FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT ("Amendment") made as of this 27th day of February,
1999 among XXXXXXXX'X XXXXX'X, INC., a Delaware corporation having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Borrower"), each of the Subsidiaries of the Borrower listed on Schedule 1
annexed to the Agreement (as hereinafter defined) (individually, a "Guarantor"
and collectively, the "Guarantors") (the Borrower and the Guarantors,
collectively, the "Credit Parties"), EUROPEAN AMERICAN BANK, a New York banking
organization, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("EAB" or a "Bank") ISRAEL DISCOUNT BANK OF NEW YORK, a New York banking
organization, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Israel Discount" or a "Bank"), KEYBANK NATIONAL ASSOCIATION, a national
banking association, having an office at 0000 Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx
00000 ("Key" or a "Bank") and BANK LEUMI USA (formerly known as Bank Leumi Trust
Company of New York), a New York trust company, having an office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Leumi" or a "Bank") and EUROPEAN AMERICAN
BANK, as agent for the Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, the Credit Parties, the Banks and the Agent have entered into a
Loan Agreement dated as of the 7th day of November, 1997, which Loan Agreement
has heretofore been amended pursuant to that certain First Amendment dated April
30, 1998, that certain Second Amendment dated as of August 29, 1998 and that
certain Third Amendment dated as of November 28, 1998 (as so amended, the
"Agreement"); and
WHEREAS, the Banks have made loans to the Borrower as evidenced by certain
notes of the Borrower and specifying interest to be paid thereon; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
agree to extend the Revolving Credit Maturity Date to March 1, 2000; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
agree to increase the level of permitted purchase money Debt and Capital Leases
for the fiscal quarter ending February 28, 1999; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
amend certain of the financial covenants contained in Section 5.03 of the
Agreement; and
WHEREAS, the Agent and the Banks have agreed (i) to extend the Revolving
Credit Maturity Date to Xxxxx 0, 0000, (xx) to increase the level of permitted
purchase money Debt and Capital Leases for
the fiscal quarter ending February 28, 1999, and (iii) to amend certain of the
financial covenants contained in Section 5.03 of the Agreement, each on the
terms and conditions contained herein; and
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Credit Parties, the Banks and the Agent do hereby agree as
follows:
1. DEFINED TERMS. As used in this Amendment, capitalized terms, unless
otherwise defined, shall have the meanings set forth in the Agreement.
2. REPRESENTATIONS AND WARRANTIES. As an inducement for the Bank to enter
into this Amendment, the Credit Parties each represent and warrant as follows:
A. That with respect to the Agreement and the Loan Documents executed
in connection therewith and herewith:
(i) There are no defenses or offsets to the Borrower's or any
Guarantor's obligations under the Agreement as amended hereby, the
Notes or any of the Loan Documents or any other agreements in favor
of the Bank referred to in the Agreement, and if any such defenses or
offsets exist without the knowledge of the Borrower or any Guarantor,
the same are hereby waived.
(ii) All of the representations and warranties made by the
Borrower and any Guarantor in the Agreement as amended hereby are
true and correct in all material respects as if made on the date
hereof, except for those made with respect to a particular date,
which such representations and warranties are restated as of the date
of this Amendment to be true and correct in all material respects as
of such date; and provided further that the representations and
warranties set forth in Section 4.01(f) of the Agreement shall relate
to the audited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries for the fiscal year ended November 29,
1998.
(iii) The outstanding aggregate principal balance of the Loans
as evidenced by the Notes is $21,308,934.62 as of April 12, 1999 and
interest has been paid through April 1, 1999.
3. AMENDMENTS. The following amendments are hereby made to the Agreement:
(a) The definition of Revolving Credit Maturity Date is hereby
deleted in its entirety and replaced as follows:
- 2 -
"'Revolving Credit Maturity Date' means March 1, 2000."
(b) Section 5.02(a)(ix)(4) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(4) The Debt secured by all such Liens shall not exceed
$5,500,000.00 in the aggregate; and"
(c) Section 5.03(c) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(c) LEVERAGE RATIO. The Borrower and the Guarantors
will at all times maintain a Leverage Ratio, to be tested
quarterly, of not greater than the following:
Period Leverage Ratio
------------------------------ --------------
From the date of the Agreement 3.00 to 1.00
until May 29, 1999
From May 30, 1999 until 2.25 to 1.00
May 27, 2000
From May 28, 2000 and 2.00 to 1.00
thereafter."
