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Exhibit 4.1.2
RALPHS GROCERY COMPANY
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as of
August 18, 1995 and entered into by and among Food 4 Less Holdings, Inc., a
Delaware corporation ("NEW HOLDINGS"), Ralphs Grocery Company, a Delaware
corporation and legal successor to Food 4 Less Supermarkets, Inc. ("COMPANY"),
the financial institutions listed on the signature pages hereof ("LENDERS"),
the Co-Agents and Co-Arrangers listed on the signature pages hereof and Bankers
Trust Company, as administrative agent for Lenders ("AGENT"), and, for purposes
of Section 5 hereof, the Credit Support Parties (as defined in Section 5
hereof) listed on the signature pages hereof, and is made with reference to
that certain Credit Agreement dated as of June 14, 1995 (the "CREDIT
AGREEMENT"), by and among New Holdings, Food 4 Less Supermarkets, Inc., the
financial institutions listed on the signature pages thereof as Lenders, the
Co-Agents and Co-Arrangers named therein and Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to (i)
adjust the application of certain mandatory prepayments, and (ii) make certain
other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.
Subsection 2.4B(iii)(a) of the Credit Agreement is hereby amended by
deleting the first thirteen lines thereof (other than the phrase "provided,
however, that, so long as no" appearing in the thirteenth line thereof) and
substituting the following therefor:
"(a) Prepayments and Reductions from Asset Sales. (1) No later than the
third Business Day following the date of receipt by Company or any of its
Subsidiaries of Cash Proceeds of any Asset Sale (other than a Required
Disposition or a Planned Disposition) in an aggregate cumulative amount equal
to
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or exceeding $500,000 (and as to which no prepayment of the Loans shall have
been made pursuant to this subsection 2.4B(iii)(a)), (2) no later than the
third Business Day following the date of receipt by Company or any of its
Subsidiaries of Cash Proceeds of Required Dispositions or Planned
Dispositions in an aggregate cumulative amount equal to or exceeding
$5,000,000 (and as to which no prepayment of the Loans shall have been made
pursuant to this subsection 2.4B(iii)(a)), and (3) with respect to any Cash
Proceeds of Required Dispositions or Planned Dispositions received by Company
or any of its Subsidiaries that are not yet required to be prepaid pursuant
to the immediately preceding clause (2) because the aggregate cumulative
amount thereof does not yet exceed $5,000,000, on the earlier of (y) the
180th day following the date of the first Asset Sale occurring after Company
makes a prepayment of the Loans pursuant to the immediately preceding clause
(2) or pursuant to this clause (3) and (z) the date of occurrence of any
Event of Default or Potential Event of Default, (a) Company shall prepay the
Term Loans in an amount equal to the Net Cash Proceeds of such Asset Sale,
and (b) to the extent the Net Cash Proceeds of such Asset Sale exceed the
aggregate outstanding principal amount of the Term Loans, Company shall
prepay in an amount equal to such excess first the Swing Line Loans to the
full extent thereof and second the Revolving Loans, and the Revolving Loan
Commitments shall be permanently reduced in an amount equal to such excess;"
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, each of New Holdings
and Company shall deliver to Agent for Lenders five originally executed copies
of the following, each, unless otherwise noted, dated the First Amendment
Effective Date:
1. Signature and incumbency certificates of their respective officers
executing this Amendment; and
2. Executed copies of this Amendment executed by each of New Holdings,
Company and each of the other Credit Support Parties.
B. On or before the First Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Agent may reasonably request.
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SECTION 3. AGREEMENT REGARDING DELIVERY OF RESOLUTIONS
The parties hereby agree that within twelve Business Days after the First
Amendment Effective Date, each of New Holdings and Company shall deliver to
Agent for Lenders five originally executed copies of resolutions of their
respective Board of Directors approving and authorizing the execution,
delivery, and performance of this Amendment, dated as of such delivery date and
certified as of such delivery date by their respective corporate secretary or
an assistant secretary as being in full force and effect without modification
or amendment. The parties hereby further agree that if such resolutions are
not delivered within twelve Business Days after the First Amendment Effective
Date, then an Event of Default shall occur under the Credit Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES BY NEW HOLDINGS AND COMPANY
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, each of New Holdings and
Company represents and warrants to each Lender that the following statements
are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Loan Party party hereto has all
requisite corporate power and authority to enter into this Amendment and each
of New Holdings and Company has all requisite corporate power and authority to
carry out the transactions contemplated by, and perform its respective
obligations under, the Credit Agreement as amended by this Amendment (the
"AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment have been duly authorized by all necessary corporate action on the
part of each Loan Party party hereto and the performance of the Amended
Agreement has been duly authorized by all necessary corporate action on the
part of each of New Holdings and Company.
