EXHIBIT 4.14.6
AMENDMENT NUMBER SEVEN
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER SEVEN TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of October 21, 1997, is entered into by
and among CERTIFIED GROCERS OF CALIFORNIA, LTD., a California corporation
("CerGro"), GROCERS GENERAL MERCHANDISE COMPANY, a California corporation
("GGMC"), and GROCERS SPECIALTY COMPANY, a California corporation ("GSC")
(CerGro, GGMC, and GSC are jointly and severally referred to herein as
"Borrower"), on the one hand, and the financial institutions which are
signatories hereto (hereinafter collectively referred to as the "Lenders" and
individually as a "Lender"), BT COMMERCIAL CORPORATION, a Delaware corporation,
as agent ("Agent"), UNION BANK OF CALIFORNIA, N.A., A national banking
association, as co-agent, and BANKBOSTON N.A. as co-agent, on the other hand, in
light of the following facts:
RECITALS
A. The parties hereto have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of March 17, 1994, as
amended by that certain Amendment Number One to Amended and Restated Loan and
Security Agreement, dated as of November 1, 1994, as further amended by that
certain Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of December 3, 1994, as further amended by that certain
Amendment Number Three to Amended and Restated Loan and Security Agreement,
which is undated but was executed in May of 1996, as further amended by that
certain Amendment Number Four to Amended and Restated Loan and Security
Agreement, dated as of June 27, 1996, as further amended by that certain
Amendment Number Five to Amended and Restated Loan and Security Agreement, dated
as of September 30, 1996, and as further amended by that certain Amendment
Number Six to Amended and Restated Loan and Security Agreement, dated as of
April 7, 1997 (collectively, the "Agreement").
B. Borrower represents that it is required to assist its retailers
with their growth plans in order to secure Borrower's growth within its current
membership. Further, Borrower represents that there are situations where, in
obtaining a new member from another wholesaler, Borrower may be required to
assume the such wholesaler's accommodations.
1
C. Borrower has requested that Lenders agree to amend the Agreement
regarding Borrower's Capital Expenditures and Accommodation Obligation covenants
as set forth herein. In particular, with regard to Accommodation Obligations,
Borrower has requested that Lenders agree to permit all sublease accommodations,
exclude guarantees of debt from the accommodation basket and define such
guarantees as debt to be included in any debt test, and allow lease guarantees
in excess $5,000,000 basket be permitted if allowed for within the debt test.
NOW THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. Defined Terms. All initially capitalized terms used but not
-------------
defined herein shall have the meanings assigned to such terms in the Agreement.
2. Amendment to Section 6.13(b)(i). Section 6.13(b)(i) of the
-------------------------------
Agreement is hereby deleted in its entirety and replaced with the following:
(i) Borrower's Capital Expenditures for such period shall
not exceed an amount equal to the lower of: (A) Borrower's Consolidated
annual allocation to depreciation reserves for such fiscal year calculated
in accordance with GAAP and (B) Twelve Million Five Hundred Thousand
Dollars ($12,500,000) or, for fiscal years 1997 and 1998 only, Sixteen
Million Dollars ($16,000,000); and such foregoing amount plus the unused
----
amount of Capital Expenditures permitted for the immediately preceding
fiscal year but not in excess of fifty percent (50%) of the permitted
amount of Capital Expenditures for the immediately preceding fiscal year;
and"
3. Amendment to Section 6.27(a). Section 6.27(a) of the Agreement is
----------------------------
hereby deleted in its entirety and replaced with the following:
"Accommodation Obligations set forth on Schedule 6.27(a), attached hereto,
----------------
and any refinancing, renewals, or extensions of such Accommodation
Obligations on terms substantially similar to the original terms thereof;
and, in addition, all Accommodation Obligations consisting of subleases;
and"
4. Amendment to Section 6.27(b). Section 6.27(b) of the Agreement is
----------------------------
hereby deleted in its entirety and replaced with the following:
"Accommodation Obligations with respect to obligations of other Persons
that do not, in the aggregate, have scheduled payments in
2
any of Borrower's fiscal years in excess of Five Million Dollars
($5,000,000), provided, however, that Accommodation Obligations consisting
-----------------
of any lease guarantee in excess of $5,000,000 are permitted so long as the
amount of any such lease guarantee will not cause a breach of and are
permitted under any debt test of this Agreement, including, but not limited
to, any test with regard to the Funded Debt Ratio; and"
5. Amendment 1 to Section 1.1. Section 1.1 of the Agreement is
--------------------------
hereby amended by deleting the definition of "Accommodation Obligation" and
replaced such definition with the following:
" "Accommodation Obligation" means, as applied to any Person and
