<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended January 11, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from N/A
Commission File No. 1-6068
RINI-REGO SUPERMARKETS, INC.
(Exact name of Registrant as specified in its charter)
Ohio 34-0222970
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
5300 Richmond Road, Bedford Heights, Ohio 44146
(Address of principal executive offices)
Registrant's telephone number, including area code: (216)292-7000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Sections 12, 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
YES X NO
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Outstanding at
February 17, 1997
Class A Common Stock, No Par Value 3,536,577<PAGE>
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
RINI-REGO SUPERMARKETS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands of dollars)
<TABLE>
<CAPTION>
1/11/97 6/29/96
--------- ---------
ASSETS (unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 3,699 $ 3,541
Trade accounts receivable, net 32,741 36,903
Inventories 73,744 72,406
Deferred income taxes 9,066 9,066
Prepaid expenses 5,345 4,613
--------- ---------
Total current assets 124,595 126,529
PROPERTY, EQUIPMENT AND
CAPITAL LEASES: 224,205 203,762
Less-Allowances for
depreciation, amortization
and loss on disposal of
fixed assets 87,645 79,762
--------- ---------
136,560 124,000
OTHER ASSETS:
Deferred income taxes 4,947 4,947
Notes receivable 4,559 4,784
Other 1,938 2,088
--------- ---------
Total other assets 11,444 11,819
--------- ---------
TOTAL ASSETS $ 272,599 $ 262,348
========= =========
</TABLE>
The accompanying Notes to Consolidated Condensed Financial
Statements are an integral part of these statements.<PAGE>
<PAGE>
<TABLE>
<CAPTION>
1/11/97 6/29/96
---------- ----------
(unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 58,692 $ 59,433
Accrued expenses 44,084 41,790
Current portion of long-term liabilities 8,427 10,352
---------- ---------
Total current liabilities 111,203 111,575
LONG-TERM LIABILITIES:
Debt 37,120 32,514
Capital lease obligations 4,985 5,531
Self insurance reserves 13,302 12,595
---------- ----------
Total long-term liabilities 55,407 50,640
OTHER LIABILITIES 6,771 10,191
STOCKHOLDERS' EQUITY:
Class A Common Stock--7,257,288 and
7,174,787 shares outstanding at
1/11/97 and 6/29/96, respectively 73 72
Class B Common Stock--901,912 and
955,613 shares outstanding at
1/11/97 and 6/29/96, respectively 9 10
Paid-in capital 36,386 36,138
Retained earnings 62,750 53,722
---------- ----------
Total stockholders' equity 99,218 89,942
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 272,599 $ 262,348
========== ==========
</TABLE>
The accompanying Notes to Consolidated Condensed Financial
Statements are an integral part of these statements.<PAGE>
<PAGE>
RINI-REGO SUPERMARKETS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(In thousands of dollars, except share and per share data)
(unaudited)
<TABLE>
<CAPTION>
28 Weeks Ended: 12 Weeks Ended:
1/11/97 1/13/96 1/11/97 1/13/96
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
NET SALES $ 726,377 $ 679,099 $ 321,774 $ 301,712
COST OF GOODS SOLD 584,832 545,517 258,719 242,890
---------- ---------- ---------- ----------
Gross profit 141,545 133,582 63,055 58,822
SELLING, GENERAL &
ADMINISTRATIVE EXPENSE 122,649 117,471 53,726 49,729
---------- ---------- ---------- ----------
Operating income 18,896 16,111 9,329 9,093
INTEREST EXPENSE (2,465) (3,761) (1,014) (1,633)
INTEREST INCOME 246 684 92 282
---------- ---------- ---------- ----------
INCOME BEFORE INCOME 16,677 13,034 8,407 7,742
TAXES
PROVISION FOR INCOME 6,672 5,360 3,364 3,190
TAXES ---------- ---------- ---------- ----------
NET INCOME 10,005 7,674 5,043 4,552
LESS PREFERRED STOCK
DIVIDENDS - 11 - -
---------- ---------- ---------- ----------
NET INCOME FOR COMMON
STOCKHOLDERS $ 10,005 $ 7,663 $ 5,043 $ 4,552
========== ========== ========== ==========
NET INCOME PER COMMON $ 1.23 $ .95 $ .62 $ .56
SHARE ========== ========== ========== ==========
DIVIDENDS PER COMMON $ .12 $ .10 $ .06 $ .05
SHARE ========== ========== ========== ==========
WEIGHTED AVERAGE NUMBER
OF COMMON SHARES
OUTSTANDING 8,138,713 8,083,612 8,146,886 8,086,229
========== ========== ========== ==========
</TABLE>
The accompanying Notes to Consolidated Condensed Financial
Statements are an integral part of these statements.<PAGE>
<PAGE>
RINI-REGO SUPERMARKETS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In thousands of dollars)
(unaudited)
<TABLE>
<CAPTION> 28 Weeks Ended: 12 Weeks Ended:
1/11/97 1/13/96 1/11/97 1/13/96
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net income $ 10,005 $ 7,674 $ 5,043 $ 4,552
Adjustments to reconcile
net income to net cash
provided by operating
activities:
Depreciation & amort. 9,962 9,198 4,357 3,709
Changes in assets
and liabilities 3,027 16,104 3,097 24,253
--------- --------- --------- ---------
Net cash provided by
operating activities 22,994 32,976 12,497 32,514
--------- --------- --------- ---------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Purchases of fixed (24,244) (16,729) (15,872) (6,707)
assets
Proceeds from sales
of fixed assets 111 102 22 71
--------- --------- --------- ---------
Net cash used for
investing activities (24,133) (16,627) (15,850) (6,636)
--------- --------- --------- ---------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Borrowings under revolving
lines of credit 83,436 425,866 53,276 168,083
Repayments of revolving
lines of credit (70,889) (442,095) (40,729) (193,750)
Additional borrowings - 5,093 - 3,520
Debt repayments (9,774) (4,148) (8,361) (2,957)
Repayments of capital
lease obligations (747) (743) (301) (300)
Exercise of stock 248 111 185 98
options
Common stock dividends (977) (809) (489) (405)
Preferred stock - (11) - -
--------- --------- --------- ---------
Net cash provided by
(used for) financing
activities 1,297 (16,736) 3,581 (25,711)
--------- --------- --------- ---------
/TABLE
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
28 Weeks Ended: 12 Weeks Ended:
1/11/97 1/13/96 1/11/97 1/13/96
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET INCREASE (DECREASE) IN
CASH AND CASH EQUIVALENTS 158 (387) 228 167
CASH AND CASH EQUIVALENTS
AT BEGINNING OF PERIOD 3,541 4,075 3,471 3,521
--------- --------- --------- ---------
CASH AND CASH EQUIVALENTS
AT END OF PERIOD $ 3,699 $ 3,688 $ 3,699 $ 3,688
========= ========= ========= =========
SUPPLEMENTAL DATA:
Interest Paid $ 2,414 $ 3,900 $ 1,747 $ 2,374
========= ========= ========= =========
Income Taxes Paid $ 3,125 $ 5,718 $ 2,415 $ 1,439
========= ========= ========= =========
</TABLE>
The accompanying Notes to Consolidated Condensed Financial
Statements are an integral part of these statements.
<PAGE>
<PAGE>
RINI-REGO SUPERMARKETS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
JANUARY 11, 1997
(1) Basis of Presentation:
The accompanying unaudited consolidated condensed financial
statements have been prepared in accordance with the instructions
to Form 10-Q and therefore do not include all information and
footnotes necessary for a fair presentation of financial position,
results of operations and cash flows in conformity with generally
accepted accounting principles. The results of operations for the
twelve and twenty-eight weeks ended January 11, 1997 are not
necessarily indicative of the results for the fiscal year ending
June 28, 1997. In the opinion of management, the accompanying
unaudited consolidated condensed financial statements contain all
adjustments necessary for a fair presentation of the financial
position at the dates indicated and of the results of operations
for the interim periods presented.
Rini-Rego Supermarkets, Inc. (RRS or the Company), formerly
known as Fisher Foods, Inc. (Fisher), is a subsidiary of Riser
Foods, Inc. (Riser). The accompanying financial statements of the
Company are presented on the "push down accounting" basis, for
financial reporting purposes only, with the equity section of the
accompanying balance sheet reflecting the equity of Riser. The
separate financial statements of the Company would reflect the
following stockholders' equity amounts (in thousands):
1/11/97 6/29/96
---------- ----------
Preferred Stock $ 1,811 $ 1,811
Common Stock 1,403 1,403
Paid-in Capital 22,714 22,714
Retained Earnings 75,376 65,371
---------- ----------
Total Stockholders' Equity $ 101,304 $ 91,299
========== ==========
(2) Debt:
The Company amended its bank credit facilities (the
Facilities) during the second quarter of fiscal 1997. These
amended Facilities provide for revolving lines of credit and
letters of credit up to an aggregate of $85.0 million and terminate
on October 31, 2001. Interest under the Facilities now accrues at
either the bank's prime lending rate or LIBOR plus a margin that
ranges from .30% to .75% depending upon the Company's consolidated
leverage ratio. Among other covenants, the Facilities require that
the Company maintain minimum levels of consolidated net worth and
consolidated leverage and interest coverage ratios, all as defined.
Available unused borrowing capacity under the Facilities was
approximately $66.4 million at January 11, 1997.
<PAGE>
<PAGE>
(3) Changes in Equity:
Riser's Board of Directors unanimously approved the
redemption of Riser's Series A Preferred Stock on June 9,
1995. The outstanding shares of preferred stock were redeemed on
July 28, 1995 at a redemption price of $105 per share plus
accumulated dividends. Riser redeemed 18,044 shares at a
total redemption price of $1,894,620 plus accumulated dividends of
$11,007.
The declaration and payment of dividends is subject to the
discretion of Riser's Board of Directors and there can be no
assurance that dividends will be paid in the future. Year-to-date,
Riser has paid dividends on its Common Stock totalling $1,163,829
(of which $186,436 was paid to the Company) and $964,042 (of which
$155,323 was paid to the Company) in fiscal 1997 and 1996,
respectively.
Riser has a Stock Incentive Plan (the Plan) which provides for
both qualified and non-qualified stock options, as well as stock
appreciation rights and restricted stock grants for employees,
officers and directors of Riser. Stock options must be issued at
not less than the fair value of Riser's Class A Common Stock at the
date of grant and are exercisable for up to ten years from the date
of grant. The options outstanding under the plan are exercisable
at option prices ranging from $7.25 to $23.63 per share. Options
for 28,800 and 12,000 shares of Riser Class A Common Stock were
exercised at prices ranging from $7.31 to $10.31 per share during
the first twenty-eight weeks of fiscal 1997 and 1996, respectively.
On August 19, 1996, Riser granted options to several key
employees to purchase 52,100 shares of its Class A Common Stock
(the 1997 Options) under the Plan. The exercise price of the 1997
options is $23.63 per share which approximated their fair market
value at the date of grant. The 1997 Options are not exercisable
until August 19, 1998 (except in certain limited instances) and
will expire on August 19, 2006 if not exercised. The 1997 Options
are non-qualified options for Federal Income Tax purposes and the
Company recorded no expense associated with this grant.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Results of Operations
The following table sets forth items from the Company's
Consolidated Condensed Statements of Income as a percentage of net
sales:
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
28 Weeks Ended: 12 Weeks Ended:
1/11/97 1/13/96 1/11/97 1/13/96
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales 100.00 100.00 100.00 100.00
Cost of goods sold 80.51 80.33 80.40 80.50
--------- --------- -------- ---------
Gross profit 19.49 19.67 19.60 19.50
SG&A expense 16.89 17.30 16.70 16.48
--------- --------- -------- ---------
Operating income 2.60 2.37 2.90 3.02
Interest expense (.34) (.55) (.32) (.54)
Interest income .04 .10 .03 .09
--------- --------- --------- ---------
Income before income taxes 2.30 1.92 2.61 2.57
Provision for income taxes .92 .79 1.04 1.06
--------- --------- --------- ---------
Net income 1.38 1.13 1.57 1.51
========= ========= ========= =========
</TABLE>
The results of operations for the twelve and twenty-eight
weeks ended January 11, 1997 continue to reflect successful
implementation of strategic initiatives designed to improve
operating performance and counter competitive and economic
pressures. The food distribution industry has encountered little
or no top line price inflation between years while operating costs,
particularly labor and occupancy, have contractually risen.
Overall industry sales and operating margins have been challenged
by continued competition from non-traditional sources, such as
convenience stores and national mass merchandising chains.
Net Sales
In the second quarter of fiscal 1997, net sales increased
6.65% to $321.8 million from $301.7 million in fiscal 1996.
Year-to-date, fiscal 1997 net sales have increased 6.96% to $726.4
million from $679.1 million last year. This trend of increased
sales over those of the prior year is the result of strategic
initiatives to remodel, reposition and enlarge Company-operated
retail stores, aggressive merchandising in Company-operated stores,
the expansion of product lines sold to the Company's
independently-operated retail customers and a continued favorable
economic climate in the Company's primary market area. The
Company's strategic initiatives to remodel and reposition Company-
operated retail stores have resulted in the consolidation and
enlargement of certain Company-operated retail stores. The
following table details the number, format and square footage of
Company-operated retail stores between years:
<PAGE>
<PAGE>
1997 1996
--------- ---------
Number of Company-operated
retail stores:
Beginning of year 37 38
Opened 2 --
Closed (3) --
--------- ---------
End of second quarter 36 38
========= =========
Store Formats:
Rini-Rego Stop-N-Shop 29 33
Rini-Rego Marketplace 7 5
Square footage:
Total - end of quarter 1,810,400 1,838,300
Average store size 50,289 48,376
Sales in Company-operated retail stores increased over those
of the prior year 3.17% in the second quarter and 3.13%
year-to-date. Same store sales increases of 1.79% in the second
quarter and 2.47% year-to-date and the opening of two larger
replacement stores more than offset sales losses resulting from two
less Company-operated retail stores between years. Including
the sales of the two replacement stores in fiscal 1997 and the
stores they replaced in fiscal 1996, sales for the 36 stores
servicing the same communities between years increased 4.62% in the
second quarter and 4.57% year-to-date. This continues a trend of
same store sales increases which began in the fourth quarter of
fiscal 1994. The increase in same store sales is attributed to the
Company's retail remodeling and repositioning programs, aggressive
merchandising including the Company's Preferred Shoppers Club card
and a favorable economic climate. The rate of same store sales
increases has slowed during the last three quarters as
Company-operated retail stores have cycled against prior year
remodeling projects and the timing of new store expansion projects
fell late in the first quarter of fiscal 1997.
The Company's retail remodeling and repositioning initiatives,
where certain non-core stores were closed and certain core stores
were remodeled, expanded or consolidated into larger retail
facilities, has proven successful, yielding continued sales growth
and improved operating leverage. Since the first quarter of 1994,
the Company has constructed or converted seven former Rini-Rego
Stop-N-Shop stores to its Marketplace format. The Marketplace
stores are larger, averaging approximately 65,000 square feet, and
meet the consumer's basic grocery needs while offering an expanded
product line, with emphasis on high quality perishable departments
and a variety of full service, consumer-oriented departments. The
Company expects to open one more Marketplace store in fiscal 1997.
<PAGE>
<PAGE>
Through the Association of Stop-N-Shop Supermarkets, a
northeast Ohio advertising cooperative which includes all
Company-operated retail stores, as well as other
independently-operated retail customers serviced by the Company,
the Company offers its customers the Preferred Shoppers Club.
Participating shoppers receive a Preferred Shoppers Club card which
entitles them to extra discounts below normal sales prices and
other incentives. This program was the first of its kind in
northeast Ohio and allows the Company to offer its customers
greater value and will ultimately enhance the Company's ability to
meet customer purchasing requirements and preferences. The success
of this program has increased sales in Company-operated retail
stores and other independently-operated retail customers serviced
by the Company and proven a valuable merchandising tool to combat
competitive pressures from both traditional and non-traditional
grocery retailers. The Company's primary competitor introduced a
frequent shoppers card in March 1996. The introduction of the
competitor's card lessened the effect of the Company's Preferred
Shoppers card somewhat but has not had a significant negative
impact on sales in Company-operated retail stores.
The Company expects its trend of same store sales increases to
continue at levels realized during the fourth quarter of fiscal
1996 and the first twenty-eight weeks of fiscal 1997. The Company
expects to continue its plans to remodel core stores by focusing on
its Marketplace store format where demographics so dictate or its
traditional Neighborhood store format and continue to aggressively
merchandise through its Preferred Shoppers Club to augment existing
store sales.
Net sales to independently-operated retail customers through
Company distribution facilities increased 10.46% in the second
quarter of fiscal 1997 and 11.26% year-to-date. Sales to
independently-operated retail customers have benefited from
strategic initiatives targeting the expansion of the Company's
primary wholesale distribution territory and expansion of the
Company's product lines. Sales to independently-operated retail
customers increased principally because of expanded product
offerings to the 102 PharMor and 163 Hills stores serviced by the
Company which are primarily located in the eastern third of the
United States.
As a percentage of net sales, year-to-date gross profit
decreased from 19.67% in fiscal 1996 to 19.49% in fiscal 1997.
This decline in the gross profit as a percentage of net sales is
principally a function of shifting sales mix between years. Sales
to independently-operated retail customers carry a lower gross
profit percentage than sales in Company-operated retail stores.
As such, a shift in the mix of these sales impacts overall gross
profit percentages. Sales generated in Company-operated retail
stores as a percentage of total Company sales decreased from 51.4%
in the first twenty-eight weeks of fiscal 1996 to 49.6% in the
first twenty-eight weeks of fiscal 1997. This decline mirrors the<PAGE>
<PAGE>
shift in the gross profit percentage.
In the second quarter, gross profit as a percentage of net
sales increased from 19.50% in fiscal 1996 to 19.60% in fiscal
1997. This was despite a similar shift in sales mix as sales in
Company-operated retail stores declined as a percentage of total
Company sales from 51.5% in fiscal 1996 to 49.8% in fiscal 1997.
In the second quarter of fiscal 1997, the shift in sales mix was
more than offset by increases in the gross profit percentage
achieved in Company-operated retail stores. The gross profit
percentage achieved in the second quarter of fiscal 1996 was
negatively impacted by the closing of the Company's in-store
pharmacies and higher than normal discounting of health and beauty
care and general merchandise inventory in Company-operated retail
stores. During the second quarter of fiscal 1997, the Company did
not incur any substantial write-downs or discounting of retail
inventories.
In general, the Company has been able to maintain gross profit
percentages on sales to independently-operated retail customers and
in Company-operated retail stores through improved procurement
systems, merchandising and effective inventory management.
Selling, general and administrative (SG&A) expense also
decreased as a percentage of net sales from 17.30% in the first
twenty-eight weeks of fiscal 1996 to 16.89% in fiscal 1997. The
major reasons for this decline are the shift in mix of business
toward sales to independently-operated retail customers,
productivity gains and better expense leverage. In the second
quarter of fiscal 1997, SG&A expense as a percentage of net sales
rose from 16.48% in fiscal 1996 to 16.70% in fiscal 1997. The
timing of expense recognition related to the Company's annual
incentive compensation program more than offset the aforementioned
benefits to SG&A expense.
Consistent with prior years, the Company has provided expense
under its annual incentive compensation program in the quarter in
which the incentive compensation was earned. During the second
quarter of fiscal 1997, the Company provided its remaining annual
incentive compensation expense for fiscal 1997. In fiscal 1996,
100% of this expense was recognized during the first quarter. The
difference in annual incentive compensation expense during the
second quarter was approximately $1.6 million between years.
Year-to-date, the Company has provided substantially the same
amount of annual incentive compensation expense in both years.
The SG&A shift also reflects the above mentioned change in the
sales mix between years. Sales in Company-operated retail stores
require higher SG&A costs than sales to independently-operated
retail customers. Accordingly, the SG&A percentage decreases with
a change in mix. The Company has also been able to improve
productivity through the implementation of Total Quality Management
initiatives and improve the leverage of certain fixed SG&A expenses<PAGE>
<PAGE>
over higher sales volume.
Interest expense declined $.6 million in the second quarter of
fiscal 1997 and $1.3 million year-to-date. These decreases are a
function of overall lower borrowing levels and lower effective
interest rates under the Company's bank credit facilities. Lower
borrowing levels were the result of programs to reduce the
investment in distribution inventories by increasing inventory
turns and the Company's increased cash flow from operations. The
effective interest rate recognized under the Company's bank credit
facilities was 7.26% and 8.44% in the second quarters of fiscal
1997 and 1996, respectively. Year-to-date, the effective interest
rate recognized under the Company's bank credit facilities was
7.38% in fiscal 1997 and 8.57% in fiscal 1996. The decrease in
these rates was the result of negotiated interest rate reductions
and the Company's utilization of LIBOR pricing.
