11
RALPHS GROCERY COMPANY
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of November 7, 1996 and entered into by and among Food 4 Less Holdings, Inc.,
a Delaware corporation ("NEW HOLDINGS"), Ralphs Grocery Company, a Delaware
corporation and legal successor to Food 4 Less Supermarkets, Inc. ("COMPANY"),
the financial institutions listed on the signature pages hereof ("LENDERS"), the
Co-Agents and Co-Arrangers listed on the signature pages hereof and Bankers
Trust Company, as administrative agent for Lenders ("AGENT"), and, for purposes
of Section 4 hereof, the Credit Support Parties (as defined in Section 4 hereof)
listed on the signature pages hereof, and is made with reference to that certain
Credit Agreement dated as of June 14, 1995, by and among New Holdings, Company,
the Lenders, the Co-Agents and Co-Arrangers party thereto, and Agent, as amended
by that certain First Amendment dated as of August 18, 1995, that certain Second
Amendment dated as of December 11, 1995 and that certain Third Amendment dated
as of March 8, 1996 (as so amended, the "CREDIT AGREEMENT"). Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, New Holdings, Company and Lenders desire to amend the Credit
Agreement to (i) provide for additional Term Loans in the aggregate principal
amount of $125 million, the proceeds of which will be used to prepay Tranche A
Term Loans in forward order of maturity, (ii) amend certain of the negative
covenants contained therein and (iii) make certain other amendments, all as more
specifically set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. CERTAIN DEFINED TERMS. Subsection 1.1 of the Credit Agreement is
hereby amended as follows:
(1) by adding thereto the following definitions, which shall be
inserted in proper alphabetical order:
"`ADDITIONAL CLASS' means, with respect to Lenders, each
additional class of Lenders under this Agreement, with there being two
separate additional classes of Lenders, i.e., (i) Lenders having Tranche A
Term Loan Exposure and/or Revolving Loan Exposure (taken together as a
single class) and (ii) Lenders having Tranche B Term Loan Exposure, Lenders
having Tranche C Term Loan Exposure, Lenders having Tranche D Term Loan
Exposure, Lenders having Tranche E Term Loan Exposure, Lenders having
Tranche F Term Loan Exposure and/or Lenders having Tranche G Term Loan
Exposure (taken together as a single class).
`FOURTH AMENDMENT' means the Fourth Amendment to Credit Agreement
dated as of November 7, 1996, among New Holdings, Company, Lenders and
Agent.
`FOURTH AMENDMENT EFFECTIVE DATE' means the date on which the
conditions precedent to the effectiveness of the Fourth Amendment set forth
in Section 2 thereof shall have been satisfied.
`MAJORITY LENDERS' means Lenders having or holding a majority of
the sum of: the aggregate Term Loan Exposure of all Types of all Term
Lenders plus the aggregate Revolving Loan Exposure of all Revolving
Lenders.
`MAJORITY ADDITIONAL CLASS LENDERS' means, at any time, (i) for
the Additional Class Lenders having Tranche A Term Loan Exposure and/or
Revolving Loan Exposure, Lenders having or holding 66 and _% of the sum of
the aggregate Tranche A Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders, and (ii) for the
Additional Class Lenders having Tranche B Term Loan Exposure, Tranche C
Term Loan Exposure, Tranche D Term Loan Exposure, Tranche E Term Loan
Exposure, Tranche F Term Loan Exposure and/or Tranche G Term Loan Exposure,
Lenders having or holding 66 and _% of the sum of the aggregate Tranche B
Term Loan Exposure of all Lenders plus the aggregate Tranche C Term Loan
Exposure of all Lenders plus the aggregate Tranche D Term Loan Exposure of
all Lenders plus the aggregate Tranche E Term Loan Exposure of all Lenders
plus the aggregate Tranche F Term Loan Exposure of all Lenders plus the
aggregate Tranche G Term Loan Exposure of all Lenders.
`TRANCHE E TERM LENDER' or `TRANCHE E TERM LENDERS' means the
Lender or Lenders having a Tranche E Term Loan Commitment or having a
Tranche E Term Loan outstanding.
`TRANCHE E TERM LOAN COMMITMENT' means the commitment of a Tranche
E Term Lender to make a Tranche E Term Loan to Company pursuant to
subsection 2.1A(vii), and `TRANCHE E TERM LOAN COMMITMENTS' means such
commitments of all Tranche E Term Lenders in the aggregate.
`TRANCHE E TERM LOANS' means the Loans made by Tranche E Term
Lenders to Company pursuant to subsection 2.1A(vii).
`TRANCHE F TERM LENDER' or `TRANCHE F TERM LENDERS' means the
Lender or Lenders having a Tranche F Term Loan Commitment or having a
Tranche F Term Loan outstanding.
`TRANCHE F TERM LOAN COMMITMENT' means the commitment of a Tranche
F Term Lender to make a Tranche F Term Loan to Company pursuant to
subsection 2.1A(viii), and `TRANCHE F TERM LOAN COMMITMENTS' means such
commitments of all Tranche F Term Lenders in the aggregate.
