.

“Exchanged 2016-1 Term B-6 Loan” means each 2016-1 Term B-6 Loan as to which the Lender thereof has consented to exchange into an Exchange 2017-1 Term B-6 Loan and the Administrative Agent has allocated into an Exchange 2017-1 Term B-6 Loan.

“Exchanged 2016-2 Term B-4 Loan” means each 2016-2 Term B-4 Loan as to which the Lender thereof has consented to exchange into an Exchange 2017-1 Term B-4 Loan and the Administrative Agent has allocated into an Exchange 2017-1 Term B-4 Loan.

 

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“Exchanged 2016-2 Term B-5 Loan” means each 2016-2 Term B-5 Loan as to which the Lender thereof has consented to exchange into an Exchange 2017-1 Term B-5 Loan and the Administrative Agent has allocated into an Exchange 2017-1 Term B-5 Loan.

“Exchanged 2017-1 Term B-4 Loan” means each 2017-1 Term B-4 Loan as to which the Lender thereof has consented to exchange into an Exchange 2018 Term B-7 Loan and the Administrative Agent has allocated into an Exchange 2018 Term B-7 Loan.

“Exchanged Term B-2 Loan” means each Term B-2 Loan as to which the Lender thereof has consented to exchange into an Exchange Term B-6 Loan and the Administrative Agent has allocated into an Exchange Term B-6 Loan.

“Exchanged Term B-3 Loan” means each Term B-3 Loan as to which the Lender thereof has consented to exchange into an Exchange Term B-6 Loan and the Administrative Agent has allocated into an Exchange Term B-6 Loan.

“Exchanged Term B-4 Loan” means each Term B-4 Loan as to which the Lender thereof has consented to exchange into an Exchange 2016-1 Term B-4 Loan and the Administrative Agent has allocated into an Exchange 2016-1 Term B-4 Loan.

“Exchanged Term B-5 Loan” means each Term B-5 Loan as to which the Lender thereof has consented to exchange into an Exchange 2016-1 Term B-5 Loan and the Administrative Agent has allocated into an Exchange 2016-1 Term B-5 Loan.

“Exchanged Term B-6 Loan” means each Term B-6 Loan as to which the Lender thereof has consented to exchange into an Exchange 2016-1 Term B-6 Loan and the Administrative Agent has allocated into an Exchange 2016-1 Term B-6 Loan.

“Excluded Contributions” means the net cash proceeds, property or assets received by Holdings or its Restricted Subsidiaries from:

(1) contributions to its common equity capital, and

(2) the issuance or sale (other than to a Restricted Subsidiary of Holdings or to Holdings or Restricted Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Equity Interests of Holdings.

“Excluded Property” has the meaning ascribed to such term in the Security Agreement.

“Excluded Subsidiary” shall mean (a) any Immaterial Subsidiary, (b) any Subsidiary acquired following the Original Closing Date that is prohibited from guaranteeing the Obligations by applicable Law or Contractual Obligations that are in existence at the time of acquisition and not entered into in contemplation thereof or if guaranteeing the Obligation would require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval license or authorization has been obtained), (c) any Foreign Subsidiary, (d) any Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes and that has no material assets other than the stock of one or more Foreign Subsidiaries that are CFCs, (e) any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (f) any non-for-profit Subsidiaries, (g) any Unrestricted Subsidiaries, (h) any special purpose securitization vehicle (or similar entity), including any Receivables Subsidiary, (i) any Real Estate Financing Loan Party, (j) at Parent Borrower’s election, any Domestic Subsidiary that is not a wholly owned Subsidiary of Holdings, (k) any Captive Insurance Subsidiary, and (l) any other

 

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Subsidiary with respect to which, in the reasonable judgment of the Agent and the Parent Borrower, the burden or cost (including any adverse tax consequences) of providing the guarantee shall outweigh the benefits to be obtained by the Lenders therefrom; provided that no Subsidiary that guarantees the ABL Credit Agreement, Permitted Ratio Debt, Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or any other Junior Financing shall be deemed to be an Excluded Subsidiary at any time any such guarantee is in effect; provided further that in no event shall any Co-Borrower be an Excluded Subsidiary.

“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving any “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time such guarantee or grant of a security interest by such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.

“Excluded Taxes” shall mean, with respect to any Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Financing Agreement, (a) taxes imposed on or measured by such recipient’s net income (however denominated), franchise taxes and branch profits taxes, in each case imposed by a jurisdiction as a result of such recipient being organized or having its principal office located in or, in the case of any Lender, having its applicable Lending Office located in, such jurisdiction or as a result of any other present or former connection between such recipient and such jurisdiction (other than a connection arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, and/or enforced, any Financing Agreements, or sold or assigned any interest in any Loan or Financing Agreement), (b) in the case of a Lender (other than any Lender becoming a party hereto pursuant to a request by any Loan Party under Section 6.2), any U.S. federal withholding tax that is imposed on amounts payable to such Lender pursuant to a law in effect at the time such Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to receive additional amounts from the Loan Parties with respect to such withholding tax pursuant to Section 6.1, (c) any taxes attributable to a Lender’s failure to comply with Section 6.1(d), and (d) any U.S. federal withholding taxes imposed under FATCA.

“Executive Order” shall have the meaning set forth in Section 8.20.