The Company provided for income taxes at an effective tax rate
of 40.0% in fiscal 1997 compared to 41.0% in fiscal 1996. Taxes
were provided at the various statutory rates to which the Company
is subject and there were no significant differences between
financial reporting and taxable income. The primary reason for the
decrease in the Company's effective tax rate is a lower state and
local tax provision reflecting the Company's present filing status.
The Company provides for the franchise tax portion of its state
income tax provision as an operating expense.
CAPITAL RESOURCES AND LIQUIDITY
At the end of the second quarter of 1997, debt levels
increased as a result of increased capital expenditures and higher
working capital requirements associated with the Company's
distribution facilities.
Operating activities generated $23.0 million of cash in fiscal
1997 compared to $33.0 million in fiscal 1996. In adjusting net
income to net cash provided by operating activities for fiscal
1997, the major changes in assets and liabilities include decreases
of accounts and notes receivable of $4.4 million (decrease of $7.1
million in fiscal 1996) and accounts payable of $.7 million
(increase of $3.5 million in fiscal 1996) and increases in
inventories of $1.3 million (decrease of $5.8 million in fiscal
1996), prepaid expenses of $.7 million (increase of $1.4 million in
fiscal 1996) and accrued expenses and other liabilities of $.6
million (increase of $.4 million in fiscal 1996).
The decrease in accounts and notes receivable and the increase
in prepaid and accrued expenses during the second quarter of fiscal
1997 are normal seasonal fluctuations. During the second quarter
of fiscal 1997, the Company increased seasonal inventory levels and
turn inventory levels to meet anticipated sales requirements.
Historically, the Company has reduced inventory levels following
the holiday season. However, increased sales to<PAGE>
<PAGE>
independently-operated retail customers and the impact of
construction underway in the Company's primary distribution
facility caused an increase in inventory levels at the end of the
second quarter of fiscal 1997. Trade accounts payable, as a
percentage of FIFO inventories, decreased from 74.6% at
the end of fiscal 1996 to 71.5% at the end of the second quarter of
fiscal 1997.
As a result of the foregoing, working capital decreased to
$13.4 million from $15.0 million at the end of fiscal 1996. At the
same time, the Company's current ratio decreased from 1.13:1 at the
end of fiscal 1996 to 1.12:1 at the end of the second quarter of
fiscal 1997. Increased working capital requirements, principally
inventory, were offset by a reduction in the current portion of
long-term liabilities, primarily debt associated with the amending
of the Company's bank credit facilities. Increased borrowings
under the Company's bank credit facilities offset by net income
left the Company's long-term liabilities to equity ratio virtually
unchanged at .56:1 at the end of both fiscal 1996 and the second
quarter of fiscal 1997. The Company's ratio of total liabilities
to equity decreased to 1.75:1 at the end of the second quarter of
fiscal 1997 from 1.92:1 at the end of fiscal 1996.
The Company utilized $24.2 million of cash flow for capital
expenditures. This amount is approximately $7.5 million higher than
last year's level and reflects the Company's investment of $18.5
million ($8.7 million last year) in two new retail locations and
other retail remodeling projects, $3.3 million ($7.1 million last
year) for distribution facilities and equipment and $2.4
million ($1.0 million last year) on data processing systems
upgrades. Fiscal 1996 capital expenditures for distribution
facilities included the acquisition of the Company's Aurora Road
and Cash-N-Carry distribution facilities which had previously been
leased. The Aurora Road facility was subsequently sold prior to
the end of fiscal 1996.
The Company anticipates that the level of capital expenditures
for fiscal 1997 will be higher than the previous three fiscal years
principally because of the acceleration of the Company's remodeling
programs and the expansion of its distribution facilities. After
fiscal 1997, capital expenditure levels are expected to be
maintained in the $30-$35 million range over the next three fiscal
years until the Company has completed the remodeling or expansion
of its core stores. The Company believes that cash flow from
operations and the unused portion of its bank credit facilities
will adequately fund planned capital expenditures of approximately
$45 million in fiscal 1997, normal ongoing business activities and
scheduled debt repayments.
IMPACT OF INFLATION
Inflation increases the Company's major costs, inventory and
labor. Because of the high velocity of inventory turnover in the<PAGE>
<PAGE>
food distribution industry and the Company's use of the LIFO
valuation method for a majority of its inventory, the impact of
inflation is normally reflected very quickly in the results of
operations. The food distribution industry has experienced little
or no food inflation over the last three years. Experience
indicates that highly competitive market conditions may prevent the
Company from fully recovering inflation-driven costs through retail
pricing alone. The Company's provision for LIFO inventories was
the same in both years: $462,000 for the second quarter and
$1,078,000 year-to-date.
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS
OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 (the Reform
Act)
Certain information included in this report and other Company
filings under the Securities Act of 1933 and the Securities and
Exchange Act of 1934, as well as other information which may be
provided by the Company including written and oral statements made
by its representatives, may contain forward-looking statements as
defined in the Reform Act. All statements, other than those
containing historical facts, which include words or phrases such as
"will likely result", "are expected to be", "will continue", "is
anticipated", "estimate", "project", "believe" or words of similar
import are intended to identify forward-looking statements within
the meaning of the Reform Act. In reviewing such information it
should be noted that actual results may differ materially from
those projected or suggested in such forward-looking statements.
Forward-looking statements are conditioned upon a number of factors
and were derived utilizing numerous assumptions. Many of these
factors have previously been identified in other Company filings or
statements made by or on behalf of the Company.<PAGE>
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.23 Form of Amendment No. 3 to Amended and Restated
Credit Agreement by and among American Seaway
Foods, Inc., Key Bank National Association
("KeyBank") and the Banks (executed as of
January 8, 1997)
10.24 Form of Amendment No. 4 to Amended and Restated
Credit Agreement by and among Rini-Rego
Supermarkets, Inc., KeyBank and the Banks
(executed as of January 8, 1997)
10.25 Form of Amendment No. 5 to Amended and Restated
Guaranty Agreement by Riser Foods, Inc.
(executed as of January 8, 1997)
10.26 Form of Amendment No. 1 to Amended and Restated
Security Agreement by and among American Seaway
Foods, Inc., KeyBank and the Banks (executed as
of January 8, 1997)
10.27 Form of Amendment No. 1 to Amended and Restated
Security Agreement by and among Rini-Rego
Supermarkets, Inc., KeyBank and the Banks
(executed as of January 8, 1997)
10.28 Form of Amendment No. 1 to Amended and Restated
Security Agreement by and among Riser Foods,
Inc., KeyBank and the Banks (executed as of
January 8, 1997)
10.29 Form of Amendment No. 1 to Amended and Restated
Security Agreement by and among Fisher
Properties, Inc., KeyBank and the Banks
(executed as of January 8, 1997)
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K under
Item 5 - Other Events on February 19, 1997.
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
RINI-REGO SUPERMARKETS, INC.
(Registrant)
February 24, 1997 /s/ Charles A. Rini, Sr.
By: Charles A. Rini, Sr.
President and Director
February 24, 1997 /s/ Ronald W. Ocasek
By: Ronald W. Ocasek
Senior Vice President,
Chief Financial Officer
and Treasurer
<PAGE> EXECUTION COPY
AMENDMENT NO. 3
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 3 to Amended and Restated Credit
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between AMERICAN SEAWAY FOODS, INC. (formerly known as
Heritage Wholesalers, Inc.), an Ohio corporation (herein the
"Borrower"), the Banks (as hereinafter defined) and KEYBANK
NATIONAL ASSOCIATION (as successor by merger to Society National
Bank), as agent for the Banks (in such capacity, the "Agent"),
WITNESSETH:
WHEREAS, the Borrower has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of October 6, 1994 (the "First Amendment"), and
(ii) that certain Amendment No. 2 to Amended and Restated Credit
Agreement, dated as of April 28, 1995 (the "Second Amendment"), (as
so amended, the "Credit Agreement"), among the Borrower, the
financial institutions which are a party thereto (the "Banks") and
the Agent;
WHEREAS, the Borrower, the Banks and the Agent desire to
amend the Credit Agreement as set forth herein; and
WHEREAS, the Banks which are the signatories hereto
constitute all of the Banks for the purposes of amending the Credit
Agreement pursuant to Section 8.21 thereof.
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Credit
Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
The Borrower, the Banks and the Agent hereby agree that
the Credit Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:<PAGE>
<PAGE>
2.1 Amendment to Introductory Paragraph. The
introductory paragraph shall be amended by deleting the phrase in
parentheses "(formerly known as Heritage Wholesalers, Inc.)" and
replacing it with "(formerly known as Heritage Wholesalers, Inc.
and successor by merger to Seaway Food Service, Inc.)".
2.2 Amendment to Section 1.01. The following
definitions found in Section 1.01 shall each be amended in its
entirety to read as follows:
"Borrowing" means a Revolving Credit Borrowing.
"Business Day" means: (i) a day of the year on which
banks are not required or authorized to close in Cleveland,
Ohio and (ii) if the applicable Business Day relates to LIBOR
Rate Loans, a day of the year which is a Business Day
described in clause (i) above and which is also a day on which
dealings in Dollar deposits are carried on in the London
interbank market and banks are open for business in London.
"Consolidated Financial Covenants" means those financial
covenants of Riser and its Subsidiaries as determined on a
consolidated basis and set forth in Sections 7(k), 7(l) and
7(m) of the Riser Guaranty.
"Eurocurrency Reserve Percentage" means, for any Interest
Period in respect of any LIBOR Rate Loan, as of any date of
determination, the aggregate of the then stated maximum
reserve percentages (including any marginal, special,
emergency or supplemental reserves), expressed as a decimal,
applicable to such Interest Period (if more than one such
percentage is applicable, the daily average of such
percentages for those days in such Interest Period during
which any such percentage shall be so applicable) by the Board
of Governors of the Federal Reserve System, any successor
thereto, or any other banking authority, domestic or foreign,
to which the Agent or any Bank may be subject in respect to
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Federal Reserve Board) or
in respect of any other category of liabilities including
deposits by reference to which the interest rate on LIBOR Rate
Loans is determined or any category of extension of credit or
other assets that include the LIBOR Rate Loans. For purposes
hereof, such reserve requirements shall include, without
limitation, those imposed under Regulation D of the Federal
Reserve Board and the LIBOR Rate Loans shall be deemed to
constitute Eurocurrency Liabilities subject to such reserve
requirements without benefit of credits for proration,
exceptions or offsets which may be available from time to time
to any Bank under said Regulation D.
<PAGE>
<PAGE>
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest one
hundredth of one percent (1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day,
provided that: (a) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for
such day shall be such a rate on such transactions on the
immediately preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for
such Business Day shall be the average of quotations for such
day on such transactions received by KeyBank from three
Federal funds brokers of recognized standing selected by
KeyBank as determined by KeyBank and reported to the Agent.
"Interest Period" means, for each of the LIBOR Rate Loans
comprising a Borrowing, the period commencing on the date of
such Loans or the date of the Rate Conversion or Rate
Continuation of any Loans into such Loans and ending on the
numerically corresponding day of the period selected by the
Borrower pursuant to the provisions hereof and each subsequent
period commencing on the last day of the immediately preceding
Interest Period in respect of such Loans and ending on the
last day of the period selected by the Borrower pursuant to
the provisions hereof. The duration of each such Interest
Period shall be one, two, three or six months, in each case as
the Borrower may select, upon delivery to the Agent of a
Notice of Borrowing therefor in accordance with Section
2.02(a) hereof; provided, however, that:
(a) Interest Periods for LIBOR Rate Loans
comprising part of the same Borrowing shall be
of the same duration;
(b) with respect to LIBOR Rate Loans comprising
any Borrowings, no Interest Period may end on
a date later than the Termination Date;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a
Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day; provided, however,
that if such extension would cause the last
day of such Interest Period to occur in the
next following calendar month, the last day of
such Interest Period shall occur on the
immediately preceding Business Day; and
(d) if the Interest Period commences on a Business<PAGE>
<PAGE>
Day for which there is no numerical equivalent
in the calendar month in which the Interest
Period is to end, such Interest Period shall
end on the last Business Day of that calendar
month.
"KeyBank" means KeyBank National Association, its
successors and assigns, in its capacity as a Bank.
"Loans" means, collectively, all loans and advances
provided for in Article II hereof, including, without
limitation, the Revolving Credit Advances consisting of LIBOR
Rate Loans, Prime Rate Loans and the Swingline Loans.
"LIBOR Rate" means, for any Interest Period with respect
to a LIBOR Rate Borrowing, the quotient (rounded upwards, if
necessary, to the nearest one sixteenth of one percent (1/16th
of 1%) of: (x) the per annum rate of interest, determined by
the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of
approximately 11:00 a.m. (London time) two Business Days prior
to the beginning of such Interest Period pertaining to such
LIBOR Rate Loan, appearing on Page 3750 of the Telerate
Service (or any successor or substitute page of such Service,
or any successor to or substitute for such Service providing
rate quotations comparable to those currently provided on such
page of such Service, as determined by the Agent from time to
time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market)
as the rate in the London interbank market for Dollar deposits
in immediately available funds with a maturity comparable to
such Interest Period divided by (y) a number equal to 1.00
minus the Eurocurrency Reserve Percentage. In the event that
such rate quotation is not available for any reason, then the
rate (for purposes of clause (x) hereof) shall be the rate,
determined by the Agent as of approximately 11:00 a.m. (London
time) two Business Days prior to the beginning of such
Interest Period pertaining to such LIBOR Rate Loan, to be the
average (rounded upwards, if necessary, to the nearest one
sixteenth of one percent (1/16th of 1%) of the per annum rates
at which Dollar deposits in immediately available funds in an
amount comparable to KeyBank's Pro Rata Share of such LIBOR
Borrowing and with a maturity comparable to such Interest
Period are offered to prime banks by leading banks in the
London interbank market. The London Interbank Offered Rate
shall be adjusted automatically on and as of the effective
date of any change in the Eurocurrency Reserve Percentage.
"Note" means any Revolving Credit Note or the Swingline
Note.
"Permitted Liens" means (i) Existing Liens; (ii) Liens
for taxes not yet payable or Liens for taxes, assessments or<PAGE>
<PAGE>
governmental charges or levies to the extent not required to
be paid by the Borrower or any of its Subsidiaries under
Section 5.01(g) hereof; (iii) Liens in favor of the Banks;
(iv) Liens upon Equipment granted in connection with the
acquisition of such Equipment by the Borrower after the date
hereof (including, without limitation, pursuant to capital
leases); (v) reservations, exceptions, encroachments,
easements, rights of way, covenants, conditions, restrictions,
leases and other similar title exceptions or encumbrances
affecting Borrower's or any Subsidiary's real property;
provided, however, such Liens described in (v) hereof shall be
permitted only so long as they do not in the aggregate
materially detract from the value of said properties or
materially interfere with their use in the ordinary conduct of
the Borrower's or any Subsidiary's business; (vi) pledges or
deposits under worker's compensation, unemployment insurance,
social security and other similar laws; (vii) liens relating
to statutory obligations with respect to surety and appeal
bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (viii)
unperfected liens imposed by law against Borrower's or any
Subsidiary's real property and equipment only, such as
materialmen's, mechanic's, carrier's and repairmen's liens and
other similar liens, arising in the ordinary course of
business securing obligations which are not overdue for a
period of more than thirty (30) days and (ix) Liens securing
Indebtedness the aggregate outstanding amount of which at any
time does not exceed an amount equal to fifteen percent (15%)
of the net worth of the Borrower as shown in the then most
recent consolidating financial statement delivered pursuant to
Section 8 of the Riser Guaranty, as determined from time to
time in accordance with generally accepted accounting
principles; provided, however, no Lien in favor of the PBGC
shall in any event be a "Permitted Lien"; provided, further,
none of the liens, security interests or other encumbrances
listed in clauses (i) through (ix) above shall, in any event,
constitute a "Permitted Lien" on and after the commencement in
respect thereof of any enforcement, collection, execution,
levy or foreclosure proceeding, unless (a) any such
enforcement, collection, execution, levy or foreclosure
proceeding is with respect to Equipment having a fair market
value of less than One Hundred Thousand Dollars ($100,000.00),
(b) the dollar value of such claim giving rise to any such
enforcement, collection, execution, levy or foreclosure
proceeding is less than Fifty Thousand Dollars ($50,000.00)
and (c) the aggregate amount of all such claims shall in no
event exceed Two Hundred Fifty Thousand Dollars ($250,000.00).
"Termination Date" means the date upon which the
Revolving Credit Commitment of each of the Banks terminates
which shall be October 31, 2001 or such earlier date pursuant
to Article VI.<PAGE>
<PAGE>
"Trustee" means Mellon Trust in its capacity as Trustee
under the Indenture.
2.3 Amendment to Section 1.01. Section 1.01 shall be
amended to add the following definitions:
"Adjustment Date" has the meaning set forth in the
definition of Applicable Margin.
"Advantage" means any payment (whether made voluntarily
or involuntarily, by offset of any deposit or other
Indebtedness or otherwise) received by a Bank in respect of
the Obligations if the payment results in any other Bank's
having more than its Pro Rata Share of the Obligations in
question.
"Applicable Margin" means, at any time with respect to
any Prime Rate Loan, LIBOR Rate Loan, any Letter of Credit
commission and the Facility Fee, as the case may be, the
percentages applicable to such Loans, commission or fee
corresponding to the Consolidated Leverage Ratio set forth
below (and determined as a function of the Consolidated
Leverage Ratio for the Fiscal Quarter immediately preceding
such time):
<TABLE>
<CAPTION>
<S>
Consolida LIBOR Prime Letter of
ted Rate Rate Facility Credit
Leverage Loans Loan Fee Commission
Ratio
<C> <C> <C> <C> <C>
> 40% .75% 0.0% .25% .75%
> 30% .625% 0.0% .25% .625%
> 20% .45% 0.0% .20% .45%
< 20% .30% 0.0% .15% .30%
</TABLE>
provided, however, that, the effectiveness of any change in
the Applicable Margin shall be subject to the following:
(i) So long as no Default shall exist, the
Applicable Margin shall be adjusted as herein
specified as of the first Business Day (each
an "Adjustment Date") commencing after the
date the Agent shall have received financial
statements and certificates required by
Sections 8(ii) or 8(iii) of the Riser Guaranty
for the period ending as of the last day of
the Fiscal Quarter or Fiscal Year immediately
preceding such Adjustment Date;<PAGE>
<PAGE>
(ii) Any such adjustment of the Applicable Margin
shall cease to be effective commencing on the
earlier of (x) the next Adjustment Date, (y)
the Business Day following the day on which
the financial statements are required to be
delivered under Section 8(ii) or 8(iii) of the
Riser Guaranty, as the case may be, and the
Guarantor shall have failed to deliver such
financial statements or (z) the date upon
which a Event of Default shall occur;
(iii) (x) if the Guarantor shall have failed to
deliver the required financial
statements, the Applicable Margin shall
be .75% and (y) if an Event of Default
shall occur, the interest rate shall be
the interest rate in effect pursuant to
Section 2.06(c).
"Consolidated Leverage Ratio" has the meaning set forth
in the Riser Guaranty.
"Effective Date" means January 8, 1997.
"LIBOR Rate Loan" means a Loan which bears interest at
the LIBOR Rate plus the Applicable Margin.
"Swingline Loans" means Loans made by KeyBank to the
Borrower pursuant to Section 2.01(b) hereof.
"Swingline Note" means the Note in the form of Exhibit A-
1 hereto evidencing the Swingline Loans.
"Swingline Maturity Date" means, with respect to any
Swingline Loan, the earliest of thirty (30) days after the
making of such Loan or the Termination Date.
2.4 Amendment to Section 1.01. Section 1.01 shall be
amended to delete the following definitions in their entirety:
"Borrowing Base Deficiency," "Building Acquisition Indebtedness,"
"Building Acquisition Liens," "Building No. 5 and the Cash-n-Carry
Building," "Cash Collateral Account," "Consolidated Net Operating
Cash Flow," "Cumulative Consolidated Net Operating Cash Flow,"
"Customer Note," "Eligible Collateral," "Eligible Inventory,"
"Eligible Receivables," "Fifth Third Indebtedness," "Fifth Third
Liens," "Financed Customer Assets," "Guaranty Collateral Account,"
"LIBOR Rate Margin," "Lockbox Account," "Lockbox Bank," "Lockbox
Account Letter," "PACA," "Principal Payment Date," "Prime Rate
Margin," "PSA," "Reference Bank," "Reserve Amount," "Revolving
Credit Availability," "Revolving Credit Net Excess Availability,"
"Seaway," "Seaway Agreement," "Special Note Availability,"
"Special Seaway Availability," "Term Borrowing," "Term Loan," "Term<PAGE>
<PAGE>
Loan Commitment," "Term Note" and "Wholesale Grocery Receivables."
To the extent no otherwise deleted in the Amendment, all
references to such definitions in the Credit Agreement or any of
the Loan Documents shall be deleted.
