1
EXHIBIT 4.8.6
SIXTH MODIFICATION AGREEMENT
This SIXTH MODIFICATION AGREEMENT, dated as of November 22, 1994, is
made by and among (i) Food 4 Less Supermarkets, Inc., a Delaware corporation
("Supermarkets"), (ii) Alpha Beta Company, a California corporation ("Alpha
Beta"), Cala Foods, Inc., a California corporation ("Cala"),
Falley's, Inc., a Kansas corporation ("Falley's"), and Food 4 Less
Merchandising, Inc., a California corporation (together with Alpha Beta, Cala
and Falley's, the "Subsidiary Borrowers"), (iii) Bay Area Warehouse Stores,
Inc., a California corporation, Bell Markets, Inc., a California corporation,
Cala Co., a Delaware corporation, Food 4 Less GM, Inc., a California
corporation, Food 4 Less of California, Inc., a California corporation, and Food
4 Less of Southern California, Inc., a Delaware corporation (together with
Supermarkets and the Subsidiary Borrowers, the "Loan Parties"), (iv) the Lender
Parties (as defined in the Credit Agreement referred to below) whose signatures
appear on the execution pages hereof, (v) Bankers Trust Company, Citicorp North
America, Inc. ("Citicorp") and Chemical Bank (successor in interest to
Manufacturers Hanover Trust Company), as co-agents for the Lender Parties (in
such capacity, the "Co-Agents"), and (vi) Citicorp, as administrative agent
for the Lender Parties (in such capacity, the "Administrative Agent").
PRELIMINARY STATEMENTS:
(1) Supermarkets, the Subsidiary Borrowers, the Lenders, the
Designated Issuers of the Lenders, the Co-Agents and the Administrative Agent
have entered into a Credit Agreement dated as of June 17, 1991, as amended by
the First Modification Agreement dated as of January 24, 1992, the Second
Modification Agreement dated as of April 13, 1992, the Third Modification
Agreement dated as of September 15, 1992, the Fourth Modification Agreement
dated as of October 9, 1992 and the Fifth Modification Agreement dated as of
December 31, 1992 (as so amended, the "Credit Agreement"). Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein
defined.
(2) The Borrower has requested that the Required Lenders agree to
amend certain provisions of the Credit Agreement as set forth herein to provide
for the issuance by the Borrower of Notes in registered form. The undersigned
Lender Parties have agreed to do so as hereinafter set forth upon the terms and
conditions set forth below.
2
2
SECTION 1. Amendments to Credit Agreement. Subject to the
fulfillment of the conditions set forth in Section 2 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended by adding the
following definitions:
"'Non-U.S. Lender' has the meaning set forth in
Section 2.05(d)."
"'Notes' means any promissory notes (including, without
limitation, Registered Notes) delivered by any of the Borrowers
pursuant to Section 2.05."
"'Registered Note' means a Note that has been issued in
registered form pursuant to Section 2.05(d)."
"'U.S. Person' means any Person that is created or organized
under the laws of the United States of America or any State thereof,
or any estate or trust that is subject to United States Federal
income taxation regardless of the source of its income."
"'U.S. Taxes" means any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of
America or any taxing authority thereof."
(b) Section 2.05 of the Credit Agreement is amended by adding at the
end thereof a new subsection (d) to read as follows:
"(d) Any Lender that is not a U.S. Person (each such Person
being a 'Non-U.S. Lender') and that could become completely exempt
from withholding of U.S. Taxes in respect of payment of the
Obligations due to such Lender hereunder relating to its Term
Advances if the Note or Notes evidencing its Term Advances were in
registered form for United States Federal income tax purposes, may
request, in a notice to Supermarkets and the Agent, (i) the exchange
of such Non-U.S. Lender's Note or Notes evidencing its Term Advances
for a Registered Note or Registered Notes (in which case Supermarkets
agrees to promptly thereafter exchange such Note or Notes for a
Registered Note or Registered Notes), or (ii) if Supermarkets has
not previously issued a Note or Notes evidencing such Non-U.S.
Lender's Term
3
3
Advances, the issuance of a Registered Note or Registered Notes
to evidence its Term Advances (in which event Supermarkets agrees
to promptly thereafter issue such Registered Note or Registered
Notes) (which Notes in either such case shall be in substantially
the form of Exhibit L-1, except that it shall be legended on the face
thereof as a 'Registered Note' and shall be made payable to such
Non-U.S. Lender or its registered assigns). Registered Notes may not
be exchanged for Notes that are not in registered form."
(c) Section 4.07 (e) of the Credit Agreement is amended by inserting
the following after the first sentence thereof:
"If a Lender Party provides a form specified in clause (iii) above,
such Lender Party shall deliver to Supermarkets an annual
certificate stating that (A) such Lender Party is not a 'bank' within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code and
(ii) such Lender Party shall promptly notify Supermarkets after it
obtains knowledge that any fact set forth in such form or certificate
ceases to be true and correct or if it otherwise determines that it
is no longer in a position to provide such form or certificate to
Supermarkets."
