Star Markets Company, Inc. Exhibit 10(q)
Exhibit 10(q) - Third Amendment to Credit Agreement among the Company,
Chemical Bank, as Administrative Agent, and the lenders
party thereto, dated as of April 21, 1997.
AMENDMENT, dated as of April 21, 1997 (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 THE CHASE MANHATTAN
BANK as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Lenders and the Administrative
Agent to: (i) extend the Revolving Credit Termination Date under the Credit
Agreement from December 31, 1999 to December 31, 2001, (ii) provide a new
$38,500,000 Term Loan for the purpose of refinancing the Tranche A Term
Loans and (iii) establish new financial covenant levels; and
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. Amendments of Subsection 1.1 (Defined Terms). Subsection 1.1
of the Credit Agreement is hereby amended by: (a) deleting the definition
"Applicable Margin" in its entirety and replacing it with the following:
"'Applicable Margin': for Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans, Additional Tranche C Term Loans, Revolving Credit
Loans and Swing Line Loans of the Types set forth below, the rate per annum
set forth under the relevant column heading opposite such Loans below:
Alternate
Base Rate Eurodollar
Loans Loans
--------- ----------
Tranche A Term Loans: 1.25% 2.50%
Tranche B Term Loans: 1.75% 3.00%
Tranche C Term Loans: 2.25% 3.50%
Additional Tranche C Term Loans 2.25% 3.50%
Revolving Credit Loans: 1.25% 2.50%
Swing Line Loans: 1.25% Not applicable"
(b) adding the punctuation and the words ", Additional Tranche C Term
Loan Commitment" after the words "Tranche C Term Loan Commitment" in the
definition of "Commitment",
(c) adding the punctuation and the words ", its Additional Tranche C
Term Loan Commitment Percentage" after the words "its Tranche C Term Loan
Commitment Percentage" in the definition of "Commitment Percentage",
(d) deleting the year "1999" and replacing it with the year "2001" in
the definition of "Revolving Credit Termination Date",
(e) deleting the word "and" and substituting therefore the punctuation
", " and adding the words "and the Additional Tranche C Term Loan Notes"
after the words "the Tranche C Term Loan Notes" in the definition of "Term
Loan Notes",
(f) deleting the word "and" and substituting therefore the punctuation
", " and adding the words "and the Additional Tranche C Term Loans" after
the words "the Tranche C Term Loans" in the definition of "Term Loans", and
(g) by adding thereto in appropriate alphabetical order the following
new definitions:
"'Additional Tranche C Amendment': the Amendment to this
Agreement dated as of April 8, 1997."
"'Additional Tranche C Amendment Effective Date': as defined in
the Additional Tranche C Amendment."
"'Additional Tranche C Lenders': the Lenders listed in Schedule
I to the Additional Tranche C Amendment."
"'Additional Tranche C Term Loan' and 'Additional Tranche C Term
Loans': as defined in subsection 4.4."
"'Additional Tranche C Term Loan Commitment': as to any Lender,
its obligation to make an Additional Tranche C Term Loan to the
Company pursuant to subsection 4.4 in an aggregate amount not to
exceed the amount set forth under such Lender's name in Schedule I to
the Additional Tranche C Amendment opposite the caption "Additional
Tranche C Term Loan Commitment" or in Schedule 1 to the Assignment and
Acceptance pursuant to which a lender acquires its Additional Tranche
C Term Loan Commitment, as the same may be adjusted pursuant to
subsection 13.6(c); collectively, as to all the Lenders, the
'Additional Tranche C Term Loan Commitments'."
"'Additional Tranche C Term Loan Commitment Percentage': as to
any Lender at any time, the percentage of the aggregate Additional
Tranche C Term Loan Commitments then constituted by such Lender's
Additional Tranche C Term Loan Commitment."
"'Additional Tranche C Term Loan Note': as defined in
subsection 6.13(e)."
Section 3. Amendments of Section 4 (Tranche C Term Loans). (a) The
heading of Section 4 is amended hereby by adding the words "AND ADDITIONAL
TRANCHE C TERM LOANS" after the words "TRANCHE C TERM LOANS".