2.5 Amendment to Credit Agreement. Each reference to
"Society" in the Credit Agreement shall be amended to read
"KeyBank" as defined in Section 1.01. Each reference to "Total
Commitment" in the Credit Agreement shall be amended to read
"Revolving Credit Commitment" as defined in Section 1.01.
2.6 Amendment to Add Exhibits. The Credit Agreement is
hereby amended to add Attachment 1 to this Amendment as new Exhibit
A-1 to the Credit Agreement (Swingline Note).
2.7 Amendment to Section 2.01. Section 2.01 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 2.01. The Loans and the Letters of Credit. (a)
Revolving Credit Advances. Upon the terms and conditions set
forth in this Agreement, each Bank severally agrees to make,
from time to time to and including the Termination Date,
advances on a revolving credit basis (the "Revolving Credit
Advances") to the Borrower, in an aggregate amount not to
exceed at any time outstanding the amount of such Bank's
Revolving Credit Commitment (as the same may be reduced from
time to time pursuant to Section 2.01(f) hereof), minus such
Bank's Pro Rata Share of the Letter of Credit Face Amount and
such Bank's Pro Rata Share of the Swingline Loans.
(b) Swingline Loans. Upon the terms and conditions set
forth in this Agreement, KeyBank shall, upon the request of
the Agent, and is irrevocably authorized by the Banks and the
Borrower to, make Swingline Loans to the Borrower in an
aggregate principal amount not to exceed Five Million Dollars
($5,000,000) outstanding at any time upon a Notice of
Borrowing (as defined in Section 2.02(a) below) received by
the Agent before 11:00 a.m. (Cleveland, Ohio time) on a
Business Day; provided, however, that: (i) in no event may the
outstanding aggregate amount of all Swingline Loans plus the
outstanding aggregate amount of all Revolving Credit Advances
plus the aggregate of the Letter of Credit Face Amount of all
outstanding Letters of Credit exceed the aggregate Revolving
Credit Commitments of the Banks as in effect from time to time
and (ii) in no event may any Swingline Loan be made by KeyBank
if an Event of Default shall have occurred which has not been
waived by the Banks or shall thereupon occur. Each Swingline
Loan shall be in an aggregate amount of not less than Five
Hundred Thousand Dollars ($500,000) or multiples thereof.
Swingline Loans shall bear interest at the rate quoted by
KeyBank to the Borrower and payable on the Swingline Maturity<PAGE>
<PAGE>
Date in respect of such Swingline Loan. The Agent will make
the Swingline Loan available to the Borrower and the Borrower
will make the repayment of Swingline Loans, together with
interest thereon, available to the Agent on or before the
Swingline Maturity Date in accordance with the terms hereof.
(i) Funding by Banks. The Borrower shall reimburse
KeyBank no later than the close of Business on the
Swingline Maturity Date of any Swingline Loan, in an
amount, in same-day funds, equal to the amount of such
Swingline Loan. Any amount not reimbursed by the
Borrower in respect of Swingline Loan shall automatically
be deemed to be a Revolving Credit Borrowing comprised of
Prime Rate Loans as of the date the Agent shall give the
Banks notice thereof. Each Bank shall be deemed to have
made a Loan in the amount of its Pro Rata Share of any
such Borrowing (it being understood that each Bank's
obligation to make such payment is absolute and
unconditional and shall not be affected by any event or
circumstance whatsoever, including the occurrence of any
Default or Event of Default hereunder or the failure of
any condition precedent set forth in Section 3 of this
Agreement to be satisfied and each such payment shall be
made without any offset, abatement, withholding or
reduction whatsoever). Each Bank shall fund its Pro Rata
Share of such deemed Loan in accordance with the
settlement procedures set forth in Section 2.02. The
proceeds of such deemed Loans shall be applied directly
by the Agent to reimburse KeyBank for the amount of such
unreimbursed Swingline Loan.
(c) Borrowings. Each borrowing of Revolving Credit
Advances under this Article II (a "Revolving Credit
Borrowing") shall consist of a group of Revolving Credit
Advances consisting entirely of Prime Rate Loans or LIBOR Rate
Loans, made by the Banks ratably in accordance with their Pro
Rata Share, on the same date, and, in the case of LIBOR Rate
Loans, as to which a single Interest Period is in effect. Any
group of Revolving Credit Advances made by the Banks having
different interests rates or having a different Interest
Period (regardless of whether such Interest Period commences
on the same date as another Interest Period), or made on a
different date shall be considered to comprise a different
Revolving Credit Borrowing.
(d) Mandatory Repayments of Revolving Credit Advances.
If at any time or from time to time the outstanding aggregate
amount of Revolving Credit Advances plus the aggregate of
Letter of Credit Face Amount of all outstanding Letters of
Credit plus the aggregate outstanding amount of all Swingline
Loans shall exceed the aggregate Revolving Credit Commitments,
the Borrower shall immediately pay to the Agent for the
account of the Banks the amount necessary to eliminate such<PAGE>
<PAGE>
excess, as applicable, all without demand, notice, presentment
or other condition, each of which is hereby waived by the
Borrower.
(e) [Intentionally Omitted].
(f) Voluntary Reduction in Revolving Credit Commitment.
Subject to the requirements of Section 2.01(a) hereof, the
Borrower may, at any time and from time to time, upon five (5)
Business Days' prior written notice to the Agent, permanently
reduce in part or terminate in whole the aggregate amount of
the Revolving Credit Commitments then in effect; provided,
however, that in no event shall the aggregate Revolving Credit
Commitments be reduced to an amount which is less than the
aggregate amount of the Letter of Credit Face Amount of then
outstanding Letters of Credit plus the aggregate outstanding
amount of Swingline Loans. Any such reduction or termination
of the aggregate Revolving Credit Commitments shall be
accompanied by the payment of an amount equal to the sum of
(i) all accrued, but unpaid, interest on the principal amount
of such reduction of the aggregate Revolving Credit
Commitments to the date of such reduction or termination plus
(ii) the excess, if any, of the sum of the aggregate Revolving
Credit Advances then outstanding plus the Letter of Credit
Face Amount of all outstanding Letters of Credit plus the
aggregate Swingline Loans then outstanding over the aggregate
Revolving Credit Commitment of the Banks as so reduced. Any
permanent reduction under this Section 2.01(f) shall be in the
minimum amount of Five Million Dollars ($5,000,000) or
multiples of One Million Dollars ($1,000,000) in excess
thereof.
(g) Letters of Credit. KeyBank shall, upon the terms
and conditions of this Agreement, and upon such other terms
and conditions as may, from time to time, be acceptable to
KeyBank as being consistent with the terms and conditions
customary for letters of credit issued by KeyBank and
appropriate for the Borrower, issue Letters of Credit for the
account of the Borrower from time to time on any Business Day
during the period from the date of this Agreement to the
Termination Date and expiring, in any event, no later than the
Termination Date; provided, however, that the aggregate
undrawn face amount of letters of credit issued by KeyBank
shall not at any time exceed the lesser of: (i) Twenty Million
Dollars ($20,000,000) minus the aggregate Letter of Credit
Face Amount then outstanding or (ii) the aggregate Revolving
Credit Commitments minus the sum of the aggregate outstanding
Revolving Credit Advances minus the aggregate outstanding
Letter of Credit Face Amount minus the aggregate outstanding
Swingline Loans. In the event KeyBank determines that it
shall issue a Letter of Credit (other than the Special Note
Letter of Credit), each such Letter of Credit shall be for an
amount and a term not in excess of one year (but, at the<PAGE>
<PAGE>
request of the Borrower and in the sole discretion of KeyBank
which such discretion shall not be unreasonably exercised,
renewable yearly until the Termination Date), and shall be
subject to such other terms and conditions, as may be
acceptable to KeyBank in its sole discretion which such
discretion shall not be unreasonably exercised. All letters
of credit issued by KeyBank shall be in the form of KeyBank's
standard letter of credit and reimbursement agreement form.
The Special Note Letter of Credit shall be issued upon the
terms and conditions set forth in Section 2.02(f) hereof.
Immediately upon the issuance of each Letter of Credit,
KeyBank shall sell and transfer to each Bank, and each Bank
shall buy and receive, in each case without any further action
on the part of any party, an undivided interest and
participation to the extent of such Bank's Pro Rata Share in
and to each Letter of Credit and the obligations of the
Borrower in respect of each Letter of Credit under this
Agreement.
(h) Extension of Termination Date. So long as each of
the Banks shall have received the most recent audited
financial statements required to be delivered to the Banks
pursuant to the Riser Guaranty, on October 31 of each year,
the Borrower may request, in a writing delivered to the Agent,
that the Termination Date be extended one year to the October
31 next following the Termination Date then in effect. The
Banks agree to consider each such request; provided, however,
that (i) such consideration shall be in each Bank's sole and
absolute discretion and (ii) in no event shall any Bank be
committed to extend its Revolving Credit Commitment, nor shall
any Bank's Revolving Credit Commitment be extended, unless and
until every Bank shall have executed and delivered to the
Agent its written consent to the extension and the Agent shall
have confirmed to that Bank the consent of the other Banks.
The Bank's shall respond to a request hereunder within a
reasonable time period except that any failure of the Banks or
any one of them to respond shall not be deemed to be a consent
to such request for extension.
2.8 Amendment to Section 2.02(a). Section 2.02(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(a) Borrowings.
(i) Minimum Borrowing Amounts. Each Borrowing
comprised of LIBOR Rate Loans shall be in an aggregate
amount not less than Five Million Dollars ($5,000,000) or
multiples of One Million Dollars ($1,000,000) in excess
thereof. The Borrower shall be entitled to have more
than one Borrowing outstanding at one time; provided,
however, that, unless the Agent and the Banks shall
otherwise agree in writing, the Borrower shall not be<PAGE>
<PAGE>
entitled to request any Revolving Credit Borrowing which
would result in any Bank's having an aggregate of more
than ten (10) LIBOR Rate Loans outstanding at any one
time.
(ii) Notice of Borrowing. Revolving Credit Advances
comprising a Borrowing shall be made upon notice
(a "Notice of Borrowing") given by the Borrower to the
Agent (i) not later than 12:00 noon (Cleveland, Ohio
time) on the Business Day which is the requested date of
a proposed Borrowing comprised of Prime Rate Loans and
(ii) not later than 12:00 noon (Cleveland, Ohio time)
three (3) Business Days prior to the requested date of a
proposed Borrowing comprised of LIBOR Rate Loans. Each
Notice of Borrowing for a Borrowing comprised of LIBOR
Rate Loans shall be substantially in the form of Exhibit
B hereto and shall specify therein (A) the requested date
of the Borrowing, (B) that such Borrowing is to be
comprised of LIBOR Rate Loans, (C) with respect to a
Revolving Credit Borrowing, the name of the bank and the
account number to which such funds are to be disbursed,
(D) aggregate amount of such Revolving Credit Advances
comprising such Borrowing and (E) the initial Interest
Period for such LIBOR Rate Loans comprising such
Borrowing. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower and subject to
the indemnification provisions of this Article II.
(iii) Funding of Revolving Credit Advances. The
Agent shall notify each Bank of such Notice of Borrowing
no later than 1:00 p.m. (Cleveland, Ohio time) on the
date received by telecopy, telephone or similar form of
transmission. Each Bank shall, before 4:00 p.m.
(Cleveland, Ohio time) on the date of each Revolving
Credit Borrowing requested, make available to the Agent,
in immediately available funds at the account of the
Agent as shall have been notified by the Agent to the
Banks prior to such date, such Bank's Pro Rata Share of
the Revolving Credit Advances comprising such Revolving
Credit Borrowing. On the date requested by the Borrower
for a Revolving Credit Borrowing, after the Agent's
receipt of the funds representing a Bank's Pro Rata Share
of such Revolving Credit Borrowing and subject to the
terms of this Agreement and the Borrower's fulfillment of
the conditions set forth in Section 3 of this Agreement,
the Agent will make such Revolving Credit Advance of such
Bank available to the Borrower in immediately available
funds, by wire transfer or intrabank transfer to
such account of the Borrower as the Agent and the
Borrower shall have agreed upon from time to time.
2.9 Amendment to Section 2.02(b). Section 2.02(b) shall
be deleted in its entirety and the following substituted in lieu<PAGE>
<PAGE>
thereof:
(b) Availability of Funds. Unless the Agent shall have
received notice from a Bank prior to the date (or, in the case
of Prime Rate Loans, prior to the time) of any Revolving
Credit Borrowing that such Bank will not make available to the
Agent such Bank's Pro Rata Share of the Revolving Credit
Borrowing, the Agent may assume that such Bank has made its
Pro Rata Share of the Revolving Credit Borrowing available to
the Agent on the date of the Revolving Credit Borrowing in
accordance with Section 2.02(a)(iii) of this Agreement. In
reliance upon such assumption, the Agent may, but shall not be
obligated to, make available to the Borrower on such date, a
corresponding portion of the Revolving Credit Borrowing. Any
disbursement by the Agent in reliance on such assumption shall
be deemed to be an advance of Revolving Credit Advances by
such Bank.
2.10 Amendment to Section 2.02(c). Section 2.02(c) shall
be deleted in its entirety and the following substituted in lieu
thereof:
(c) Failure of Bank to Fund. If and to the extent that
any Bank shall not have made available to the Agent such
Bank's Pro Rata Share of any Revolving Credit Borrowing, such
Bank and the Borrower severally agree to repay to the Agent,
immediately upon demand by the Agent, an amount equal to such
Bank's Pro Rata Share of such Revolving Credit Borrowing
together with interest thereon for each day from the date such
amount is made available to the Borrower until the date such
amount is repaid to the Agent, at: (A) in the case of the
Bank, Federal Funds Rate for the first three (3) days from and
after the date of the Revolving Credit Borrowing and
thereafter at the Interest Rate then applicable to Prime Rate
Loans and (B) in the case of the Borrower, the interest rate
applicable at the time to Prime Rate Loans.
(i) Payment Constituting Pro Rata Share. If such
Bank pays to the Agent the Bank's Pro Rata Share of such
Revolving Credit Borrowing prior to repayment of such
amount by the Borrower, the amount so repaid shall
constitute such Bank's Pro Rata Share of such Revolving
Credit Borrowing, as the case may be, and the Borrower
shall have no further obligation to make the payment
required by this Section.
(ii) Continuing Borrower Obligation. Failure of any
Bank to fund its Pro Rata Share of any Borrowing shall
not relieve or excuse the performance by the Borrower of
any of its duties or obligations hereunder.
(iii) Continuing Bank Obligation to Fund. It is
understood that: (i) a Bank shall not be responsible for<PAGE>
<PAGE>
any failure by any other Bank to perform its obligation
to make any Loans hereunder, (ii) the Revolving Credit
Commitment of a Bank shall not be increased or decreased
as a result of any failure by any other Bank to perform
its obligation to make any Loans hereunder, (iii) failure
by any Bank to perform its obligation to make any Loans
hereunder shall not excuse any other Bank from its
obligation to make any Loans hereunder, and (iv) the
obligations of each Bank hereunder shall be several, not
joint and several.
2.11 Amendment to Section 2.02(g). Section 2.02(g) shall
be amended by deleting clause (H) thereof and substituting
"[Intentionally Omitted]" in lieu thereof.
2.12 Amendment to Section 2.03(a). Section 2.03(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(a) Facility Fee. The Borrower agrees to pay to the
Agent, for the account of the Banks, a fee equal to the
Applicable Margin on the daily average of the amount,
calculated daily, equal to (i) the aggregate Revolving Credit
Commitment as from time to time in effect minus (ii) the sum
of the daily balance of the Revolving Credit Advances plus the
aggregate of the Letter of Credit Face Amount of all
outstanding Letters of Credit; provided, however, that, the
Applicable Margin to be in effect from the Effective Date
until the next Adjustment Date shall be .25%. Such fee shall
accrue from and including the Effective Date to the
Termination Date and shall be payable, in arrears, on the
first day of each calendar month and at maturity, whether on
the Termination Date or earlier.
2.13 Amendment to Section 2.03(b). Section 2.03(b) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(b) Letter of Credit Commission. The Borrower hereby
agrees to pay to the Agent, for the Account of the Banks, with
respect to Letters of Credit (including the Special Note
Letter of Credit) a letter of credit commission equal to the
Applicable Margin in effect on the date of issuance, renewal
or extension of any letter of credit on the maximum amount
available to be drawn on each day under such Letter of Credit,
payable annually in advance on the date of issuance of such
Letter of Credit and on the effective date of any renewal or
extension of such Letter of Credit; provided, however, that,
the Applicable Margin to be in effect from the Effective Date
until the next Adjustment Date shall be .625%.
<PAGE>
<PAGE>
2.14 Amendment to Section 2.03(c). Section 2.03(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Agent's Fee. The Borrower agrees to pay to the
Agent for the sole account of the Agent an annual fee as set
forth in the letter dated as of January 8, 1997 from the Agent
to the Borrower.<PAGE>
<PAGE>
2.15 Amendment to Section 2.03(e). Section 2.03(e) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(e) Letter of Credit Expenses. With respect to Letters
of Credit, the Borrower hereby agrees to pay to KeyBank, in
addition to expenses otherwise payable pursuant to Sections
2.03(b), upon the issuance, increase, extension or amendment
of a Letter of Credit issued by KeyBank all customary and
reasonable fees published by KeyBank and payable in connection
with the issuance, increase, extension or amendment of a
letter of credit.
2.16 Amendment to Sections 2.04(a), (d) and (e). Each of
Sections 2.04(a), 2.04(d) and 2.04(e) shall be deleted in its
entirety and "[Intentionally Omitted]" shall be substituted in lieu
thereof.
2.17 Amendment to Section 2.05. Section 2.05 shall be
deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.18 Amendment to Section 2.06(a). Section 2.06(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
SECTION 2.06 Interest. (a) Pre-Default Interest
Rate. The Borrower shall pay interest on the unpaid
principal amount of the Loans outstanding at the close of
each day until such principal amount shall be paid in
full at the following times and rates per annum (each of
such rates being an "Interest Rate"):
(i) Prime Rate Loans. During such periods as
a Loan is a Prime Rate Loan, a rate per annum equal
at all times to the sum of the Prime Rate plus the
Applicable Margin in effect from time to time from
and after the Effective Date to the Termination
Date. Each change in the Prime Rate shall be
reflected in the foregoing interest rates as of the
effective date of such change. Except as otherwise
specifically provided herein, all interest due
hereunder will be payable in arrears, on the first
day of each calendar quarter herein.
(ii) LIBOR Rate Loans. During such periods as
a Loan is a LIBOR Rate Loan, a rate per annum equal
at all times during each Interest Period for such
Loan to the sum of the LIBOR Rate for such Interest
Period for such Loan plus the Applicable Margin in
effect at the time of the making of such Loan,
payable (x) on the last day of such Interest Period<PAGE>
<PAGE>
and (y) if such Interest Period has a duration of
more than three (3) months, three (3) months after
the first day of such Interest Period and (z) on
the date such LIBOR Rate Loan shall be converted to
a Prime Rate Loan or paid in full (whether at
maturity, by reason of acceleration or otherwise).
(iii) Swingline Loans. During such periods as a Loan
is a Swingline Loan, at a rate per annum to be quoted by
the Agent to the Borrower.
2.19 Amendment to Section 2.06(b). Section 2.06(b) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.20 Amendment to Section 2.06(c). Section 2.06(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Default Rate. Following the occurrence of an Event
of Default which has not been waived in writing by the Banks
(unanimity being required for such waiver in order to make
this Section 2.06(c) inapplicable after the occurrence of an
Event of Default), the outstanding principal of the Loans and
the unpaid interest and fees thereon shall, upon the request
of the Majority Banks, bear interest, payable on demand, for
Prime Rate Loans and LIBOR Rate Loans, at a rate per annum
which shall be equal at all times to two percent (2.0%) in
excess of the Prime Rate.
2.21 Amendment to Section 2.06(d). Section 2.06(d) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.22 Amendment to Section 2.07(b). Section 2.07(b) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(b) Authorization to Charge. The Borrower hereby
authorizes each Bank, if and to the extent payment is not made
when due under any Loan Document, upon written notice to the
Borrower, to charge from time to time against any account of
the Borrower with such Bank any amount so due.
2.23 Amendment to Sections 5.01(p) and (q). Each of
Sections 5.01(p) and 5.01(q) shall be deleted in its entirety and
"[Intentionally Omitted]" shall be substituted in lieu thereof.