(d) Section 5.03(d) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(d) FUNDED DEBT TO EBITDA RATIO. The Borrower and Guarantors will
maintain at all times on a consolidated basis, a Funded Debt to
EBITDA Ratio, to be tested quarterly, of not greater than the
following:
Period Funded Debt to EBITDA Ratio
---------------------------- ---------------------------
From November 30, 1998 until 3.50 to 1.00
May 29, 1999
From May 30, 1999 until 2.50 to 1.00
August 28, 1999
From August 29, 1999 until 2.25 to 1.00
August 26, 2000
From August 27, 2000 and 2.00 to 1.00
thereafter."
(e) Section 5.03(e) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(e) FIXED CHARGE COVERAGE RATIO. The Borrower and
Guarantors will maintain at all times (other than for the
- 3 -
fiscal quarter ending August 30, 1998, the fiscal year ending
November 29, 1998 and the fiscal quarter ended February 28, 1999),
beginning with the fiscal quarter ending May 31, 1998, on a
consolidated basis, a minimum Fixed Charge Coverage Ratio of not less
than 1.25 to 1.0, such ratio to be tested quarterly. The Borrower and
Guarantors will maintain at all times on a consolidated basis during
the fiscal quarter ending August 30, 1998, the fiscal year ending
November 29, 1998 and the fiscal quarter ended February 28, 1999, a
minimum Fixed Charge Coverage Ratio of not less than 1.10 to 1.0."
(f) Section 5.03(f) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"DEBT SERVICE RATIO. The Borrower and Guarantors will maintain at all
times during the fiscal year ending November 29, 1998, on a
consolidated basis, a minimum Debt Service Ratio of not less than
1.45 to 1.0. The Borrower and Guarantors will maintain at all times
during the fiscal quarter ending February 28, 1999, on a consolidated
basis, a minimum Debt Service Ratio of not less than 1.40 to 1.0. The
Borrower and Guarantors will maintain at all times, beginning with
the fiscal quarter ending May 31, 1998 (other than for the fiscal
year ending November 29, 1998 and the fiscal quarter ending February
28, 1999), on a consolidated basis, a minimum Debt Service Ratio of
not less than 1.50 to 1.0, such ratio to be tested quarterly."
4. EFFECTIVENESS. This Amendment shall become effective upon the
occurrence of the following events and the receipt and satisfactory review by
the Agent and its counsel of the following documents:
(a) The Agent and each Bank shall have received this Amendment, duly
executed by the Borrower and each Guarantor.
(b) The Agent shall have received copies of any and all modifications
of the documentation referred to in Section 3.01 of the Agreement which could
result in a Material Adverse Change.
(c) The Agent shall have been paid, on behalf of the Banks, an
amendment fee in the amount of $10,000.00.
5. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
6. 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 shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
- 4 -
7. RATIFICATION. Except as hereby amended, the Agreement and all other
Loan Documents executed in connection therewith shall remain in full force and
effect in accordance with their originally stated terms and conditions. The
Agreement and all other Loan Documents executed in connection therewith, as
amended hereby, are in all respects ratified and confirmed.
8. WAIVER OF JURY TRIAL. The Borrower, each Guarantor, the Agent and the
Banks waive all rights to trial by jury on any cause of action directly or
indirectly involving the terms, covenants or conditions of this Amendment or any
Loan Document.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
- 5 -
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the year and date first above written.
EUROPEAN AMERICAN BANK, as Agent
By: /s/Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Vice President
EUROPEAN AMERICAN BANK
By: /s/Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/Xxxx Xxxx
--------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BANK LEUMI USA
By: /s/Xxxxxxx Xxxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: First Vice President
By: /s/Xxxxxx Xxxxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
XXXXXXXX'X XXXXX'X, INC.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxxxx
Chief Executive Officer
CITY PRODUCE OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxxxx
President
- 6 -
GRISTEDE'S OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxxxx
President
NAMDOR INC.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxxxx
President
RAS OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxxxx
President
SAC OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
--------------------------
President
- 7 -