“Existing Debt Facility” shall mean the Term Loan Agreement, dated as of March 21, 2013, by and among the Parent Borrower, Holdings, the guarantors party thereto, the lenders party thereto and Citibank, N.A., as agent, as amended, restated, amended and restated or otherwise modified before the Escrow Release Date.

“Existing Mortgaged Property” shall mean each Mortgaged Property encumbered by a Mortgage as of the date hereof.

 

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“Existing Safeway Debentures” shall mean, to the extent not otherwise retired, repaid, redeemed, discharged or defeased, Safeway’s 7.45% Debentures due 2027 and 7.25% Debentures due 2031.

“Existing Safeway Notes” shall mean, to the extent not otherwise retired, repaid, redeemed, discharged or defeased, Safeway’s 5.00% Senior Notes due 2019, 3.95% Notes due 2020, 4.75% Senior Notes due 2021 and not more than $80,000,000 in principal amount of Safeway’s 3.40% Senior Notes due 2016 and not more than $100,000,000 in principal amount of Safeway’s 6.35% Senior Notes due 2017.

“Existing Term Loan Tranche” shall have the meaning set forth in Section 2.10(a) hereto.

“Existing Term Loans” shall have the meaning set forth in Section 2.10(a) hereto.

“Extended Term Loan” shall have the meaning set forth in Section 2.10(a) hereto.

“Extending Term Lender” shall have the meaning set forth in Section 2.10(b) hereto.

“Extension Amendment” shall have the meaning set forth in Section 2.10(c) hereto.

“Extension Election” shall have the meaning set forth in Section 2.10(b) hereto.

“Facility” shall mean the Term B-2 Loans, the Term B-3 Loans, the Term B-4 Loans, the Term B-5 Loans, the 2016-1 Term B-4 Loans, the 2016-2 Term B-4 Loans, the 2017-1 Term B-4 Loans, the 2016-1 Term B-5 Loans, the 2016-2 Term B-5 Loans, 2017-1 Term B-5 Loans, the Term B-6 Loans, the 2016-1 Term B-6 Loans, 2017-1 Term B-6 Loans, 2018 Term B-7 Loans, a given Refinancing Series of Refinancing Term Loans, a given Term Loan Extension Series of Extended Term Loans or a given Class of Incremental Term Loans, as the context may require.

“Fair Market Value” shall mean, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction as determined by the Parent Borrower in its good faith discretion. Fair Market Value may be (but need not be) conclusively established by means of an officer’s certificate or resolutions of the Board of Directors of the Parent Borrower setting out such Fair Market Value as determined by such Officer or such Board of Directors in good faith.

“Farm Products” shall mean crops, livestock, supplies used or produced in a farming operation and products of crops or livestock and including farm products as such term is defined in the Food Security Act and the UCC.

“FATCA” shall mean Sections 1471 through 1474 of the Code as in effect on the Original Closing Date (and as amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future United States Treasury Department regulations or other official administrative interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the current Code (or any amended or successor version described above) and any intergovernmental agreements (and any related laws or official administrative guidance) implementing the foregoing.

“Federal Funds Effective Rate” shall mean on any day, the rate per annum (rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted average of the rates on overnight

 

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federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next succeeding Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Effective Rate for such day shall be the average rate charged to Credit Suisse on such day on such transactions, as determined in good faith by Credit Suisse.

“Fee Letter” shall mean the second amended and restated Fee Letter agreement, dated April 3, 2014, as amended on April 24, 2014, by and among Holdings, the Arrangers, the Co-Documentation Agents, Bank of America, N.A., Credit Suisse, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank AG New York Branch, PNC Bank National Association, U.S. Bancorp Investments, Inc., U.S. Bank National Association and SunTrust Bank.

“Financing Agreements” shall mean, collectively, this Agreement, the Collateral Documents, and all notes, guarantees, security agreements, deposit account control agreements, investment property control agreements, other intercreditor agreements and all other agreements, documents and instruments now or at any time hereafter executed and/or delivered by any Loan Party in connection with this Agreement.

“Fiscal Intermediary” shall mean any qualified insurance company or other Person that has entered into an ongoing relationship with any Governmental Authority to make payments to payees under Medicare, Medicaid or any other federal, state or local public health care or medical assistance program pursuant to any of the Health Care Laws.

“Fiscal Month” shall mean any four (4) week Accounting Period of Holdings.

“Fiscal Year” shall mean, subject to Section 10.10, any period of 13 consecutive Accounting Periods ending on or about the Thursday closest to the last day of February of each calendar year.

“Fixtures” shall have the meaning set forth in the UCC.

“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004, (v) the Biggert-Waters Flood Insurance Reform Act of 2012 and (vi) the Homeowner Flood Insurance Affordability Act of 2014, as now or hereafter in effect, or, in each case, any successor statute thereto.

“Food Security Act” shall mean the Food Security Act of 1985, 7 U.S.C. Section 1631 et. seq., as the same now exists or may hereafter from time to time be amended, modified, recodified or supplemented, together with all rules and regulations thereunder.

“Foreign Assets Control Regulations” shall have the meaning set forth in Section 8.20 hereto.

“Foreign Lender” shall mean any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.

“Foreign Subsidiary” shall mean any Subsidiary of a Borrower which is not a Domestic Subsidiary.

“FRB” shall mean the Board of Governors of the Federal Reserve System of the United States.

 

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