`TRANCHE F TERM LOANS' means the Loans made by Tranche F Term
Lenders to Company pursuant to subsection 2.1A(viii).
`TRANCHE G TERM LENDER' or `TRANCHE G TERM LENDERS' means the
Lender or Lenders having a Tranche G Term Loan Commitment or having a
Tranche G Term Loan outstanding.
`TRANCHE G TERM LOAN COMMITMENT' means the commitment of a Tranche
G Term Lender to make a Tranche G Term Loan to Company pursuant to
subsection 2.1A(ix), and `TRANCHE G TERM LOAN COMMITMENTS' means such
commitments of all Tranche G Term Lenders in the aggregate.
`TRANCHE G TERM LOANS' means the Loans made by Tranche G Term
Lenders to Company pursuant to subsection 2.1A(ix).";
(2) by deleting the definitions "NOTES", "TERM LOANS", "TERM
NOTES", and "TYPE" in their entirety and substituting the following therefor:
"`NOTES' means one or more of the Term Notes, Revolving Notes or
Swing Line Note or any combination thereof.
`TERM LOANS' means one or more of the Tranche A Term Loans, the
Tranche B Term Loans, the Tranche C Term Loans, the Tranche D Term Loans,
the Tranche E Term Loans, the Tranche F Term Loans or the Tranche G Term
Loans.
`TERM NOTES' means (i) the promissory notes of Company evidencing
the Term Loans of a Type of Term Loan issued pursuant to subsection 2.1E on
the Closing Date or on the Fourth Amendment Effective Date, and (ii) any
promissory notes issued by Company pursuant to the last sentence of
subsection 11.1B(i) in connection with assignments of the Term Loan
Commitments of such Type or of the Term Loans of such Type, in each case
substantially in the form of Exhibits IV-VII annexed hereto in the case of
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and
Tranche D Term Loans, respectively, and substantially in the form of
Exhibits XXVI-A, XXVI-B and XXVI-C annexed hereto, in the case of Tranche E
Term Loans, Tranche F Term Loans and Tranche G Term Loans, respectively, in
each case as they may be amended, supplemented or otherwise modified from
time to time.
`TYPE' means a Term Loan, a Revolving Loan or a Swing Line Loan
(each of which is a "TYPE" of Loan) and with respect to a Term Loan, a
Tranche A Term Loan, a Tranche B Term Loan, a Tranche C Term Loan, a
Tranche D Term Loan, a Tranche E Term Loan, a Tranche F Term Loan or a
Tranche G Term Loan (each of which is a "TYPE" of Term Loan)."; and
(3) by deleting the phrase "Requisite Lenders" each place it
appears in the definitions of "REQUIRED DISPOSITION" and "SUBORDINATED
INDEBTEDNESS" and by substituting therefor the phrase "Requisite Lenders and
Majority Lenders".
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF
COMMITMENTS AND LOANS
A. COMMITMENTS. Subsection 2.1A of the Credit Agreement is
hereby amended as follows:
(1) by deleting the first sentence thereof in its entirety and by
substituting therefor the following:
"Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Holdings and Company
herein set forth, each Lender hereby severally agrees to make the Loans
described in subsections 2.1A(i)-(v) and 2.1A(vii)-(ix), as applicable, and
Swing Line Lender hereby agrees to make the Loans described in subsection
2.1A(vi)."; and
(2) by adding after paragraph (vi) thereof the following:
"(vii) Tranche E Term Loans. Each Tranche E Term Lender
severally agrees to lend to Company on the Fourth Amendment Effective Date
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche E Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Tranche E Term Lender's Tranche E Term
Loan Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Tranche E Term Loan Commitments is
$75,000,000; provided that the Tranche E Term Loan Commitments of Tranche E
Term Lenders shall be adjusted to give effect to any assignments of the
Tranche E Term Loan Commitments pursuant to subsection 11.1B. Each Tranche
E Term Lender's Tranche E Term Loan Commitment shall expire immediately and
without further action on November 27, 1996 if the Tranche E Term Loans are
not made on or before that date. Company may make only one borrowing on
the Fourth Amendment Effective Date under the Tranche E Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(vii) and
subsequently repaid or prepaid may not be reborrowed.
(viii) Tranche F Term Loans. Each Tranche F Term Lender
severally agrees to lend to Company on the Fourth Amendment Effective Date
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche F Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Tranche F Term Lender's Tranche F Term
Loan Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Tranche F Term Loan Commitments is
$25,000,000; provided that the Tranche F Term Loan Commitments of Tranche F
Term Lenders shall be adjusted to give effect to any assignments of the
Tranche F Term Loan Commitments pursuant to subsection 11.1B. Each Tranche
F Term Lender's Tranche F Term Loan Commitment shall expire immediately and
without further action on November 27, 1996 if the Tranche F Term Loans are
not made on or before that date. Company may make only one borrowing on
the Fourth Amendment Effective Date under the Tranche F Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(viii) and
subsequently repaid or prepaid may not be reborrowed.
