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Exhibit 19.2
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.
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:
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(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": "; and provided
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 (c) 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
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."
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(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) 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
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amount of the Term Advances owing to 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 to 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 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: _____________________________________
Title:
ALPHA BETA COMPANY
By: ____________________________________
Title:
CALA FOODS, INC.
By: ____________________________________
Title:
FALLEY'S, INC.
By: ____________________________________
Title:
FOOD 4 LESS MERCHANDISING, INC.
By: ____________________________________
Title:
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OTHER LOAN PARTIES:
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BAY AREA WAREHOUSE STORES, INC.
By: ____________________________________
Title:
BELL MARKETS, INC.
By: ____________________________________
Title:
CALA CO.
By: ____________________________________
Title:
FOOD 4 LESS GM, INC.
By: ____________________________________
Title:
FOOD 4 LESS OF CALIFORNIA, INC.
By: ____________________________________
Title:
FOOD 4 LESS OF SOUTHERN CALIFORNIA, INC.
By: ____________________________________
Title:
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CO-AGENTS AND ADMINISTRATIVE AGENT:
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BANKERS TRUST COMPANY, as Co-Agent
By: ____________________________________
Title:
CITICORP NORTH AMERICA, INC., as Co-Agent
and Administrative Agent
By: _____________________________________
Title:
CHEMICAL BANK (successor in interest to
Manufacturers Hanover Trust Company),
as Co-Agent
By: _____________________________________
Title:
LENDERS:
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CITICORP NORTH AMERICA, INC.
By: _____________________________________
Title:
BANKERS TRUST COMPANY
By: _____________________________________
Title:
CHEMICAL BANK (successor in interest to
Manufacturers Hanover Trust Company)
By: _____________________________________
Title:
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BANQUE PARIBAS
By: _____________________________________
Title:
THE CHASE MANHATTAN BANK, N.A.
By: _____________________________________
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: _____________________________________
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By: _____________________________________
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: _____________________________________
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By: _____________________________________
Title:
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CREDIT LYONNAIS
By: _____________________________________
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: _____________________________________
Title:
ABN AMRO BANK, N.V., LOS ANGELES
INTERNATIONAL BRANCH
By: _____________________________________
Title:
BANCA COMMERCIALE ITALIANA
LOS ANGELES FOREIGN BRANCH
By: _____________________________________
Title:
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: _____________________________________
Title:
DRESDNER BANK AKTIENGESELLSCHAFT
LOS ANGELES AGENCY
By: _____________________________________
Title:
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RAIFFEISEN ZENTRALBANK OESTERREICH
By: _____________________________________
Title:
SOCIETE GENERALE
By: _____________________________________
Title:
THE MITSUI TRUST AND BANKING CO., LIMITED,
LOS ANGELES AGENCY
By: _____________________________________
Title:
UNION BANK
By: _____________________________________
Title:
UNITED STATES NATIONAL BANK OF OREGON
By: _____________________________________
Title:
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PILGRIM PRIME RATE TRUST
By: _____________________________________
Title:
VAN KAMPEN MERRITT PRIME RATE
INCOME TRUST
By: _____________________________________
Title:
BANQUE NATIONALE DE PARIS
By: _____________________________________
Title:
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS, B.V.
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio Advisor
By: ________________________________
Title:
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS 2 (ROSA 2)
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio Advisor
By: _______________________________
Title:
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STRATA FUNDING
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio Advisor
By: _______________________________
Title:
CERES FINANCE LTD.
By: CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio Advisor
By: _______________________________
Title:
GIROCREDIT BANK, NEW YORK BRANCH
(formerly Girozentrale Vienna)
By: _____________________________________
Title:
NICHIJUKIN (USA) Limited
By: _____________________________________
Title:
PROSPECT STREET SENIOR PORTFOLIO, L.P.
By: PROSPECT STREET SENIOR LOAN CORP.,
Managing General Partner
By: _______________________________
Title:
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BANQUE INDOSUEZ
By: _____________________________________
Title:
CITIBANK, N.A.
By: _____________________________________
Title:
MORGAN GUARANTY TRUST CO.
By: _____________________________________
Title:
DESIGNATED ISSUERS:
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CITIBANK, N.A., as Designated Issuer for
Citicorp North America, Inc.
By: _____________________________________
Title: Vice President