2.24 Amendment to Sections 5.02(b). Section 5.02 (b)
shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
<PAGE>
<PAGE>
(b) Indebtedness. The Borrower shall not create or
suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Indebtedness, liability or
other obligation except (i) Indebtedness secured by Liens
or security interests permitted by Section 5.02(a), (ii)
the Subordinated Debentures, (iii) the Indebtedness set
forth on Schedule 5.02(b), (iv) ordinary course trade
payables, (vii) Indebtedness evidenced by bankers'
acceptances used by the Borrower to pay its ordinary
course trade payables and (v) unsecured Indebtedness, the
aggregate outstanding principal amount of which, when
taken together with the outstanding unsecured
Indebtedness of Riser and Rini-Rego, shall at no time
exceed Twenty Million Dollars ($20,000,000), so long as,
after giving effect to the incurrence of such
Indebtedness, no Default or Event of Default would
thereupon otherwise exist.
2.25 Amendment to Section 5.02(c). Section 5.02(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Sales, Etc. of Assets. The Borrower shall not
sell, lease, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, transfer, or
otherwise dispose of, any of its assets, except (i) sales
of inventory in the ordinary course of business and (ii)
so long as no Default has occurred hereunder, with
respect to assets other than Inventory sold in the
ordinary course of business, sales of assets, the
aggregate sales price of which assets, when taken
together with all other assets sold after the Effective
Date does not at any time exceed an amount equal to ten
percent (10%) of the net worth of the Borrower as shown
in the then most recent consolidating financial statement
delivered pursuant to Section 8 of the Riser Guaranty, as
determined from time to time in accordance with generally
accepted accounting principles.
2.26 Amendment to Section 5.02(d). Section 5.02(d) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(d) Mergers and Acquisitions. The Borrower shall not
(i) merge with or into or consolidate with or into, or (ii)
convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to or (iii) acquire all or substantially
all of the assets of, any Person or permit any Subsidiary to
do so; provided, however, that, the Borrower may acquire all
or substantially all of the asset of another Person so long as
(A) no Default or Event of Default shall exist or shall<PAGE>
<PAGE>
thereupon occur and (B) the aggregate purchase price of such
assets, when taken together with (I) the purchase price of all
such purchases (exclusive of capital expenditures not incurred
in connection with acquisitions of all or substantially all
assets of any person) by the Borrower occurring after the
Effective Date and (II) the purchase price of acquisitions of
all or substantially all assets of a Person by Riser or Rini-
Rego occurring after the Effective Date, shall not exceed
Twenty Million Dollars ($20,000,000).
2.27 Amendment to Section 5.02(g). Section 5.02(g) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(g) Fiscal Year. The Borrower shall not make any change
in its Fiscal Year; provided, however, that the Borrower may
change its Fiscal Year if (i) the Borrower shall have given
the Agent written notice sixty (60) days prior to the
effective date of such change and (ii) no Bank shall have
deemed, in the exercise of its reasonable discretion, such
change to be adverse to the interests of such Bank. In the
event of a change in Fiscal Year, the Borrower agrees to
cooperate in completing such amendments or other documentation
reasonably required by the Agent to be completed to reflect
such change.
2.28 Amendment to Section 5.02(j). Section 5.02(j) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.29 Amendment to Section 5.02(l). Section 5.02(l) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(l) Sale and Leaseback. The Borrower shall not enter
into, or permit any of its Subsidiaries to enter into, any
transaction in which the Borrower or any of its Subsidiaries
sells property owned by the Borrower or any of its
Subsidiaries and subsequently leases such property from the
purchaser thereof unless, (i) the selling entity has received
consideration in an amount at least equal to the fair market
value of the assets leased, (ii) the dollar amount of all
assets sold in any Fiscal Year in such transactions (when
taken together with the dollar amount of all such assets sold
in any such Fiscal Year by Riser or Rini-Rego) shall not in
the aggregate exceed Ten Million Dollars ($10,000,000) and
(iii) no Default or Event of Default shall exist before or
after giving effect to any such transaction.
2.30 Amendment to Sections 5.02(m) and (n). Each of
Section 5.02(m) and Section 5.02(n) shall be deleted in its
entirety and "[Intentionally Omitted]" shall be substituted in lieu
thereof.<PAGE>
<PAGE>
2.31 Amendment to Section 5.02(o). Section 5.02(o) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(o) Investments. The Borrower shall not (i) create,
acquire or hold any Subsidiary, (ii) make or hold, or permit
any of its Subsidiaries to make or hold, any investment in any
stocks, bonds or securities of any kind, (iii) be or become,
or permit any of its Subsidiaries to be or become, a party to
any joint venture or other partnership, (iv) make or keep out-
standing, or permit any of its Subsidiaries to make or keep
outstanding (as lender), any advance or loan or (v) be or
become, or permit any of its Subsidiaries to be or become a
guarantor or have Guaranteed Indebtedness of any kind; pro-
vided, that this subsection shall not apply to (a) any
endorsement of a check or other medium of payment for deposit
or collection through normal banking channels or any similar
transaction in the normal course of business or (b) any
guaranty of any obligations incurred by Rini-Rego to the Banks
pursuant to the Rini-Rego Agreement, or (c) any investments,
joint venture or partnership in existence as of the Amendment
Effective Date and to the extent and as identified on Sched-
ule 4.01(h) hereof, in the securities of any Subsidiary, or
(d) advances to its employees for travel and other expenses to
be incurred in the ordinary course of business or (e) any
investment otherwise prohibited by this Section 5.02(o) so
long as (i) such investment, when taken together with all
other investments made after the Effective Date by the
Borrower and all investments made after the Effective Date by
Riser and Rini-Rego, shall not exceed in the aggregate Twenty
Million Dollars ($20,000,000) and (ii) no Default or Event of
Default exists before or after giving effect to such
investment.
2.32 Amendment to Section 5.02(p). Section 5.02(p) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.33 Amendment to Section 5.03. Each of subsection
5.03(i), (xii), (xiii), (xiv), (xv), (xvi), (xvii) and (xviii)
shall be deleted in its entirety and "[Intentionally Omitted]"
shall be substituted in lieu thereof and Section 5.03(xi) shall be
deleted in its entirety and the following substituted in lieu
thereof:
(xi) upon request by any Bank or the Agent, an
updated schedule of the Borrower's and each of its
Subsidiaries insurance coverages containing the types of
information set forth on Schedule X hereto;
2.34 Amendment to Sections 6.01(n), (p) and (q). Each of
Section 6.01(n), 6.01(p) and 6.01(q) shall be deleted in its
entirety and "[Intentionally Omitted]" shall be substituted in lieu
thereof.<PAGE>
<PAGE>
2.35 Amendment to Article VI. Article VI shall be
amended by adding the following as new Section 6.04 thereof:
SECTION 6.04 Equalization. Each Bank agrees with the
other Banks that if at any time it shall obtain any Advantage
(exclusive of repayments by the Borrower of the Swingline
Loans) over the other Banks or any thereof in respect of the
Loans it will purchase from such other Bank or Banks, for cash
and at par, such additional participation in the Loans owing
to the other or others as shall be necessary to nullify the
Advantage. If any such Advantage resulting in the purchase of
an additional participation as aforesaid shall be recovered in
whole or in part from the Bank receiving the Advantage, each
such purchase shall be rescinded, and the purchase price
restored (with interest and other charges if and to the extent
actually incurred by the Bank receiving the Advantage) ratably
to the extent of the recovery. During the existence of any
Default, any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness
or otherwise) of any Indebtedness owing by the Borrower to any
Bank shall be applied to the Obligations owing to that Bank
until the same shall have been paid in full before any thereof
shall be applied to other Indebtedness owing to that Bank.
This Section 6.04 shall not affect or otherwise increase the
obligations of the Borrower under this Agreement.
2.36 Amendment to Section 8.05. Section 8.05 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 8.05. Costs and Expenses. The Borrower shall
pay to the Agent, on demand, all costs and expenses that the
Agent pays or incurs in connection with the negotiation,
preparation, consummation, administration, enforcement, and
termination of this Agreement and the other Loan Documents,
including, without limitation: (a) reasonable attorneys' and
paralegal's costs, expenses and disbursements of counsel to
the Agent; (b) costs and expenses (including reasonable
attorneys and paralegals costs, expenses and disbursements)
for any amendment, supplement, waiver, consent, or subsequent
closing in connection with the Loan Documents and the
transactions contemplated thereby; (c) costs and expenses of
lien and title searches and title insurance; (d) taxes, costs,
expenses and other charges for recording the Mortgages, filing
financing statements and continuations, and other actions to
perfect, protect, and continue the Liens; (e) sums paid or
incurred to pay any amount or take any action required of the
Borrower under the Loan Documents that the Borrower fails to
pay or take; (f) reasonable costs and expenses of forwarding
loan proceeds, collecting checks and other items of payment,
and establishing and maintaining the Letter of Credit
Collateral Account; (g) costs and expenses of preserving and<PAGE>
<PAGE>
protecting the Collateral; and (h) costs and expenses
(including, without limitation, attorneys' fees) paid or
incurred to obtain payment of the Obligations, enforce the
security interest, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of the Loan
Documents, or to defend any claims made or threatened against
the Agent arising out of the transactions contemplated hereby
(including without limitation, preparations for and
consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions of the
Loan Documents regarding costs and expenses to be paid by the
Borrower. All of the foregoing costs and expenses may be
charged, in the Agent's sole discretion, to the Borrower's
loan account as Revolving Credit Advances.
2.37 Amendment to Section 8.06. Section 8.06 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
2.38 Amendment to Section 8.10(a). Section 8.10(a) shall
be amended by deleting the first three sentences thereof and
substituting the following sentence in lieu of the third sentence
thereof:
No Bank shall assign or otherwise transfer its interest
or any portion thereof in its Revolving Credit
Commitment, its Loans, its participations in Letters of
Credit issued hereunder or any of its rights hereunder
without the prior written consent of the Agent and the
Borrower, which consent shall not be unreasonably
withheld, (other than any assignment or transfer to any
Person which controls, is controlled by, or is under
common control with, or is otherwise substantially
affiliated with, such Bank).
2.39 Amendment to Section 8.10(b). Section 8.10(b) shall
be amended by deleting the second sentence thereof.
2.40 Amendment to Section 8.25. Section 8.25 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 8.25. WAIVER OF JURY TRIAL. THE BORROWER HEREBY
WAIVES TRIAL BY JURY, AND ALL RIGHTS OF SETOFF, IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH,
OR ARISING OUT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
THE OBLIGATIONS OR THE COLLATERAL, OR ANY INSTRUMENT OR<PAGE>
<PAGE>
DOCUMENT DELIVERED PURSUANT HERETO OR THERETO, OR ANY OTHER
CLAIM OR DISPUTE HOWSOEVER ARISING, BETWEEN THE BORROWER AND
THE BANKS OR THE AGENT. THE BORROWER CONFIRMS THAT THE
FOREGOING WAIVERS ARE INFORMED AND FREELY MADE. THIS WAIVER
SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY ANY
BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION
OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT BETWEEN ANY BANK AND
THE BORROWER.
2.41 Amendment to Section 8.26. Section 8.26 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 8.26 Commitments. The Revolving Credit
Commitment and the Total Commitment of each Bank shall be
as set forth below:
Bank Revolving Bank's
Credit Total
Commitment Commitment
KeyBank National
Association $28,000,000 $28,000,000
National City Bank $16,310,000 $16,310,000
NBD Bank $14,860,000 $14,860,000
Star Bank National
Association $10,830,000 $10,830,000
Total of
Commitments ___________ ___________
$70,000,000 $70,000,000
SECTION 3. WAIVER OF CERTAIN NON-COMPLIANCE
The Borrower's non-compliance with Section 5.02(d) by
reason of the merger of Seaway Food Service, Inc. into the Borrower
is hereby waived.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks
and the Agent as follows:
4.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Borrower
and constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its
terms. The Credit Agreement, as amended by this Amendment, remains
in full force and effect and remains the valid and binding
obligation of the Borrower enforceable against the Borrower in<PAGE>
<PAGE>
accordance with its terms. The Borrower hereby ratifies and
confirms the Credit Agreement as amended by this Amendment.
4.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Credit Agreement, nor (ii) of any
term, provision, representation, warranty or covenant contained in
the Credit Agreement or any other documentation executed in
connection therewith. Further, except as stated in Section 3 of
this Amendment, none of the provisions of this Amendment shall
constitute, be deemed to be or construed as, a waiver of any
Default or Event of Default under the Credit Agreement as amended
by this Amendment.
4.3 Reference to and Effect on the Credit Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by the First Amendment, the Second
Amendment and this Amendment and each reference to the Credit
Agreement in any other document, instrument or agreement executed
and/or delivered in connection with the Credit Agreement shall mean
and be a reference to the Credit Agreement, as amended by the First
Amendment, the Second Amendment and this Amendment.
SECTION 5. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 3.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
5.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 3 to Amended and Restated Credit
Agreement, executed and delivered by a duly authorized officer of
the Borrower.
5.2 Repayment of the Term Loan. The Borrower shall have
repaid the Term Loan with respect to each Bank.
5.3 Revolving Credit Notes. Each of the Banks shall
have received a Revolving Credit Note, appropriately completed to
reflect the amount of such Bank's Revolving Credit Commitment,
executed and delivered by an Authorized officer of the Borrower.
5.4 Swingline Note. The Agent shall have received the
Swingline Note, in the form of Attachment 1 to this Amendment,
executed and delivered by an Authorized officer of the Borrower.
5.5 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized<PAGE>
<PAGE>
officer of Riser, (ii) Amendment No. 4 to Credit Agreement in
respect of the Rini-Rego Agreement, executed and delivered by a
duly authorized officer of Rini-Rego, and (iii) the amendments to
the Security Agreements, each executed by a duly authorized officer
of the company which is a party thereto and all of the conditions
precedent to such Amendment shall have been satisfied.
5.6 Acknowledgement of Guarantors. The Banks and the
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Borrower to the Banks and the Agent.
5.7 Borrower's Certificate. The Banks and the Agent
shall have received a certificate, in form and substance
satisfactory to the Agent, executed for and on behalf of the
Borrower by either the President or Vice President of the Borrower
and by either the Secretary or Assistant Secretary of the Borrower
(one of which certifying officers shall not be a signatory of this
Amendment) and dated as of the date of this Amendment, certifying
(i) the Director's Resolutions of the Borrower authorizing this
Amendment, and each document or other instrument executed in
connection with the Amendment, (ii) the names and signatures of the
officers signing this Amendment on behalf of the Borrower, and
(iii) compliance by the Borrower with all representations,
warranties, covenants and conditions under the Credit Agreement as
amended by this Amendment.
5.8 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 6. MISCELLANEOUS.
6.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
6.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
6.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
6.4 Confirmatory Grant. In connection with the
completed merger of Seaway Food Service, Inc. with the Borrower,
and in order to confirm the security interest of the Agent for the
ratable benefit of the Banks pursuant to that certain Security
Agreement executed by the Borrower in favor of the Agent for the<PAGE>
<PAGE>
ratable benefit of the Banks, the Borrower hereby assigns and
pledges to the Agent for its benefit and the ratable benefit of the
Banks, and hereby grants to the Agent for its benefit and the
ratable benefit of the Banks a security interest in, all of the
right, title and interest of the Borrower in and to the Collateral
(as defined in said Security Agreement), whether now owned or
hereafter acquired.
IN WITNESS WHEREOF, the Borrower has caused this
Amendment No. 3 to Amended and Restated Credit Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
AMERICAN SEAWAY FOODS, INC.
(formerly known as Heritage
Wholesalers, Inc. and
successor by merger to
Seaway Food Service, Inc.)
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, RISER FOODS, INC., FISHER
PROPERTIES, INC., and RINI-REGO SUPERMARKETS, INC. (formerly known
as Fisher Foods, Inc.), each of which being a guarantor of
indebtedness of the Borrower to the Banks and the Agent, hereby
acknowledges and agrees to the terms of the foregoing Amendment No.
3 to Amended and Restated Credit Agreement. Each of the
undersigned represents and warrants to the Banks and the Agent that
the respective Amended and Restated Guaranty Agreements (as
amended), executed and delivered by each of the undersigned, each
dated as of May 27, 1993, remain the valid and binding obligations
of each of the undersigned, respectively, enforceable against it in
accordance with their terms.
RISER FOODS, INC.
By:
Title:
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods, Inc.)
By:
Title:
FISHER PROPERTIES, INC.
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 4
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 4 to Amended and Restated Credit
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between RINI-REGO SUPERMARKETS, INC. (formerly known as
Fisher Foods, Inc.), an Ohio corporation (herein the "Borrower"),
the Banks (as hereinafter defined) and KEYBANK NATIONAL ASSOCIATION
(as successor by merger to Society National Bank), as agent for the
Banks (in such capacity, the "Agent"),
WITNESSETH:
WHEREAS, the Borrower has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of May 16, 1994 (the "First Amendment"), (ii)
that certain Amendment No. 2 to Amended and Restated Credit
Agreement, dated as of October 6, 1994 (the "Second Amendment") and
(iii) that certain Amendment No. 3 to Amended and Restated Credit
Agreement, dated as of April 28, 1995 (the "Third Amendment"), (as
so amended, the "Credit Agreement"), among the Borrower, the
financial institutions which are a party thereto (the "Banks") and
the Agent;
WHEREAS, the Borrower, the Banks and the Agent desire to
amend the Credit Agreement as set forth herein; and
WHEREAS, the Banks which are the signatories hereto
constitute all of the Banks for the purposes of amending the Credit
Agreement pursuant to Section 8.21 thereof.
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Credit
Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
The Borrower, the Banks and the Agent hereby agree that<PAGE>
<PAGE>
the Credit Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:
2.1 Amendment to Section 1.01. The following
definitions found in Section 1.01 shall each be amended in its
entirety to read as follows:
"Borrowing" means a Revolving Credit Borrowing.
"Business Day" means: (i) a day of the year on which
banks are not required or authorized to close in Cleveland,
Ohio and (ii) if the applicable Business Day relates to LIBOR
Rate Loans, a day of the year which is a Business Day
described in clause (i) above and which is also a day on which
dealings in Dollar deposits are carried on in the London
interbank market and banks are open for business in London.
"Consolidated Financial Covenants" means those financial
covenants of Riser and its Subsidiaries as determined on a
consolidated basis and set forth in Sections 7(k), 7(l) and
7(m) of the Riser Guaranty.
"Eurocurrency Reserve Percentage" means, for any Interest
Period in respect of any LIBOR Rate Loan, as of any date of
determination, the aggregate of the then stated maximum
reserve percentages (including any marginal, special,
emergency or supplemental reserves), expressed as a decimal,
applicable to such Interest Period (if more than one such
percentage is applicable, the daily average of such
percentages for those days in such Interest Period during
which any such percentage shall be so applicable) by the Board
of Governors of the Federal Reserve System, any successor
thereto, or any other banking authority, domestic or foreign,
to which the Agent or any Bank may be subject in respect to
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Federal Reserve Board) or
in respect of any other category of liabilities including
deposits by reference to which the interest rate on LIBOR Rate
Loans is determined or any category of extension of credit or
other assets that include the LIBOR Rate Loans. For purposes
hereof, such reserve requirements shall include, without
limitation, those imposed under Regulation D of the Federal
Reserve Board and the LIBOR Rate Loans shall be deemed to
constitute Eurocurrency Liabilities subject to such reserve
requirements without benefit of credits for proration,
exceptions or offsets which may be available from time to time
to any Bank under said Regulation D.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest one
hundredth of one percent (1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal<PAGE>
<PAGE>
funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day,
provided that: (a) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for
such day shall be such a rate on such transactions on the
immediately preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for
such Business Day shall be the average of quotations for such
day on such transactions received by KeyBank from three
Federal funds brokers of recognized standing selected by
KeyBank as determined by KeyBank and reported to the Agent.
"Interest Period" means, for each of the LIBOR Rate Loans
comprising a Borrowing, the period commencing on the date of
such Loans or the date of the Rate Conversion or Rate
Continuation of any Loans into such Loans and ending on the
numerically corresponding day of the period selected by the
Borrower pursuant to the provisions hereof and each subsequent
period commencing on the last day of the immediately preceding
Interest Period in respect of such Loans and ending on the
last day of the period selected by the Borrower pursuant to
the provisions hereof. The duration of each such Interest
Period shall be one, two, three or six months, in each case as
the Borrower may select, upon delivery to the Agent of a
Notice of Borrowing therefor in accordance with Section
2.02(a) hereof; provided, however, that:
(a) Interest Periods for LIBOR Rate Loans
comprising part of the same Borrowing shall be
of the same duration;
(b) with respect to LIBOR Rate Loans comprising
any Borrowings, no Interest Period may end on
a date later than the Termination Date;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a
Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day; provided, however,
that if such extension would cause the last
day of such Interest Period to occur in the
next following calendar month, the last day of
such Interest Period shall occur on the
immediately preceding Business Day; and
(d) if the Interest Period commences on a Business
Day for which there is no numerical equivalent
in the calendar month in which the Interest
Period is to end, such Interest Period shall
end on the last Business Day of that calendar
month.<PAGE>
<PAGE>
"KeyBank" means KeyBank National Association, its
successors and assigns, in its capacity as a Bank.