(ix) Tranche G Term Loans. Each Tranche G Term Lender severally
agrees to lend to Company on the Fourth Amendment Effective Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the Tranche G
Term Loan Commitments to be used for the purposes identified in subsection
2.5A. The amount of each Tranche G Term Lender's Tranche G Term Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate amount of the Tranche G Term Loan Commitments is
$25,000,000; provided that the Tranche G Term Loan Commitments of Tranche G
Term Lenders shall be adjusted to give effect to any assignments of the
Tranche G Term Loan Commitments pursuant to subsection 11.1B. Each Tranche
G Term Lender's Tranche G Term Loan Commitment shall expire immediately and
without further action on November 27, 1996 if the Tranche G Term Loans are
not made on or before that date. Company may make only one borrowing on
the Fourth Amendment Effective Date under the Tranche G Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(ix) and
subsequently repaid or prepaid may not be reborrowed."
B. THE REGISTER. Subsection 2.1D(ii) of the Credit Agreement is
hereby amended by deleting the phrase "the Tranche A Term Loan Commitment, the
Tranche B Term Loan Commitment, the Tranche C Term Loan Commitment and the
Tranche D Term Loan Commitment" and by substituting therefor the phrase "each
Type of Term Loan Commitment".
C. NOTES. Subsection 2.1E of the Credit Agreement is hereby amended
by adding at the end thereof the following:
"Company shall execute and deliver on the Fourth Amendment
Effective Date (i) to each Tranche E Term Lender (or to Agent for that
Lender) a Tranche E Term Note substantially in the form of Exhibit XXVI-A
annexed hereto to evidence that Lender's Tranche E Term Loan Commitment, in
the principal amount of that Lender's Tranche E Term Loan and that Lender's
Tranche E Term Loan Commitment and with other appropriate insertions, (ii)
to each Tranche F Term Lender (or Agent for that Lender) a Tranche F Term
Note substantially in the form of Exhibit XXVI-B annexed hereto to evidence
that Lender's Tranche F Term Loan, in the principal amount of that Lender's
Tranche F Term Loan and with other appropriate insertions and (iii) to each
Tranche G Term Lender (or to Agent for that Lender) a Tranche G Term Note
substantially in the form of Exhibit XXVI-C annexed hereto to evidence that
Lender's Tranche G Term Loan, in the principal amount of that Lender's
Tranche G Term Loan and with other appropriate insertions."
D. INTEREST. Subsection 2.2A of the Credit Agreement is hereby
amended by deleting the phrases "Tranche B Term Loans", "Tranche C Term Loans"
and "Tranche D Term Loans" each place each such phrase appears and by
substituting therefor the phrases "Tranche B Term Loans and Tranche E Term
Loans", "Tranche C Term Loans and Tranche F Term Loans" and "Tranche D Term
Loans and Tranche G Term Loans", respectively.
E. INTEREST PERIODS. Subsection 2.2B(v) is hereby amended by
deleting the phrases "Tranche B Term Loans", "Tranche C Term Loans" and "Tranche
D Term Loans" each place each such phrase appears and by substituting therefor
the phrases "Tranche B Term Loans and Tranche E Term Loans", "Tranche C Term
Loans and Tranche F Term Loans" and "Tranche D Term Loans and Tranche G Term
Loans", respectively.
F. SCHEDULED PAYMENTS. Subsection 2.4A of the Credit Agreement is
hereby amended by adding at the end thereof the following:
"(v) Scheduled Payments of Tranche E Term Loans. Company shall
make principal payments on the Tranche E Term Loans in equal quarterly
installments on March 15, June 15, September 15 and December 15 of each
year, commencing on December 15, 1996, such quarterly installments to
comprise the aggregate amounts set forth opposite the corresponding Payment
Period as follows:
Scheduled Repayment
Payment Period of Tranche E Term Loans
December 15, 1996 - June 15, 1997 $ 562,500
September 15, 1997 - June 15, 1998 $ 750,000
September 15, 1998 - June 15, 1999 $ 750,000
September 15, 1999 - June 15, 2000 $ 750,000
September 15, 2000 - June 15, 2001 $ 750,000
September 15, 2001 - June 15, 2002 $ 71,437,500
------------
$ 75,000,000
; provided that the scheduled installments of principal of the Tranche E
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided still further that the Tranche E Term
Loans and all other amounts owed hereunder with respect to the Tranche E
Term Loans shall be paid in full no later than June 15, 2002, and the final
installment payable by Company in respect of the Tranche E Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche E Term Loans.
