UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 24, 2004
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FOODARAMA SUPERMARKETS, INC.
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(Exact name of registrant as specified in charter)
New Jersey 1-5745-1 21-0717108
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Building 6, Suite 1, 922 Highway 33, Freehold, New Jersey 07728
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (732)462-4700
Item 8.01. Other Events
As of July 19, 2004 the Third Amended and Restated Revolving
Credit and Term Loan Agreement was amended to increase the amount
of Adjusted Capex for fiscal 2004 to $5,100,000 and decrease the
amount of Adjusted Capex for fiscal 2005 to $4,000,000. The
amendment realigned the annual limits on Adjusted Capex to more
closely follow the timing of Foodarama Supermarkets Inc.'s (the
"Company", which may be referred to as we, us or our) store
remodeling program.
As of August 24, 2004 the Third Amended and Restated Revolving
Credit and Term Loan Agreement was amended to allow the Company to
borrow under the revolving credit facility, on any Tuesday and on
any Wednesday, up to $3,000,000 in excess of the availability
under the borrowing base limitation of 65% of eligible inventory
as long as a like amount of cash and cash equivalents are on hand
at store level or in transit to the Company's banks. This
provision will expire on January 15, 2005.
Item 9.01. Financial Statements and Exhibits
Exhibit No. Description
----------- -----------
10.32 Amendment No. 5 to the Third Amended and
Restated Revolving Credit and Term Loan
Agreement dated as of July 19, 2004.
10.33 Amendment No. 6 to the Third Amended and Restated
Revolving Credit and Term Loan Agreement dated as
of August 24, 2004.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FOODARAMA SUPERMARKETS, INC.
----------------------------
(REGISTRANT)
By: /S/ Michael Shapiro
Michael Shapiro
Senior Vice President
Chief Financial Officer
Date: August 27, 2004
EXHIBIT 10.32
AMENDMENT NO. 5
TO
THIRD AMENDED AND RESTATED CREDIT AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 5 (this "Amendment") is entered into as of July ___,
2004 by and among NEW LINDEN PRICE RITE, INC., a New Jersey corporation ("New
Linden"), FOODARAMA SUPERMARKETS, INC., a New Jersey corporation ("Parent"
and, together with New Linden, each a "Borrower" and collectively, the
"Borrowers"), the Guarantors signatory hereto, the lenders set forth on the
signature pages hereto (such lenders with their respective permitted
successors and assigns, each a "Lender" and collectively, the "Lenders") and
GMAC COMMERCIAL FINANCE LLC (successor by merger to GMAC Business Credit,
LLC) as agent for Lenders (in such capacity together with any successor
thereto in such capacity, the "Agent").
BACKGROUND
Borrowers, Guarantors, Agent and Lenders are parties to a Third Amended
and Restated Revolving Credit and Term Loan Agreement dated as of September
26, 2002 (as amended, restated, supplemented or otherwise modified from time
to time, the "Loan Agreement")
pursuant to which Agent and Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders make certain amendments
to the Loan Agreement, and Agent and Lenders are willing to do so on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Agent and Lenders, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Loan Agreement is
hereby amended as follows:
(a) Section I of the Loan Agreement is amended by adding
the following defined terms in their appropriate alphabetical order to
provide as follows:
"Amendment No. 5" shall mean Amendment No. 5 to this Agreement
---------------
dated as of July ___, 2004 by and among the Borrowers,
Guarantors, Agent and Lenders.
"Amendment No. 5 Effective Date" shall mean July ___,2004.
(b) Section 7.10 (a) of the Loan Agreement is amended in its entirety
to provide as follows:
(a) Adjusted Capex in any Fiscal Year in an aggregate amount in
excess of the following amounts for the Parent and its
Subsidiaries on a Consolidated basis:
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Fiscal Year Adjusted Capex
-------------------------------------------------------------
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Fiscal Year 2000 $7,446,000
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Fiscal Year 2001 $12,039,000
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Fiscal Year 2002 $7,800,000
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Fiscal Year 2003 $5,740,000
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Fiscal Year 2004 $5,100,000
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Fiscal Year 2005 $4,000,000
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Fiscal Year 2006 and each Fiscal Year $6,900,000
thereafter
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(c) Schedule 4.06(a) to the Loan Agreement is amended in its
entirety and replaced with Schedule 4.06(a) attached
hereto.
3. Conditions of Effectiveness. This Amendment shall become
effective upon the receipt by Agent and Lenders of (a) five (5) originals of
this Amendment, duly executed by each Borrower and consented to by each
Guarantor and (b) such other certificates, instruments, documents, agreements
and opinions of counsel as may be required by Agent or its counsel, each of
which shall be in form and substance satisfactory to Agent and its counsel.
4. Representations and Warranties. Each Borrower and Guarantor
hereby represents and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby, constitute the
legal, valid and binding obligations of Borrowers and Guarantors and are
enforceable against Borrowers and Guarantors in accordance with their
respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower and
Guarantor hereby reaffirms all covenants, representations and warranties made
in the Loan Agreement to the extent the same are not amended hereby and
agrees that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this Amendment.