C. GOVERNMENTAL CONSENTS. The execution and delivery by each Loan Party
party hereto of this Amendment and the performance by each of New Holdings and
Company of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
D. BINDING OBLIGATION. This Amendment has been duly executed and delivered
by each Loan Party party hereto and this Amendment is the legally valid and
binding obligations of each Loan Party party hereto and the Amended Agreement
is the legally valid and binding obligations of each of New Holdings and
Company, in each
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case enforceable against New Holdings, Company and the other Loan Parties party
hereto in accordance with the respective terms of this Amendment and the
Amended Agreement, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
E. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
The representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects
on and as of the First Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
F. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Company has entered into a Deed of Trust and is a party to the Collateral
Account Agreement, Pledge Agreements, the Security Agreement, the Trademark
Security Agreement, and the Deposit Accounts Security Agreement, in each case
as amended through the First Amendment Effective Date, pursuant to which
Company has (i) created Liens in favor of Agent on certain Collateral to secure
its respective Secured Obligations and (ii) pledged certain Collateral to
secure its respective Secured Obligations (as defined in the Pledge Agreements)
as the case may be. New Holdings has entered the Holdings Guaranty and is a
party to the Holdings Pledge Agreement, the Security Agreement, and the Deposit
Accounts Security Agreement, in each case as amended through the First
Amendment, pursuant to which New Holdings has (i) guarantied the Obligations,
(ii) created Liens in favor of Agent on certain Collateral to secure its
respective Secured Obligations (as defined in each of the Security Agreement
and the Deposit Accounts Security Agreement) and (iii) pledged certain
Collateral to Agent to secure its obligations under the Holdings Guaranty, as
the case may be. Each of Falley's, Cala Co, F4LSC, Bay Area, Cala, Bell
Markets, Alpha Beta, F4LGM, F4L Merchandising, F4L California and Crawford is a
party to each of the Guaranty, the Security Agreement, the Trademark Security
Agreement, the Deposit Accounts Security Agreement, its respective Pledge
Agreement, its respective Deed of Trust, if applicable, in each case as amended
through the First Amendment Effective Date, pursuant to which each of such
Subsidiaries of Company has (i) guarantied the Obligations, (ii) created Liens
in favor of Agent on certain Collateral to secure their respective Secured
Obligations and (as defined in each of the Security Agreement, the Trademark
Security Agreement and the Deposit Accounts Security Agreement) and (iii)
pledged certain Collateral to Agent to secure its respective Secured
Obligations (as defined in the Pledge Agreements) as the case may be. F4LGM is
a party to the F4LGM Security Agreement,
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as amended through the First Amendment Effective Date, pursuant to which F4LGM
has pledged certain Collateral to Agent to secure its obligations under the
Guaranty. New Holdings, Company and each of such Subsidiaries of Company are
collectively referred to herein as the "CREDIT SUPPORT PARTIES", and the
Holdings Guaranty, the Holdings Pledge Agreement, the Security Agreement, the
Deposit Accounts Security Agreement, the Guaranty, the Trademark Security
Agreement, the Pledge Agreements, the Deeds of Trust, the Collateral Account
Agreement, and the F4LGM Security Agreement are collectively referred to herein
as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the terms
and provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Credit Support Document), including
without limitation the payment and performance of all such "Obligations,"
"Guarantied Obligations" or "Secured Obligations," as the case may be, in
respect of the Obligations of Company now or hereafter existing under or in
respect of the Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
Agreement and the Credit Support Documents to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
First Amendment Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Credit
Support Party is not required by the terms of the Credit Agreement or any other
Loan Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent of
such Credit Support Party to any future amendments to the Credit Agreement.
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SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the First Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof"
or words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of,
or operate as a waiver of any right, power or remedy of Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 11.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive
effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment 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 an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by
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Requisite Lenders and each of the other parties hereto and receipt by Company
and Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized
as of the date first written above.
RALPHS GROCERY COMPANY
By:
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Title:
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FOOD 4 LESS HOLDINGS, INC.
By:
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Title:
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FALLEY'S, INC.,
as a Credit Support Party
By:
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Title:
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CALA CO.,
as a Credit Support Party
By:
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Title:
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FOOD 4 LESS OF SOUTHERN
CALIFORNIA, as a Credit Support Party
By:
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Title:
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BAY AREA WAREHOUSE STORES, INC.,
as a Credit Support Party
By:
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Title:
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CALA FOODS, INC.,
as a Credit Support Party
By:
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Title:
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BELL MARKETS, INC.,
as a Credit Support Party
By:
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Title:
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ALPHA BETA COMPANY,
as a Credit Support Party
By:
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Title:
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FOOD 4 LESS GM, INC.,
as a Credit Support Party
By:
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Title:
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FOOD 4 LESS MERCHANDISING, INC.,
as a Credit Support Party
By:
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Title:
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FOOD 4 LESS OF CALIFORNIA, INC.,
as a Credit Support Party
By:
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Title:
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CRAWFORD STORES, INC.,
as a Credit Support Party
By:
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Title:
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AGENT:
BANKERS TRUST COMPANY,
INDIVIDUALLY AND AS AGENT
By:
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Title:
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LENDERS:
[BT TO PROVIDE]
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[LENDER], INDIVIDUALLY AND AS A CO-AGENT
By:
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Title:
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[LENDER], INDIVIDUALLY AND AS A CO-
ARRANGER
By:
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Title:
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[LENDER]
By:
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Title:
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[LENDER]
By:
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Title:
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[LENDER]
By:
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Title:
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[LENDER]
By:
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Title:
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