(vi) Scheduled Payments of Tranche F Term Loans. Company shall
make principal payments on the Tranche F Term Loans in equal quarterly
installments on March 15, June 15, September 15 and December 15 of each
year, commencing on December 15, 1996, such quarterly installments to
comprise the aggregate amounts set forth opposite the corresponding Payment
Period as follows:
Scheduled Repayment
Payment Period of Tranche F Term Loans
December 15, 1996 - June 15, 1997 $ 187,500
September 15, 1997 - June 15, 1998 $ 250,000
September 15, 1998 - June 15, 1999 $ 250,000
September 15, 1999 - June 15, 2000 $ 250,000
September 15, 2000 - June 15, 2001 $ 250,000
September 15, 2001 - June 15, 2002 $ 250,000
September 15, 2002 - June 15, 2003 $ 23,562,500
------------
$ 25,000,000
; provided that the scheduled installments of principal of the Tranche F
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided still further that the Tranche F Term
Loans and all other amounts owed hereunder with respect to the Tranche F
Term Loans shall be paid in full no later than June 15, 2003, and the final
installment payable by Company in respect of the Tranche F Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche F Term Loans.
(vii) Scheduled Payments of Tranche G Term Loans. Company
shall make principal payments on the Tranche G Term Loans in equal
quarterly installments on March 15, June 15, September 15 and December 15
of each year, commencing on December 15, 1996, such quarterly installments
to comprise the aggregate amounts set forth opposite the corresponding
Payment Period as follows:
Scheduled Repayment
Payment Period of Tranche G Term Loans
December 15, 1996 - June 15, 1997 $ 187,500
September 15, 1997 - June 15, 1998 $ 250,000
September 15, 1998 - June 15, 1999 $ 250,000
September 15, 1999 - June 15, 2000 $ 250,000
September 15, 2000 - June 15, 2001 $ 250,000
September 15, 2001 - June 15, 2002 $ 250,000
September 15, 2002 - June 15, 2003 $ 250,000
September 15, 2003 - February 15, 2004 $ 23,312,500
------------
$ 25,000,000
; provided that the scheduled installments of principal of the Tranche G
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided still further that the Tranche G Term
Loans and all other amounts owed hereunder with respect to the Tranche G
Term Loans shall be paid in full no later than February 15, 2004, and the
final installment payable by Company in respect of the Tranche G Term Loans
on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche G Term Loans."
G. PREPAYMENTS AND REDUCTIONS IN COMMITMENTS. Subsection 2.4B(iii)
of the Credit Agreement is hereby amended by adding the following sentence
immediately after the first sentence of subparagraph (b) of subsection
2.4B(iii):
"Upon receipt of the proceeds of the Tranche E Term Loans, the Tranche F
Term Loans and the Tranche G Term Loans on the Fourth Amendment Effective
Date, Company shall prepay the Tranche A Term Loans in an amount equal to
such $125,000,000 in proceeds."
H. APPLICATION OF PREPAYMENTS. Subsection 2.4B(iv) of the Credit
Agreement is hereby amended as follows:
(1) by deleting the last sentence of subparagraph (a) thereof in its
entirety and by substituting therefor the following:
"Any voluntary prepayments of the Term Loans pursuant to subsection 2.4B(i)
shall be applied (x) to each Type of Term Loan on a pro rata basis and (y)
to reduce the unpaid scheduled installments of the principal of the Term
Loans set forth in subsections 2.4A(i)-(vii) on a pro rata basis.";
(2) by deleting subparagraph (b) thereof in its entirety and by
substituting therefor the following:
"(b) Application of Mandatory Prepayments of Term Loans by Order
of Maturity. Any mandatory prepayments of the Term Loans pursuant to
subsection 2.4B(iii) shall be applied (x) to each Type of Term Loan on a
pro rata basis, (y) in the case of any mandatory prepayments to be applied
to the Tranche A Term Loans from Selected Asset Proceeds pursuant to clause
(A) of subsection 2.4B(iii)(a) or from Initial Net Debt Proceeds pursuant
to clause (1) of subsection 2.4B(iii)(b), to reduce unpaid scheduled
installments of principal of the Tranche A Term Loans set forth in
subsection 2.4A(i) in forward order of maturity for up to the immediately
succeeding twelve-month period, and (z) in the case of any mandatory
prepayments to be applied to the Tranche A Term Loans from the proceeds of
the Tranche E Term Loans, the Tranche F Term Loans and the Tranche G Term
Loans pursuant to the second sentence of subsection 2.4B(iii)(b), to reduce
unpaid scheduled installments of principal of the Tranche A Term Loans set
forth in subsection 2.4A(i) in forward order of maturity, and in the case
of all other mandatory prepayments, to reduce the unpaid scheduled
installments of principal of the Term Loans set forth in subsections
2.4A(i)-(vii) on a pro rata basis; provided that, in the case of Term Loans
other than the Tranche A Term Loans, upon receipt of any mandatory
prepayments pursuant to subsection 2.4B(iii) with respect to which Company
has given Agent written notification prior to such receipt that Company has
elected to give such Term Lenders the right to waive such Lenders' right to
receive such prepayment (the "WAIVABLE MANDATORY PREPAYMENT"), Agent shall
notify such Term Lenders of such receipt and the amount of the prepayment
to be applied to each such Lender's Term Loans; provided still further that
Company shall use its reasonable efforts to notify such Term Lenders of
such Waivable Mandatory Prepayment three (3) Business Days prior to the
payment to Agent of such Waivable Mandatory Prepayments (it being
understood that Company shall have no liabilities for failing to so notify
such Lenders). In the event any such Term Lender desires to waive such
Lender's right to receive any such Waivable Mandatory Prepayment, such
Lender shall so advise Agent no later than the close of business on the
date of such notice from Agent. In the event that any such Lender waives
such Lender's right to any such Waivable Mandatory Prepayment, Agent shall
apply 50% of the amount so waived by such Lender to prepay the Tranche A
Term Loans and to reduce unpaid scheduled installments of principal of the
Tranche A Term Loans set forth in subsection 2.4A(i) on a pro rata basis.
