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Exhibit 4.8.7
SEVENTH MODIFICATION AGREEMENT
This SEVENTH MODIFICATION AGREEMENT, dated as of January 23,
1995, 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, the Fifth Modification Agreement dated as of
December 21, 1992 and the Sixth Modification Agreement dated as of November 22,
1994 (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. The
undersigned Lender Parties have agreed to do so as hereinafter set forth upon
the terms and conditions set forth below.
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SECTION 1. Amendments to Credit Agreement. Subject to the
fulfillment of the conditions set forth in Section 3 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended as
follows:
(i) The following definitions are added to Section
1.01 to read as follows:
"Refinancing Date" means May 30, 1995.
"Refinancing Event" means that the Borrower shall
have fully prepaid the Advances and all other amounts owing to
the Lenders under the terms of the Agreement.
(ii) The definition of "Earnings" in Section 1.01 is
amended by adding the following clause to the end thereof immediately
following the words "added to the foregoing sum": "; andprovided
further, however, that for purposes of calculating Earnings for any
Fiscal Quarter in Fiscal Year 1995, Earnings shall not include
non-cash charges up to $8,000,000 in the aggregate for all such Fiscal
Quarters incurred in such Fiscal Quarter for the disposition or
write-off of Equipment, leases of Equipment or Leases in connection
with the remodel and conversion of Stores from one format to another."
(iii) The definition of "Adjusted" Net Worth" in
Section 1.01 is amended by adding after clause (e) thereof the
following: ", plus (f) in the case of Supermarkets and its Subsidiaries
on a consolidated basis, an amount equal to the product of (i) 100%
minus the Effective Tax Rate for Fiscal Year 1995, times (ii) non-cash
charges up to $8,000,000 in the aggregate for Fiscal Year 1995 for the
disposition or write-off of Equipment, leases of Equipment or Leases
in connection with the remodel and conversion of Stores from one
format to another."
(b) Section 4.01 of the Credit Agreement is amended by adding
after subsection (d) thereof a new subsection (e) to read as follows:
"(e) Refinancing Date Fee. In the event that the Refinancing
Event shall not have occurred on or before the Refinancing Date, the
Borrower hereby agrees to pay to the Administrative Agent on or before
June 2, 1995, for the ratable account of the Lenders, a non-refundable
fee in an amount equal to 0.25% of the sum of (a) the unpaid principal
amount of the Term Advances of the Lenders outstanding as of May 30,
1995 plus (b) the aggregate amount of the Revolving Commitments and
Letter of Credit Commitments of the Lenders
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outstanding as of May 30, 1995. The ratable share of each Lender
shall be computed on the basis of the sum of the aggregate amount of
the Term Advances owing to such Lender plus the aggregate amount of
the Revolving Commitments and Letter of Credit Commitments of such
Lender, in each case determined as of May 30, 1995."
(c) Section 7.02(e)(ii) of the Credit Agreement is amended by
(1) deleting the figure under the heading "Amount" opposite "1995" and
inserting in lieu of such figure "$58,000,000", and (2) deleting the figure
under the heading "Amount" opposite "1996" and inserting in lieu of such figure
"$41,000,000".
(d) Section 7.02(e)(iii)(A) of the Credit Agreement is
amended by deleting the two lines under the heading "Fiscal Year 1995" and
inserting in lieu thereof the following:
"First Semiannual Period $15,100,000
Second Semiannual Period $15,500,000"
(e) Section 7.02(e)(iii)(B) of the Credit Agreement is
amended by deleting the two lines under the heading "Fiscal Year 1996" and
inserting in lieu thereof the following:
"First Semiannual Period $2,000,000
Second Semiannual Period $2,000,000"
(f) Section 7.03(a)(ii) of the Credit Agreement is amended by
deleting the lines that begin "Second Fiscal Quarter", "Third Fiscal Quarter"
and "Fourth Fiscal Quarter" under the heading "Fiscal Year 1995" and inserting
in lieu thereof the following:
"Second Fiscal Quarter 0.93 to 1.00
Third Fiscal Quarter 0.93 to 1.00
Fourth Fiscal Quarter 1.02 to 1.00"
SECTION 2. Seventh Modification Fee. On or before January
25, 1995, the Borrower hereby agrees to pay to the Administrative Agent for the
ratable account of each of the Responding Lenders (as hereinafter defined), a
non-refundable fee (the "Seventh Modification Fee") in an amount equal to 0.05%
of the sum of (a) the unpaid principal amount of the Term Advances of the
Responding Lenders outstanding as of January 23, 1995 plus (b) the aggregate
amount of the Revolving Commitments and Letter of Credit Commitments of the
Responding Lenders outstanding as of January 23, 1995. As used herein, the
term "Responding Lenders" shall mean and include each Lender that executes and
delivers to the Administrative Agent this Seventh Modification Agreement on or
before January 23, 1995 at 5:00 p.m. (Los Angeles time). The obligation of the
Borrower to pay the Seventh Modification Fee (a)
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shall be in addition to the Borrower's obligations with respect to any other
fees and amounts owing by the Borrower to the Lenders under the Credit
Agreement, and (b) shall survive the making and repaying of Advances, the
termination of all Letter of Credit Liability and the termination of the Credit
Agreement. The ratable share of each such Responding Lender shall be computed
on the basis of the sum of the aggregate amount of the Term Advances owing to
each such Responding Lender plus the aggregate amount of the Revolving
Commitments and Letter of Credit Commitments of each such Responding Lender, in
each case determined as of January 23, 1995.