without duplication of amounts, any indebtedness, obligation of such Person
guaranteeing or intended to guarantee (whether guaranteed, endorsed, co-
made, discounted, or sold with recourse to such Person) any lease,
sublease, dividend, letter of credit, or other obligation ("primary
obligation") of any other Person ("primary obligor") in any manner, whether
directly or indirectly, including any obligation of such Person
(irrespective of whether contingent) (a) to purchase any such primary
obligation or any Asset constituting direct or indirect security therefor,
(b) to advance or supply funds (whether in the form of a loan, advance,
stock purchase, capital contribution, or otherwise) (i) for the purchase,
repurchase, or payment of any such primary obligation or any Asset
constituting direct or indirect security therefor, or (ii) to maintain
working capital or equity capital of the primary obligor, or to otherwise
maintain the net worth, solvency, or other financial condition of the
primary obligor, (c) to purchase or make payment for any Asset, security,
service, or lease if primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to otherwise assure or hold
harmless the owner of such primary obligation against loss in respect
thereof; provided, however, that the term "Accommodation Obligation" shall
-------- -------
not include (i) endorsements of instruments for deposit or collection in
the ordinary course of such Person's business, (ii) indemnities arising in
the ordinary course of business, including indemnities arising in
connection with the sale or other disposition of a Person's Assets or in
connection with the incurrence of Debt, or (iii) guarantees of debt. The
amount of any Accommodation Obligation shall be deemed to be an amount
equal to the maximum amount of a Person's liability with respect to the
stated or determinable amount of the primary obligation for which such
Accommodation Obligation is incurred, or, if not stated or
3
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by Agents."
6. Amendment to Section 1.1. Section 1.1 of the Agreement is hereby
-------------------------
amended by deleting the definition of "Debt" and replaced such definition with
the following:
" "Debt" means, with respect to any Person, the aggregate amount
of, without duplication: (a) all obligations of such Person for borrowed
money; (b) all obligations of such Person evidenced by bonds, debentures,
notes, or other similar instruments and all reimbursement or other
obligations of such Person in respect of letters of credit, bankers
acceptances, or interest rate swaps; (c) all obligations of such Person to
pay the deferred purchase price of Assets or services, exclusive of trade
payables which are incurred in the ordinary course of such Person's
business consistent with past practices; (d) all Capitalized Lease
Obligations of such Person; (e) all obligations or liabilities of others
secured by a Lien on any Asset owned by such Person, irrespective of
whether such obligation or liability is assumed, to the extent of the
lesser of such obligation or liability or the fair market value of such
Asset; (f) all Accommodation Obligations with respect to Debt of another
Person; and (g) guarantees of debt."
7. Amendment to Section 6.25. Section 6.25 of the Agreement is
--------------------------
hereby amended by adding the following subsection (m) at the end of such
Section:
" (m) Borrower may incur Debt comprised of guarantees of debt
so long as such Debt does not violate any term of this Agreement and such
Debt comports with the covenants under Section 6.13 of this Agreement with
regard to the Funded Debt Ratio."
8. Amendment to Schedule 6.27(a). Schedule 6.27(a) of the Agreement
------------------------------
is hereby amended by appending thereto Appendix 1-"Certified Grocers of
California, Summary of Accommodations," appended hereto.
9. Conditions Precedent. The effectiveness of this Amendment is
--------------------
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
(a) Agent shall have received this Amendment duly executed by
Borrower and the Lenders.
4
(b) Agent shall have received a consent and affirmation duly
executed by each of CerGro, GGMC, and GSC indicating the consent by each such
guarantor to the execution and delivery by Borrower of this Amendment and the
affirmation of the continued effectiveness of each such guarantor's guaranty of
the Obligations.
(c) Agent shall have received payment of all Agent's Expenses
incurred by Agent in connection with the negotiation, preparation and execution
of this Amendment.
10. Counterparts; Effectiveness. This Amendment may be executed in
---------------------------
any number of counterparts and by different parties on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original.
All such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the fulfillment of all of
the conditions set forth in Section 9 hereof.
11. Reaffirmation of the Agreement. Except as specifically amended by
------------------------------
this Amendment, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed at Los Angeles, California as of the date first hereinabove written.