Agent shall return the remainder of the amount so waived by such Lender to
Company."; and
(3) by deleting the first sentence of subparagraph (c) thereof in its
entirety and by substituting therefor the following:
"Considering each Type of Loan being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Company pursuant to subsection 2.6D."
I. USE OF PROCEEDS. Subsection 2.5A is hereby amended by adding at
the end thereof the following:
"The proceeds of the Term Loans made on the Fourth Amendment Effective Date
shall be applied by the Company to repay in full amounts outstanding under
the Tranche A Term Loans in forward order of maturity pursuant to clause
(z) of subsection 2.4B(iv)(b)."
1.3 AMENDMENTS TO SECTION 4: CONDITIONS TO LOANS AND LETTERS
OF CREDIT.
A. CONDITIONS TO ALL LOANS. Subsection 4.2(B)(vi) of the Credit
Agreement is hereby amended by deleting the phrase "Requisite Lenders" each
place it appears and by substituting therefor the phrase "Requisite Lenders and
Majority Lenders".
1.4 AMENDMENTS TO SECTION 6: AFFIRMATIVE COVENANTS.
A. AFFIRMATIVE COVENANTS. Section 6 of the Credit Agreement is
hereby amended by deleting the phrase "Requisite Lenders" each place it appears
and by substituting therefor the phrase "Requisite Lenders and Majority Lenders"
in the first sentence in Section 6 and the phrase "Requisite Lenders or Majority
Lenders" in subsection 6.5 thereof, respectively.
1.5 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS.
A. NEGATIVE COVENANTS. Section 7 of the Credit Agreement is hereby
amended by deleting the phrase "Requisite Lenders" each place it appears and by
substituting therefor the phrase "Requisite Lenders and Majority Lenders".
B. RESTRICTIONS ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
Subsection 7.7 of the Credit Agreement is hereby amended as follows:
(1) by deleting subparagraph (v) thereof in its entirety and by
substituting therefor the following:
"(v) Company and its Subsidiaries may sell (a) furniture, fixtures
and/or equipment acquired after December 14, 1994 and (b) grocery stores
(including furniture, fixtures and equipment located therein and acquired
after December 14, 1994) opened or acquired after December 14, 1994, in
each case in connection with a concurrent lease-back of such furniture,
fixtures and/or equipment and/or of such grocery stores to the extent such
transactions are permitted under subsection 7.10 and Agent shall release
any security interests in favor of Agent for the benefit of Lenders in such
furniture, fixtures and/or equipment and/or such grocery stores;"
(2) by deleting subsection (vi) thereof in its entirety and by
substituting therefor the following:
"(vi) (A) Company and its Subsidiaries may sell up to eight
grocery stores in any Fiscal Year, plus, in any Fiscal Year after Fiscal
Year 1995, a number of stores equal to the difference between eight and the
number of stores sold under this clause (vi) in the immediately preceding
Fiscal Year, which stores are no longer useful to the businesses of Company
and its Subsidiaries; provided that, in addition to the foregoing, the
Company may dispose of up to nine (9) southern California grocery stores in
connection with its potential acquisition of up to nine (9) southern
California grocery stores from Xxxxx'x; and (B) with the approval of Agent,
Company and its Subsidiaries may terminate the leases on up to six (6)
grocery stores or other facilities in any Fiscal Year, which grocery stores
or other facilities are no longer useful to the businesses of Company and
its Subsidiaries and Agent shall release any security interests in favor of
Agent for the benefit of Lenders in Company's or its Subsidiaries'
leasehold interests in such stores or other facilities and any personal
property remaining on any such premises;"; and
(3) by deleting the phrase "on or prior to the first anniversary of
the Closing Date" from subsection (vii) thereof and by substituting therefor the
phrase "on or prior to December 31, 1996".
1.6 AMENDMENTS TO SECTION 8: EVENTS OF DEFAULT.
A. EVENTS OF DEFAULT. Section 8 of the Credit Agreement is hereby
amended by deleting the phrase "Requisite Lenders" each place it appears and by
substituting therefor the phrase "Requisite Lenders and Majority Lenders".
1.7 AMENDMENTS TO SECTION 10: AGENT.
A. AGENT. Section 10 of the Credit Agreement is hereby amended by
deleting the phrase "Requisite Lenders" each place it appears and by
substituting therefor the phrase "Requisite Lenders and Majority Lenders".