SECTION 3. Conditions of Effectiveness. The effectiveness of
this Seventh Modification Agreement and the amendments set forth in Section 1
hereof shall be subject to (a) receipt by the Administrative Agent of
counterparts of this Seventh Modification Agreement executed by (1)
Supermarkets, each of the Subsidiary Borrowers, and each of the other Loan
Parties and (2) the Required Lenders (or, as to any of the Required Lenders,
advice satisfactory to the Administrative Agent that such Required Lenders have
executed this Seventh Modification Agreement), and (b) the payment by the
Borrower of the Seventh Modification Fee in accordance with Section 2 hereof.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) On and after the effectiveness of this Seventh 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 Seventh
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 5. Execution in Counterparts. This Seventh
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
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constitute but one and the same agreement.
SECTION 6. GOVERNING LAW. THIS SEVENTH 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).
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Modification Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BORROWERS:
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FOOD 4 LESS SUPERMARKETS, INC.
By:
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Title:
ALPHA BETA COMPANY
By:
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Title:
CALA FOODS, INC.
By:
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Title:
FALLEY'S, INC.
By:
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Title:
FOOD 4 LESS MERCHANDISING, INC.
By:
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Title:
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OTHER LOAN PARTIES:
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BAY AREA WAREHOUSE STORES, INC.
By
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Title:
BELL MARKETS, INC.
By
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Title:
CALA CO.
By
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Title:
FOOD 4 LESS GM, INC.
By
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Title:
FOOD 4 LESS OF CALIFORNIA, INC.
By
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Title:
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
By
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Title:
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CO-AGENTS AND ADMINISTRATIVE AGENT:
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BANKERS TRUST COMPANY, as Co-Agent
By:
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Title:
CITICORP NORTH AMERICA, INC., as
Co-Agent and Administrative Agent
By:
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Vice President
CHEMICAL BANK (successor in
interest to Manufacturers Hanover
Trust Company), as Co-Agent
By:
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Title:
LENDERS:
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CITICORP NORTH AMERICA, INC.
By:
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Vice President
BANKERS TRUST COMPANY
By:
--------------------------------
Title:
CHEMICAL BANK (successor in
interest to Manufacturers Hanover
Trust Company)
By:
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Title:
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BANQUE PARIBAS
By:
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Title:
THE CHASE MANHATTAN BANK, N.A.
By:
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Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
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Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By:
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Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
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Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
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Title:
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CREDIT LYONNAIS
By:
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Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:
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Title:
ABN AMRO BANK, N.V., LOS ANGELES
INTERNATIONAL BRANCH
By:
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Title:
BANCA COMMERCIALE ITALIANA
LOS ANGELES FOREIGN BRANCH
By:
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Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
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Title:
DRESDNER BANK AKTIENGESELLSCHAFT
LOS ANGELES AGENCY
By:
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Title:
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RAIFFEISEN ZENTRALBANK OESTERREICH
By:
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Title:
SOCIETE GENERALE
By:
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Title:
THE MITSUI TRUST AND BANKING CO.,
LIMITED, LOS ANGELES AGENCY
By:
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Title:
UNION BANK
By:
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Title:
UNITED STATES NATIONAL BANK OF
OREGON
By:
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Title:
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PILGRIM PRIME RATE TRUST
By:
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Title:
VAN KAMPEN MERRITT PRIME RATE
INCOME TRUST
By:
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Title:
BANQUE NATIONALE DE PARIS
By:
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Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS, B.V.
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC. as Portfolio
Advisor
By:
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Title:
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2 (ROSA 2)
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC. as Portfolio
Advisor
By:
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Title:
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STRATA FUNDING
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC. as Portfolio
Advisor
By:
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Title:
CERES FINANCE LTD.
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC. as Portfolio
Advisor
By:
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Title:
GIROCREDIT BANK, NEW YORK BRANCH
(formerly Girozentrale Vienna)
By:
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Title:
NICHIJUKIN (USA) Limited
By:
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Title:
PROSPECT STREET SENIOR PORTFOLIO,
L.P.
By: PROSPECT STREET SENIOR LOAN
CORP., Managing General
Partner
By:
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Title:
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BANQUE INDOSUEZ
By:
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Title:
CITIBANK, N.A.
By:
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Title:
MORGAN GUARANTY TRUST CO.
By:
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Title:
DESIGNATED ISSUERS:
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CITIBANK, N.A., as Designated
Issuer for Citicorp North
America, Inc.
By:
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Title: Vice President