CERTIFIED GROCERS OF CALIFORNIA,
LTD., a California corporation
By
----------------------------------
Title:
------------------------------
GROCERS GENERAL MERCHANDISE
COMPANY, a California corporation
By
----------------------------------
Title:
------------------------------
5
GROCERS SPECIALTY COMPANY,
a California corporation
By
----------------------------------
Title:
------------------------------
BT COMMERCIAL CORPORATION,
a Delaware corporation,
individually and as Agent
By
----------------------------------
Title:
------------------------------
BANKBOSTON, N.A.,
individually and as Co-Agent
By
----------------------------------
Title:
------------------------------
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By
---------------------------------
Title:
------------------------------
6
DG BANK DEUTSCHE
GENOSSENSCHATFTSBANK,
a German bank acting through
its New York branch
By
----------------------------------
Title:
------------------------------
By
----------------------------------
Title:
------------------------------
DRESDNER BANK, AG,
New York branch and
Grand Cayman Branch, as a bank
By
----------------------------------
Title:
------------------------------
By
----------------------------------
Title:
------------------------------
NATIONAL BANK OF CANADA,
a Canadian Chartered Bank,
New York Branch
By
----------------------------------
Title:
------------------------------
By
----------------------------------
Title:
------------------------------
7
SANWA BANK CALIFORNIA,
a California banking corporation
By
----------------------------------
Title:
------------------------------
SANWA BUSINESS CREDIT
CORPORATION, a Delaware corporation
By
----------------------------------
Title:
------------------------------
THE SAKURA BANK, LIMITED,
a Japanese bank acting through
its Los Angeles agency
By
----------------------------------
Title:
------------------------------
By
----------------------------------
Title:
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MANUFACTURERS BANK
By
----------------------------------
Title:
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8
CITY NATIONAL BANK,
a national banking association
By
----------------------------------
Title:
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9
CONSENT OF GUARANTORS
Each of the undersigned, as a guarantor of the obligations of CERTIFIED
GROCERS OF CALIFORNIA, LTD., a California corporation ("CerGro"), GROCERS
GENERAL MERCHANDISE COMPANY, a California corporation ("GGMC"), and GROCERS
SPECIALTY COMPANY, a California corporation ("GSC") (CerGro, GGMC and GSC are
collectively referred to herein as "Borrower"), arising out of that certain
Amended and Restated Loan and Security Agreement, dated as of March 17, 1994, as
amended by that certain Amendment Number One to Amended and Restated Loan and
Security Agreement, dated as of November 1, 1994, as further amended by that
certain Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of December 3, 1994, as further amended by that certain
Amendment Number Three to Amended and Restated Loan and Security Agreement,
which is undated but was executed in May of 1996, as further amended by that
certain Amendment Number Four to Amended and Restated Loan and Security
Agreement, dated as of June 27, 1996, as further amended by that certain
Amendment Number Five to Loan and Security Agreement, dated as of September 30,
1996, and as further amended by that certain Amendment Number Six to Amended and
Restated Loan and Security Agreement, dated as of April 7, 1997 (collectively,
the "Agreement"), among BT Commercial Corporation, a Delaware corporation, Union
Bank of California, N.A., a national banking association, BankBoston, N.A.
(collectively, "Agents"), and the other lenders party thereto (collectively,
"Lenders"), on the one hand, and Borrower, on the other hand, hereby
acknowledges receipt of a copy of that certain Amendment Number Seven to Amended
and Restated Loan and Security Agreement, dated as of October 21, 1997, among
Agents, Lenders and Borrower, consents to the terms contained therein, and
agrees that the Continuing Guaranty executed by each of the undersigned shall
remain in full force and effect as a continuing guaranty of the obligations of
Borrower owing to Agents and Lenders under the Agreement.
Although Agents have informed us of the matters set forth above, and we have
acknowledged same, we understand and agree that Agents have no duty under the
Agreement, the Guaranties or any other agreement between us to so notify us or
to seek an acknowledgment, and nothing contained herein is
10
intended to or shall create such a duty as to any advances or transactions
hereafter.
IN WITNESS WHEREOF, each of the undersigned has caused this Consent of
Guarantors to be duly executed by their respective authorized officers as of
October 21, 1997.
CERTIFIED GROCERS OF CALIFORNIA,
LTD., a California corporation
By
----------------------------------
Title:
------------------------------
GROCERS GENERAL MERCHANDISE
COMPANY, a California corporation
By
----------------------------------
Title:
------------------------------
GROCERS SPECIALTY COMPANY, a
California corporation
By
----------------------------------
Title:
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11
APPENDIX 1
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1997
SCHEDULE 6.27 (a)
EXPIR'N TOTAL BT COMMERCIAL CORP.