1.8 AMENDMENTS TO SECTION 11: MISCELLANEOUS.
A. EXPENSES. Subsection 11.2 of the Credit Agreement is hereby
amended by deleting the phrase "Requisite Lenders" each place it appears and by
substituting therefor the phrase "Requisite Lenders and Majority Lenders".
B. AMENDMENTS AND WAIVERS. Subsection 11.6 of the Credit Agreement
is hereby amended by adding the phrase "A. Amendments and Waivers" immediately
in front of the first sentence thereof and by adding at the end thereof the
following:
"B. ADDITIONAL REQUIREMENTS FOR CERTAIN AMENDMENTS AND WAIVERS.
In addition to the requirements of subsection 11.6A, no amendment,
modification, termination or waiver of any provision of this Agreement or
of the Notes, or consent to any departure by Holdings or Company therefrom,
shall in any event be effective without the written concurrence of Majority
Lenders; provided that any such amendment, modification, termination,
waiver or consent which changes in any manner the definitions of "Majority
Lenders" or "Majority Additional Class Lenders" shall be effective only if
evidenced by a writing signed by or on behalf of all Lenders affected
thereby. In addition, no amendment, modification, termination or waiver of
any provision of subsection 2.4 which has the effect of changing any
interim scheduled payments, voluntary or mandatory prepayments or
Commitment reductions applicable to any Additional Class (an "AFFECTED
ADDITIONAL CLASS") in a manner that disproportionately disadvantages such
Additional Class relative to the other Additional Class shall be effective
without the written concurrence of the Majority Additional Class Lenders of
the Affected Additional Class (it being understood and agreed that any
amendment, modification, termination or waiver of any provision which only
postpones or reduces any interim scheduled payment, voluntary or mandatory
prepayment or Commitment reduction from those set forth in subsection 2.4
with respect to only one Additional Class shall be deemed to not
disproportionately disadvantage the other Additional Class and, therefore,
shall not require the consent of Majority Additional Class Lenders of such
other Additional Class)."
1.9 ADDITION TO AND MODIFICATION OF SCHEDULES TO THE CREDIT AGREEMENT
A. LENDERS' COMMITMENTS AND PRO RATA SHARES. The Credit Agreement is
hereby amended by adding thereto a new Schedule 2.1 in the form of Annex A to
this Amendment.
1.10 ADDITION TO AND MODIFICATION OF EXHIBITS TO THE CREDIT AGREEMENT
A. NOTICE OF BORROWING. Exhibit I to the Credit Agreement is hereby
amended by deleting the phrase "Tranche [A][B][C][D] Term/Revolving Loans" each
place it appears and by substituting therefor the phrase "Tranche
[A][B][C][D][E][F][G] Term/Revolving Loans".
B. NOTICE OF CONVERSION/CONTINUATION. Exhibit II to the Credit
Agreement is hereby amended by deleting the phrase "[Tranche [A] [B] [C] [D]
Term/Revolving] Loans" each place it appears and by substituting therefor the
phase "[Tranche [A] [B] [C] [D] [E] [F] [G] Term/Revolving] Loans".
C. ASSIGNMENT AGREEMENT. Exhibit XXII to the Credit Agreement is
hereby amended by deleting the Schedule of Terms therefrom and by substituting
therefor a new the Schedule of Terms in the form of Annex B to this Amendment.
D. ADDITIONAL TERM NOTES. The Credit Agreement is hereby amended by
adding thereto new Exhibits XXVI-A, XXVI-B, and XXVI-C in the forms of Annexes
C, D and E, respectively, to this Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FOURTH
AMENDMENT EFFECTIVE DATE"):
A. On or before the Fourth Amendment Effective Date, each of New
Holdings and Company shall deliver to Agent for Lenders five originally executed
copies of the following, each, unless otherwise noted, dated the Fourth
Amendment Effective Date:
1. Certified copies of Company's Certificate of Incorporation, or a
certificate by its corporate secretary or an assistant secretary certifying
that there has been no change in the Company's Certificate of Incorporation
subsequent to the Closing Date, except as disclosed in such certificate and
attaching thereto copies of any such amendments certified by the Secretary
of State of Delaware, together with a good standing certificate from the
Secretary of State of the States of Delaware and California, each dated a
recent date prior to the Fourth Amendment Effective Date;
2. Copies of Company's Bylaws, certified as of the Fourth Amendment
Effective Date by its corporate secretary or an assistant secretary or a
certificate by such secretary or assistant secretary certifying that there
has been no change in the Bylaws subsequent to the Closing Date;
3. Resolutions of each of New Holdings' and Board of Directors
approving and authorizing the execution, delivery and performance of this
Amendment and, in the case of Company, approving and authorizing the
execution, delivery and payment of the Term Notes issued to the Tranche E
Term Lenders, the Tranche F Term Lenders and the Tranche G Term Lenders
(the "NEW TERM NOTES"), certified as of the Fourth Amendment Effective Date
by its corporate secretary or an assistant secretary as being in full force
and effect without modification or amendment;
4. Signature and incumbency certificates of its officers executing
this Amendment and, in the case of Company, the New Term Notes; and
5. This Amendment executed by each of New Holdings, Company and each
Credit Support Party, the New Term Notes, executed by Company, drawn to the
order of each of the Tranche E Term Lenders, the Tranche F Term Lenders and
the Tranche G Term Lenders.
