Star Markets Company, Inc. Exhibit 10(p)
Exhibit 10(p) - Second Amendment to Credit Agreement among the Company,
Chemical Bank, as Administrative Agent, and the lenders
party thereto, dated as of June 25, 1996.
AMENDMENT, dated as of June 25, 1996 (this "Amendment"), to and of the
Credit Agreement, dated as of September 8, 1994 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among STAR
MARKETS COMPANY, INC. (the "Company"), the Lenders from time to time parties
thereto (the "Lenders") and CHEMICAL BANK as administrative agent for the
Lenders (in such capacity, the "Administrative Agent")
WITNESSETH:
WHEREAS, the Company desires to acquire from The Stop & Shop
Supermarket Company ("Stop & Shop") and operate as its own three stores; and
WHEREAS, the Company desires to increase its Capital Expenditure limit
by $3,130,000 which may be used to acquire a fourth store from Stop & Shop
or otherwise; and
WHEREAS, the Company has requested the Lenders and the Administrative
Agent to amend the Credit Agreement in connection with the acquisition of
such stores from Stop & Shop and to increase such Capital Expenditure limit;
WHEREAS, the Lenders and the Administrative Agent are willing to so
amend the Credit Agreement, but only on, and subject to, the terms and
conditions hereof;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, the Lenders and
the Administrative Agent hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
Section 2. Amendment of Subsection 1.1 (Defined Terms). (a) Subsection
1.1 of the Credit Agreement is hereby amended by adding thereto in
appropriate alphabetical order the following new definition:
"'Stop & Shop Acquisition': the acquisition of three stores
located in the Company's trade area from The Stop & Shop Supermarket
Company for gross consideration of approximately $20,870,000."
(b) The second sentence of the definition of "Capital Expenditures" is
hereby amended by (1) deleting the word "and" appearing at the end of clause
(x) and substituting therefore the punctuation ",", (b) deleting the period
appearing at the end of clause (y) and substituting therefor the punctuation
and the word ", and" and (c) adding to the end thereof the following new
clause (z):
"(z) assets included in the Stop & Shop Acquisition."
Section 3. Amendment of Subsection 10.5 (Prohibition on Sales of
Assets). Subsection 10.5(c) of the Credit Agreement is hereby amended by
deleting the amount "$40,000,000" appearing in clause (i) and substituting
therefor the amount "$52,000,000".
Section 4. Amendment of Subsection 10.7 (Capital Expenditures).
Section 10.7 of the Credit agreement hereby amended by adding to the end
thereof "and that the Base Amount for 1996 and/or 1997 may be further
increased by $3,130,000 in the aggregate."
Section 5. Conditions Precedent. This Amendment shall become
effective as of the date (the "Amendment -Effective Date") that each of the
conditions precedent set forth below shall have been fulfilled to the
satisfaction of the Administrative Agent, provided that the Amendment
Effective Date may not occur later than the earlier of July 25, 1996 and the
closing of the initial acquisition under the Stop & Shop Acquisition:
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed by the Company, the Required
Lenders and the Administrative Agent.
(b) No Default or Event of Default. On and as of the Amendment
Effective Date and after giving effect to this Amendment, no Default or
Event of Default shall have occurred and be continuing.
(c) Representations and Warranties. The representations and
warranties made by the Company and its Subsidiaries in this Amendment and in
the Credit Documents after giving effect to this Amendment shall be true and
correct in all material respects on and as of the Amendment Effective Date
as if made on such date, except where such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date.
(d) Certificate. The Administrative Agent shall have received a
certificate of a Responsible Officer of the Company, dated the Amendment
Effective Date, certifying the matters referred to in paragraphs (b) and (c)
above and (e) below.
(e) Equity Contribution. The Company shall have received an equity
contribution of at least $12,000,000.
Section 6. Representations and Warranties. To induce the Lenders to
enter into this Amendment, the Company hereby represents and warrants to the
Lenders that as of the Amendment Effective Date that the representations and
warranties made by the Company in the Credit Documents are true and correct
in all material respects on and as of the Amendment Effective Date, before
and after giving effect to the effectiveness of this Amendment, as if made
on and as of the Amendment Effective Date unless expressly stated to relate
to an earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date.
Section 7. Miscellaneous. (a) Except for the amendments and waivers
expressly provided herein, the Credit Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms. The
amendments and waivers provided herein shall be limited precisely as drafted
and shall not be construed to be an amendment or waiver of any other
provision of the Credit Agreement other than as specifically provided
herein.
(b) The Company hereby confirms that, after giving effect hereto,
each Credit Document to which it is a party remains in full force and effect in
accordance with its terms.
(c) The Company agrees to pay or reimburse the Administrative Agent
for all of its out-of-pocket costs and reasonable expenses incurred in
connection with the Amendment any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of Simpson Thacher &
Bartlett counsel to the Administrative Agent.
(d) This Amendment may be executed in any number of counterparts by
the parties hereto, and all of said counterparts when taken together shall
be deemed to constitute one and the same instrument.
(e) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
(f) This Amendment replaces and supersedes in its entirety the
Amendment dated as of January 16, 1996 which shall be of no force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duty executed and delivered in New York, New York by their proper and
duly authorized officers as of the date first above written.
STAR MARKETS COMPANY, INC.
By:
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Title:
CHEMICAL BANK, as Administrative Agent,
Issuing Lender and a Lender
By:
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Title:
BANKERS TRUST COMPANY
By:
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Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
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Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment Advisor
By:
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Title:
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FLEET CREDIT CORPORATION
By:
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Title:
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GIROCREDIT BANK
By: ----------------
Title: -------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
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Title:
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MELLON BANK
By:
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Title:
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MERRILL LYNCH SENIOR FLOATING RATE
FUND INC.
By:
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Title:
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MERRILL LYNCH PRIME RATE PORTFOLIO
By:
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Title:
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MITSUBISHI TRUST AND BANKING CORPORATION
By:
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Title:
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NATIONAL WESTMINSTER BANK PLC
By:
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Title:
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PILGRIM PRIME RATE TRUST
By:
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Title:
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PROTECTIVE LIFE INSURANCE COMPANY
By:
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Title:
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VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
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Title:
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STRATA FUNDING LIMITED
By: Chancellor Senior Secured Management, Inc.
as Portfolio Advisor
By:
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Title:
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