DATE PERMITTED BASKET
-----------------------------------------------------
CERTIFIED GROCERS OF CALIF., LTD.
GUARANTEES OF DEBT
SAV MAX FOODS, INC. 5/15/99 3,800,000 3,800,000
SUPER FOODS CENTERS 3,750,000 3,750,000
------------------------------------
TOTAL DEBT GUARANTEES 7,550,000 3,800,000 3,750,000
------------------------------------
LEASE GUARANTEES
PATRONS
XXXXX'X MKT. 5/31/98 26,325* 26,325
0000 XXX XXXXX XXXX.
XXX XXXXX, XX
XXXX-WILLCO 4/30/02 62,487 62,487
00000 X. XXXXXX XXXX.
XX XXXXXX, XX
XXXX MARKETS 2/28/09 196,211* 196,211
0000 00xx XXXXXX
XXX XXXXXXXXX, XX
XXXX MARKETS 2/28/09 130,808* 130,808
0000 XXXXXX XXX
XXX XXXXXXXXX, XX
MAR VAL 12/31/08 120,960 120,960
00 XXX 00
XXXXXX XXXXXXX, XX
G & M CO. INC. 10/31/07 110,000* 110,000
00000 XXXXXXXXX XXXX
XXXXX XX XXXXXXX, XX
FARM FRESH 11/09/01 186,912 186,912
0000 X. XX. XXXXXX XXX.
XXXXXX, XX
SCHEDULE 6.27 (a)
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1997
EXPIR'N BT COMMERCIAL CORP.
DATE TOTAL PERMITTED BASKET
-----------------------------------------------------
SAVMAX FOODS, INC. 6/30/12 485,782* 485,782
AUBURN BLVD.
SACRAMENTO, CA
SAVMAX FOODS, INC. 8/14/12 681,072* 681,072
000 XXXXXXX XXXX
XXX XXXX, XX
SAVMAX FOODS, INC. 8/14/12 509,448* 509,448
000 XXXXXXXXX
XXX XXXXXXX, XX
SAVMAX FOODS, INC. 1/00/05 386,100* 386,100
0000 X. XXXXX XXXX
XXXXX, XX
SAVMAX FOODS, INC. 1/00/07 375,004* 375,004
000 XXXXX XXXXX
XXXXXXXXX, XX
XXX XXXXXXX, INC. 4/14/98 180,835* 000,000
XXXXXX XXXXXX
XXXXXX, XX
PW SUPERMARKETS 7/1/17 378,846 000,000
XXXXXXX/XXXXXX XXX.
XXX XXXX, XX
PW SUPERMARKETS (XXXXXXX) 6/3/05 479,306 479,306
0000 X. XXXXXX XXXXXX XXXX.
XXXXXX XXXXXX, XX
R RANCH MARKET, INC. 11/6/11
000 X. XXXXXXXXXX XXX. THRU 12/31/97 220,716 220,716
LOS ANGELES, CA 1/1/98 - 11/6/11
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1997
EXPIR'N TOTAL BT COMMERCIAL CORP.
DATE PERMITTED BASKET
-----------------------------------------------------
KV MART CO., INC. 2/1/04 353,976 353,976
0000 XXXXXX XXX.
XXXXXX XXXX, XX
KV MART CO., INC. 11/1/11
0000 XXXXXXXXX XXXX. THRU 7/1/98 212,664 212,774
LOS ANGELES, CA 7/1/98-10/31/01
10/31/01-10/31/06
10/31/06-10/31/11
10/31/11-11/30/16
KV MART CO., INC. 6/1/04 408,000 408,000
00000 XXXXXXXX XXX.
XXXXXXX, XX
XXXXXXXXX ENTERPRISES 12/17/04 120,000 120,000
0000 X. XXXXXXXXXX XXXX.
XXXXXXXX, XX
XXXXXX XXXXX'X (XXXXXXX) 8/30/04 192,660 192,660
00 XXXXXXX XXXXXXXX XXXXXX
XXX XXXXX, XX
------------------------------------
TOTAL LEASE GUARANTEES 5,818,112 4,002,950 1,815,162
------------------------------------
Schedule 6.27 (a)
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1991
SCHEDULE 6.27(a)
EXPIR'N TOTAL BT COMMERCIAL CORP.