B. On or before the Fourth Amendment Effective Date, Lenders and
their counsel shall have received originally executed copies of one or more
favorable written opinions of Jan Xxxxxxx Xxxx, Esq., General Counsel to
Company, and the Xxxxxx & Xxxxxxx, Counsel to Loan Parties, in form and
substance reasonably satisfactory to Agent and its counsel, dated as of the
Fourth Amendment Effective Date, substantially in the form set forth in Annex F
hereto and as to such other matters as Agent acting on behalf of Lenders may
reasonably request.
C. Requisite Lenders and Requisite Class Lenders for Class Lenders
having Tranche B Term Loan Exposure, Tranche C Term Loan Exposure and Tranche D
Term Loan Exposure shall have executed and delivered copies of this Amendment to
Agent.
D. On or before the Fourth Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Agent may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement and the other Loan Documents in the manner provided herein,
each of New Holdings and Company represents and warrants to each Lender that the
following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Loan Party party hereto has
all requisite corporate power and authority to enter into this Amendment and
each such Loan Party has all requisite power and authority to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement and the other Loan Documents as amended by this Amendment (the
"AMENDED AGREEMENTS").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment have been duly authorized by all necessary corporate action on the
part of each Loan Party hereto and the performance of the Amended Agreements
have been duly authorized by all necessary corporate action on the part of each
of such Loan Party.
C. GOVERNMENTAL CONSENTS. The execution and delivery by each Loan
Party party hereto of this Amendment and the performance by each of such Loan
Party of the Amended Agreements do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
D. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Loan Party party hereto and is the legally valid and binding
obligations of each Loan Party party hereto and the Amended Agreements are the
legally valid and binding obligations of each of such Loan Party, in each case
enforceable against New Holdings, Company and the other Loan Parties party
hereto in accordance with the respective terms of this Amendment and the Amended
Agreements, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Fourth Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
F. ABSENCE OF DEFAULT. No event nts Security Agreement, in each case
as amended through the Fourth Amendment Effective Date, pursuant to which
Company has (i) created Liens in favor of Agent on certain Collateral to secure
its respective Secured Obligations and (ii) pledged certain Collateral to secure
its respective Secured Obligations (as defined in the Pledge Agreements) as the
case may be. New Holdings has entered into the Holdings Guaranty and is a party
to the Holdings Pledge Agreement, the Security Agreement, and the Deposit
Accounts Security Agreement, in each case as amended through the Fourth
Amendment Effective Date, pursuant to which New Holdings has (i) guarantied the
Obligations, (ii) created Liens in favor of Agent on certain Collateral to
secure its respective Secured Obligations (as defined in each of the Security
Agreement and the Deposit Accounts Security Agreement) and (iii) pledged certain
Collateral to Agent to secure its obligations under the Holdings Guaranty, as
the case may be. Each of Xxxxxx'x, Cala Co, F4LSC, Bay Area, Cala, Xxxx
Markets, Alpha Beta, F4LGM, F4L Merchandising, F4L California and Xxxxxxxx (each
as defined in the Collateral Documents) is a party to each of the Guaranty, the
Security Agreement, the Trademark Security Agreement, the Deposit Accounts
Security Agreement, its respective Pledge Agreement, its respective Deed of
Trust, if applicable, in each case as amended through the Fourth Amendment
Effective Date, pursuant to which each of such Subsidiaries of Company has (i)
guarantied the Obligations, (ii) created Liens in favor of Agent on certain
Collateral to secure their respective Secured Obligations (as defined in each of
the Security Agreement, the Trademark Security Agreement and the Deposit
Accounts Security Agreement) and (iii) pledged certain Collateral to Agent to
secure its respective Secured Obligations (as defined in the Pledge Agreements)
as the case may be. F4LGM is a party to the F4LGM Security Agreement, as
amended through the Fourth Amendment Effective Date, pursuant to which F4LGM has
pledged certain Collateral to Agent to secure its obligations under the
Guaranty. New Holdings, Company and each of such Subsidiaries of Company are
collectively referred to herein as the "CREDIT SUPPORT PARTIES", and the
Holdings Guaranty, the Holdings Pledge Agreement, the Security Agreement, the
Deposit Accounts Security Agreement, the Guaranty, the Trademark Security
Agreement, the Pledge Agreements, the Deeds of Trust, the Collateral Account
Agreement, and the F4LGM Security Agreement are collectively referred to herein
as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement and the other Loan Documents effected
pursuant to this Amendment. Each Credit Support Party hereby confirms that each
Credit Support Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will continue to guaranty or secure, as the case
may be, to the fullest extent possible the payment and performance of all
"Obligations," "Guarantied Obligations" and "Secured Obligations," as the case
may be (in each case as such terms are defined in the applicable Credit Support
Document), including without limitation the payment and performance of all such
"Obligations," "Guarantied Obligations" or "Secured Obligations," as the case
may be, in respect of the Obligations of Company now or hereafter existing under
or in respect of the Amended Agreements and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment except as otherwise expressly
provided by this Amendment. Each Credit Support Party represents and warrants
that all representations and warranties contained in the Amended Agreements and
the Credit Support Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the Fourth Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
to consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other
Loan Document shall be deemed to require the consent of such Credit Support
Party to any future amendments to the Credit Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Fourth Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement and each
reference in the other Loan Documents to any such agreement shall mean and
be a reference to the Amended Agreements.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 11.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
RALPHS GROCERY COMPANY
By:
Title:
FOOD 4 LESS HOLDINGS, INC.
