Exhibit 10.13
FIFTH AMENDMENT
THIS FIFTH AMENDMENT ("Amendment") made as of this 29th day of
November, 2003 among GRISTEDE'S FOODS, INC., a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Borrower"), each of the Subsidiaries of the Borrower listed on Schedule 1
to the Agreement, as hereinafter defined (each individually, a "Guarantor" and
collectively, the "Guarantors") (the Borrower and the Guarantors, collectively,
the "Credit Parties"), CITIBANK, N.A., a national banking association, having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Citibank" or a "Bank"),
ISRAEL DISCOUNT BANK OF NEW YORK, a New York banking organization, having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Israel Discount" or a
"Bank"), BANK LEUMI USA, a New York trust company, having an office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Leumi" or a "Bank") ("Leumi" or a "Bank") and
CITIBANK, N.A., as agent for the Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent have entered into a Loan
Agreement dated as of the 31st day of October, 2001, which Loan Agreement has
heretofore been amended pursuant to that certain First Amendment dated as of
November 30, 2002, that certain Second Amendment dated as of March 1, 2003, that
certain Third Amendment dated as of August 30, 2003 and that certain Fourth
Amendment dated as of January 26, 2004 (as so amended, the "Agreement"); and
WHEREAS, the Banks have made loans to the Borrower as evidenced by
certain notes of the Borrower and specifying interest to be paid thereon; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
agree to extend the Revolving Credit Maturity Date to March 31, 2005; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
agree to amend certain of the financial requirements contained in the Agreement.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Guarantors, the Agent and the Banks do hereby
agree as follows:
1. Defined Terms. As used in this Amendment, capitalized terms, unless
otherwise defined, shall have the meanings set forth in the Agreement.
2. Representations and Warranties. As an inducement for the Agent and
the Banks to enter into this Amendment, the Credit Parties each represent and
warrant as follows:
A. That with respect to the Agreement and the Loan Documents
executed in connection therewith and herewith:
(i) There are no defenses or offsets to the
Borrower's or any Guarantor's obligations under the Agreement
as amended hereby, the Notes or any of the Loan Documents or
any other agreements in favor of the Bank referred to in the
Agreement, and if any such defenses or offsets exist without
the knowledge of the Borrower or any Guarantor, the same are
hereby waived.
(ii) All of the representations and warranties made
by the Borrower and any Guarantor in the Agreement as amended
hereby are true and correct in all material respects as if
made on the date hereof, except for those made with respect to
a particular date, which such representations and warranties
are restated as of the date of this Amendment to be true and
correct in all material respects as of such date; and provided
further that the representations and warranties set forth in
Section 4.01(f) of the Agreement shall relate to the
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries for the fiscal year ended December
1, 2002 and the interim financial statement for the quarterly
fiscal period ended August 31, 2003.
(iii) The outstanding aggregate principal balance of
the Revolving Credit Loans as evidenced by the Revolving
Credit Notes is $17,000,000.00 as of April 1, 2004 and
interest has been paid through April 1, 2004.
(iv) The outstanding aggregate principal balance of
the Term Loans as evidenced by the Term Loan Notes is
$10,116,666.00 as of April 1, 2004 and interest has been paid
through April 1, 2004.
3. Amendments.
(a) The definition of Revolving Credit Maturity Date is hereby amended
to read as follows:
"Revolving Credit Maturity Date" means March 31, 2005.
(b) Section 2.17(iii) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(iii) Notwithstanding the foregoing, for the period beginning
on the date of the Third Amendment to the Agreement and ending
on the date of delivery by the Borrower to the Agent of its
financial statements for the fiscal quarter ending February
29, 2004 as required pursuant to Section 5.01(b)(i) hereof,
the Prime Applicable Margin shall be 1.50% and the LIBOR
Applicable Margin shall be 3.25%."
(c) Section 5.01(b)(i) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(i) Annual Financial Statements. As soon as available and in
any event not later than the date it is required to be filed
with the Securities and Exchange Commission (April 6, 2004 in
the case of the fiscal year ending November 30, 2003), a copy
of Form 10-K for each fiscal year of the Borrower, including
the audited consolidated financial statements of the Borrower
and its Consolidated Subsidiaries for such year, including a
balance sheet with a related statement of income and retained
earnings and statement of cash flows, all in reasonable detail
and setting forth in comparative form the figures for the
previous fiscal year, together with an unqualified opinion,
prepared by BDO ▇▇▇▇▇▇▇, LLP or such other independent
certified public accountants selected by the Borrower and
reasonably satisfactory to the Agent, all such financial
statements to be prepared in accordance with GAAP."
(d) Section 5.01(b)(iii) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(iii) Consolidating Financial Statements. (1) As soon as
available and in any event within ninety (90) days after the
end of each fiscal year of the Borrower (April 9, 2004 in the
case of the fiscal year ending November 30, 2003) and within
sixty (60) days after the end of each of the first three
fiscal quarters of the Borrower, a copy of the consolidating
financial statements of the Borrower and its operating
Subsidiaries for such year or quarter, including balance
sheets with related statements of income and retained earnings
and statements of cash flows, all in reasonable detail and
setting forth in comparative form the figures for the previous
fiscal year or previous fiscal quarter, all such financial
statements to be prepared by management of the Borrower in
accordance with GAAP (subject to year end audit adjustments),
and (2) as soon as available and in any event within sixty
(60) days after the end of each fiscal quarter of the Borrower
(90 days in the case of the fourth fiscal quarter of each year
and April 9, 2004 in the case of the fiscal quarter ending
November 30, 2003), a copy of a financial schedule showing
EBITDA operating results by store location for such quarter,
prepared by management of the Borrower."