"Loans" means, collectively, all loans and advances
provided for in Article II hereof, including, without
limitation, the Revolving Credit Advances consisting of LIBOR
Rate Loans and Prime Rate Loans.
"LIBOR Rate" means, for any Interest Period with respect
to a LIBOR Rate Borrowing, the quotient (rounded upwards, if
necessary, to the nearest one sixteenth of one percent (1/16th
of 1%) of: (x) the per annum rate of interest, determined by
the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of
approximately 11:00 a.m. (London time) two Business Days prior
to the beginning of such Interest Period pertaining to such
LIBOR Rate Loan, appearing on Page 3750 of the Telerate
Service (or any successor or substitute page of such Service,
or any successor to or substitute for such Service providing
rate quotations comparable to those currently provided on such
page of such Service, as determined by the Agent from time to
time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market)
as the rate in the London interbank market for Dollar deposits
in immediately available funds with a maturity comparable to
such Interest Period divided by (y) a number equal to 1.00
minus the Eurocurrency Reserve Percentage. In the event that
such rate quotation is not available for any reason, then the
rate (for purposes of clause (x) hereof) shall be the rate,
determined by the Agent as of approximately 11:00 a.m. (London
time) two Business Days prior to the beginning of such
Interest Period pertaining to such LIBOR Rate Loan, to be the
average (rounded upwards, if necessary, to the nearest one
sixteenth of one percent (1/16th of 1%) of the per annum rates
at which Dollar deposits in immediately available funds in an
amount comparable to KeyBank's Pro Rata Share of such LIBOR
Borrowing and with a maturity comparable to such Interest
Period are offered to prime banks by leading banks in the
London interbank market. The London Interbank Offered Rate
shall be adjusted automatically on and as of the effective
date of any change in the Eurocurrency Reserve Percentage.
"Note" means any Revolving Credit Note.
"Permitted Liens" means (i) Existing Liens; (ii) Liens
for taxes not yet payable or Liens for taxes, assessments or
governmental charges or levies to the extent not required to
be paid by the Borrower or any of its Subsidiaries under
Section 5.01(g) hereof; (iii) Liens in favor of the Banks;
(iv) Liens upon Equipment granted in connection with the
acquisition of such Equipment by the Borrower after the date
hereof (including, without limitation, pursuant to capital<PAGE>
<PAGE>
leases); (v) reservations, exceptions, encroachments,
easements, rights of way, covenants, conditions, restrictions,
leases and other similar title exceptions or encumbrances
affecting Borrower's or any Subsidiary's real property;
provided, however, such Liens described in (v) hereof shall be
permitted only so long as they do not in the aggregate
materially detract from the value of said properties or
materially interfere with their use in the ordinary conduct of
the Borrower's or any Subsidiary's business; (vi) pledges or
deposits under worker's compensation, unemployment insurance,
social security and other similar laws; (vii) liens relating
to statutory obligations with respect to surety and appeal
bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (viii)
unperfected liens imposed by law against Borrower's or any
Subsidiary's real property and equipment only, such as
materialmen's, mechanic's, carrier's and repairmen's liens and
other similar liens, arising in the ordinary course of
business securing obligations which are not overdue for a
period of more than thirty (30) days and (ix) Liens securing
Indebtedness the aggregate outstanding amount of which at any
time does not exceed an amount equal to fifteen percent (15%)
of the net worth of the Borrower as shown in the then most
recent consolidating financial statement delivered pursuant to
Section 8 of the Riser Guaranty, as determined from time to
time in accordance with generally accepted accounting
principles; provided, however, no Lien in favor of the PBGC
shall in any event be a "Permitted Lien"; provided, further,
none of the liens, security interests or other encumbrances
listed in clauses (i) through (ix) above shall, in any event,
constitute a "Permitted Lien" on and after the commencement in
respect thereof of any enforcement, collection, execution,
levy or foreclosure proceeding, unless (a) any such
enforcement, collection, execution, levy or foreclosure
proceeding is with respect to Equipment having a fair market
value of less than One Hundred Thousand Dollars ($100,000.00),
(b) the dollar value of such claim giving rise to any such
enforcement, collection, execution, levy or foreclosure
proceeding is less than Fifty Thousand Dollars ($50,000.00)
and (c) the aggregate amount of all such claims shall in no
event exceed Two Hundred Fifty Thousand Dollars ($250,000.00).
"Termination Date" means the date upon which the
Revolving Credit Commitment of each of the Banks terminates
which shall be October 31, 2001 or such earlier date pursuant
to Article VI.
"Trustee" means Mellon Trust in its capacity as Trustee
under the Indenture.
2.2 Amendment to Section 1.01. Section 1.01 shall be
amended to add the following definitions:<PAGE>
<PAGE>
"Adjustment Date" has the meaning set forth in the
definition of Applicable Margin.
"Advantage" means any payment (whether made voluntarily
or involuntarily, by offset of any deposit or other
Indebtedness or otherwise) received by a Bank in respect of
the Obligations if the payment results in any other Bank's
having more than its Pro Rata Share of the Obligations in
question.
"Applicable Margin" means, at any time with respect to
any Prime Rate Loan, LIBOR Rate Loan, any Letter of Credit
commission and the Facility Fee, as the case may be, the
percentages applicable to such Loans, commission or fee
corresponding to the Consolidated Leverage Ratio set forth
below (and determined as a function of the Consolidated
Leverage Ratio for the Fiscal Quarter immediately preceding
such time):
Consolida LIBOR Prime Letter of
ted Rate Rate Facility Credit
Leverage Loans Loans Fee Commission
Ratio
> 40% .75% 0.0% .25% .75%
> 30% .625% 0.0% .25% .625%
> 20% .45% 0.0% .20% .45%
< 20% .30% 0.0% .15% .30%
provided, however, that, the effectiveness of any change in
the Applicable Margin shall be subject to the following:
(i) So long as no Default shall exist, the
Applicable Margin shall be adjusted as herein
specified as of the first Business Day (each
an "Adjustment Date") commencing after the
date the Agent shall have received financial
statements and certificates required by
Sections 8(ii) or 8(iii) of the Riser Guaranty
for the period ending as of the last day of
the Fiscal Quarter or Fiscal Year immediately
preceding such Adjustment Date;
(ii) Any such adjustment of the Applicable Margin
shall cease to be effective commencing on the
earlier of (x) the next Adjustment Date, (y)
the Business Day following the day on which
the financial statements are required to be
delivered under Section 8(ii) or 8(iii) of the
Riser Guaranty, as the case may be, and the
Guarantor shall have failed to deliver such
financial statements or (z) the date upon
which a Event of Default shall occur;<PAGE>
<PAGE>
(iii) (x) if the Guarantor shall have failed to
deliver the required financial
statements, the Applicable Margin shall
be .75% and (y) if an Event of Default
shall occur, the interest rate shall be
the interest rate in effect pursuant to
Section 2.06(c).
"Consolidated Leverage Ratio" has the meaning set forth
in the Riser Guaranty.
"Effective Date" means January 8, 1997.
"LIBOR Rate Loan" means a Loan which bears interest at
the LIBOR Rate plus the Applicable Margin.
2.3 Amendment to Section 1.01. Section 1.01 shall be
amended to delete the following definitions in their entirety:
"Borrowing Base Deficiency," "Cash Collateral Account,"
"Consolidated Net Operating Cash Flow," "Cumulative Consolidated
Net Operating Cash Flow," "Customer Note," "Eligible Collateral,"
"Eligible Inventory," "Eligible Receivables," "Fifth Third
Indebtedness," "Fifth Third Liens," "Financed Customer Assets,"
"Guaranty Collateral Account," "LIBOR Rate Margin," "Lockbox
Account," "Lockbox Bank," "Lockbox Account Letter," "PACA," "Prime
Rate Margin," "PSA," "Reference Bank," "Reserve Amount," "Revolving
Credit Availability," "Revolving Credit Net Excess Availability,"
"Seaway," and "Seaway Agreement."
To the extent no otherwise deleted in the Amendment, all
references to such definitions in the Credit Agreement or any of
the Loan Documents shall be deleted.
2.4 Amendment to Credit Agreement. Each reference to
"Society" in the Credit Agreement shall be amended to read
"KeyBank" as defined in Section 1.01. Each reference to "Total
Commitment" in the Credit Agreement shall be amended to read
"Revolving Credit Commitment" as defined in Section 1.01.
2.5 Amendment to Section 2.01. Section 2.01 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 2.01. The Loans and the Letters of Credit. (a)
Revolving Credit Advances. Upon the terms and conditions set
forth in this Agreement, each Bank severally agrees to make,
from time to time to and including the Termination Date,
advances on a revolving credit basis (the "Revolving Credit
Advances") to the Borrower, in an aggregate amount not to
exceed at any time outstanding the amount of such Bank's
Revolving Credit Commitment (as the same may be reduced from
time to time pursuant to Section 2.01(f) hereof), minus such
Bank's Pro Rata Share of the Letter of Credit Face Amount.<PAGE>
<PAGE>
(b) Borrowings. Each borrowing of Revolving Credit
Advances under this Article II (a "Revolving Credit
Borrowing") shall consist of a group of Revolving Credit
Advances consisting entirely of Prime Rate Loans or LIBOR Rate
Loans, made by the Banks ratably in accordance with their Pro
Rata Share, on the same date, and, in the case of LIBOR Rate
Loans, as to which a single Interest Period is in effect. Any
group of Revolving Credit Advances made by the Banks having
different interests rates or having a different Interest
Period (regardless of whether such Interest Period commences
on the same date as another Interest Period), or made on a
different date shall be considered to comprise a different
Revolving Credit Borrowing.
(c) Mandatory Repayments of Revolving Credit Advances.
If at any time or from time to time the outstanding aggregate
amount of Revolving Credit Advances plus the aggregate of
Letter of Credit Face Amount of all outstanding Letters of
Credit shall exceed the aggregate Revolving Credit
Commitments, the Borrower shall immediately pay to the Agent
for the account of the Banks the amount necessary to eliminate
such excess, as applicable, all without demand, notice,
presentment or other condition, each of which is hereby waived
by the Borrower.
(d) Voluntary Reduction in Revolving Credit Commitment.
Subject to the requirements of Section 2.01(a) hereof, the
Borrower may, at any time and from time to time, upon five (5)
Business Days' prior written notice to the Agent, permanently
reduce in part or terminate in whole the aggregate amount of
the Revolving Credit Commitments then in effect; provided,
however, that in no event shall the aggregate Revolving Credit
Commitments be reduced to an amount which is less than the
aggregate amount of the Letter of Credit Face Amount of then
outstanding Letters of Credit. Any such reduction or
termination of the aggregate Revolving Credit Commitments
shall be accompanied by the payment of an amount equal to the
sum of (i) all accrued, but unpaid, interest on the principal
amount of such reduction of the aggregate Revolving Credit
Commitments to the date of such reduction or termination plus
(ii) the excess, if any, of the sum of the aggregate Revolving
Credit Advances then outstanding plus the Letter of Credit
Face Amount of all outstanding Letters of Credit over the
aggregate Revolving Credit Commitment of the Banks as so
reduced. Any permanent reduction under this Section 2.01(f)
shall be in the minimum amount of Five Million Dollars
($5,000,000) or multiples of One Million Dollars ($1,000,000)
in excess thereof.
(e) Letters of Credit. KeyBank shall, upon the terms
and conditions of this Agreement, and upon such other terms
and conditions as may, from time to time, be acceptable to
KeyBank as being consistent with the terms and conditions<PAGE>
<PAGE>
customary for letters of credit issued by KeyBank and
appropriate for the Borrower, issue Letters of Credit for the
account of the Borrower from time to time on any Business Day
during the period from the date of this Agreement to the
Termination Date and expiring, in any event, no later than the
Termination Date; provided, however, that the aggregate
undrawn face amount of letters of credit issued by KeyBank
shall not at any time exceed the lesser of: (i) Five Million
Dollars ($5,000,000) minus the aggregate Letter of Credit Face
Amount then outstanding or (ii) the aggregate Revolving Credit
Commitments minus the sum of the aggregate outstanding
Revolving Credit Advances minus the aggregate outstanding
Letter of Credit Face Amount. In the event KeyBank determines
that it shall issue a Letter of Credit, each such Letter of
Credit shall be for an amount and a term not in excess of one
year (but, at the request of the Borrower and in the sole
discretion of KeyBank which such discretion shall not be
unreasonably exercised, renewable yearly until the Termination
Date), and shall be subject to such other terms and
conditions, as may be acceptable to KeyBank in its sole
discretion which such discretion shall not be unreasonably
exercised. All letters of credit issued by KeyBank shall be
in the form of KeyBank's standard letter of credit and
reimbursement agreement form. Immediately upon the issuance
of each Letter of Credit, KeyBank shall sell and transfer to
each Bank, and each Bank shall buy and receive, in each case
without any further action on the part of any party, an
undivided interest and participation to the extent of such
Bank's Pro Rata Share in and to each Letter of Credit and the
obligations of the Borrower in respect of each Letter of
Credit under this Agreement.
(f) Extension of Termination Date. So long as each of
the Banks shall have received the most recent audited
financial statements required to be delivered to the Banks
pursuant to the Riser Guaranty, on October 31 of each year,
the Borrower may request, in a writing delivered to the Agent,
that the Termination Date be extended one year to the October
31 next following the Termination Date then in effect. The
Banks agree to consider each such request; provided, however,
that (i) such consideration shall be in each Bank's sole and
absolute discretion and (ii) in no event shall any Bank be
committed to extend its Revolving Credit Commitment, nor shall
any Bank's Revolving Credit Commitment be extended, unless and
until every Bank shall have executed and delivered to the
Agent its written consent to the extension and the Agent shall
have confirmed to that Bank the consent of the other Banks.
The Bank's shall respond to a request hereunder within a
reasonable time period except that any failure of the Banks or
any one of them to respond shall not be deemed to be a consent
to such request for extension.
<PAGE>
<PAGE>
2.6 Amendment to Section 2.02(a). Section 2.02(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(a) Borrowings.
(i) Minimum Borrowing Amounts. Each Borrowing
comprised of LIBOR Rate Loans shall be in an aggregate
amount not less than Five Million Dollars ($5,000,000) or
multiples of One Million Dollars ($1,000,000) in excess
thereof. The Borrower shall be entitled to have more
than one Borrowing outstanding at one time; provided,
however, that, unless the Agent and the Banks shall
otherwise agree in writing, the Borrower shall not be
entitled to request any Revolving Credit Borrowing which
would result in any Bank's having an aggregate of more
than five (5) LIBOR Rate Loans outstanding at any one
time.
(ii) Notice of Borrowing. Revolving Credit Advances
comprising a Borrowing shall be made upon notice (a
"Notice of Borrowing") given by the Borrower to the Agent
(i) not later than 12:00 noon (Cleveland, Ohio time) on
the Business Day which is the requested date of a
proposed Borrowing comprised of Prime Rate Loans and (ii)
not later than 12:00 noon (Cleveland, Ohio time) three
(3) Business Days prior to the requested date of a
proposed Borrowing comprised of LIBOR Rate Loans. Each
Notice of Borrowing for a Borrowing comprised of LIBOR
Rate Loans shall be substantially in the form of Exhibit
B hereto and shall specify therein (A) the requested date
of the Borrowing, (B) that such Borrowing is to be
comprised of LIBOR Rate Loans, (C) with respect to a
Revolving Credit Borrowing, the name of the bank and the
account number to which such funds are to be disbursed,
(D) aggregate amount of such Revolving Credit Advances
comprising such Borrowing and (E) the initial Interest
Period for such LIBOR Rate Loans comprising such
Borrowing. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower and subject to
the indemnification provisions of this Article II.
(iii) Funding of Revolving Credit Advances. The
Agent shall notify each Bank of such Notice of Borrowing
no later than 1:00 p.m. (Cleveland, Ohio time) on the
date received by telecopy, telephone or similar form of
transmission. Each Bank shall, before 4:00 p.m.
(Cleveland, Ohio time) on the date of each Revolving
Credit Borrowing requested, make available to the Agent,
in immediately available funds at the account of the
Agent as shall have been notified by the Agent to the
Banks prior to such date, such Bank's Pro Rata Share of
the Revolving Credit Advances comprising such Revolving<PAGE>
<PAGE>
Credit Borrowing. On the date requested by the Borrower
for a Revolving Credit Borrowing, after the Agent's
receipt of the funds representing a Bank's Pro Rata Share
of such Revolving Credit Borrowing and subject to the
terms of this Agreement and the Borrower's fulfillment of
the conditions set forth in Section 3 of this Agreement,
the Agent will make such Revolving Credit Advance of such
Bank available to the Borrower in immediately available
funds, by wire transfer or intrabank transfer to
such account of the Borrower as the Agent and the
Borrower shall have agreed upon from time to time.
2.7 Amendment to Section 2.02(b). Section 2.02(b) shall
be deleted in its entirety and the following substituted in lieu
thereof:
(b) Availability of Funds. Unless the Agent shall have
received notice from a Bank prior to the date (or, in the case
of Prime Rate Loans, prior to the time) of any Revolving
Credit Borrowing that such Bank will not make available to the
Agent such Bank's Pro Rata Share of the Revolving Credit
Borrowing, the Agent may assume that such Bank has made its
Pro Rata Share of the Revolving Credit Borrowing available to
the Agent on the date of the Revolving Credit Borrowing in
accordance with Section 2.02(a)(iii) of this Agreement. In
reliance upon such assumption, the Agent may, but shall not be
obligated to, make available to the Borrower on such date, a
corresponding portion of the Revolving Credit Borrowing. Any
disbursement by the Agent in reliance on such assumption shall
be deemed to be an advance of Revolving Credit Advances by
such Bank.
2.8 Amendment to Section 2.02(c). Section 2.02(c) shall
be deleted in its entirety and the following substituted in lieu
thereof:
(c) Failure of Bank to Fund. If and to the extent that
any Bank shall not have made available to the Agent such
Bank's Pro Rata Share of any Revolving Credit Borrowing, such
Bank and the Borrower severally agree to repay to the Agent,
immediately upon demand by the Agent, an amount equal to such
Bank's Pro Rata Share of such Revolving Credit Borrowing
together with interest thereon for each day from the date such
amount is made available to the Borrower until the date such
amount is repaid to the Agent, at: (A) in the case of the
Bank, Federal Funds Rate for the first three (3) days from and
after the date of the Revolving Credit Borrowing and
thereafter at the Interest Rate then applicable to Prime Rate
Loans and (B) in the case of the Borrower, the interest rate
applicable at the time to Prime Rate Loans.
(i) Payment Constituting Pro Rata Share. If such
Bank pays to the Agent the Bank's Pro Rata Share of such<PAGE>
<PAGE>
Revolving Credit Borrowing prior to repayment of such
amount by the Borrower, the amount so repaid shall
constitute such Bank's Pro Rata Share of such Revolving
Credit Borrowing, as the case may be, and the Borrower
shall have no further obligation to make the payment
required by this Section.
(ii) Continuing Borrower Obligation. Failure of any
Bank to fund its Pro Rata Share of any Borrowing shall
not relieve or excuse the performance by the Borrower of
any of its duties or obligations hereunder.
(iii) Continuing Bank Obligation to Fund. It is
understood that: (i) a Bank shall not be responsible for
any failure by any other Bank to perform its obligation
to make any Loans hereunder, (ii) the Revolving Credit
Commitment of a Bank shall not be increased or decreased
as a result of any failure by any other Bank to perform
its obligation to make any Loans hereunder, (iii) failure
by any Bank to perform its obligation to make any Loans
hereunder shall not excuse any other Bank from its
obligation to make any Loans hereunder, and (iv) the
obligations of each Bank hereunder shall be several, not
joint and several.
2.9 Amendment to Section 2.03(a). Section 2.03(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(a) Facility Fee. The Borrower agrees to pay to the
Agent, for the account of the Banks, a fee equal to the
Applicable Margin on the daily average of the amount,
calculated daily, equal to (i) the aggregate Revolving Credit
Commitment as from time to time in effect minus (ii) the sum
of the daily balance of the Revolving Credit Advances plus the
aggregate of the Letter of Credit Face Amount of all
outstanding Letters of Credit; provided, however, that, the
Applicable Margin to be in effect from the Effective Date
until the next Adjustment Date shall be .25%. Such fee shall
accrue from and including the Effective Date to the
Termination Date and shall be payable, in arrears, on the
first day of each calendar month and at maturity, whether on
the Termination Date or earlier.
2.10 Amendment to Section 2.03(b). Section 2.03(b) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(b) Letter of Credit Commission. The Borrower hereby
agrees to pay to the Agent, for the Account of the Banks, with
respect to Letters of Credit a letter of credit commission
equal to the Applicable Margin in effect on the date of<PAGE>
<PAGE>
issuance, renewal or extension of any letter of credit on the
maximum amount available to be drawn on each day under such
Letter of Credit, payable annually in advance on the date of
issuance of such Letter of Credit and on the effective date of
any renewal or extension of such Letter of Credit; provided,
however, that, the Applicable Margin to be in effect from the
Effective Date until the next Adjustment Date shall be .625%.
2.11 Amendment to Section 2.03(c). Section 2.03(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Agent's Fee. The Borrower agrees to pay to the
Agent for the sole account of the Agent an annual fee as set
forth in the letter dated as of January 8, 1997 from the Agent
to the Borrower.
2.12 Amendment to Section 2.03(e). Section 2.03(e) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(e) Letter of Credit Expenses. With respect to Letters
of Credit, the Borrower hereby agrees to pay to KeyBank, in
addition to expenses otherwise payable pursuant to Sections
2.03(b), upon the issuance, increase, extension or amendment
of a Letter of Credit issued by KeyBank all customary and
reasonable fees published by KeyBank and payable in connection
with the issuance, increase, extension or amendment of a
letter of credit.
2.13 Amendment to Sections 2.04(a). Section 2.04(a)
shall be deleted in its entirety and "[Intentionally Omitted]"
shall be substituted in lieu thereof.
2.14 Amendment to Section 2.05. Section 2.05 shall be
deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.15 Amendment to Section 2.06(a). Section 2.06(a) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
SECTION 2.06 Interest. (a) Pre-Default Interest
Rate. The Borrower shall pay interest on the unpaid
principal amount of the Loans outstanding at the close of
each day until such principal amount shall be paid in
full at the following times and rates per annum (each of
such rates being an "Interest Rate"):
(i) Prime Rate Loans. During such periods as
a Loan is a Prime Rate Loan, a rate per annum equal
at all times to the sum of the Prime Rate plus the
Applicable Margin in effect from time to time from<PAGE>
<PAGE>
and after the Effective Date to the Termination
Date. Each change in the Prime Rate shall be
reflected in the foregoing interest rates as of the
effective date of such change. Except as otherwise
specifically provided herein, all interest due
hereunder will be payable in arrears, on the first
day of each calendar quarter herein.
(ii) LIBOR Rate Loans. During such periods as
a Loan is a LIBOR Rate Loan, a rate per annum equal
at all times during each Interest Period for such
Loan to the sum of the LIBOR Rate for such Interest
Period for such Loan plus the Applicable Margin in
effect at the time of the making of such Loan,
payable (x) on the last day of such Interest Period
and (y) if such Interest Period has a duration of
more than three (3) months, three (3) months after
the first day of such Interest Period and (z) on
the date such LIBOR Rate Loan shall be converted to
a Prime Rate Loan or paid in full (whether at
maturity, by reason of acceleration or otherwise).
2.16 Amendment to Section 2.06(b). Section 2.06(b) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.17 Amendment to Section 2.06(c). Section 2.06(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Default Rate. Following the occurrence of an Event
of Default which has not been waived in writing by the Banks
(unanimity being required for such waiver in order to make
this Section 2.06(c) inapplicable after the occurrence of an
Event of Default), the outstanding principal of the Loans and
the unpaid interest and fees thereon shall, upon the request
of the Majority Banks, bear interest, payable on demand, for
Prime Rate Loans and LIBOR Rate Loans, at a rate per annum
which shall be equal at all times to two percent (2.0%) in
excess of the Prime Rate.
2.18 Amendment to Section 2.06(d). Section 2.06(d) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.19 Amendment to Section 2.07(b). Section 2.07(b) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(b) Authorization to Charge. The Borrower hereby
authorizes each Bank, if and to the extent payment is not made
when due under any Loan Document, upon written notice to the
Borrower, to charge from time to time against any account of<PAGE>
<PAGE>
the Borrower with such Bank any amount so due.
2.20 Amendment to Sections 5.01(p). Sections 5.01(p)
shall be deleted in its entirety and "[Intentionally Omitted]"
shall be substituted in lieu thereof.
2.21 Amendment to Sections 5.02(b). Section 5.02 (b)
shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
(b) Indebtedness. The Borrower shall not create or
suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Indebtedness, liability or
other obligation except (i) Indebtedness secured by Liens
or security interests permitted by Section 5.02(a), (ii)
the Subordinated Debentures, (iii) the Indebtedness set
forth on Schedule 5.02(b), (iv) ordinary course trade
payables, (vii) Indebtedness evidenced by bankers'
acceptances used by the Borrower to pay its ordinary
course trade payables and (v) unsecured Indebtedness, the
aggregate outstanding principal amount of which, when
taken together with the outstanding unsecured
Indebtedness of Riser and American, shall at no time
exceed Twenty Million Dollars ($20,000,000), so long as,
after giving effect to the incurrence of such
Indebtedness, no Default or Event of Default would
thereupon otherwise exist.
2.22 Amendment to Section 5.02(c). Section 5.02(c) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(c) Sales, Etc. of Assets. The Borrower shall not
sell, lease, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, transfer, or
otherwise dispose of, any of its assets, except (i) sales
of inventory in the ordinary course of business and (ii)
so long as no Default has occurred hereunder, with
respect to assets other than Inventory sold in the
ordinary course of business, sales of assets, the
aggregate sales price of which assets, when taken
together with all other assets sold after the Effective
Date does not at any time exceed an amount equal to ten
percent (10%) of the net worth of the Borrower as shown
in the then most recent consolidating financial statement
delivered pursuant to Section 8 of the Riser Guaranty, as
determined from time to time in accordance with generally
accepted accounting principles.
2.23 Amendment to Section 5.02(d). Section 5.02(d) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
<PAGE>
<PAGE>
(d) Mergers and Acquisitions. The Borrower shall not
(i) merge with or into or consolidate with or into, or (ii)
convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to or (iii) acquire all or substantially
all of the assets of, any Person or permit any Subsidiary to
do so; provided, however, that, the Borrower may acquire all
or substantially all of the asset of another Person so long as
(A) no Default or Event of Default shall exist or shall
thereupon occur and (B) the aggregate purchase price of such
assets, when taken together with (I) the purchase price of all
such purchases (exclusive of capital expenditures not incurred
in connection with acquisitions of all or substantially all
assets of any person) by the Borrower occurring after the
Effective Date and (II) the purchase price of acquisitions of
all or substantially all assets of a Person by Riser or
American occurring after the Effective Date, shall not exceed
Twenty Million Dollars ($20,000,000).
2.24 Amendment to Section 5.02(g). Section 5.02(g) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(g) Fiscal Year. The Borrower shall not make any change
in its Fiscal Year; provided, however, that the Borrower may
change its Fiscal Year if (i) the Borrower shall have given
the Agent written notice sixty (60) days prior to the
effective date of such change and (ii) no Bank shall have
deemed, in the exercise of its reasonable discretion, such
change to be adverse to the interests of such Bank. In the
event of a change in Fiscal Year, the Borrower agrees to
cooperate in completing such amendments or other documentation
reasonably required by the Agent to be completed to reflect
such change.
2.25 Amendment to Section 5.02(j). Section 5.02(j) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.26 Amendment to Section 5.02(l). Section 5.02(l) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(l) Sale and Leaseback. The Borrower shall not enter
into, or permit any of its Subsidiaries to enter into, any
transaction in which the Borrower or any of its Subsidiaries
sells property owned by the Borrower or any of its
Subsidiaries and subsequently leases such property from the
purchaser thereof unless, (i) the selling entity has received
consideration in an amount at least equal to the fair market
value of the assets leased, (ii) the dollar amount of all
assets sold in any Fiscal Year in such transactions (when<PAGE>
<PAGE>
taken together with the dollar amount of all such assets sold
in any such Fiscal Year by Riser or American) shall not in the
aggregate exceed Ten Million Dollars ($10,000,000) and (iii)
no Default or Event of Default shall exist before or after
giving effect to any such transaction.
2.27 Amendment to Sections 5.02(m) and (n). Each of
Section 5.02(m) and Section 5.02(n) shall be deleted in its
entirety and "[Intentionally Omitted]" shall be substituted in lieu
thereof.
2.28 Amendment to Section 5.02(o). Section 5.02(o) shall
be deleted in its entirety and the following shall be substituted
in lieu thereof:
(o) Investments. The Borrower shall not (i) create,
acquire or hold any Subsidiary, (ii) make or hold, or permit
any of its Subsidiaries to make or hold, any investment in any
stocks, bonds or securities of any kind, (iii) be or become,
or permit any of its Subsidiaries to be or become, a party to
any joint venture or other partnership, (iv) make or keep out-
standing, or permit any of its Subsidiaries to make or keep
outstanding (as lender), any advance or loan or (v) be or
become, or permit any of its Subsidiaries to be or become a
guarantor or have Guaranteed Indebtedness of any kind; pro-
vided, that this subsection shall not apply to (a) any
endorsement of a check or other medium of payment for deposit
or collection through normal banking channels or any similar
transaction in the normal course of business or (b) any
guaranty of any obligations incurred by American to the Banks
pursuant to the American Agreement, or (c) any investments,
joint venture or partnership in existence as of the Amendment
Effective Date and to the extent and as identified on Sched-
ule 4.01(h) hereof, in the securities of any Subsidiary, or
(d) advances to its employees for travel and other expenses to
be incurred in the ordinary course of business or (e) any
investment otherwise prohibited by this Section 5.02(o) so
long as (i) such investment, when taken together with all
other investments made after the Effective Date by the
Borrower and all investments made after the Effective Date by
Riser and American, shall not exceed in the aggregate Twenty
Million Dollars ($20,000,000) and (ii) no Default or Event of
Default exists before or after giving effect to such
investment.
2.29 Amendment to Section 5.02(p). Section 5.02(p) shall
be deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.30 Amendment to Section 5.03. Each of subsection
5.03(i), (xii), (xiii), (xiv), (xv), (xvi) and (xvii) shall be
deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof and Section 5.03(xi) shall be deleted<PAGE>
<PAGE>
in its entirety and the following substituted in lieu thereof:
(xi) upon request by any Bank or the Agent, an
updated schedule of the Borrower's and each of its
Subsidiaries insurance coverages containing the types of
information set forth on Schedule X hereto;
2.31 Amendment to Sections 6.01(n), (p) and (q). Each of
Section 6.01(n), 6.01(p) and 6.01(q) shall be deleted in its
entirety and "[Intentionally Omitted]" shall be substituted in lieu
thereof.
2.32 Amendment to Article VI. Article VI shall be
amended by adding the following as new Section 6.04 thereof:
SECTION 6.04 Equalization. Each Bank agrees with the
other Banks that if at any time it shall obtain any Advantage
over the other Banks or any thereof in respect of the Loans it
will purchase from such other Bank or Banks, for cash and at
par, such additional participation in the Loans owing to the
other or others as shall be necessary to nullify the
Advantage. If any such Advantage resulting in the purchase of
an additional participation as aforesaid shall be recovered in
whole or in part from the Bank receiving the Advantage, each
such purchase shall be rescinded, and the purchase price
restored (with interest and other charges if and to the extent
actually incurred by the Bank receiving the Advantage) ratably
to the extent of the recovery. During the existence of any
Default, any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness
or otherwise) of any Indebtedness owing by the Borrower to any
Bank shall be applied to the Obligations owing to that Bank
until the same shall have been paid in full before any thereof
shall be applied to other Indebtedness owing to that Bank.
This Section 6.04 shall not affect or otherwise increase the
obligations of the Borrower under this Agreement.
2.33 Amendment to Section 8.05. Section 8.05 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 8.05. Costs and Expenses. The Borrower shall
pay to the Agent, on demand, all costs and expenses that the
Agent pays or incurs in connection with the negotiation,
preparation, consummation, administration, enforcement, and
termination of this Agreement and the other Loan Documents,
including, without limitation: (a) reasonable attorneys' and
paralegal's costs, expenses and disbursements of counsel to
the Agent; (b) costs and expenses (including reasonable
attorneys and paralegals costs, expenses and disbursements)
for any amendment, supplement, waiver, consent, or subsequent
closing in connection with the Loan Documents and the
transactions contemplated thereby; (c) costs and expenses of<PAGE>
<PAGE>
lien and title searches and title insurance; (d) taxes, costs,
expenses and other charges for recording the Mortgages, filing
financing statements and continuations, and other actions to
perfect, protect, and continue the Liens; (e) sums paid or
incurred to pay any amount or take any action required of the
Borrower under the Loan Documents that the Borrower fails to
pay or take; (f) reasonable costs and expenses of forwarding
loan proceeds, collecting checks and other items of payment,
and establishing and maintaining the Letter of Credit
Collateral Account; (g) costs and expenses of preserving and
protecting the Collateral; and (h) costs and expenses
(including, without limitation, attorneys' fees) paid or
incurred to obtain payment of the Obligations, enforce the
security interest, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of the Loan
Documents, or to defend any claims made or threatened against
the Agent arising out of the transactions contemplated hereby
(including without limitation, preparations for and
consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions of the
Loan Documents regarding costs and expenses to be paid by the
Borrower. All of the foregoing costs and expenses may be
charged, in the Agent's sole discretion, to the Borrower's
loan account as Revolving Credit Advances.
2.34 Amendment to Section 8.06. Section 8.06 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
2.35 Amendment to Section 8.10(a). Section 8.10(a) shall
be amended by deleting the first three sentences thereof and
substituting the following sentence in lieu of the third sentence
thereof:
No Bank shall assign or otherwise transfer its interest
or any portion thereof in its Revolving Credit
Commitment, its Loans, its participations in Letters of
Credit issued hereunder or any of its rights hereunder
without the prior written consent of the Agent and the
Borrower, which consent shall not be unreasonably
withheld, (other than any assignment or transfer to any
Person which controls, is controlled by, or is under
common control with, or is otherwise substantially
affiliated with, such Bank).
2.36 Amendment to Section 8.10(b). Section 8.10(b) shall
be amended by deleting the second sentence thereof.<PAGE>
<PAGE>
2.37 Amendment to Section 8.25. Section 8.25 shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
SECTION 8.25 Commitments. The Revolving Credit
Commitment and the Total Commitment of each Bank shall be
as set forth below:
<TABLE>
<CAPTION>
Bank Revolving Bank's
Credit Total
<S> Commitment Commitment
KeyBank National <C> <C>
Association $6,000,000 $6,000,000
National City Bank $3,495,000 $3,495,000
NBD Bank $3,184,286 $3,184,286
Star Bank National
Association $2,320,714 $2,320,714
Total of
Commitments __________ __________
$15,000,000 $15,000,000
</TABLE>
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks
and the Agent as follows:
3.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Borrower
and constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its
terms. The Credit Agreement, as amended by this Amendment, remains
in full force and effect and remains the valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms. The Borrower hereby ratifies and
confirms the Credit Agreement as amended by this Amendment.
3.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Credit Agreement, nor (ii) of any
term, provision, representation, warranty or covenant contained in
the Credit Agreement or any other documentation executed in
connection therewith. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a
waiver of any Default or Event of Default under the Credit
Agreement as amended by this Amendment.<PAGE>
<PAGE>
3.3 Reference to and Effect on the Credit Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment and this Amendment and each
reference to the Credit Agreement in any other document, instrument
or agreement executed and/or delivered in connection with the
Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended by the First Amendment, the Second Amendment,
the Third Amendment and this Amendment.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 3.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
4.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 4 to Amended and Restated Credit
Agreement, executed and delivered by a duly authorized officer of
the Borrower.
4.2 Revolving Credit Notes. Each of the Banks shall
have received a Revolving Credit Note, appropriately completed to
reflect the amount of such Bank's Revolving Credit Commitment,
executed and delivered by an Authorized officer of the Borrower.
4.3 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized
officer of Riser, (ii) Amendment No. 3 to Credit Agreement in
respect of the American Agreement, executed and delivered by a duly
authorized officer of American, and (iii) the amendments to the
Security Agreements, each executed by a duly authorized officer of
the company which is a party thereto and all of the conditions
precedent to such Amendment shall have been satisfied.
4.4 Acknowledgement of Guarantors. The Banks and the
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Borrower to the Banks and the Agent.
4.5 Borrower's Certificate. The Banks and the Agent
shall have received a certificate, in form and substance
satisfactory to the Agent, executed for and on behalf of the
Borrower by either the President or Vice President of the Borrower
and by either the Secretary or Assistant Secretary of the Borrower
(one of which certifying officers shall not be a signatory of this
Amendment) and dated as of the date of this Amendment, certifying
(i) the Director's Resolutions of the Borrower authorizing this<PAGE>
<PAGE>
Amendment, and each document or other instrument executed in
connection with the Amendment, (ii) the names and signatures of the
officers signing this Amendment on behalf of the Borrower, and
(iii) compliance by the Borrower with all representations,
warranties, covenants and conditions under the Credit Agreement as
amended by this Amendment.
4.6 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 5. MISCELLANEOUS.
5.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
5.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
5.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this
Amendment No. 4 to Amended and Restated Credit Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods, Inc.)
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, RISER FOODS, INC., FISHER
PROPERTIES, INC., and AMERICAN SEAWAY FOODS, INC. (formerly known
as Heritage Wholesalers, Inc. and successor by merger to Seaway
Food Service, Inc.), each of which being a guarantor of
indebtedness of the Borrower to the Banks and the Agent, hereby
acknowledges and agrees to the terms of the foregoing Amendment No.
4 to Amended and Restated Credit Agreement. Each of the
undersigned represents and warrants to the Banks and the Agent that
the respective Amended and Restated Guaranty Agreements (as
amended), executed and delivered by each of the undersigned, each
dated as of May 27, 1993, remain the valid and binding obligations
of each of the undersigned, respectively, enforceable against it in
accordance with their terms.
RISER FOODS, INC.
By:
Title:
AMERICAN SEAWAY FOODS, INC. (formerly
known as Heritage Wholesalers, Inc.
and successor
by merger to Seaway Food Service, Inc.)
By:
Title:
FISHER PROPERTIES, INC.
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 5
TO
AMENDED AND RESTATED
GUARANTY AGREEMENT
This Amendment No. 5 to Amended and Restated Guaranty
Agreement (this "Amendment"), made as of the 8th day of January,
1997, among RISER FOODS, INC., a Delaware corporation (herein the
"Guarantor"), the Banks (as hereinafter defined), and KEYBANK
NATIONAL ASSOCIATION (as successor by merger to Society National
Bank), as agent for the Banks (herein the "Agent").
WITNESSETH:
WHEREAS, the Guarantor has executed and delivered to the
financial institutions which are a party to the Credit Agreements
(as defined below) (the "Banks"), that certain Amended and Restated
Guaranty Agreement, dated as of May 27, 1993 (as amended pursuant
to Amendment No. 1 to Amended and Restated Guaranty Agreement,
dated as of May 16, 1994, Amendment No. 2 to Amended and Restated
Guaranty Agreement, dated as of October 6, 1994, Amendment No. 3 to
Amended and Restated Guaranty Agreement, dated as of April 28, 1995
and Amendment No. 4 to Amended and Restated Guaranty Agreement,
dated as of August 20, 1996, the "Guaranty Agreement"), pursuant to
which the Guarantor unconditionally guaranteed the payment of all
of the Obligations (as defined in the Guaranty Agreement);
WHEREAS, Rini-Rego Supermarkets, Inc. (formerly known as
Fisher Foods, Inc.) an Ohio corporation ("Rini-Rego"), the Banks
and the Agent have entered into that certain Amended and Restated
Credit Agreement, dated as of May 27, 1993 (as amended pursuant to
Amendment No. 1 to Amended and Restated Credit Agreement, dated as
of May 16, 1994, Amendment No. 2 to Amended and Restated Credit
Agreement, dated as of October 6, 1994, and Amendment No. 3 to
Amended and Restated Credit Agreement, dated as of April 28, 1995,
the "Rini-Rego Agreement"), pursuant to which the Banks have made
certain financial accommodations available to Rini-Rego;
WHEREAS, American Seaway Foods, Inc., an Ohio corporation
("American"), the Banks and the Agent have entered into that
certain Amended and Restated Credit Agreement, dated as of May 27,
1993 (as amended pursuant to Amendment No. 1 to Amended and
Restated Credit Agreement, dated as of October 6, 1994 and
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of April 28, 1995, the "American Agreement" and, together with the
Rini-Rego Agreement, the "Credit Agreements");
WHEREAS, the Banks which are signatories hereto
constitute all of the Banks for the purpose of amending the
Guaranty Agreement pursuant to Section 8.22 of the American
Agreement and Section 8.21 of the Rini-Rego Agreement; and <PAGE>
<PAGE>
WHEREAS, the Guarantor, the Banks and the Agent desire
further to amend the Guaranty Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor, the Banks and the Agent do hereby
agree as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Guaranty
Agreement.
SECTION 2. AMENDMENTS TO THE GUARANTY AGREEMENT.
The Guarantor, the Banks and the Agent hereby agree that
the following Sections of the Guaranty Agreement shall be amended,
effective as of the date hereof and subject to the terms and
conditions hereof, as follows:
2.1 [Intentionally Omitted]
2.2 Amendment to Section 6(n). Section 6(n) shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
(n) No Material Adverse Change. No material adverse
change has occurred in the Guarantor's or any of its
Subsidiaries' property, business, operations, or condition,
financial or otherwise, since the date of the financial
statements of the Guarantor and each of its Subsidiaries, each
as dated as of October 19, 1996, and delivered to the Agent.
2.3 Amendment to Section 7(k). Section 7(k) shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
(k) Consolidated Net Worth. The Guarantor shall not
suffer or permit, as at any date, the Consolidated Net Worth
to be: (i) as of the Effective Date, less than $85,000,000 and
(ii) at all times after the Effective Date, less than the sum
of:
(A) $85,000,000, plus;
(B) an aggregate amount equal to fifty percent
(50%) of Guarantor's Consolidated Net Income (if
any and only to the extent a positive number)
attributable to each Fiscal Year ending after the
Effective Date (which aggregate amount shall not be<PAGE>
<PAGE>
reduced by any consolidated net losses reported for
any Fiscal Year ending after the Effective Date),
plus;
(C) if such date is during and not at the end of a
Fiscal Year, an amount equal to fifty percent (50%)
of Guarantor's Consolidated Net Income (if any and
only to the extent a positive number) for the
fiscal period consisting of the Fiscal Quarters of
such Fiscal Year that have ended on or before such
date.
2.4 Amendment to Section 7(l). Section 7(l) shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
(l) Consolidated Leverage Ratio. The Guarantor shall
not suffer or permit, as at the end of any Fiscal Quarter, the
Consolidated Leverage Ratio to exceed Fifty percent (50%).
2.5 Amendment to Section 7(m). Section 7(m) shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
(m) Interest Coverage Ratio. The Guarantor shall not
suffer or permit, as at the end of any Fiscal Quarter, the
ratio of (i) Consolidated Pre-Tax Earnings plus Consolidated
Interest Expense to (ii) the Consolidated Interest Expense to
be less than 2.50 to 1.0 for the Four Quarter Period ending as
of such Fiscal Quarter end.
2.6 Amendment to Sections 7(n), (o) and (p). Each of
Sections 7(n), 7(o) and 7(p) shall be deleted in its entirety and
"[Intentionally Omitted]" shall be substituted in lieu thereof.
2.7 Amendment to Section 7(s). Section 7(s) shall be
amended by deleting clause (VII) thereof (and the "and" immediately
preceding such clause), the following new clause (VII) shall be
substituted in lieu thereof and the following shall be added as
clauses (VIII) and (IX) thereto:
(VII) any investment permitted by the Credit Agreements,
(VIII) any nominal investment in other food companies held by the
Guarantor in order to obtain shareholder reports and (IX) any
guarantee by the Guarantor of certain lease obligations of
wholesale customers of American entered into in the ordinary course
of the Guarantor's business consistent with past practice.
2.8 Amendment to Sections 7(t). Section 7(t) shall be
deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.9 Amendment to Section 7(u)and 7(v). Sections 7(u)<PAGE>
<PAGE>
and 7(v) shall be deleted in its entirety and the following shall
be substituted in lieu thereof:
(u) Sales, Etc. of Assets. The Guarantor shall not, and
shall not permit any of its Subsidiaries, to sell, lease,
transfer, convey or otherwise dispose of any of its assets;
except that: (I) Rini-Rego and American may sell assets
subject to the limitations set forth in the Credit Agreements
and (II) the Guarantor may sell tangible assets which have
become obsolete or have been determined to be no longer
useable in its business by reason of normal wear and tear.
(v) Mergers, Etc.. The Guarantor shall not, and shall
not permit any Subsidiary to, merge with or into or
consolidate with, or acquire all or substantially all of the
assets of, any Person except that: (i) Subsidiaries may
acquire all or substantially all or substantially all of the
assets of a Person to the extent permitted by the Agreements
and (ii) the Guarantor may acquire all or substantially all or
substantially all of the assets of a Person so long as (A) no
Default or Event of Default shall exist or shall thereupon
occur and (B) the aggregate purchase price of such assets,
when taken together with (A) the purchase price of all such
purchases (exclusive of capital expenditures not incurred in
connection with acquisitions of all or substantially all
assets of any person) by the Guarantor occurring after the
Effective Date and (B) the purchase price of acquisitions of
all or substantially all assets of a Person by American, Rini-
Rego or any other Subsidiary of the Guarantor occurring after
the Effective Date, shall not exceed Twenty Million Dollars
($20,000,000).
2.10 Amendment to Section 7(y). Section 7(y) shall be
deleted in its entirety and the following substituted in lieu
thereof:
(y) Sale and Leaseback. The Guarantor shall not enter
into, or permit any of its Subsidiaries to enter into, any
transaction in which the Guarantor sells property owned by the
Guarantor and subsequently leases such property from the
purchaser thereof unless, (i) the selling entity has received
consideration in an amount at least equal to the fair market
value of the assets leased, (ii) the aggregate dollar amount
of all assets sold in any Fiscal Year in such transactions by
the Guarantor, American, Rini-Rego and any other Subsidiary of
the Guarantor shall not in the aggregate exceed Ten Million
Dollars ($10,000,000) and (iii) no Default or Event of Default
shall exist before or after giving effect to any such
transaction.
2.11 Amendment to Sections 7(z), (bb) and (cc). Each of
Sections 7(z), 7(bb) and 7(cc) shall be deleted in its entirety and
"[Intentionally Omitted]" shall be substituted in lieu thereof.<PAGE>
<PAGE>
2.12 Amendment to Sections 8(i). Section 8(i) shall be
deleted in its entirety and "[Intentionally Omitted]" shall be
substituted in lieu thereof.
2.13 Amendment to Sections 8(ii), (iii) and (v). Each of
Sections 8(ii) and 8(iii) shall be amended by deleting the
references to "(n), (o), (p) and (t)" in the second to the last
line thereof and Section 8(v) shall be amended by deleting the
reference to Section 6(h) and a reference to Section 6(f) shall be
substituted in lieu thereof.
2.14 Amendment to Sections 8(viii). Section 8(viii)
shall be deleted in its entirety and "[Intentionally Omitted]"
shall be substituted in lieu thereof.
2.15 Amendment to Section 14. Section 14 shall be
amended to add the following definitions:
"Consolidated Funded Debt" means, as at any date of
determination, without duplication, the sum of (i) all amounts
owed to the Banks under the Credit Agreements plus (ii) all
obligations of the Guarantor and its Subsidiaries on a
consolidated basis for money borrowed including, without
limitation, Capitalized Leases, all notes payable, and drafts
accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar
instruments, and obligations upon which interest charges are
customarily paid or discounted, and all guaranties of such
obligations.
"Consolidated Interest Expense" means, for any period,
the amount of interest expense of the Guarantor and its
Subsidiaries for such period on the aggregate principal amount
of the indebtedness of the Guarantor and its Subsidiaries plus
any capitalized interest of the Guarantor or its Subsidiaries
which accrued during such period, each as determined on a
consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Leverage Ratio" means, as at any date of
determination, the ratio (expressed as a percentage) of: (x)
the Consolidated Funded Debt of the Guarantor and its
Subsidiaries to (y) the sum of the Consolidated Fund Debt of
the Guarantor and its Subsidiaries plus the Consolidated Net
Worth of the Guarantor and its Subsidiaries, each as
determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Consolidated Net Worth" means, as at any date of
determination, the net book value of all assets of the
Guarantor and its Subsidiaries minus the Consolidated Total
Liabilities, in each case as determined on a consolidated
basis in accordance with generally accepted accounting<PAGE>
<PAGE>
principles.
"Consolidated Pre-Tax Earnings" means, for any period,
the net earnings (or losses) before income taxes for such
period (excluding extraordinary gains or losses) of the
Guarantor and its Subsidiaries as determined on a consolidated
basis in accordance with generally accepted accounting
principles.
"Effective Date" means, January 8, 1997.
"Four Quarter Period" means a period consisting of four
consecutive Fiscal Quarters, whether or not in the same Fiscal
Year of the Guarantor.
2.16 Amendment to Section 14. Section 14 shall be
amended to delete the following definitions: "Building No. 5 and
the Cash-n-Carry Building", "Capital Distributions", "Consolidated
Capital Expenditures", "Consolidated Capital Expenditure Excess
Amount", "Consolidated Intangible Assets", "Consolidated Net
Operating Cash Flow", "Consolidated Tangible Net Worth", "MetLife
Agreement" and "Store Construction Agreements".
2.17 Amendment to Guaranty. The Guaranty shall be
amended such that all references to "Society" or "Society National
Bank" shall be references to "KeyBank" or "KeyBank National
Association".
2.18 Deletion of Schedule I. The Guaranty Agreement
shall be amended to delete Schedule I thereto.
SECTION 3. WAIVER OF CERTAIN NON-COMPLIANCE
The Guarantor's non-compliance with Section 7(v) by
reason of the merger of Seaway Food Service, Inc. into American
Seaways Foods, Inc. is hereby waived.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Banks
and the Agent as follows:
4.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the
Guarantor and constitutes the legal, valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance
with its terms.
4.2 Guaranty Agreement. The Guaranty Agreement, as
amended by this Amendment, remains in full force and effect and
remains the valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms.
The Guarantor hereby ratifies and confirms the Guaranty Agreement<PAGE>
<PAGE>
as amended by this Amendment.
4.3 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Guaranty Agreement, nor (ii) of
any term, provision, representation, warranty or covenant contained
in the Guaranty Agreement or any other documentation executed in
connection therewith. Further, except as provided in Section 3 of
this Amendment, none of the provisions of this Amendment shall
constitute, be deemed to be or construed as, a waiver of any
Default of Event of Default under the Guaranty Agreement as amended
by this Agreement.
4.4 Reference to and Effect on the Guaranty Agreement.
Upon the effectiveness of this Amendment, each reference in the
Guaranty Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Guaranty Agreement, as amended hereby and by each prior
amendment and each reference to the Guaranty Agreement in any other
document, instrument or agreement executed and/or delivered in
connection with the Guaranty Agreement shall mean and be a
reference to the Guaranty Agreement, as amended by this Amendment
and each prior amendment.
SECTION 5. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 5.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
5.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 5 to Amended and Restated Guaranty
Agreement, executed and delivered by a duly authorized officer of
the Guarantor.
5.2 Amendment No. 4 to Rini-Rego Agreement. The Banks
and the Agent shall have received an Amendment No. 4 to Amended and
Restated Credit Agreement from Rini-Rego, executed and delivered by
a duly authorized officer of Rini-Rego, and all of the respective
conditions precedent to such Amendment shall have been satisfied.
5.3 Amendment No. 3 to American Agreement. The Banks
and the Agent shall have received an Amendment No. 3 to Amended and
Restated Credit Agreement from American, executed and delivered by
a duly authorized officer of American, and all of the respective
conditions precedent to such Amendment shall have been satisfied.
5.4 Acknowledgement of Borrowers. The Banks and the
Agent shall have received the Acknowledgement of Borrowers attached
to this Amendment, executed and delivered by a duly authorized
officer of each of Rini-Rego and American.<PAGE>
<PAGE>
5.5 Guarantor's Certificate. The Banks and the Agent
shall have received a certificate, in form and substance
satisfactory to the Agent, executed for and on behalf of the
Guarantor by the Chief Executive Officer or Chief Operating Officer
of the Guarantor and the Secretary or Assistant Secretary of the
Guarantor (one of which certifying officers shall not be a
signatory of this Amendment) and dated as of the date of this
Amendment, certifying (i) the Director's Resolutions of the
Guarantor authorizing this Amendment, and each document or other
instrument executed in connection with the Amendment, (ii) the
names and signatures of the officers signing this Amendment on
behalf of the Guarantor, and (iii) compliance by the Guarantor with
all representations, warranties, covenants and conditions under the
Guaranty as amended by this Amendment.
5.6 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 6. MISCELLANEOUS.
6.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
6.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Guaranty Agreement shall not be affected thereby.
6.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this
Amendment No. 5 to Amended and Restated Guaranty Agreement to be
duly executed and delivered by its duly authorized officer as of
the date first above written.
RISER FOODS, INC.
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF BORROWERS
Each of the undersigned, RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods, Inc.) and AMERICAN SEAWAY FOODS,
INC. (formerly known as Heritage Wholesalers, Inc. and successor by
merger to Seaway Food Service, Inc.), each of which being a
borrower of certain sums from the Banks under the Agreements (as
defined in the Guaranty Agreement), hereby acknowledges and agrees
to the terms of the foregoing Amendment No. 5 to Amended and
Restated Guaranty Agreement. Each of the undersigned represents
and warrants to the Banks and the Agent that the respective
Agreements (as amended), executed and delivered by each of the
undersigned, remain the valid and binding obligations of each of
the undersigned, respectively, enforceable against it in accordance
with their terms.
RINI-REGO SUPERMARKETS, INC. (formerly
known as Fisher Foods, Inc.)
By:
Title:
AMERICAN SEAWAY FOODS, INC. (formerly
known as Heritage Wholesalers, Inc. and
successor by merger to Seaway Food
Service, Inc.)
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
SECURITY AGREEMENT
This Amendment No. 1 to Amended and Restated Security
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between AMERICAN SEAWAY FOODS, INC. (formerly known as
Heritage Wholesalers, Inc.), an Ohio corporation (herein the
"Grantor"), the Banks which are party to the Credit Agreement (as
hereinafter defined) and KEYBANK NATIONAL ASSOCIATION (as successor
by merger to Society National Bank), as agent for the Banks (in
such capacity, the "Agent"),
WITNESSETH:
WHEREAS, the Grantor has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of October 6, 1994, and (ii) that certain
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of April 28, 1995, and (iii) that certain Amendment No. 3 to
Amended and Restated Credit Agreement, dated as of the date hereof
(as so amended, the "Credit Agreement"), among the Grantor, the
financial institutions which are a party thereto (the "Banks") and
the Agent;
WHEREAS, the Grantor has granted to the Agent for the
benefit of the Banks a security interest in its assets pursuant to
that certain Amended and Restated Security Agreement, dated as of
May 27, 1993 (the "Security Agreement");
WHEREAS, it is a condition to the effectiveness of that
certain Amendment No. 3 to Credit Agreement, dated as of the date
hereof, that the Security Agreement be amended as herein provided;
and
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantor, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Security
Agreement.
<PAGE>
<PAGE>
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
The Grantor, the Banks and the Agent hereby agree that
the Security Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:
2.1 Amendment to Introductory Paragraph. The
introductory paragraph shall be amended by deleting the phrase in
parentheses "(formerly known as Heritage Wholesalers, Inc.)" and
replacing it with "(formerly known as Heritage Wholesalers, Inc.
and successor by merger to Seaway Food Service, Inc.)".
2.2 Amendment to Security Agreement. Each reference to
"Society" or "Society National Bank" in the Security Agreement
shall be amended to read "KeyBank" or "KeyBank National
Association" as the case may be. Each reference to "Seaway", "Cash
Collateral Account", "Lockbox" and "Lockbox Account" shall be
deleted.
2.3 Amendment to Section 1(d). Section 1(d) shall be
deleted in its entirety and "[Intentionally Deleted]" shall be
substituted in lieu thereof.
2.4 Amendment to Sections 4, 5.01, 5.02 and 7. Each of
Sections 4, 5.01, 5.02 and 7 shall be deleted in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.
2.5 Amendment to Section 10. Each of Subsections 10(d)
and 10(e) shall be deleted in its entirety and "[Intentionally
Deleted]" shall be substituted in lieu thereof.
2.6 Amendment to Section 11. Section 11(a) shall be
amended to delete clause (ii)(b) of the proviso in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.
2.7 Amendment to Section 12. Section 12 shall be
amended to delete the second and third sentences of clause (b) in
its entirety and "[Intentionally Deleted]" shall be substituted in
lieu thereof.
2.8 Amendment to Section 23. Section 23 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
<PAGE>
<PAGE>
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Grantor hereby represents and warrants to the Banks
and the Agent as follows:
3.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Grantor
and constitutes the legal, valid and binding obligation of the
Grantor enforceable against the Grantor in accordance with its
terms. The Security Agreement, as amended by this Amendment,
remains in full force and effect and remains the valid and binding
obligation of the Grantor enforceable against the Grantor in
accordance with its terms. The Grantor hereby ratifies and
confirms the Security Agreement as amended by this Amendment.
3.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Security Agreement, nor (ii) of
any term, provision, representation, warranty or covenant contained
in the Security Agreement or any other documentation executed in
connection therewith. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a
waiver of any Default or Event of Default under the Security
Agreement as amended by this Amendment.
3.3 Reference to and Effect on the Security Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Security Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by this Amendment and each
reference to the Security Agreement in any other document,
instrument or agreement executed and/or delivered in connection
with the Security Agreement shall mean and be a reference to the
Security Agreement, as amended by this Amendment.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
4.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 1 to Amended and Restated Security
Agreement, executed and delivered by a duly authorized officer of
the Grantor.
4.2 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized
officer of Riser, (ii) Amendment No. 4 to Credit Agreement in
respect of the Rini-Rego Agreement, executed and delivered by a<PAGE>
<PAGE>
duly authorized officer of Rini-Rego, (iii) Amendment No. 3 to
Amended and Restated Credit Agreement, executed and delivered by a
duly authorized officer of the Grantor and (iv) the amendments to
the other Security Agreements, each executed by a duly authorized
officer of the company which is a party thereto and all of the
conditions precedent to such Amendments shall have been satisfied.
4.3 Acknowledgement of Guarantors. The Banks and the
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Grantor to the Banks and the Agent.
4.4 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 5 MISCELLANEOUS.
5.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
5.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
5.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Grantor has caused this Amendment
No. 1 to Amended and Restated Security Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
AMERICAN SEAWAY FOODS, INC.
(formerly known as Heritage
Wholesalers, Inc. and
successor by merger to Seaway Food
Service, Inc.)
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, RISER FOODS, INC., FISHER
PROPERTIES, INC., and RINI-REGO SUPERMARKETS, INC. (formerly known
as Fisher Foods, Inc.), each of which being a guarantor of
indebtedness of the Grantor to the Banks and the Agent, hereby
acknowledges and agrees to the terms of the foregoing Amendment No.
1 to Amended and Restated Security Agreement. Each of the
undersigned represents and warrants to the Banks and the Agent that
the respective Amended and Restated Guaranty Agreements (as
amended), executed and delivered by each of the undersigned, each
dated as of May 27, 1993, remain the valid and binding obligations
of each of the undersigned, respectively, enforceable against it in
accordance with their terms.
RISER FOODS, INC.
By:
Title:
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods, Inc.)
By:
Title:
FISHER PROPERTIES, INC.
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
SECURITY AGREEMENT
This Amendment No. 1 to Amended and Restated Security
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between RINI-REGO SUPERMARKETS, INC. (formerly known as
Fisher Foods, Inc.), an Ohio corporation (herein the "Grantor"),
the Banks which are party to the Credit Agreement (as hereinafter
defined) and KEYBANK NATIONAL ASSOCIATION (as successor by merger
to Society National Bank), as agent for the Banks (in such
capacity, the "Agent"),
WITNESSETH:
WHEREAS, the Grantor has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of May 16, 1994, and (ii) that certain
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of October 6, 1994, (iii) that certain Amendment No. 3 to Amended
and Restated Credit Agreement, dated as of April 28, 1995 and (iv)
that certain Amendment No. 4 to Amended and Restated Credit
Agreement, dated as of the date hereof (as so amended, the "Credit
Agreement"), among the Grantor, the financial institutions which
are a party thereto (the "Banks") and the Agent;
WHEREAS, the Grantor has granted to the Agent for the
benefit of the Banks a security interest in its assets pursuant to
that certain Amended and Restated Security Agreement, dated as of
May 27, 1993 (the "Security Agreement");
WHEREAS, it is a condition to the effectiveness of that
certain Amendment No. 4 to Credit Agreement, dated as of the date
hereof, that the Security Agreement be amended as herein provided;
and
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantor, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Security
Agreement.<PAGE>
<PAGE>
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
The Grantor, the Banks and the Agent hereby agree that
the Security Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:
2.1 Amendment to Security Agreement. Each reference to
"Society" or "Society National Bank" in the Security Agreement
shall be amended to read "KeyBank" or "KeyBank National
Association" as the case may be. Each reference to "Seaway", "Cash
Collateral Account", "Lockbox" and "Lockbox Account" shall be
deleted.
2.2 Amendment to Section 1(d). Section 1(d) shall be
deleted in its entirety and "[Intentionally Deleted]" shall be
substituted in lieu thereof.
2.3 Amendment to Sections 4, 5.01, 5.02 and 7. Each of
Sections 4, 5.01, 5.02 and 7 shall be deleted in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.