(b) Section 4 is hereby amended by adding the following
subsections:
"4.4 Additional Tranche C Term Loans: Subject to the terms and
conditions hereof, each Lender severally agrees to make a loan in
Dollars (individually, an 'Additional Tranche C Term Loan'; and
collectively, the 'Additional Tranche C Term Loans') to the Company on
the Additional Tranche C Amendment Effective Date, in an aggregate
principal amount equal to such Lender's Additional Tranche C Loan
Commitment. The Additional Tranche C Term Loans shall be made
initially as Alternate Base Rate Loans.
4.5 Repayment of Additional Tranche C Term Loans. the Company
shall repay the Additional Tranche C Term Loans as provided in
subsection 6.4(c).
4.6 Use of Proceeds. The proceeds of the Additional Tranche C
Term Loans shall be used for the purpose of refinancing in full the
outstanding Tranche A Term Loans."
Section 4. Amendments of Section 6 (General Provisions Applicable to
Loans). (a) Subsection 6.1(a) clause (D) is hereby amended by deleting it
in its entirety and substituting therefore the following:
"(D) whether the loan is a Tranche A Term Loan, a Tranche B Term Loan, a
Tranche C Term Loan, an Additional Tranche C Term Loan, a Swing Line
Loan or a Revolving Credit Loan."
(b) Subsection 6.2(b) clause (iii) is hereby amended by deleting
it in its entirety and substituting therefore the following:
"(iii) after the date that is one month prior to the Revolving Credit
Termination Date (in the case of continuations of Revolving Credit
Loans) or the date of the final installment of principal of the
Tranche A Term Loans, the Tranche B Term Loans, the Tranche C Term
Loans or the Additional Tranche C Term Loans, as applicable."
(c) The first sentence of subsection 6.4(a) is hereby amended
by deleting it in its entirety and substituting therefore the
following:
"The Company may at any time and from time to time prepay Loans, in
whole or in part, without premium or penalty, upon at least two
Business Days' (or, in the case of Swing Line Loans, by 12:00 noon,
New York City time on the same Business Day) irrevocable notice to the
Administrative Agent in the case of alternate Base Rate Loans, and
three Business Days' irrevocable notice to the Administrative Agent in
the case of Eurodollar Loans, specifying the date and amount of
prepayment and whether the prepayment is of Revolving Credit Loans,
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or
Additional Tranche C Term Loans, provided that Eurodollar Loans may
not be optionally prepaid on other than the last day of any Interest
Period with respect thereto."
(d) The fourth sentence of Subsection 6.4(a) is hereby amended
by deleting it in its entirety and substituting therefore the
following:
"Prepayments of the Term Loans pursuant to this subsection 6.4(a)
shall be applied to the outstanding principal amounts of the Tranche A
Term Loans, Tranche B Term Loans, Tranche C Term Loans and Additional
Tranche C Term Loans ratably according to the outstanding principal
amounts of such Term Loans and shall be applied to the remaining
installments of such Term Loans ratably according to the amounts of
such installments."
(e) Subsection 6.4(c) is hereby amended by adding to the end
thereof:
"The Additional Tranche C Term Loans shall be repaid in 7 installments
on the dates set forth in Schedule II to the Additional Tranche C
Amendment (each such day, an 'Additional Tranche C Installment Payment
Date'), commencing on January 31, 1998 in an aggregate amount equal to
the amount specified for each such Additional Tranche C Installment
Payment Date on Schedule II to the Additional Tranche C Amendment
under the heading 'Additional Tranche C'."
(f) Subsection 6.13(a) is hereby amended by deleting the words
and punctuation "and (v)" which appears at the end of clause (iv) and
substituting therefore the words and punctuation ", (v) the principal
amount of the Additional Tranche C Term Loan of such Lender, in 7
installments, payable on each Additional Tranche C Installment Payment
Date (or the then unpaid principal amount of such Additional Tranche C
Term Loan, on the date that the Additional Tranche C Term Loans become
due and payable pursuant to Section 11) and (vi)".
(g) Subsection 6.13(e) is hereby amended by (i) deleting "(v)"
and (ii) by inserting the words and punctuation "(v) a promissory note
of the Company evidencing the Additional Tranche C Term Loan of such
Lender, substantially in the form of Exhibit C-1 with appropriate
insertions as to date and principal amount (an 'Additional Tranche C
Term Loan Note'), and/or (vi)" after the words and punctuation "(a
'Tranche C Term Loan Note'), and/or".
Section 5. Amendment of Section 10 (Negative Covenants). Section 10 is
hereby amended by deleting subsections 10.7, 10.8, 10.9 and 10.10 in their
entirety and substituting the following:
"10.7 Capital Expenditures. Make or commit to make any Capital
Expenditures, except that the Company and its Subsidiaries may make or
commit to make Capital Expenditures not exceeding the amount set forth
below (the "Base Amount") for each of the fiscal years of the Company
(or other period) set forth below:
Fiscal Year
or Period Base Amount
--------------------------
1996 $35,100,000
1997 40,500,000
1998 48,200,000
1999 35,000,000
2000 35,000,000
2001 35,000,000
2002 35,000,000
2003 35,000,000
provided, however, that for any fiscal year of the Company the Base
Amount set forth above may be increased by a maximum of $15,000,000 for any
such fiscal year by carrying over to any such fiscal year any portion of the
Base Amount (as increased) not spent in the immediately preceding fiscal
year.
10.8 Consolidated EBITDA. At the last day of any fiscal quarter set
forth below, permit Consolidated EBITDA for the period of four fiscal
quarters ending on such day to be less than the amount set forth opposite
such fiscal quarter below:
Fiscal Year Fiscal Quarter Amount
----------- -------------- ------
1996 Fourth $42,000,000
1997 First 43,000,000
Second 44,000,000
Third 45,000,000
Fourth 47,500,000
1998 First 47,500,000
Second 47,500,000
Third 50,000,000
Fourth 52,500,000
1999 First 52,500,000
Second 52,500,000
Third 55,000,000
Fourth 57,500,000
2000 First 57,500,000
Second 60,000,000
Third 62,500,000
Fourth 67,500,000
2001 First 67,500,000
Second 70,000,000
Third 72,500,000
Fourth 77,500,000
2002 First 77,500,000
Second 80,000,000
Third 82,500,000
Fourth 85,000,000
2003 First 85,000,000
Second 87,500,000
Third 90,000,000
10.9 Consolidated Net Worth. At the last day of any fiscal year set
forth below, permit Consolidated Net Worth to be less than the amount set
forth below for such fiscal year:
Fiscal Year Amount
----------- ------
1996 $105,000,000
1997 127,500,000
1998 150,000,000
1999 175,000,000
2000 205,000,000
2001 245,000,000
2002 290,000,000
10.10 Interest Coverage; Fixed Charge Coverage. (a) At the last
day of any fiscal quarter set forth below, permit the Interest Coverage
Ratio to be less than the ratio set forth below for such fiscal quarter:
Fiscal Year Fiscal Quarter Amount
----------- -------------- ------
1996 Fourth 1.30 to 1
1997 First 1.35 to 1
Second 1.35 to 1
Third 1.35 to 1
Fourth 1.35 to 1
1998 First 1.35 to 1
Second 1.35 to 1
Third 1.40 to 1
Fourth 1.40 to 1
1999 First 1.40 to 1
Second 1.40 to 1
Third 1.45 to 1
Fourth 1.45 to 1
2000 First 1.45 to 1
Second 1.45 to 1
Third 1.50 to 1
Fourth 1.55 to 1
2001 First 1.55 to 1
Second 1.55 to 1
Third 1.60 to 1
Fourth 1.65 to 1
2002 First 1.65 to 1
Second 1.65 to 1
Third 1.70 to 1
Fourth 1.75 to 1
2003 First 1.75 to 1
Second 1.75 to 1
Third 1.80 to 1
(b) At the last day of any fiscal quarter, permit the Fixed Charge
Coverage Ratio for such fiscal quarter shall to be less than 1.0 to 1.0:"
Section 6. Amendment of Section 13 (Miscellaneous). (a) Subsection
13.1(d) is amended by deleting it in its entirety and substituting therefore
the following:
" (d) without the consent of the Lenders which are holders of
the Tranche B Term Loans, the Tranche C Term Loans, the Additional
Tranche C Term Loans and the Revolving Credit Lenders only, the
Lenders which are holders of the Tranche A Term Loans may amend
this Agreement and the Tranche A Term Loan Notes to extend the
maturities of the installments of the Tranche A Term Loans; without
the consent of the Lenders which are holders of the Tranche A Term
