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Exhibit 4.10.6
13-3/4% Senior Subordinated Notes
due 2001
______________________
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 14, 1995
to
INDENTURE
Dated as of June 15, 1991
______________________
RALPHS GROCERY COMPANY,
as successor by merger to Food 4 Less Supermarkets, Inc.
and
SUBSIDIARY GUARANTORS
and
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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This FIFTH SUPPLEMENTAL INDENTURE to the Indenture (as defined
below) (the "Fifth Supplemental Indenture") is dated as of June 14, 1995, and
is made by and among Ralphs Grocery Company, a Delaware corporation, as
successor by merger to Food 4 Less Supermarkets, Inc., a Delaware corporation
(the "Company"), the Subsidiary Guarantors, and United States Trust Company of
New York (the "Trustee").
RECITALS
A. Pursuant to an Indenture dated June 15, 1991, as
amended (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 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, a Delaware corporation, the Company, Ralphs Supermarkets, Inc., a
Delaware corporation ("RSI"), and the stockholders of RSI, the Company merged
with and into RSI, and immediately thereafter Ralphs Grocery Company, a
Delaware corporation ("RGC"), which was a wholly-owned subsidiary of RSI,
merged with and into RSI and RSI changed its name to Ralphs Grocery Company
(together, the "Merger"). The Merger became effective on June 14, 1995.
D. The Merger was a transaction subject to the
requirements of Section 6.01 of the Indenture. Section 6.02 of the Indenture
provides that upon any consolidation or merger, or any transfer of assets in
accordance with Section 6.01 thereof, the successor person formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to and be substituted for, and may exercise every right and
power of the Company under the Indenture with the same effect as if such
successor person had been named as the Company therein. Section 6.02 also
provides that when a successor corporation assumes all of the obligations of
the Company under the Indenture and under the Securities, and agrees to be
bound thereby, the predecessor shall be released from such obligations. The
purposes of this Fifth Supplemental Indenture are to (i) allow Ralphs Grocery
Company, as the successor person to the Company in the Merger, to assume the
obligations of the Company under the Indenture, (ii) release the Company from
such obligations, and (iii) restate the definition of "New Credit Facility" set
forth in the Indenture.
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E. Following the Merger, the obligations under the
Indenture assumed by Ralphs Grocery Company hereby will rank pari passu in
right of payment with the obligations to be assumed by Ralphs Grocery Company
under the indentures governing the 9% Senior Subordinated Notes due 2003 of
RGC, the 10.25% Senior Subordinated Notes due 2002 of RGC, the 11% Senior
Subordinated Notes due 2005 of Food 4 Less, and the 13.75% Senior Subordinated
Notes due 2005 of Food 4 Less.
F. Section 10.01 of the Indenture provides that the
Company and each Subsidiary Guarantor, when authorized by a Board Resolution,
and the Trustee, together, without notice to or consent of any Holder, may
amend or supplement the Securities and the Indenture, as set forth below.
G. The Company and each of the Subsidiary Guarantors,
having been duly authorized by a Board Resolution, and the Trustee, having
received an Opinion of Counsel pursuant to Section 10.01 of the Indenture
stating that the amendment or supplement to the Indenture contained in the
Fifth Supplemental Indenture complies with the provisions of Section 10.01 of
the Indenture, are authorized to execute and deliver this Fifth Supplemental
Indenture.
H. All of the conditions and requirements necessary to
make this Fifth Supplemental Indenture, when duly executed and delivered, a
valid and binding agreement, enforceable in accordance with its terms, have
been performed and fulfilled.
NOW, THEREFORE, it is agreed as follows:
1. Pursuant to Section 6.02 of the Indenture, Ralphs
Grocery Company, as the successor person into which the Company has been merged
in the Merger in accordance with Section 6.01 of the Indenture, hereby succeeds
to and is substituted for, and may exercise every right and power of the
Company under the Indenture with the same effect as if Ralphs Grocery Company
had been named as the Company therein.
2. Pursuant to Section 6.02 of the Indenture, Ralphs
Grocery Company hereby assumes all of the obligations of the Company under the
Indenture and under the Securities and agrees to be bound thereby.
3. Pursuant to Section 6.02 of the Indenture, the
Company is released from all of the obligations of it under the Indenture and
under the Securities.
4. The following definition set forth in Section 1.01 of
the Indenture is hereby restated as follows:
"New Credit Facility" means the Credit Agreement, dated as of
June 14, 1995, by and among Food 4 Less, as borrower, certain of its
subsidiaries, New Holdings, as
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guarantor, the Lenders referred to therein and Bankers Trust Company, as
administrative agent providing for extensions of credit in an aggregate
principal amount of up to $925 million.
5. This Fifth Supplemental Indenture shall be effective
as of the date hereof.
6. 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 Fifth
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.
RALPHS GROCERY COMPANY
[Seal]
Attest:
/s/ Jan Charles Gray /s/ Jan Charles Gray
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By: Jan Charles Gray
Its:
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/ George G. Golleher /s/ Mark A. Resnik
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By: Mark A. Resnik
Its:
UNITED STATES TRUST COMPANY
OF NEW YORK
[Seal]
Attest:
/s/ Christine C. Collins /s/ Christine C. Collins
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By: Christine C. Collins
Its: Assistant Vice President
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