EXECUTION VERSION WEIL:\100012861\2\57387.0027 #99189045v3 AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT This AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT, dated as of October 8, 2024 (this “Amendment”), is entered into among THE KROGER CO., an Ohio...
| EXECUTION VERSION WEIL:\100012861\2\57387.0027 #99189045v3 AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT This AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT, dated as of October 8, 2024 (this “Amendment”), is entered into among THE KROGER CO., an Ohio Corporation (the “Borrower”), the Lenders signatory hereto and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”). WHEREAS, the Borrower, the Lenders from time to time party thereto and the Administrative Agent have entered into that certain Term Loan Credit Agreement, dated as of November 9, 2022 (as amended by that certain Amendment No. 1 to Term Loan Credit Agreement, date as of July 26, 2024, as further amended by that certain Amendment No. 2 to Term Loan Credit Agreement, dated as of September 13, 2024, and as further amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”). WHEREAS, pursuant to Section 8.01 of the Credit Agreement, the Borrower, the Lenders party hereto (constituting all of the Lenders under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment)) and the Administrative Agent have agreed to amend the Credit Agreement as provided for herein. NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto hereby agree as follows: 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement. 2. Amendment. Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Acorn Outside Date”. (b) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Commitment Termination Date” to read as follows: ““Commitment Termination Date” means the earliest of (a) December 31, 2024, (b) the date that the Acorn Acquisition Agreement is terminated or expires in accordance with the terms thereof, (c) receipt by the Administrative Agent of written notice from the Borrower of its election to terminate all Commitments hereunder in full and (d) the Closing Date (after giving effect to the funding of any Advances on such date).” 3. Effectiveness. This Amendment will become effective upon the date (the “Amendment Effective Date”) on which the Administrative Agent shall have received from the Borrower and each Lender under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment) an executed counterpart of this Amendment (or photocopies thereof sent by fax, .pdf or other electronic means, each of which shall be enforceable with the same effect as a signed original). 4. Representations and Warranties. The Borrower represents and warrants, as of the date hereof, that, after giving effect to the provisions of this Amendment, (a) each of the representations and warranties made by the Borrower in Section 4.01 of the Credit Agreement is true in all material respects on and as of the date hereof as if made on and as of the date hereof, except (i) to the extent that such |
| 2 WEIL:\100012861\2\57387.0027 #99189045v3 representations and warranties refer to an earlier date, in which case they were true in all material respects as of such earlier date or (ii) to the extent that such representations and warranties are qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true in all respects, and (b) no event shall have occurred and be continuing, or would result from this Amendment or the transactions contemplated hereby, that would, as of the Amendment Effective Date, constitute a Default. 5. Effect of the Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which, as amended, amended and restated, supplemented or otherwise modified hereby, are ratified and affirmed in all respects and shall continue in full force and effect. Upon the effectiveness of this Amendment, each reference in the Credit Agreement and in any exhibits attached thereto to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement after giving effect to this Amendment. 6. Miscellaneous. The provisions of Sections 8.03 (Expenses; Indemnity; Damage Waiver), 8.07 (Confidentiality), 8.08 (Governing Law), 8.09 (Execution in Counterparts; Integration), 8.10 (Jurisdiction; Consent to Service of Process), 8.16 (Electronic Execution of Assignments and Certain Other Documents) and 8.17 (Waiver of Jury Trial) of the Credit Agreement shall apply with like effect to this Amendment, mutatis mutandis. This Amendment shall be a “Loan Document” for all purposes under the Credit Agreement. [REMAINDER OF XXXX LEFT INTENTIONALLY BLANK] |
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| CITIBANK, N.A. as Administrative Agent Name: By:7U� Xxxxxxx Xxxxxxxxx Title: Vice President [Signature Page to Amendment No. 3 Term Loan Credit Agreement] |
| [Signature Page to Amendment No. 3 Term Loan Credit Agreement] CITIBANK, N.A. as a Lender Name: By-fi Xxxxxxx � Xxxxxxxxx Title: Vice President |
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| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] MIZUHO BANK, LTD. as a Lender By: Name: Xxxxx Xxxx Title: Managing Director |
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| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] U.S. Bank National Association, as a Lender By: Name: Xxxxx X. Xxxxxxx Title: Senior Vice President |
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| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] ROYAL BANK OF CANADA as a Lender By: Name: Xxxxx Xxxxxxx Title: Authorized Signatory |
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| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] The Bank of Nova Scotia as a Lender By: Name: Xxxx Xxxxxxx Title: Managing Director |
| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] THE BANK OF NEW YORK MELLON as a Lender By: Name: Xxxxxx X. Xxxxxxxxxx, Xx. Title: Senior Vice President |
| [Signature Page to Amendment No. 3 to Term Loan Credit Agreement] FARM CREDIT BANK OF TEXAS as a Lender By: Name: Xxxxxxx Xxxxx Title: Portfolio Manager |