By:
Title:
XXXXXX'X, INC.,
as a Credit Support Party
By:
Title:
CALA CO.,
as a Credit Support Party
By:
Title:
FOOD 4 LESS OF SOUTHERN CALIFORNIA,
as a Credit Support Party
By:
Title:
BAY AREA WAREHOUSE STORES, INC.,
as a Credit Support Party
By:
Title:
CALA FOODS, INC.,
as a Credit Support Party
By:
Title:
XXXX MARKETS, INC.,
as a Credit Support Party
By:
Title:
ALPHA BETA COMPANY,
as a Credit Support Party
By:
Title:
FOOD 4 LESS GM, INC.,
as a Credit Support Party
By:
Title:
FOOD 4 LESS MERCHANDISING, INC.,
as a Credit Support Party
By:
Title:
FOOD 4 LESS OF CALIFORNIA, INC.,
as a Credit Support Party
By:
Title:
XXXXXXXX STORES, INC.,
as a Credit Support Party
By:
Title:
BANKERS TRUST COMPANY, INDIVIDUALLY AND AS AGENT
By:
Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
individually and as Co-Arranger
By:
Title:
THE CHASE MANHATTAN BANK, N.A.,
individually and as Co-Arranger
By:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
individually and as Co-Arranger
By:
Title:
By:
Title:
CREDIT SUISSE, individually and as Co-Arranger
By:
Title:
By:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION,
individually and as Co-Arranger
By:
Title:
UNION BANK OF CALIFORNIA, N.A., individually and as
Co-Arranger
By:
Title:
UNITED STATES NATIONAL BANK OF OREGON, individually
and as Co-Arranger
By:
Title:
XXXXX FARGO BANK, N.A., individually and as
Co-Arranger
By:
Title:
BANQUE PARIBAS, individually and as Co-Agent
By:
Title:
By:
Title:
CREDIT LYONNAIS, CAYMAN ISLAND BRANCH, individually
and as Co-Agent
By:
Title:
ACADIA PARTNERS, L.P.
By:
Title:
BANK OF AMERICA ILLINOIS
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
AERIES FINANCE LTD.
By: Chancellor Senior Secured Management, Inc.,
as Financial Manager
By:
Title:
CAPTIVA FINANCE LTD.
By: Chancellor Senior Secured Management, Inc.,
as Financial Manager
By:
Title:
CERES FINANCE LTD.
By: Chancellor Senior Secured Management, Inc.,
as Financial Manager
By:
Title:
STRATA FUNDING LTD.
By: Chancellor Senior Secured Management, Inc.,
as Financial Manager
By:
Title:
RESTRUCTURED OBLIGATIONS BACKED BY SENIOR ASSETS B.V.
By: Chancellor Senior Secured Management, Inc.,
as Portfolio Advisor
By:
Title:
STICHTING RESTRUCTURED OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2)
By: Chancellor Senior Secured Management, Inc.,
as Portfolio Advisor
By:
Title:
KEYPORT LIFE INSURANCE COMPANY
By: Chancellor Senior Secured Management, Inc.,
as Portfolio Advisor
By:
Title:
CITIBANK, N.A.
By:
Title:
DAI-ICHI KANGYO BANK, LIMITED, LOS ANGELES AGENCY
By:
Title:
FIRST NATIONAL BANK OF BOSTON
By:
Title:
FIRSTRUST BANK
By:
Title:
FLEET CAPITAL
By:
Title:
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital as Portfolio Advisor
By:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES
AGENCY
By:
Title:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as Attorney in Fact, on
behalf of Xxxxxxx National Life Insurance Company
By:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:
Title:
MASSACHUSETTS MUTUAL CORPORATE VALUE PARTNERS, LTD.
By:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:
Title:
NATIONSBANK, N.A.
By:
Title:
NIPPON CREDIT BANK, LTD., LOS ANGELES AGENCY
By:
Title:
OAK HILL SECURITIES FUND, L.P.
By:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By:
Title:
PRIME INCOME TRUST
By:
Title:
PROTECTIVE LIFE INSURANCE COMPANY
By:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment
Advisor
By:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
Title:
SIROCCA LIMITED PARTNERSHIP
By: Planden Corporation, General Partner
By:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD., LOS ANGELES
AGENCY
By:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
By:
Title:
