Exhibit 10.21
FIFTH AMENDMENT
TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
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FIFTH AMENDMENT dated as of March 7, 1997 (this "Amendment") to the
AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 15, 1995 (as modified
by the Waiver and First Amendment thereto dated as of February 16, 1996, the
Second Amendment thereto dated as of May 10, 1996, the Third Amendment
thereto dated as of September 11, 1996 and the Fourth Amendment thereto dated
as of January 13, 1997, the "Credit Agreement"), each among THE GRAND UNION
COMPANY, a Delaware corporation (the "Borrower"), the institutions from time
to time party thereto as lenders (the "Banks") and BANKERS TRUST COMPANY, as
agent (the "Agent"). Capitalized terms used herein and not defined herein
shall have the respective meanings set forth for such terms in the Credit
Agreement.
W I T N E S S E T H :
WHEREAS, the Borrower desires to issue and sell to Xxxxx X.
Xxxxxxxxxx, the Chairman of its Board of Directors, 60,000 shares of its
Class A Convertible Preferred Stock, stated value $50.00 per share, for an
aggregate purchase price of $3,000,000 (such transaction, the "Xxxxxxxxxx
Convertible Preferred Stock Sale");
WHEREAS, in connection therewith, the Borrower has requested that
the Credit Agreement be amended to, among other things:
(a) permit the Xxxxxxxxxx Convertible
Preferred Stock Sale; and
(b) make the mandatory prepayment
obligations of the Borrower under Section 4.2(A)(e) of
the Credit Agreement inapplicable to the Net Equity
Issuance Proceeds received by the Borrower pursuant
to the Xxxxxxxxxx Convertible Preferred Stock Sale; and
WHEREAS, subject to and upon the terms and conditions hereinafter
set forth and in the Credit Agreement as amended hereby, the Banks party
hereto are agreeable to the foregoing;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
Section 1. Amendments. Subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, the Credit Agreement is
hereby amended effective as of the date hereof (the "Effective Date") as
follows:
(a) Section 4.2(A)(e) of the Credit
Agreement is amended by replacing clause (z) thereof with
the following:
", and (z) issuances of convertible preferred stock of
the Borrower and issuances of common stock of the
Borrower on conversion of such convertible preferred
stock (but only so long as no consideration (other than
the preferred stock being converted) is received by the
Borrower or any of its Subsidiaries in connection with
such conversion), in each case pursuant to the
Convertible Preferred Stock Documents".
(b) Section 8.7 of the Credit Agreement is
amended by inserting the phrase "or the Xxxxxxxxxx
Stockholder Agreement" at the end of clause (iv) thereof.
(c) Section 8.13 of the Credit Agreement is
amended by replacing the parenthetical at the end of clause
(iv) thereof with the following:
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"(other than issuances of convertible preferred stock
of the Borrower pursuant to the Convertible Preferred
Stock Documents)".
(d) Section 9.12 of the Credit Agreement is
amended by replacing the term "Convertible Preferred Stock
Documents" each place it appears in clauses (ii) and (iv)
thereof with the term "Convertible Preferred Stock Purchase
Agreement".
(e) The definition of the term "Convertible
Preferred Stock Documents" contained in Section 10 of the
Credit Agreement is amended in its entirety to read as
follows:
"'Convertible Preferred Stock Documents' shall mean (a) the
Convertible Preferred Stock Purchase Agreement, (b) the Xxxxxxxxxx
Convertible Preferred Stock Purchase Agreement and (c) the Certificate of
Designation of Class A Convertible Preferred Stock, stated value $50.00 per
share, of the Borrower (the "Class A Certificate of Designation"); as each of
the same may from time to time be amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof and thereof. For
purposes of this Agreement, 'issuance of convertible preferred stock of the
Borrower pursuant to the Convertible Preferred
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Stock Documents', 'sales of convertible preferred stock of the Borrower
pursuant to the Convertible Preferred Stock Documents', 'Net Equity Issuance
Proceeds received by the Borrower pursuant to the Convertible Preferred Stock
Documents' and words of similar import do not include any sales or issuances
of convertible preferred stock or any Net Equity Issuance Proceeds other
than, as applicable: (i) the sale and issuance of (and Net Equity Issuance
Proceeds received by the Borrower in respect of) up to 2,000,000 shares of
the Borrower's Class A Convertible Preferred Stock for $50.00 per share in
cash pursuant to the Convertible Preferred Stock Purchase Agreement, (ii) the
sale and issuance of (and Net Equity Issuance Proceeds received by the
Borrower in respect of) up to 60,000 shares of the Borrower's Class A
Convertible Preferred Stock for $50.00 per share in cash pursuant to the
Xxxxxxxxxx Convertible Preferred Stock Purchase Agreement, and (iii)
issuances, for no consideration, pursuant to the terms of the Class A
Certificate of Designation as in effect on the Amendment No. 3 Effective Date
of shares of the Borrower's Class A Convertible Preferred Stock or common
stock as dividends on, and of common stock upon conversion of, outstanding
shares of convertible preferred stock of the Borrower permitted by this
Agreement."