(e) Section 5.02(l) of the Agreement is hereby deleted in its entirety
and replaced as follows:
"Losses. Incur a net loss (i) in excess of $930,000.00 for the
fiscal year ending December 1, 2002, (ii) $11,600,000.00 loss
for the fiscal year ended November 30, 2003, or (iii) for any
fiscal year thereafter."
(f) Section 5.03(a) of the Agreement is hereby deleted in its entirety
and replaced as follows:
"(a) Minimum Consolidated Tangible Net Worth. The Borrower and
Guarantors will maintain at all times a Consolidated Tangible
Net Worth ("TNW") plus Subordinated Debt of not less than the
following, to be tested quarterly at the end of each fiscal
quarter:
Date/Fiscal Year Ending ("FYE") Minimum TNW
Quarter ended September 2, 2001 $20,000.000
End of FYE 2001 and through the first
three fiscal quarters of FYE 2002 $20,000,000
End of FYE 2002 and through the first
three fiscal quarters of FYE 2003 $22,000,000
End of FYE 2003 $22,950,000
Each fiscal quarter and year thereafter $24,500,000"
(g) Section 5.03(c) of the Agreement is hereby deleted in its entirety
and replaced as follows:
"(c) Leverage Ratio. The Borrower and the Guarantors will at all times
maintain a Leverage Ratio of not greater than the following, to be
tested quarterly at the end of each fiscal quarter:
Date/Fiscal Year Ending Maximum Leverage Ratio
Quarter ended September 2, 2001 4.00 to 1.0
End of FYE 2001 and through the first
three fiscal quarters of FYE 2002 3.75 to 1.0
End of FYE 2002 and through the second
fiscal quarter of FYE 2003 4.50 to 1.0
Third fiscal quarter
of FYE 2003 4.25 to 1.0
End of FYE 2003 4.60 to 1.0
Each fiscal quarter and year thereafter 3.00 to 1.0"
(h) Section 5.03(e) of the Agreement is hereby deleted in its entirety
and replaced as follows:
"Fixed Charge Coverage Ratio. The Borrower and Guarantors will maintain
at all times, on a consolidated basis, a minimum Fixed Charge Coverage
Ratio of not less than the following, such ratio to be tested quarterly
on a rolling four quarter basis at the end of each fiscal quarter:
Date/Fiscal Year Ending Fixed Charge Coverage Ratio
Quarter ended September 2, 2001 1.05 to 1.0
End of FYE 2001 and through the first
three fiscal quarters of FYE 2002 1.10 to 1.0
End of FYE 2002 and through the Second
fiscal quarter of FYE 2003 1.10 to 1.0
Third fiscal quarter
of FYE 2003 1.15 to 1.0
End of FYE 2003 1.15 to 1.0
Each fiscal quarter and year thereafter 1.20 to 1.0"
(i) Section 5.03(f) of the Agreement is hereby deleted in its entirety
and replaced as follows:
"(f) Debt Service Ratio. The Borrower and Guarantors will maintain at
all times, on a consolidated basis, a minimum Debt Service Ratio of not
less the following, such ratio to be tested quarterly on a rolling four
quarter basis at the end of each fiscal quarter:
Date/Fiscal Year Ending Debt Service Ratio
Quarter ended September 2, 2001 1.15 to 1.0
End of FYE 2001 and through the first
three fiscal quarters of FYE 2002 1.25 to 1.0
End of FYE 2002 and through the first
three fiscal quarters of FYE 2003 1.30 to 1.0
End of FYE 2003 1.45 to 1.0
Each fiscal quarter and year thereafter 1.50 to 1.0"
5. Effectiveness. This Amendment shall become effective upon the
receipt and satisfactory review by the Bank and its counsel of:
(a) This Amendment, duly executed by the Borrower and each
Guarantor; and
(b) From the Borrower, an amendment fee of $13,666.67 for the
pro rata distribution to the Banks.
(c) Proof that the Borrower has received a total of
$22,008,258.00 in Subordinated Debt from United Acquisition Corp.
(d) From United Acquisition Corp. an amended and restated
Subordination Agreement in the amount of $22,008,258.00, which amended and
restated Subordination Agreement shall be satisfactory to the Agent and its
counsel in all respects.
(e) The Agent's counsel shall have been paid their fees and
disbursements in connection with this Amendment.
6. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8. Ratification. Except as hereby amended, the Agreement and all other
Loan Documents executed in connection therewith shall remain in full force and
effect in accordance with their originally stated terms and conditions. The
Agreement and all other Loan Documents executed in connection therewith, as
amended hereby, are in all respects ratified and confirmed.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the year and date first above written.
CITIBANK, N.A., as Agent
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
CITIBANK, N.A.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By:
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Name:
Title:
By:
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Name:
Title:
BANK LEUMI USA
By:
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Name:
Title:
By:
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Name:
Title:
GRISTEDE'S FOODS, INC.
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
CITY PRODUCE OPERATING CORP.
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
President
NAMDOR INC.
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
President
GRISTEDE'S FOODS NY, INC.
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
GRISTEDE'S DELIVERY SERVICE INC.
By:
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Title: