Exhibit 10.16
SIXTH AMENDMENT TO LOAN AGREEMENT
THIS SIXTH AMENDMENT ("Amendment") made as of this 27th day of November,
1999 among GRISTEDE'S FOODS, INC.(f/k/a Gristede's Sloan's Inc.), a Delaware
corporation having its principal place of business at 823 Eleventh Avenue, New
York, New York 10019 (the "Borrower"), each of the Subsidiaries of the Borrower
listed on Schedule 1 annexed to the Agreement (as hereinafter defined)
(individually, a "Guarantor" and collectively, the "Guarantors") (the Borrower
and the Guarantors, collectively, the "Credit Parties"), EUROPEAN AMERICAN BANK,
a New York banking organization, having an office at 335 Madison Avenue, New
York, New York 10017 ("EAB" or a "Bank"), ISRAEL DISCOUNT BANK OF NEW YORK, a
New York banking organization, having an office at 511 Fifth Avenue, New York,
New York 10017 ("Israel Discount" or a "Bank"), DIME SAVINGS BANK OF NEW YORK,
FSB, successor to Keybank National Association,, a national banking association,
having an office at 1377 Motor Parkway, Islandia, New York 11788 ("Dime" or a
"Bank") and BANK LEUMI USA, a New York trust company, having an office at 562
Fifth Avenue, New York, New York 10036 ("Leumi" or a "Bank") and EUROPEAN
AMERICAN BANK, 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 7th day of November, 1997, which Loan Agreement has
heretofore been amended pursuant to that certain First Amendment dated April 30,
1998, that certain Second Amendment dated as of August 29, 1998, that certain
Third Amendment dated as of November 28, 1998, that certain Fourth Amendment
dated as of February 27, 1999 and that certain Fifth Amendment dated as of May
29, 1999 (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:
(i) to amend certain financial reporting requirements; and
(ii) 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
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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. Amendment to Borrower's Name. All references to the Borrower contained
in the Agreement and the other Loan Documents shall be deemed amended to be
references to the name "Gristede's Foods, Inc."
3. Amendment to Key's Name. All references to KeyBank National Association
contained in the Agreement and the other Loan Documents shall be deemed amended
to be references to the name "The Dime Savings Bank of New York, FSB and all
references to Key contained in the Agreement and the other Loan Documents shall
be deemed amended to be references to the name "Dime."
4. Amendments. The following amendments are hereby made to the Agreement:
(a) The definition of Consolidated Total Assets contained in the
Agreement is hereby deleted in its entirety and replaced as follows:
"'Consolidated Total Assets' means, as to any Person, the aggregate
net book value of the assets of such Person and its Consolidated
Subsidiaries (including but not limited to Subordinated Debt) after
all appropriate adjustments in accordance with GAAP (including
without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization and excluding the amount of any
write-up or revaluation of any asset, other than that arising from
(i) the consummation of the Acquisition, and (ii) the accounting by
the Borrower for any future acquisition of store #53 or store #514
(formerly known as store #414)."
(b) The definition of EBITDA contained in the Agreement is hereby
deleted in its entirety and replaced as follows:
"'EBITDA' means, as to the Borrower and its Consolidated
Subsidiaries for any period, the sum of (i) net income (excluding
extraordinary gains and losses), plus (ii) interest expense, plus
(iii) depreciation expense, plus (iv) amortization of intangible
assets plus (v) federal, state and local income taxes deducted in
calculating net income, plus (vi) non-cash rent leveling expenses,
plus (vii) non-cash items permitted by GAAP, plus (viii) for the
fiscal year ended November 28, 1999 only, store
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opening expenses, receivable reserve, and organizational costs,
which charges shall not exceed $1,171,029.00 in the aggregate, plus
(ix) for the fiscal year ended November 28, 1999 only, charges
incurred in connection with the adoption of SOP 98-5 of
$1,409,957.00, in each case measured for the Borrower and its
Consolidated Subsidiaries on a consolidated basis for such period,
computed and consolidated in accordance with GAAP."
(c) Section 2.37 of the Agreement is hereby deleted in its entirety
and replaced as follows:
"SECTION 2.37. Interest Rate Hedge Contract. Upon the request of the
Required Banks, within sixty (60) days of such request, the Borrower
shall enter into interest rate hedge agreements with a term of two
(2) years with the Agent, an affiliate of the Agent or any other
bank reasonably acceptable to the Agent (and, in the case of such
other bank, shall deliver copies of the hedge agreements to the
Agent) to purchase interest rate caps for a maximum notional value
of fifty (50%) percent of the outstanding Loans as of the date of
such request."
(d) 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 (i) in the case of the fiscal year ended
November 28, 1999, June 16, 2000, and (ii) in the case of all
subsequent fiscal years, the date it is required to be filed with
the Securities and Exchange Commission, 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 Affiliates
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 Seidman, 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."
(e) Section 5.01(b)(ii) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(ii) Quarterly Financial Statements. As soon as available and in
any event not later than (i) in the case of the fiscal quarter ended
February 27, 2000, June 16,
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2000, and (ii) in the case of all subsequent fiscal quarters, the
date it is required to be filed with the Securities and Exchange
Commission, a copy of Form 10-Q for each fiscal quarter of the
Borrower, including the consolidated financial statements of the
Borrower and its Consolidated Affiliates for such quarter and for
year to date, including a balance sheet with a related statement of
income and retained earnings and a statement of cash flows, all in
reasonable detail and setting forth in comparative form the figures
for the comparable quarter and comparable year to date period for
the previous fiscal year, all such financial statements to be
prepared by the Company and reviewed by BDO Seidman, 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."