DATE PERMITTED BASKET
-----------------------------------------------------
SUBLEASES
XXXXX J & XXXX XXXX 12/23/98 33,000 33,000
000 X. XXXXXX XXX
XXX XXXXX, XX
XXXX XXXX INC 9/30/02 112,500 112,500
0000 XXXXX XXXXX
XXX XXXXX, XX.
PW SUPER MKTS INC 9/30/02 65,600 65,600
0000 X. XXXXX
XXX XXXX, XX
LEES PET CLUB INC 11/30/98 172,550 172,550
00000 XXXXXXXXX XXXX
XXXXXXX, XX
XXXXXX, XXXXXX 3/31/11 16,155 16,155
0000 XXXXX XXXXXX XXX
XXX XXXXX, XX
SANTA FE RANCH, INC. 4/30/01 27,500 27,500
0000 XXXX XXX
XXX XXXXX, XX
EL TIGRE, INC. 12/31/00 44,000 44,000
0000 XXXXXXXX
XXX XXXXX, XX
XXXXX'X MKT. 2/28/02 80,538 80,538
0000 XXXXXXX XXXXX XXXX
XXXXXX, XX
HALUM MKTS INC 10/31/98
00-000 XXXXXXXX XX. XXXX 11/1/98 48,720 48,720
COACHELLA, CA 11/1/98-10/31/23
SCHEDULE 6.27 (a)
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1997
EXPIR'N TOTAL BT COMMERCIAL CORP.
DATE PERMITTED BASKET
-----------------------------------------------------
TONY'S CORP. 10/31/99
00000 XXXXXXXX XXXX. THRU 11/1/99 71,430 71,430
UNION CITY, CA 11/1/99-10/31/99
SCOLARIS OF CALIF. 9/30/02 124,630 124,630
0000 XXXXXXXXX XX.
XXXXX XXXXXXX, XX
PW SUPERMARKETS INC. 4/30/99 141,000 141,000
0000 XXXXXX XXX.
XXXXXXX, XX.
KOSHAN INC. 3/10/99 10,259 10,259
0000 XXXXXXXX
XXX XXXXXX, XX
XXXXX'X MARKETS INC. 11/30/98 36,075 36,075
0000 XXXXXXXX XX.
XXXXX XXXX, XX
PW SUPERMARKETS INC. 12/31/02
0000 XXXXXXX XXX. THRU 1/1/98 57,073 57,073
SAN JOSE, CA 11/1/98-12/31/02
MAJOR MARKETS INC. 5/15/99 371,527 371,527
000 X. XXXX XX.
XXXXXXXXX, XX
MAJOR MARKETS INC. 10/31/10 388,331 388,331
0000 X. XXXXXX XXXX
XXXXXXXXX, XX
SAVMAX FOODS INC. 4/27/12 400,000 400,000
0000 XXXXXXX
XXXXXXXXXX, XX
SCHEDULE 6.27 (a)
CERTIFIED GROCERS OF CALIFORNIA
SUMMARY OF ACCOMMODATIONS
AS OF AUGUST 30, 1997
EXPIR'N TOTAL BT COMMERCIAL CORP.
DATE PERMITTED BASKET
-----------------------------------------------------
SAVMAX FOODS, INC. 7/31/05 413,984 413,984
0000 XXXXXX XXXX.
XXXXXXX, XX
JAX, APPLE MARKET #5 2012 212,814 212,814
0000 XXXXXXXXXX XXX.
XXXXXXXXX, XX
PRO & FAMILY, INC. 6/30/16 168,088 168,088
000 XXXX XXXXXXXX XXXX.
XXXXX, XX
PROVO'S, INC. 6/30/17 183,334 183,334
000 XXXX XX.
XXXXXX, XX
APPLE MARKET #102 (XXXXXXX) 2/28/11 117,428 117,428
000 XXXXXX XX.
XXXXXX, XX
APPLE MARKET #103 (XXXXXXX) 7/1/10 144,000 144,000
000 XXX XXXXX XX.
XXXXXX, XX
APPLE MARKET #101 (XXXXXXX) 12/31/97 200,012 200,012
000 XXXXXXXXXXX
XXX XXXXX, XX
XXXX XXXXXX 2/27/23 104,997 104,997
000 X. XXXXXXX XXX. XXX.
XXXXXXX, XX
------------------------------------
TOTAL SUBLEASE YEARLY RENTS 3,745,545 2,662,328 1,083,217
------------------------------------
0
TOTAL ACCOMMODATIONS 17,113,657 10,465,278 6,648,379