Loans, the Tranche C Term Loans, the Additional Tranche C Term
Loans and the Revolving Credit Lenders only, the Lenders which are
holders of the Tranche B Term Loans may amend this Agreement and
the Tranche B Term Loan Notes to extend the maturities of the
installments of the Tranche B Term Loans; without the consent of
the Lenders which are holders of the Tranche A Term Loans, the
Tranche B Term Loans, the Additional Tranche C Term Loans and the
Revolving Credit Notes only, the Lenders which are holders of the
Tranche C Term Loans may amend this Agreement and the Tranche C
Term Loan Notes to extend the maturities of the installments of the
Tranche C Term Loans; without the consent of the Lenders which are
holders of the Tranche A Term Loans, the Tranche B Term Loans, the
Tranche C Term Loans and the Revolving Credit Notes only, the
Lenders which are holders of the Additional Tranche C Term Loans
may amend this Agreement and the Additional Tranche C Term Loan
Notes to extend the maturities of the installments of the
Additional Tranche C Term Loans; and without the consent of the
Lenders which are holders of the Term Loans, the Revolving Credit
Lenders may amend this Agreement and the Revolving Credit Notes to
extend the Revolving Credit Termination Date;"
(b) The second sentence of subsection 13.6(e) is hereby amended by
adding the words and punctuation ", Additional Trance C Term Loan Notes"
after the words "Tranche C Term Notes" each time they appear in said
sentence.
Section 7. Amendment of Exhibits. Exhibit C-1 hereto is hereby added to
the Credit Agreement as Exhibit C-1 thereto.
Section 8. Conditions Precedent. This Amendment shall become effective as
of the date (the "Additional Tranche C Amendment Effective Date") that each
of the conditions precedent set forth below shall have been fulfilled to the
satisfaction of the Administrative Agent.
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed by the Company, the Lenders
holding 100% of the Revolving Credit Commitments and 80% of the sum of the
aggregate unpaid principal amount of the Term Loans and the Revolving Credit
Commitments, the Administrative Agent and each Additional Tranche C Lender
and consented to by Holdings.
(b) No Default or Event of Default. On and as of the Additional
Tranche C 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 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 Additional Tranche C 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.
(e) Fees and Expenses. The Administrative Agent shall have received
for its own account and the account of the Lenders the fees and expenses
required to be paid by the Company on the Amendment Effective Date pursuant
to the Fee Letter dated as of March 10, 1997 between the Administrative
Agent and the Company.
(f) Notes. The Administrative Agent shall have received for the
account of each Additional Tranche C Lender requesting the same an
Additional Tranche C Term Loan Note in the amount of its Additional Tranche
C Term Loan after giving effect hereto.
(g) Legal Opinions. The Administrative Agent shall have received,
dated the Amendment Effective Date and addressed to the Administrative Agent
and the Lenders, opinions of Gibson, Dunn & Crutcher and such local
Massachusetts counsel as shall be satisfactory to the Administrative Agent
covering the matters set forth in Exhibit D hereto with such assumptions,
qualifications and changes thereto as may be approved by and otherwise in
form and substance reasonably satisfactory to the Administrative Agent and
its counsel.
(h) Consents, Authorizations and Filings, etc. All consents,
authorizations and filings, if any, required in connection with the
execution, delivery and performance by the Company of this Amendment and the
validity and enforceability against the Company of the Credit Documents to
which it is a party, shall have been obtained or made, and such consents,
authorizations and filings shall be in full force and effect, except such
consents, authorizations and filings the failure to obtain which would not
have a material adverse affect on the business, assets, condition (financial
or otherwise) or results of operations of the Company.
