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Exhibit 4.10.5
$145,000,000
13-3/4% Senior Subordinated Notes
due 2001
______________________
FOURTH SUPPLEMENTAL INDENTURE
Dated as of May 30, 1995
to
INDENTURE
Dated as of June 15, 1991
______________________
FOOD 4 LESS SUPERMARKETS, INC.
and
SUBSIDIARY GUARANTORS
and
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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This FOURTH SUPPLEMENTAL INDENTURE to the Indenture (as
defined below) (the "Fourth Supplemental Indenture") is dated as of May 30,
1995, and is made by and among Food 4 Less Supermarkets, Inc., a Delaware
corporation (the "Company"), the Subsidiary Guarantors (as defined in the
Indenture), and United States Trust Company of New York (the "Trustee").
RECITALS
A. Pursuant to an Indenture dated as of June 15, 1991
(the "Indenture") between the Company, the Subsidiary Guarantors and the
Trustee, the Company issued $145,000,000 principal amount of its 13-3/4% Senior
Subordinated Notes due 2001 (the "Securities").
B. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
C. Pursuant to a definitive Agreement and Plan of
Merger, dated as of September 14, 1994 and amended on January 12, 1995,
February 24, 1995 and April 26, 1995, by and among Food 4 Less, Inc., a
Delaware corporation, Food 4 Less Holdings, Inc., a California corporation,
Food 4 Less Holdings, Inc., a Delaware corporation, the Company, Ralphs
Supermarkets, Inc., a Delaware corporation ("RSI"), and the stockholders of
RSI, Ralphs Grocery Company will be merged with and into RSI and immediately
thereafter Ralphs Grocery Company, a Delaware corporation, which is a
wholly-owned subsidiary of RSI, will merge with and into RSI and RSI will
change its name to Ralphs Grocery Company (together, the "Merger").
D. In connection with the Merger, the Company has filed
a Registration Statement on Form S-4 (File No. 33- 56451) with the Securities
and Exchange Commission (the "Registration Statement") pursuant to which the
Company has made an offer to the holders of the Securities to exchange such
Securities for certain new 13.75% Senior Subordinated Notes due June 1, 2005 as
described in such Registration Statement. Such offer, as described in such
Registration Statement, is referred to in this Fourth Supplemental Indenture as
the "Exchange Offer." In connection with the Exchange Offer, the Company has
solicited consents to the amendments set forth below.
E. Section 10.02 of the Indenture provides that the
Company and each Subsidiary Guarantor, when authorized by a Board Resolution,
and the Trustee, together, with the written consent of the Holder or Holders of
at least a majority in aggregate principal amount of the outstanding
Securities, may amend or supplement the Securities and the Indenture, as set
forth below.
F. The Company and each of the Subsidiary Guarantors
having been duly authorized by a Board Resolution, and the Trustee (i) having
received an Opinion of Counsel pursuant to Section 10.06 of the Indenture
stating that the execution of this
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Fourth Supplemental Indenture is authorized or permitted by the Indenture and
(ii) having received an Officers' Certificate of the Company pursuant to
Section 10.04 of the Indenture certifying that Holders of at least a majority
in aggregate principal amount of the outstanding Securities held by persons
other than the Company and its affiliates have consented to (and not
theretofore revoked) the amendments set forth below, the Company and the
Trustee are authorized to execute and deliver this Fourth Supplemental
Indenture pursuant to Article 10 of the Indenture.
G. All the conditions and requirements necessary to make
this Fourth Supplemental Indenture, when duly executed and delivered, a valid
and binding agreement, enforceable in accordance with its terms (subject to
becoming effective as provided in paragraph 3, below), have been performed and
fulfilled.
NOW, THEREFORE, it is agreed as follows:
1. Pursuant to Section 10.02 of the Indenture and having
received the written consents of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities, the Indenture is
amended, effective as set forth in paragraph 3, below, as follows:
a. The covenant entitled "Limitation on
Restricted Payments", set forth in Section 5.03 of the Indenture, is hereby
deleted in its entirety.
b. The covenant entitled "Maintenance of Net
Worth", set forth in Section 5.04 of the Indenture, is hereby deleted in its
entirety.
c. The covenant entitled "Limitation on
Transactions with Affiliates", set forth in Section 5.12 of the Indenture, is
hereby deleted in its entirety.
d. The covenant entitled "Limitation on
Incurrences of Additional Indebtedness", set forth in Section 5.13 of the
Indenture, is hereby deleted in its entirety.
e. The covenant entitled "Limitation on Payment
Restrictions Affecting Subsidiaries", set forth in Section 5.14 of the
Indenture, is hereby deleted in its entirety.
f. The covenant entitled "Limitation on Liens",
set forth in Section 5.15 of the Indenture, is hereby deleted in its entirety.
g. The covenant entitled "Limitation on Change
of Control", set forth in Section 5.16 of the Indenture, is hereby deleted in
its entirety.
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h. The covenant entitled "Limitation on
Disposition of Assets", set forth in Section 5.17 of the Indenture, is hereby
deleted in its entirety.
i. The covenant entitled "Guarantees of Certain
Indebtedness", set forth in Section 5.18 of the Indenture, is hereby deleted in
its entirety.
j. Section 6.01(a)(2) of the Indenture under the
covenant entitled "When Company May Merge, Etc." is hereby deleted in its
entirety.
k. The following definition is hereby added to
Section 1.01 of the Indenture:
"The New Credit Facility" means the senior bank
facility pursuant to which Bankers Trust Company has agreed, subject
to certain conditions, to provide up to $1,075 million of financing.
l. All definitions set forth in Section 1.01 of
the Indenture that relate to defined terms used solely in covenants or sections
deleted hereby are deleted in their entirety.
2. The parties hereto agree that the New Credit Facility
shall be deemed to constitute a refinancing of the Loan Documents.
3. The amendments to the Indenture set forth in this
Fourth Supplemental Indenture shall become effective only upon the acceptance
by the Company of the Securities that are validly tendered and not withdrawn
pursuant to the Exchange Offer.
4. This instrument may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute the instrument by signing
such counterpart.
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IN WITNESS WHEREOF, the parties hereto caused this Fourth
Supplemental Indenture to be signed and acknowledged by their respective
officers thereunto duly authorized and their respective corporate seals to be
hereunto duly affixed and attested, all as of the day and year first above
written.
FOOD 4 LESS SUPERMARKETS, INC.
[Seal]
Attest:
/s/ Ronald W. Burkle /s/ Mark A. Resnik
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Ronald W. Burkle By: Mark A. Resnik
Chairman of the Board and Its: Vice President and Chief
Executive Officer Secretary
SUBSIDIARY GUARANTORS
CALA CO.
CALA FOODS, INC.
BELL MARKETS, INC.
FOOD 4 LESS OF SOUTHERN
CALIFORNIA, INC.
ALPHA BETA COMPANY
FOOD 4 LESS OF
CALIFORNIA, INC.
FALLEY'S, INC.
FOOD 4 LESS
MERCHANDISING, INC.
FOOD 4 LESS GM, INC.
BAY AREA WAREHOUSE STORES, INC.
[Seal]
Attest:
/s/ Ronald W. Burkle /s/ Mark A. Resnik
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By: Mark A. Resnik
Its: Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK
[Seal]
Attest:
/s/ /s/ Christine C. Collins
------------------------------- ------------------------------
By: Christine C. Collins
Its: Assistant Vice President
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