(f) The following Section 5.01(o) is hereby added to the Agreement:
"(o) Financial Consultant. The Borrower shall hire a consultant
reasonably satisfactory to the Agent on or prior to September 9,
2000 to review its accounting and financial reporting systems. The
Borrower shall (i) request that such consultant shall issue its
report within forty five (45) days thereafter, and (ii) deliver such
report to the Agent and the Banks within five (5) days of its
receipt."
(g) Section 5.02(a)(ix)(4) is hereby deleted in its entirety and
replaced as follows:
"(4) The Debt secured by all such Liens shall not exceed
$15,000,000.00 at any time outstanding in the aggregate; and"
(h) Section 5.02(l) is hereby deleted in its entirety and replaced
as follows:
"(l) Losses. Incur a net loss (i) for the fiscal year ending
November 29, 1998 in excess of $330,000.00, or (ii) for the fiscal
year ending November 28, 1999 in excess of $2,900,000.00, and (iii)
for any fiscal year thereafter."
(i) 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") of not less than
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the following, to be tested quarterly:
Period Minimum TNW
------ -----------
Fiscal year ended $16,500,000.00
November 28, 1999
From November 29, 1999 until $16,500,000.00
December 3, 2000
From December 4, 2000 until $18,500,000.00
December 1, 2001
From December 2, 2001 and $20,500,000.00
thereafter"
(j) 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, to be tested quarterly, of not
greater than the following:
Period Minimum Leverage Ratio
------ ----------------------
Fiscal Year ended
November 28, 1999 3.60 to 1.00
From November 29, 1999 until 4.00 to 1.00
December 3, 2000
From December 4, 2000 until 2.55 to 1.00
December 1, 2001
From December 2, 2001 and 2.25 to 1.00
thereafter"
(k) Section 5.03(d) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(d) Funded Debt to EBITDA Ratio. The Borrower and Guarantors will
maintain at all times on a consolidated basis, a Funded Debt to
EBITDA Ratio, to be tested quarterly, of not greater than the
following:
Funded Debt to
Period EBITDA Ratio
------ ------------
Fiscal Year ended 4.80 to 1.00
November 28, 1999
From November 29, 1999 until 4.80 to 1.00
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December 3, 2000
From December 4, 2000 until 3.60 to 1.00
December 1, 2001
From December 2, 2001 and 2.00 to 1.00"
thereafter
(l) 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:
Fixed Charge
Period Coverage Ratio
------ --------------
Fiscal Year ended 1.10 to 1.00
November 27, 1999
From November 28, 1999 until 1.10 to 1.00
December 3, 2000
From December 4, 2000 until 1.40 to 1.00
December 1, 2001
From December 2, 2001 and 1.50 to 1.00
thereafter"
(m) 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:
Period Debt Service Ratio
------ ------------------
Fiscal year ended 1.30 to 1.00
November 28, 1999
From November 29, 1999 until 1.30 to 1.00
December 3, 2000
From December 4, 2000 until 2.65 to 1.00
December 1, 2001
From December 2, 2001 and 2.75 to 1.00
thereafter"
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(n) Section 5.03(g) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"Minimum EBITDA. The Borrower and the Guarantors shall have minimum
EBITDA of not less than the following:
Period Minimum EBITDA
------ --------------
Fiscal year ended
November 28, 1999 $ 7,500,000.00
Fiscal year ended
December 3, 2000 $11,000,000.00
Each fiscal year
thereafter $10,000,000.00"
5. Effectiveness. This Amendment shall become effective upon the
occurrence of the following events and the receipt and satisfactory review by
the Bank and its counsel of the following documents:
(a) This Amendment, duly executed by the Borrower and each
Guarantor.
(b) From the Individual Guarantor, an executed guaranty providing
for the guaranty of the principal sum of $7,000,000.00 (which guaranteed amount
shall reduce to $5,000,000.00 if the Borrower's EBITDA is at least
$11,000,000.00 for the fiscal year ending December 2, 2000) which guaranty shall
be in form and substance satisfactory to the Agent and the Banks.
(c) From the Borrower, an amendment fee of $50,000.00 for the pro
rata distribution to the Banks.
(d) The Bank shall have received copies of any and all modifications
of the documentation referred to in Section 3.01 of the Agreement which could
result in a Material Adverse Change.
(e) United Acquisition Corp. shall subordinate to the prior payment
of the Loans an aggregate $9,000,000.00 due it from the Borrower pursuant to a
subordination agreement satisfactory to the Agent.
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.
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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
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the year and date first above written.
EUROPEAN AMERICAN BANK, as Agent
By: /s/ George L. Stirling
-----------------------------
George L. Stirling
Vice President
EUROPEAN AMERICAN BANK
By: /s/ George L. Sterling
-----------------------------
George L. Stirling
Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Scott Fishbein
-----------------------------
Name: Scott Fishbein
Title: Vice President
By: /s/ Ronald Bongovann
-----------------------------
Name: Ronald Bongovann
Title: First Vice President
THE DIME SAVINGS BANK OF NEW YORK, FSB
By: /s/ Joseph F. Burns
-----------------------------
Name: Joseph F. Burns
Title: Vice President
BANK LEUMI USA
By: /s/ Phyllis Rosenfeld
-----------------------------
Name: Phyllis Rosenfeld
Title: Vice President
By: /s/ David Selove
-----------------------------
Name: David Selove
Title: Vice President
GRISTEDE'S FOODS, INC.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
Chief Executive Officer
CITY PRODUCE OPERATING CORP.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
President
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GRISTEDE'S OPERATING CORP.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
President
NAMDOR INC.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
President
RAS OPERATING CORP.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
President
SAC OPERATING CORP.
By: /s/ John Catsimatidis
-----------------------------
John Catsimatidis
President
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