(f) The definition of the term "Cumulative
EBITDA Minus Adjusted Cumulative Consolidated Capital
Expenditures" contained in Section 10 of the Credit
Agreement is amended by deleting the phrase "as in effect on
the Amendment No. 3 Effective Date" in clause (iii) thereof.
(g) The definition of the term "Fixed Charge
Coverage Ratio" contained in Section 10 of the Credit
Agreement is amended by deleting the phrase "as in effect on
the Amendment No. 3 Effective Date" in clause (i)(C)
thereof.
(h) The definition of the term "Net Equity
Proceeds Carryover Amount" contained in Section 10 of the
Credit Agreement is amended by deleting the phrase "as in
effect on the Amendment No. 3 Effective Date" each place
such phrase appears therein.
(i) The following definitions of new terms
are inserted in Section 10 of the Credit Agreement in
alphabetical order:
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"'Xxxxxxxxxx Convertible Preferred Stock Purchase
Agreement' shall mean the Stock Purchase Agreement
dated as of February 25, 1997 between the Borrower and
Xxxxx Xxxxxxxxxx."
"'Xxxxxxxxxx Stockholder Agreement' shall mean the
Stockholder Agreement dated as of February 25, 1997 by
and among the Convertible Preferred Stock Purchasers,
Xxxxx Xxxxxxxxxx and the Borrower."
Section 2. Representations and Warranties. The
Borrower hereby represents and warrants to the Agent and
each Bank that on and as of the Effective Date:
(a) no Default or Event of Default has occurred
and is continuing; and
(b) the representations and warranties of
the Borrower and the other Credit Parties contained in the
Credit Agreement and the other Credit Documents are true and
correct on and as of such date as if made on and as of such
date after giving effect to the amendments contemplated
hereby, except to the extent such representations and
warranties expressly relate to a different specific date.
Section 3. Effectiveness. The amendments to the
Credit Agreement set forth in Section 1 hereof shall become
effective as of the Effective Date when:
(a) the Agent shall have executed and delivered
a counterpart of this Amendment and received duly executed
counterparts of this Amendment from the Borrower, each
Subsidiary of the Borrower that is a party to any Credit
Document and as many of the Banks as shall be necessary to
comprise the "Required Banks" or the "Required Class
Creditors", as the case may be; and
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(b) the Borrower shall have delivered to the
Agent an executed certificate of the Borrower, dated as of
the later of the Effective Date and the date the condition
in paragraph (a) above has been satisfied, stating that
attached thereto is a true and complete copy of (i) the
Xxxxxxxxxx Convertible Preferred Stock Purchase Agreement
and (ii) the Xxxxxxxxxx Stockholder Agreement (as defined in
the Credit Agreement after giving effect to this Amendment),
in each case as in effect on the date of such certificate,
and that, except as noted in such certificate or otherwise
disclosed to the Agent in writing, such agreements do not
vary in any material respect from the execution versions
thereof provided to the Agent prior to its execution hereof.
Section 4. Status of Credit Documents. (a) This
Amendment is limited solely for the purposes and to the
extent expressly set forth herein, and, except as expressly
modified hereby, (i) the terms, provisions and conditions of
the Credit Documents, (ii) the terms and provisions of the
Further Assurances Agreement dated as of June 15, 1995, as
modified in writing prior to the date hereof, between the
Borrower and the Agent, and (iii) the Liens granted under
the Credit Documents shall continue in full force and effect
and are hereby ratified and confirmed in all respects.
(b) Without limiting the foregoing, this
Amendment (including, without limitation, the confirmations
made pursuant to paragraph (c) below) shall not be construed
in any respect as, and is not intended to be: (i) a consent
by the Agent or any Bank to the consummation by the Borrower
of any of the transactions contemplated by the Convertible
Preferred Stock Documents (as used in this Section 4, such
term has the meaning specified in the Credit Agreement after
giving effect to this Amendment) or the performance by the
Borrower of any term
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or provision of any Convertible Preferred Stock Document (including, without
limitation, the Certificate of Designation for the Class A Preferred Stock of
the Borrower, stated value $50.00 per share), in any such case that is
prohibited by the Credit Agreement, as expressly amended hereby, or (ii) a
waiver by the Agent or any Bank of (A) any violation of the Credit Agreement,
as expressly amended hereby, or any Default or Event of Default thereunder
that in any such case arises as a result of the performance or observance by
the Borrower of any of its covenants, agreements and obligations under, or
the consummation of any transaction contemplated by, any Convertible
Preferred Stock Document (including, without limitation, any such violation,
Default or Event of Default that would arise under Section 8.6 of the Credit
Agreement as a result of the performance by the Borrower of any obligation of
the Borrower under the Convertible Preferred Stock Documents to pay cash
dividends on, or redeem, any shares of stock issued and/or sold pursuant
thereto), or (B) any rights and remedies arising in favor of the Agent or any
Bank under the Credit Documents or otherwise as a result of the occurrence of
any such violation, Default or Event of Default.
(c) The Borrower acknowledges that the
performance by the Borrower of its following obligations
under the Convertible Preferred Stock Documents will, unless
consented to in writing by the requisite Banks after the
Effective Date, result in a violation of, and constitute an
Event of Default under, the Credit Agreement as amended
hereby: (i) any obligation of the Borrower under the
Convertible Preferred Stock Documents to pay cash dividends
(in whole or in part) on, or purchase, redeem or otherwise
acquire (in whole or in part) for cash, any shares of
convertible preferred stock issued from time to time
pursuant to the Convertible Preferred Stock Documents, and
(ii) any obligation of the Borrower under the Convertible
Preferred Stock Documents to pay to any pur-
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chaser of its Class A Convertible Preferred Stock, stated value $50.00 per
share, or any of their respective Affiliates any management or similar fee at
any time that a Default or an Event of Default has occurred and is
continuing. Each of the Agent and the Borrower confirms to each other on the
terms set forth in paragraph (b) above that it does not have any actual
knowledge that any other term or provisions of the Convertible Preferred
Stock Documents conflicts (or that the performance thereof could conflict)
with the terms and provisions of the Credit Agreement as amended hereby.
(d) No amendment made to the Credit
Agreement pursuant to this Amendment shall relieve the
Borrower from complying with any other term or provision of
the Credit Agreement as amended hereby.
Section 5. Counterparts. This Amendment may be
executed and delivered in any number of counterparts and by
the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an
original, but all of which shall together constitute one and
the same instrument. A complete set of counterparts shall
be lodged with the Borrower and the Agent.
Section 6. Governing Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers to execute and deliver this Fifth Amendment to the
Amended and Restated Credit Agreement as of the date first above written.
THE GRAND UNION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
BANKERS TRUST COMPANY,
Individually and as Agent
By: /s/ Xxxx Xxx Xxxxx
--------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: VP
BANK POLSKA KASA OPIEKI, SA
By:
------------------------------
Name:
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Title:
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COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx X'Xxxxx
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Name: Xxxxx X'Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Division Executive
FLEET CAPITAL CORPORATION
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: AVP
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XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD
By: Protective Asset Management, L.L.C.
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx CPA, CFA
Title: President
Protective Asset Management, L.L.C.
QUANTUM PARTNERS LDC
By:
------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxxx
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Name:
Title:
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice Pres.
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
The foregoing Fifth Amendment to the Amended and Restated Credit
Agreement is hereby consented and agreed to, and the Liens and guaranties
under the Credit Documents are hereby confirmed, by:
MERCHANDISING SERVICES, INC.
GRAND UNION STORES, INC. OF VERMONT
GRAND UNION STORES OF NEW HAMPSHIRE, INC.
SPECIALTY MERCHANDISING SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
of each of the above listed
entities
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