(i) Closing Certificates. The Administrative Agent shall have
received a Certificate of the Company in form and substance satisfactory to
it and certifying as to (i) the incumbency of the officers of the Company
executing this Amendment and each other document delivered in connection
herewith and (ii) resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance of the Credit Documents
entered into or amended on the Additional Tranche C Amendment Effective
Date.
(j) Tranche A Refinancing. The Company shall have refinanced its
outstanding Tranche A Term Loans with the proceeds of the Additional Tranche
C Term Loans.
Section 9. Representation and Warranties. To induce the Lenders to enter
into this Amendment, the Company hereby represents and warrants to the
Lenders 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, 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 10. Additional Tranche C Lenders. Each Additional Tranche C Lender
(i) represents and warrants that it is legally authorized to enter into this
amendment; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
subsection 7.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Amendment; (iii) agrees that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the
Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iv) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other
Credit Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (v) agrees
that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligations pursuant to subsections 6.11(d) and 13.6(g)
of the Credit Agreement to deliver the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Lender's exemption
from United States withholding taxes with respect to all payments to be made
to the Lender under the Credit Agreement, or such other documents as are
necessary to indicate that all such payments are subject to such tax at a
rate reduced by an applicable tax treaty.
Section 11. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
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:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Issuing Lender
and a Lender
By:
Title:
BANKERS TRUST COMPANY
By:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
Title:
By:
Title:
CAPTIVA FINANCE LTD.
By:
Title:
FLEET NATIONAL BANK
By:
Title:
GIROCREDIT BANK AG DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By:
Title:
KZH HOLDING CORPORATION
By:
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By:
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
Title:
ML CBO IV (CAYMAN) LTD.
By:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By:
Title:
PRIME INCOME TRUST
By:
Title:
PROTECTIVE LIFE INSURANCE COMPANY
By:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management Research, as
Investment Advisor
By:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
Title:
STRATA FUNDING LTD.
By:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Title:
Consented to by:
----------------
STAR MARKETS HOLDINGS, INC.
By:
Title:
SCHEDULE I
----------
Additional Tranche C Lenders
----------------------------
Additional Tranche C Additional Tranche C
Lenders Address for Notices Commitment
- -------------------- ------------------- --------------------
The Chase Manhattan Bank 270 Park Avenue, 10th Floor $15,500,000
New York, NY 10017
Attn: Neil Boylan
Telecopy: (212) 972-0009
Banque Francaise 645 Fifth Avenue $ 2,000,000
Du Commerce Exterieur, New York, NY 10022
Cayman Island Branch Attn: Peter Harris
Telecopy: (212) 872-5054
The First National Bank of 100 Federal Street $ 2,500,000
Boston Mail Stop 01-09-05
Boston, MA 02110
Attn: Judith Kelly
Telecopy: (617) 434-6685
KZH Holding Corporation c/o The Chase Manhattan Bank $ 3,000,000
450 West 33rd Street
15th Floor
New York, NY 10001
Attn: Robert Goodwin
Joseph Nerich
Telecopy: (212) 946-7776
Senior High Income Portfolio, c/o Merrill Lynch Asset $ 3,500,000
Inc. Management
800 Scudders Mill Road
Plainsboro, NJ 08536
Attn: Jill Montanye
Telecopy: (609) 282-2550
The Mitsubishi Trust and 520 Madison Avenue $ 2,500,000
Banking Corporation 25th Floor
New York, NY 10022
Attn: Susan LeFevre
Telecopy: (212) 644-6825
Pilgrim America Prime Rate Two Renaissance Square $ 3,500,000
Trust 40 North Central Avenue
Phoenix, AZ 85004-4424
Telecopy: (602) 417-8327
Prime Income Trust c/o Dean Witter Intercapital $ 2,500,000
Two World Trade Center
72nd Floor
New York, NY 10048
Attn: Louis Pistecchia
Telecopy: (212) 392-5345
Van Kampen American Capital c/o Van Kampen American $ 3,500,000
Prime Rate Income Trust Capital
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attn: Jeffrey Maillet
Telecopy: (630) 684-6740
-----------
Total: $38,500,000
SCHEDULE II
-----------
Term Loan Amortization Schedule
-------------------------------
Installment
Payment Date: Installment Amount:
- ------------- -------------------
Additional
Tranche C
----------
January 31, 1998 $ 125,000
January 31, 1999 125,000
January 31, 2000 125,000
January 31, 2001 125,000
January 31, 2002 125,000
January 31, 2003 125,000
December 31, 2003 $37,750,000
-----------
$38,500,000
EXHIBIT C-1 to
Credit Agreement
----------------
ADDITIONAL TRANCHE C TERM LOAN NOTE
$__________ New York, New York
April 21, 1997
FOR VALUE RECEIVED, the undersigned, STAR MARKETS COMPANY, INC., a
Massachusetts corporation (the "Company"), promises to pay to the order of
_______________ (the "Lender") at the office of The Chase Manhattan Bank,
270 Park Avenue, New York, New York 10017, in lawful money of the United
States of America and in immediately available funds, the principal amount
of ____________________ DOLLARS ($__________), or, if less, the aggregate
unpaid principal amount of all loans made by the Lender pursuant to
subsection 4.4 of the Credit Agreement referred to below, which sum shall be
due and payable in such amounts and on such dates as are set forth in the
Credit Agreement, dated as of September 8, 1994 among the Company, the
Lender and certain other banks and financial institutions parties thereto,
and The Chase Manhattan Bank, as administrative agent (as the same may be
from time to time amended, supplemented or otherwise modified, the "Credit
Agreement"; terms defined therein being used herein as so defined). The
undersigned further agrees to pay interest at said office, in like money,
from the date hereof on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in subsection 6.5 of the
Credit Agreement. The holder of this Note is authorized to record the date,
Type and amount of the Additional Tranche C Term Loan made by the Lender
pursuant to subsection 4.4 of the Credit Agreement, the date and amount of
each payment or prepayment of principal hereof, and the date of each
interest rate conversion or continuation pursuant to subsection 6.2 of the
Credit Agreement and the principal amount subject thereto, on the schedules
annexed hereto and made a part hereof and any such recordation shall
constitute prima facie evidence of the information so recorded, provided
that the failure of the Lender to make such recordation (or any error in
such recordation) shall not affect the obligations of the Company hereunder
or under the Credit Agreement.
This Note is one of the Additional Tranche C Term Loan Notes referred
to in the Credit Agreement and is entitled to the benefits thereof and is
subject to optional and mandatory prepayment in whole or in part as provided
therein.
This Note is secured and guaranteed as provided in the Security
Documents and the Guarantees. Reference is hereby made to the Security
Documents and the Guarantees for a description of the properties and assets
in which a security interest has been granted, the nature and extent of the
security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this
Note in respect thereof. The undersigned agrees to pay all costs and
expenses incurred by the Lender in connection with the enforcement of its
rights and remedies under the Credit Agreement, this Note, the Security
Documents and each other Credit Document.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all
as provided therein.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE
REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
STAR MARKETS COMPANY, INC.,
By:_____________________________
Title:
Schedule A to Additional Tranche C
Term Loan Note
--------------
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
-------------------------------------------
Unpaid
Amount Principal
Amount of Converted to Amount Balance of
Alternate Alternate Amount of Converted to Alternate
Base Rate Base Rate Principal Eurodollar Base Rate Notation
Date Loans Loans Repaid Loans Loans Made By
- -----------------------------------------------------------------------------------------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Schedule B to Additional Tranche C
Term Loan Note
--------------
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
----------------------------------
Interest
Period and Amount Unpaid
Amount Eurodollar Converted Principal
Amount of Converted to Rate with Amount of to Alternate Balance of
Eurodollar Eurodollar Respect Principal Base Rate Eurodollar
Date Loans Loans Thereto Repaid Loans Loans
- ------------------------------------------------------------------------------------------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ---------- ---------- ----------
EXHIBIT D
OPINIONS TO BE COVERED
1. The Company is a validly existing corporation in corporate good
standing under the laws of The Commonwealth of Massachusetts. The Company
has all requisite corporate power and authority to own and operate its
properties, conduct its business in the manner in which it presently is
conducted, and to execute and deliver the Amendment and the Additional
Tranche C Notes, and perform its obligations under the Credit Agreement, as
amended by the Amendment and the Additional Tranche C Notes (the "Amendment
Documents").
2. Each of the Amendment and the Additional Tranche C Notes has been
duly authorized by all necessary corporate action on the part of the
Company. Each of the Amendment and the Additional Tranche C Notes has been
duly executed and delivered on behalf of the Company.
3. Each of the Amendment Documents constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
4. Neither the execution and delivery by the Company of the Amendment
and the Additional Tranche C Notes, the performance by the Company of its
obligations under the Amendment Documents nor the consummation of the
transactions contemplated thereby constitutes a violation of any applicable
federal, Massachusetts or New York state law, Governmental rule or
regulation or, to our actual knowledge, any order of any court or
governmental authority that is applicable to the Company, or will result in
a breach of the Company's articles of incorporation or by-laws in their
present form. To our actual knowledge, neither the execution and delivery
by the Company of the Amendment and the Additional Tranche C Notes,
performance by the Company of its obligations under the Amendment Documents
nor the consummation of the transactions contemplated thereby will conflict
with, or result in any material breach of, or constitute a default under, or
result in the creation or imposition of any lien upon any property or assets
of the Company pursuant to, or require any consent not obtained under, any
indenture, mortgage, deed of trust, material agreement or other material
instrument identified to us and listed in Annex hereto to which the
Company is party or by which it or any of its property is to be bound or to
which it is subject, which conflict, breach or default, or lien created or
imposed, or the failure to obtain such consent, would have a material
adverse effect on the business, condition or results of operation of the
Company or on its ability to perform its obligations under the Amendment
Documents, or would give rise to liability on the part of the Lenders or the
Administrative Agent.
5. No consent, approval or authorization of, and no registration,
declaration or filing with any administrative, Governmental or other public
authority of the United States of America, The Commonwealth of Massachusetts
or the State of New York is required by law to be obtained or made in
connection with the execution and delivery, and performance by the Company
of the Amendment and the Additional Tranche C Notes, or for the validity or
enforceability against the Company, of any of the Amendment Documents, other
than (i) such consents, approvals, authorizations, registrations,
declarations and filings that have been made or obtained on or prior to the
date hereof and remain in full force and effect, and (ii) such consents,
approvals, authorizations, registrations, declarations and filings, the
failure to perform or obtain (a) which would not have a material adverse
effect on the business, condition or results of operation of the Company and
(b) which would not adversely affect the validity or enforceability of any
of the Amendment Documents or the rights or remedies of the Administrative
Agent or the Lenders thereunder, or the ability of any of them to perform
its obligations under the Amendment Documents to which it is party, or would
give rise to liability on the part of the Administrative Agent or the
Lenders.
6. The Company is not an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning, of the Investment Company Act of 1940, as amended. The
Company is not a "holding company", or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company
Act of 1935, as amended.
7. Neither the making of the Additional Tranche C Term Loans on the
Additional Tranche C Amendment Effective Date pursuant to, nor application
of the proceeds thereof in accords with, the Amendment and the Credit
Agreement will violate Regulation G, T, U or X promulgated by the Board of
Governors of the Federal Reserve
System.
8. To our actual knowledge, except as disclosed in the Amendment and
the Credit Agreement or in any schedule, exhibit, annex or attachment
thereto, there is pending or threatened no action, suit or proceeding or
Governmental investigation, or any order, writ, judgment, injunction or
decree against the Company before or by any court, arbitrator or
governmental or administrative body that challenges the validity of any
Amendment Documents or any of the transactions contemplated thereby or that
restrains, prevents or imposes material adverse conditions upon, or seeks to
restrain, prevent or impose material adverse conditions upon, any such
transaction.