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Exhibit 19.1
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 21, 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.
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:
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(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 to 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
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:
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"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 instrument 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)";
(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:
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"(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 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 is 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) ____________________________"
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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 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).
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth
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: /s/ Mark A. Resnik
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Title: Vice President
ALPHA BETA COMPANY
By: /s/ Mark A. Resnik
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Title: Vice President
CALA FOODS, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
FALLEY'S, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
FOOD 4 LESS MERCHANDISING, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
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OTHER LOAN PARTIES:
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BAY AREA WAREHOUSE STORES, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
BELL MARKETS, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
CALA CO.
By: /s/ Mark A. Resnik
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Title: Vice President
FOOD 4 LESS GM, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
FOOD 4 LESS OF CALIFORNIA, INC.
By: /s/ Mark A. Resnik
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Title: Vice President
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
By: /s/ Mark A. Resnik
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Title: Vice President