(d) Section 10.09 of the Credit Agreement is amended as follows:
(i) By inserting after the last parenthetical phrase in
clause (iii) of subsection (a) thereof the following: "and, in the
case of an assignment of a Registered Note, such Note, duly
endorsed by (or accompanied by a written instrumennt of assignment
or transfer duly executed by) the assigning Lender (as the
registered holder thereof) to the assignee";
(ii) By inserting after the words "Assignment and Acceptance"
the first time such words appear in the second sentence of
subsection (a) thereof the following: "(which shall not be any
earlier than the date on which the Agent so accepts and records
the Assignment and Acceptance in the Register)";
4
4
(iii) By inserting after the words "Administrative Agent" in
the first line of subsection (c) thereof the following: ", acting
for this purpose as agent for the Borrower,";
(iv) By inserting after the first sentence of subsection (c)
thereof the following: "The Agent shall incur no liability of any
kind to any Loan Party, any Lender Party or any other Person with
respect to its maintenance of the Register or the recordation of
information therein.";
(v) By deleting the word "may" in the original second sentence
of subsection (c) thereof and inserting "shall" in lieu thereof, and
by inserting after the word "hereunder" in the same sentence the
following: "(and, in the case of Registered Notes, as the owner of
the Registered Notes registered to it)";
(vi) By inserting after the words "Eligible Assignee" in
subsection (d) thereof the following: "and, in the case of an
assignment of a Registered Note, such Note, duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly
executed by) the assigning Lender (as the registered holder thereof)
to the assignee"; and
(vii) By adding after subsection (d) thereof a new subsection
(d-1) to read in its entirety as follows:
"(d-1) Upon the acceptance by the Administrative Agent of the
Assignment and Acceptance, the parties to such Assignment and
Acceptance may at any time request that new Notes be issued to the
assigning Lender and the assignee by (i) providing written notice of
such request to the Administrative Agent and the applicable Borrower
and (ii) delivering such assigning Lender's Notes, duly endorsed by
(or accompanied by a written instrument of assignment or transfer
duly executed by) the assigning Lender to the assignee, to the
applicable Borrower (or, in the case of Registered Notes, to the
Administrative Agent as agent for Supermarkets) for cancellation and
exchange. The Administrative Agent, in the case of Registered Notes,
shall register such transfer in the Register and shall
5
5
forward the Registered Notes to Supermarkets for cancellation and
exchange. Within five Business Days after its receipt of any Notes for
cancellation and exchange pursuant to this subsection (d-1), together
with notice from the Administrative Agent that it has accepted and
recorded the Assignment and Acceptance, the applicable Borrower, at
its own expense, shall execute and deliver to the assignee in exchange
for the surrendered Notes a new Note or Notes payable to the order of
such assignee (or, in the case of Registered Notes, payable to the
assignee or its registered assigns) in an amount in each case equal to
the applicable Commitment or Commitments assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has
retained any Commitments hereunder, a new Note or Notes payable to the
order of the assigning Lender (or, in the case of Registered Notes,
payable to the assignor or its registered assigns) in an amount in
each case equal to the applicable Commitment or Commitments retained
by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit L-1, L-2 or L-3, as applicable. The Administrative
Agent shall incur no liability of any kind to any Loan Party, any
Lender Party or any other Person with respect to the transfer,
surrender, cancellation or exchange of the Notes.''
(e) Schedule 1 to Exhibit B (Assignment and Acceptance) to the Credit
Agreement is amended by inserting the following prior to the line that begins
with the words "Designated Issuer":
"Type of Note, if
any (indicate Registered
or Non-Registered) ____________ ____________ ____________"
SECTION 2. Conditions of Effectiveness. The effectiveness of this
Sixth Modification Agreement and the amendments set forth in Section 1 hereof
shall be subject to receipt by the Administrative Agent of counterparts of this
Sixth Modification Agreement executed by (A) Supermarkets, each of the
Subsidiary Borrowers, and each of the other Loan Parties and (B) the Required
Lenders (or, as to any of the
6
6
Required Lenders, advice satisfactory to the Administrative Agent that such
Required Lenders have executed this Sixth Modification Agreement).
SECTION 3. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Sixth Modification Agreement, (i) each
reference in the Credit Agreement to its name, "this Agreement", "hereunder",
"hereof" or words of like import referring thereto, and each reference in the
other Loan Documents to such name, "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby, and (ii) each reference in any Loan
Document to any term defined in the Credit Agreement shall mean and be a
reference to such term as defined therein after giving effect to the amendments
set forth herein.
(b) Except as specifically amended above, the Credit Agreement, the
Guaranty and all other Loan Documents are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Sixth
Modification Agreement shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any Lender Party under any of the
Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 4. Execution in Counterparts. This Sixth Modification
Agreement 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 to be an original and all of which taken together shall
constitute but one and the same agreement.
SECTION 5. GOVERNING LAW. THIS SIXTH MODIFICATION AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW RULES OF ANY JURISDICTION).
7
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Modification Agreement to be executed by their respective officers thereunto
duly anthorized, as of the date first above written.
BORROWERS:
FOOD 4 LESS SUPERMARKETS, INC.
By:
----------------------------
Title: Vice President
ALPHA BETA COMPANY
By:
----------------------------
Title: Vice President
CALA FOODS, INC.
By:
----------------------------
Title: Vice President
FALLEY'S, INC.
By:
-----------------------------
Title: Vice President
FOOD 4 LESS MERCHANDISING, INC.
By:
-----------------------------
Title: Vice President
8
S-2
OTHER LOAN PARTIES:
BAY AREA WAREHOUSE STORES, INC.
By
-----------------------------
Title: Vice President
BELL MARKETS, INC.
By
-----------------------------
Title: Vice President
CALA CO.
By
-----------------------------
Title: Vice President
FOOD 4 LESS GM, INC.
By
-----------------------------
Title: Vice President
FOOD 4 LESS OF CALIFORNIA, INC.
By
-----------------------------
Title: Vice President
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
By
-----------------------------
Title: Vice President