2.4 Amendment to Section 10. Each of Subsections 10(d)
and 10(e) shall be deleted in its entirety and "[Intentionally
Deleted]" shall be substituted in lieu thereof.
2.5 Amendment to Section 11. Section 11(a) shall be
amended to delete clause (ii)(b) of the proviso in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.
2.6 Amendment to Section 12. Section 12 shall be
amended to delete the second and third sentences of clause (b) in
its entirety and "[Intentionally Deleted]" shall be substituted in
lieu thereof.
2.7 Amendment to Section 23. Section 23 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Grantor hereby represents and warrants to the Banks
and the Agent as follows:
3.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Grantor
and constitutes the legal, valid and binding obligation of the<PAGE>
<PAGE>
Grantor enforceable against the Grantor in accordance with its
terms. The Security Agreement, as amended by this Amendment,
remains in full force and effect and remains the valid and binding
obligation of the Grantor enforceable against the Grantor in
accordance with its terms. The Grantor hereby ratifies and
confirms the Security Agreement as amended by this Amendment.
3.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Security Agreement, nor (ii) of
any term, provision, representation, warranty or covenant contained
in the Security Agreement or any other documentation executed in
connection therewith. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a
waiver of any Default or Event of Default under the Security
Agreement as amended by this Amendment.
3.3 Reference to and Effect on the Security Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Security Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by this Amendment and each
reference to the Security Agreement in any other document,
instrument or agreement executed and/or delivered in connection
with the Security Agreement shall mean and be a reference to the
Security Agreement, as amended by this Amendment.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
4.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 1 to Amended and Restated Security
Agreement, executed and delivered by a duly authorized officer of
the Grantor.
4.2 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized
officer of Riser, (ii) Amendment No. 4 to Credit Agreement in
respect of the Rini-Rego Agreement, executed and delivered by a
duly authorized officer of Grantor, (iii) Amendment No. 3 to
Amended and Restated Credit Agreement, executed and delivered by a
duly authorized officer of American and (iv) the amendments to the
other Security Agreements, each executed by a duly authorized
officer of the company which is a party thereto and all of the
conditions precedent to such Amendments shall have been satisfied.
4.3 Acknowledgement of Guarantors. The Banks and the<PAGE>
<PAGE>
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Grantor to the Banks and the Agent.
4.4 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 5 MISCELLANEOUS.
5.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
5.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
5.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Grantor has caused this Amendment
No. 1 to Amended and Restated Security Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods, Inc.)
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, RISER FOODS, INC., FISHER
PROPERTIES, INC., and AMERICAN SEAWAY FOODS, INC. (formerly known
as Heritage Wholesalers, Inc. and successor by merger to Seaway
Food Service, Inc.), each of which being a guarantor of
indebtedness of the Grantor to the Banks and the Agent, hereby
acknowledges and agrees to the terms of the foregoing Amendment No.
1 to Amended and Restated Security Agreement. Each of the
undersigned represents and warrants to the Banks and the Agent that
the respective Amended and Restated Guaranty Agreements (as
amended), executed and delivered by each of the undersigned, each
dated as of May 27, 1993, remain the valid and binding obligations
of each of the undersigned, respectively, enforceable against it in
accordance with their terms.
RISER FOODS, INC.
By:
Title:
AMERICAN SEAWAY FOODS, INC. (formerly
known as Heritage Wholesalers, Inc.
and successor by merger to Seaway
Food Service, Inc.)
By:
Title:
FISHER PROPERTIES, INC.
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
SECURITY AGREEMENT
This Amendment No. 1 to Amended and Restated Security
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between RISER FOODS, INC., an Delaware corporation (herein
the "Grantor"), the Banks which are party to the Credit Agreement
(as hereinafter defined) and KEYBANK NATIONAL ASSOCIATION (as
successor by merger to Society National Bank), as agent for the
Banks (in such capacity, the "Agent"),
WITNESSETH:
WHEREAS, a subsidiary of the Grantor, Rini-Rego
Supermarkets, Inc., has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of May 16, 1994, and (ii) that certain
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of October 6, 1994, (iii) that certain Amendment No. 3 to Amended
and Restated Credit Agreement, dated as of April 28, 1995 and (iv)
that certain Amendment No. 4 to Amended and Restated Credit
Agreement, dated as of the date hereof (as so amended, the "Credit
Agreement"), among Rini-Rego Supermarkets, Inc., the financial
institutions which are a party thereto (the "Banks") and the Agent;
WHEREAS, the indirect wholly-owned subsidiary of the
Grantor, American Seaway Foods, Inc., has been extended certain
financial accommodations pursuant to that certain Amended and
Restated Credit Agreement, dated as of May 27, 1993, as amended
pursuant to (i) that certain Amendment No. 1 to Amended and
Restated Credit Agreement, dated as of October 6, 1994, and (ii)
that certain Amendment No. 2 to Amended and Restated Credit
Agreement, dated as of April 28, 1995, and (iii) that certain
Amendment No. 3 to Amended and Restated Credit Agreement, dated as
of the date hereof (as so amended, the "Credit Agreement"), among
American Seaway Foods, Inc., the financial institutions which are
a party thereto (the "Banks") and the Agent;
WHEREAS, the Grantor is the shareholder of Rini-Rego
Supermarkets, Inc. and American Seaway Foods, Inc. is a wholly-
owned subsidiary of Rini-Rego Supermarkets, Inc. and the Grantor
will benefit from the financial accommodations made available to
each of the above-referenced companies;
WHEREAS, the Grantor has granted to the Agent for the<PAGE>
<PAGE>
benefit of the Banks a security interest in its assets pursuant to
that certain Amended and Restated Security Agreement, dated as of
May 27, 1993 (the "Security Agreement");
WHEREAS, it is a condition to the effectiveness of that
certain Amendment No. 3 to Credit Agreement, dated as of the date
hereof, between American Seaway Foods, Inc. and certain lenders and
that certain Amendment No. 4 to Amended and Restated Credit
Agreement, dated as of the date hereof, between Rini-Rego
Supermarkets, Inc. and certain lenders, that the Security Agreement
be amended as herein provided; and
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantor, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Security
Agreement.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
The Grantor, the Banks and the Agent hereby agree that
the Security Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:
2.1 Amendment to Security Agreement. Each reference to
"Society" or "Society National Bank" in the Security Agreement
shall be amended to read "KeyBank" or "KeyBank National
Association" as the case may be. Each reference to "Seaway", "Cash
Collateral Account", "Lockbox" and "Lockbox Account" shall be
deleted.
2.2 Amendment to Section 1(d). Section 1(d) shall be
deleted in its entirety and "[Intentionally Deleted]" shall be
substituted in lieu thereof.
2.3 Amendment to Sections 4, 5, and 7. Each of Sections
4, 5 and 7 shall be deleted in its entirety and "[Intentionally
Deleted]" shall be substituted in lieu thereof.
2.4 Amendment to Section 10. Each of Subsections 10(d)
and 10(e) shall be deleted in its entirety and "[Intentionally
Deleted]" shall be substituted in lieu thereof.
2.5 Amendment to Section 12. Section 12 shall be
amended to delete the second and third sentences of clause (b) in
its entirety and "[Intentionally Deleted]" shall be substituted in
lieu thereof.<PAGE>
<PAGE>
2.6 Amendment to Section 23. Section 23 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Grantor hereby represents and warrants to the Banks
and the Agent as follows:
3.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Grantor
and constitutes the legal, valid and binding obligation of the
Grantor enforceable against the Grantor in accordance with its
terms. The Security Agreement, as amended by this Amendment,
remains in full force and effect and remains the valid and binding
obligation of the Grantor enforceable against the Grantor in
accordance with its terms. The Grantor hereby ratifies and
confirms the Security Agreement as amended by this Amendment.
3.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Security Agreement, nor (ii) of
any term, provision, representation, warranty or covenant contained
in the Security Agreement or any other documentation executed in
connection therewith. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a
waiver of any Default or Event of Default under the Security
Agreement as amended by this Amendment.
3.3 Reference to and Effect on the Security Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Security Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by this Amendment and each
reference to the Security Agreement in any other document,
instrument or agreement executed and/or delivered in connection
with the Security Agreement shall mean and be a reference to the
Security Agreement, as amended by this Amendment.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:<PAGE>
<PAGE>
4.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 1 to Amended and Restated Security
Agreement, executed and delivered by a duly authorized officer of
the Grantor.
4.2 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized
officer of Riser, (ii) Amendment No. 4 to Credit Agreement in
respect of the Rini-Rego Agreement, executed and delivered by a
duly authorized officer of Rini-Rego, (iii) Amendment No. 3 to
Amended and Restated Credit Agreement, executed and delivered by a
duly authorized officer of American and (iv) the amendments to the
other Security Agreements, each executed by a duly authorized
officer of the company which is a party thereto and all of the
conditions precedent to such Amendments shall have been satisfied.
4.3 Acknowledgement of Guarantors. The Banks and the
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Grantor to the Banks and the Agent.
4.4 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 5 MISCELLANEOUS.
5.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
5.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
5.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
IN WITNESS WHEREOF, the Grantor has caused this Amendment
No. 1 to Amended and Restated Security Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
RISER FOODS, INC.
By:
Title:<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, FISHER PROPERTIES, INC., RINI-
REGO SUPERMARKETS, INC. (formerly known as Fisher Foods, Inc.), and
AMERICAN SEAWAY FOODS, INC. (formerly known as Heritage
Wholesalers, Inc. and successor by merger to Seaway Food Service,
Inc.), each of which being a guarantor of indebtedness of the
Grantor to the Banks and the Agent, hereby acknowledges and agrees
to the terms of the foregoing Amendment No. 1 to Amended and
Restated Security Agreement. Each of the undersigned represents
and warrants to the Banks and the Agent that the respective Amended
and Restated Guaranty Agreements (as amended), executed and
delivered by each of the undersigned, each dated as of May 27,
1993, remain the valid and binding obligations of each of the
undersigned, respectively, enforceable against it in accordance
with their terms.
FISHER PROPERTIES, INC.
By:
Title:
AMERICAN SEAWAY FOODS, INC. (formerly
known as Heritage Wholesalers, Inc.
and successor by merger to Seaway
Food Service, Inc.)
By:
Title:
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods,
Inc.)
By:
Title:
Executed: January 8, 1997
<PAGE> EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
SECURITY AGREEMENT
This Amendment No. 1 to Amended and Restated Security
Agreement (this "Amendment"), made as of the 8th day of January,
1997, between FISHER PROPERTIES, INC., an Ohio corporation (herein
the "Grantor"), the Banks which are party to the Credit Agreement
(as hereinafter defined) and KEYBANK NATIONAL ASSOCIATION (as
successor by merger to Society National Bank), as agent for the
Banks (in such capacity, the "Agent"),
WITNESSETH:
WHEREAS, the parent company of the Grantor, Rini-Rego
Supermarkets, Inc., has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of May 16, 1994, and (ii) that certain
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of October 6, 1994, (iii) that certain Amendment No. 3 to Amended
and Restated Credit Agreement, dated as of April 28, 1995 and (iv)
that certain Amendment No. 4 to Amended and Restated Credit
Agreement, dated as of the date hereof (as so amended, the "Credit
Agreement"), among Rini-Rego Supermarkets, Inc., the financial
institutions which are a party thereto (the "Banks") and the Agent;
WHEREAS, the sister company of the Grantor, American
Seaway Foods, Inc., has been extended certain financial
accommodations pursuant to that certain Amended and Restated Credit
Agreement, dated as of May 27, 1993, as amended pursuant to (i)
that certain Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of October 6, 1994, and (ii) that certain
Amendment No. 2 to Amended and Restated Credit Agreement, dated as
of April 28, 1995, and (iii) that certain Amendment No. 3 to
Amended and Restated Credit Agreement, dated as of the date hereof
(as so amended, the "Credit Agreement"), among American Seaway
Foods, Inc., the financial institutions which are a party thereto
(the "Banks") and the Agent;
WHEREAS, the Grantor is a wholly-owned subsidiary of
Rini-Rego Supermarkets, Inc. and American Seaway Foods, Inc. is a
wholly-owned subsidiary of Rini-Rego Supermarkets, Inc. and the
Grantor will benefit from the financial accommodations made
available to each of the above-referenced companies;
<PAGE>
<PAGE>
WHEREAS, the Grantor has granted to the Agent for the
benefit of the Banks a security interest in its assets pursuant to
that certain Amended and Restated Security Agreement, dated as of
May 27, 1993 (the "Security Agreement");
WHEREAS, it is a condition to the effectiveness of that
certain Amendment No. 3 to Credit Agreement, dated as of the date
hereof, between American Seaway Foods, Inc. and certain lenders and
that certain Amendment No. 4 to Amended and Restated Credit
Agreement, dated as of the date hereof, between Rini-Rego
Supermarkets, Inc. and certain lenders, that the Security Agreement
be amended as herein provided; and
NOW THEREFORE, in consideration of the mutual promises
and agreements contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Grantor, the Banks and the Agent do hereby agree
as follows:
SECTION 1. DEFINED TERMS.
Each defined term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Security
Agreement.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
The Grantor, the Banks and the Agent hereby agree that
the Security Agreement shall be amended, effective as of the date
hereof and subject to the terms and conditions hereof, as follows:
2.1 Amendment to Security Agreement. Each reference to
"Society" or "Society National Bank" in the Security Agreement
shall be amended to read "KeyBank" or "KeyBank National
Association" as the case may be. Each reference to "Seaway", "Cash
Collateral Account", "Lockbox" and "Lockbox Account" shall be
deleted.
2.2 Amendment to Section 1(d). Section 1(d) shall be
deleted in its entirety and "[Intentionally Deleted]" shall be
substituted in lieu thereof.
2.3 Amendment to Sections 4, 5.01, 5.02 and 7. Each of
Sections 4, 5.01, 5.02 and 7 shall be deleted in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.
2.4 Amendment to Section 10. Each of Subsections 10(d)
and 10(e) shall be deleted in its entirety and "[Intentionally
Deleted]" shall be substituted in lieu thereof.
2.5 Amendment to Section 11. Section 11(a) shall be
amended to delete clause (ii)(b) of the proviso in its entirety and
"[Intentionally Deleted]" shall be substituted in lieu thereof.<PAGE>
<PAGE>
2.6 Amendment to Section 12. Section 12 shall be
amended to delete the second and third sentences of clause (b) in
its entirety and "[Intentionally Deleted]" shall be substituted in
lieu thereof.
2.7 Amendment to Section 23. Section 23 shall be
amended by deleting the address of the Agent and inserting the
following in lieu thereof:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Department
Mr. Richard Pohle
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Grantor hereby represents and warrants to the Banks
and the Agent as follows:
3.1 The Amendment. This Amendment has been duly and
validly executed by an authorized executive officer of the Grantor
and constitutes the legal, valid and binding obligation of the
Grantor enforceable against the Grantor in accordance with its
terms. The Security Agreement, as amended by this Amendment,
remains in full force and effect and remains the valid and binding
obligation of the Grantor enforceable against the Grantor in
accordance with its terms. The Grantor hereby ratifies and
confirms the Security Agreement as amended by this Amendment.
3.2 Nonwaiver. The execution, delivery, performance and
effectiveness of this Amendment shall not operate nor be deemed to
be nor construed as a waiver (i) of any right, power or remedy of
the Banks or the Agent under the Security Agreement, nor (ii) of
any term, provision, representation, warranty or covenant contained
in the Security Agreement or any other documentation executed in
connection therewith. Further, none of the provisions of this
Amendment shall constitute, be deemed to be or construed as, a
waiver of any Default or Event of Default under the Security
Agreement as amended by this Amendment.
3.3 Reference to and Effect on the Security Agreement.
Upon the Effectiveness of this Amendment, each reference in the
Security Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to
the Credit Agreement, as amended by this Amendment and each
reference to the Security Agreement in any other document,
instrument or agreement executed and/or delivered in connection
with the Security Agreement shall mean and be a reference to the
Security Agreement, as amended by this Amendment.
<PAGE>
<PAGE>
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements
set forth herein, the effectiveness of this Amendment is subject to
the following conditions precedent:
4.1 The Amendment. The Banks and the Agent shall have
received this Amendment No. 1 to Amended and Restated Security
Agreement, executed and delivered by a duly authorized officer of
the Grantor.
4.2 Other Amendments. The Banks and the Agent shall
have received each of (i) Amendment No. 5 to Amended and Restated
Guaranty Agreement, executed and delivered by a duly authorized
officer of Riser, (ii) Amendment No. 4 to Credit Agreement in
respect of the Rini-Rego Agreement, executed and delivered by a
duly authorized officer of Rini-Rego, (iii) Amendment No. 3 to
Amended and Restated Credit Agreement, executed and delivered by a
duly authorized officer of American and (iv) the amendments to the
other Security Agreements, each executed by a duly authorized
officer of the company which is a party thereto and all of the
conditions precedent to such Amendments shall have been satisfied.
4.3 Acknowledgement of Guarantors. The Banks and the
Agent shall have received the Acknowledgement of Guarantors
attached to this Amendment, executed and delivered by a duly
authorized officer of each of the Guarantors of the indebtedness of
the Grantor to the Banks and the Agent.
4.4 Other Documents. The Banks and the Agent shall have
received each additional document, instrument or piece of
information reasonably requested by the Agent, including, without
limitation, any financing statements as may be necessary to
continue the perfection of the security interests created by the
Security Agreements.
SECTION 5 MISCELLANEOUS.
5.1 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
5.2 Severability. In the event any provision of this
Amendment should be invalid, the validity of the other provisions
hereof and of the Credit Agreement shall not be affected thereby.
5.3 Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when taken together, shall
constitute but one and the same agreement.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Grantor has caused this Amendment
No. 1 to Amended and Restated Security Agreement to be duly
executed and delivered by its duly authorized officer as of the
date first above written.
FISHER PROPERTIES, INC.
By:
Title:
<PAGE>
<PAGE>
ACCEPTED AND AGREED as of
the date and year first above written by:
KEYBANK NATIONAL ASSOCIATION, as a
Bank and as Agent
By:
Title:
NATIONAL CITY BANK,
as a Bank
By:
Title:
NBD BANK, as a Bank
By:
Title:
STAR BANK NATIONAL ASSOCIATION, as a Bank
By:
Title:
<PAGE>
<PAGE>
ACKNOWLEDGEMENT OF GUARANTORS
Each of the undersigned, RISER FOODS, INC., RINI-REGO
SUPERMARKETS, INC. (formerly known as Fisher Foods, Inc.), and
AMERICAN SEAWAY FOODS, INC. (formerly known as Heritage
Wholesalers, Inc. and successor by merger to Seaway Food Service,
Inc.), each of which being a guarantor of indebtedness of the
Grantor to the Banks and the Agent, hereby acknowledges and agrees
to the terms of the foregoing Amendment No. 1 to Amended and
Restated Security Agreement. Each of the undersigned represents
and warrants to the Banks and the Agent that the respective Amended
and Restated Guaranty Agreements (as amended), executed and
delivered by each of the undersigned, each dated as of May 27,
1993, remain the valid and binding obligations of each of the
undersigned, respectively, enforceable against it in accordance
with their terms.
RISER FOODS, INC.
By:
Title:
AMERICAN SEAWAY FOODS, INC. (formerly
known as Heritage Wholesalers, Inc.
and successor by merger to Seaway
Food Service, Inc.)
By:
Title:
RINI-REGO SUPERMARKETS, INC.
(formerly known as Fisher Foods,
Inc.)
By:
Title:
Executed: January , 1997
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Rini-Rego Supermarkets, Inc. Consolidated Condensed Balance Sheet, Consolidated
Condensed Statement of Income, and Notes to the Consolidated Condensed Financial
Statements for the second quarter ended 1/11/97 and is qualified in its entirety
by reference to such Form 10-Q for the second quarter ended 1/11/97.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> QTR-2
<FISCAL-YEAR-END> JUN-28-1997
<PERIOD-END> JAN-11-1997
<CASH> 3,699
<SECURITIES> 0
<RECEIVABLES> 32,741
<ALLOWANCES> 3,289
<INVENTORY> 73,744
<CURRENT-ASSETS> 124,595
<PP&E> 224,205
<DEPRECIATION> 87,645
<TOTAL-ASSETS> 272,599
<CURRENT-LIABILITIES> 111,203
<BONDS> 0
<COMMON> 82
0
0
<OTHER-SE> 99,136
<TOTAL-LIABILITY-AND-EQUITY> 272,599
<SALES> 726,377
<TOTAL-REVENUES> 726,377
<CGS> 584,832
<TOTAL-COSTS> 584,832
<OTHER-EXPENSES> 122,649
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,465
<INCOME-PRETAX> 16,677
<INCOME-TAX> 6,672
<INCOME-CONTINUING> 10,005
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,005
<EPS-PRIMARY> 1.23
<EPS-DILUTED> 1.23
</TABLE>
