EXHIBIT 10.27
STATER BROS. MARKETS
STATER BROS. HOLDINGS INC.
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "SECOND AMENDMENT")
is dated as of December 13, 2001 and entered into by and among STATER BROS.
MARKETS, a California corporation ("BORROWER"), STATER BROS. HOLDINGS INC., a
Delaware corporation ("HOLDINGS"), the financial institutions listed on the
signature pages hereof ("LENDERS") and BANK OF AMERICA, N.A., as administrative
agent for Lenders ("ADMINISTRATIVE AGENT"), and Issuing Lender, and, for
purposes of Section 4 hereof, the Credit Support Party (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 August 6, 1999, as amended by the First
Amendment dated as of September 15, 2000 (as amended, modified or supplemented
from time to time, the "CREDIT AGREEMENT"), by and among Borrower, Holdings,
Lenders, Administrative Agent, and Issuing Lender. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrower, Holdings, Lenders and Issuing Lender desire to
amend the Credit Agreement as set forth below;
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 AND ACCOUNTING TERMS.
Subsection 1.01 of the Credit Agreement is hereby amended by adding
thereto the following definition, which shall be inserted in proper alphabetical
order:
""Revolving Loan Commitment L/C Sublimit" means an amount equal to
the lesser of (a) the Revolving Loan Commitment and (b) $15,000,000.
The Revolving Loan Commitment L/C Sublimit is part of, and not in
addition to, the Revolving Loan Commitment."
1.2 AMENDMENTS TO SECTION 2: THE COMMITMENTS AND EXTENSIONS OF
CREDIT.
A. Subsection 2.04(a) of the Credit Agreement is hereby amended by
amending and restating the first sentence of this subsection in the following
manner:
"Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the Letter of Credit
Commitment Termination Date, Issuing Lender shall take such Letter
of Credit Actions under the Letter of Credit Commitments and the
Revolving Loan Commitment L/C Sublimit as Borrower may request;
provided, however, that the Issuing Lender shall not be obligated to
make any Letter of Credit Action with respect to any Letter of
Credit, and no Lender shall be obligated to participate in any
Letter of Credit if as of the date of such Letter of Credit Action,
the aggregate outstanding Letter of Credit Usage would exceed the
combined Letter of Credit Commitments plus the Revolving Loan
Commitment L/C Sublimit."
B. Subsection 2.04(a) of the Credit Agreement is hereby further
amended by amending and restating the last sentence of the first paragraph of
this subsection in the following manner:
"The Letter of Credit Commitments and the Revolving Loan Commitment
L/C Sublimit shall be subject to the following limitations:"
C. Subsection 2.04(j) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting the following
therefore:
"(j) STANDBY LETTER OF CREDIT FEE. On each Quarterly Payment Date
and on the Letter of Credit Expiration Date, Borrower shall pay to
Administrative Agent in arrears, for the account of each Lender in
accordance with its Pro Rata Share, a Letter of Credit fee equal to
the Applicable Amount for Letters of Credit times the actual daily
maximum amount available to be drawn under each standby Letter of
Credit since the later of the Closing Date and the previous
Quarterly Payment Date; provided, however, that for any Letter of
Credit issued under the Revolving Loan Commitment L/C Sublimit, such
Letter of Credit fee shall be payable to Administrative Agent in
advance on each Quarterly Payment Date, for the account of each
Lender in accordance with it Pro Rata Share."
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D. Subsection 2.05(c) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting the following
therefore:
"(c) If for any reason the Letter of Credit Usage at any time
exceeds the combined Letter of Credit Commitments plus the Revolving
Loan Commitment L/C Sublimit as in effect or as reduced, or to give
effect to the limitations set forth in Section 2.04(a), or because
of any other limitation set forth in this Agreement or otherwise,
Borrower shall immediately deposit cash in a Letter of Credit Cash
Collateral Account in an aggregate amount equal to such excess."
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Lender to enter into this
Second Amendment and to amend the Credit Agreement in the manner provided
herein, each of Borrower and Holdings represents and warrants to each Lender and
Issuing Lender that the following statements are true, correct and complete:
A. EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Each
Borrower Party is a corporation duly organized or formed, validly existing and
in good standing under the Laws of the state of its incorporation or
organization, has the power and authority and the legal right to own and operate
its properties, to lease the properties it operates and to conduct its business,
is duly qualified and in good standing under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business
requires such qualification, and is in compliance with all Laws except to the
extent that noncompliance does not have a Material Adverse Effect.
B. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Borrower
Party has the power and authority and the legal right to make, deliver and
perform this Second Amendment and, in the case of Holdings and Borrower, to
perform its obligations under the Credit Agreement as amended by this Second
Amendment (the "AMENDED AGREEMENT"), and has taken all necessary action to
authorize the execution, delivery and performance of this Second Amendment and
to authorize the performance under the Amended Agreement. No consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection with the execution, delivery, performance,
validity or enforceability of this Second Amendment or the Amended Agreement.
This Second Amendment has been duly executed and delivered by each Borrower
Party, and this Second Amendment and the Amended Agreement constitute a legal,
valid and binding obligation of each Borrower Party party thereto, enforceable
against each Borrower Party party thereto in accordance with their respective
terms.
C. NO LEGAL BAR. The execution, delivery, and performance by each
Borrower Party of this Second Amendment and the performance by each Borrower
Party party thereto of the Amended Agreement and compliance with the provisions
hereof and thereof have been duly authorized by all requisite action on the part
of such Borrower Party and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent under (i) any Organization
Documents of such Borrower Party or any of its Subsidiaries, (ii) any applicable
Laws, rules, or regulations or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator, or (iii) any Contractual Obligation of
such Borrower Party or any of its
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Subsidiaries or by which any of them or any of their property is bound or
subject, (b) constitute a default under any such agreement or instrument, (c)
result in, or require, the creation or imposition of any Lien on any of the
properties of such Borrower Party or any of its Subsidiaries, or (d) require any
approval of stockholders or any approval or consent of any Person of any
Contractual Obligation of any Borrower Party.
D. 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 date of this Second Amendment 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.
E. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Second Amendment that would constitute an Event of Default or a Default.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
Development is a party to the Development Guaranty, as amended,
pursuant to which Development has guaranteed the Obligations. Development is
referred to herein as the "CREDIT SUPPORT PARTY," and the Development Guaranty
is referred to herein as the "CREDIT SUPPORT DOCUMENT".
The Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Second Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Second Amendment. The Credit Support Party hereby confirms that the Credit
Support Document to which it is a party or otherwise bound will continue to
guaranty, to the fullest extent possible the payment and performance of all
Guarantied Obligations (as such term is defined in the Credit Support Document),
including without limitation the payment and performance of all such Guarantied
Obligations in respect of the Obligations of Borrower and Holdings now or
hereafter existing under or in respect of the Amended Agreement and the Notes
defined therein.
The Credit Support Party acknowledges and agrees that the Credit
Support Document 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 Second Amendment. The Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
Agreement and the Credit Support Document to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
date of this Second Amendment 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.
The Credit Support Party acknowledges and agrees that the Credit
Support Party is not required by the terms of the Credit Agreement or any other
Loan Document to consent to the amendments to the Credit Agreement effected
pursuant to this Second Amendment and nothing in the Credit Agreement, this
Second Amendment or any other Loan Document shall be
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deemed to require the consent of the Credit Support Party to any future
amendments to the Credit Agreement.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the date of this Second Amendment, 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 the "Credit
Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to
the Amended Agreement.
(ii) Except as specifically amended by this Second 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 Second
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 Administrative Agent, any Lender or the Issuing
Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Borrower acknowledges that all costs, fees and
expenses as described in subsection 11.03 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Second Amendment and
the documents and transactions contemplated hereby shall be for the account of
Borrower.
C. HEADINGS. Section and subsection headings in this Second
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Second Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS SECOND 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
CALIFORNIA (INCLUDING WITHOUT LIMITATION SECTION 1646.5 OF THE CIVIL CODE OF THE
STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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E. COUNTERPARTS; EFFECTIVENESS. This Second 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. This Second Amendment shall become
effective upon the execution of a counterpart hereof by Borrower, Holdings,
Requisite Lenders and the Credit Support Party and receipt by Borrower and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
STATER BROS. MARKETS,
a California corporation
By:___________________________________
Xxxxx X. Xxxxxx, Secretary
STATER BROS. HOLDINGS INC.,
a Delaware corporation
By:___________________________________
Xxxxx X. Xxxxxx, Secretary
STATER BROS. DEVELOPMENT, INC.
a California corporation (for purposes of
Section 4) as a Credit Support Party
By:___________________________________
Xxxxx X. Xxxxxx, Secretary
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BANK OF AMERICA, N.A., as Administrative
Agent
By:___________________________________
Title:________________________________
BANK OF AMERICA, N.A., as Issuing Lender
and a Lender
By:___________________________________
Title:________________________________
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