(c) After giving effect to this Amendment, no Event of Default or
Default has occurred (other than the Designated Defaults, as defined in each
of Consent, Waiver and Amendment No. 2 to Loan Agreement dated January 21,
2003 and that certain waiver letter agreement dated January 15, 2004, each
among Agent, Lenders, Borrowers and Guarantors) and is continuing or would
exist.
(d) No Borrower or Guarantor has any defense, counterclaim or offset with
respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or Lenders, nor
constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State
of New York.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the
same agreement. Any signature delivered by a party by facsimile transmission
shall be deemed to be an original signature hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
NEW LINDEN PRICE RITE, INC.,
as Borrower and as Guarantor
By:
Name:
Title:
FOODARAMA SUPERMARKETS, INC.,
as Borrower and as Guarantor
By:
Name:
Title:
GMAC COMMERCIAL FINANCE LLC
(successor by merger to GMAC Business
Credit, LLC), as Agent
By:
Name:
Title:
GMAC COMMERCIAL FINANCE LLC
(successor by merger to GMAC Business
Credit, LLC), as Lender
By:
Name:
Title:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
[CONTINUED SIGNATURES TO AMENDMENT NO. 5]
THE BANK OF NEW YORK,
as Lender
By:
Name:
Title:
CITIZENS BUSINESS CREDIT COMPANY,
as Lender
By:
Name:
Title:
NATIONAL CONSUMER COOPERATIVE BANK (d/b/a
National Cooperative Bank), as Lender
By:
Name:
Title:
CONSENTED AND AGREED TO:
SHOP RITE OF READING, INC.,
as Guarantor
By:
Name:
Title:
SHOP RITE OF MALVERNE, INC.,
as Guarantor
By:
Name:
Title:
Schedule 4.06(a)
Litigation
Litigation schedule intentionally left blank.
EXHIBIT 10.33
AMENDMENT NO. 6
TO
THIRD AMENDED AND RESTATED CREDIT AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 6 (this "Amendment") is entered into as of August
24, 2004 by and among NEW LINDEN PRICE RITE, INC., a New Jersey corporation
("New Linden"), FOODARAMA SUPERMARKETS, INC., a New Jersey corporation
("Parent" and, together with New Linden, each a "Borrower" and collectively,
the "Borrowers"), the Guarantors signatory hereto, the lenders set forth on
the signature pages hereto (such lenders with their respective permitted
successors and assigns, each a "Lender" and collectively, the "Lenders") and
GMAC COMMERCIAL FINANCE LLC (successor by merger to GMAC Business Credit,
LLC) as agent for Lenders (in such capacity together with any successor
thereto in such capacity, the "Agent").
BACKGROUND
Borrowers, Guarantors, Agent and Lenders are parties to a Third Amended
and Restated Revolving Credit and Term Loan Agreement dated as of September
26, 2002 (as amended, restated, supplemented or otherwise modified from time
to time, the "Loan Agreement") pursuant to which Agent and Lenders provide
Borrowers with certain financial accommodations.
Borrowers have requested that Agent and Lenders make certain amendments
to the Loan Agreement, and Agent and Lenders are willing to do so on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Agent and Lenders, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
(a) Section I of the Loan Agreement is amended by adding the
following defined terms in their appropriate alphabetical order
to provide as follows:
"Amendment No. 6" shall mean Amendment No. 6 to this
---------------
Agreement dated as of August 24, 2004 by and among the
Borrowers, Guarantors, Agent and Lenders.
"Amendment No. 6 Effective Date" shall mean August 24, 2004.
------------------------------
"Amendment No. 6 Fee" shall mean a $25,000 fee payable in
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immediately available funds by Borrowers to Agent, for the
ratable benefit of Lenders, as consideration for entering
into Amendment No. 6, which shall be deemed earned in full
by Agent and Lenders on the Amendment No. 6 Effective Date.
(b) Section I of the Loan Agreement is amended by amending the
following defined term in its entirety to provide as follows:
"In-Transit Cash Borrowing Base Inclusion" shall mean an
amount equal to (a) on each Tuesday and Wednesday during
the period beginning on August 24, 2004, and ending on
January 15, 2005, the lesser of (i) $3,000,000 and (ii)
Cash on Hand of Borrowers and (b) at all other times, $0.
3. Conditions of Effectiveness. This Amendment shall become effective
upon the receipt by Agent and Lenders of (a) five (5) originals of this
Amendment, duly executed by each Borrower and consented to by each
Guarantor, (b) the Amendment No. 6 Fee, which may be charged to
Borrowers' account and (c) such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by
Agent or its counsel, each of which shall be in form and substance
satisfactory to Agent and its counsel.
4. Representations and Warranties. Each Borrower and Guarantor hereby
represents and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrowers
and Guarantors and are enforceable against Borrowers and
Guarantors in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower and
Guarantor hereby reaffirms all covenants, representations and
warranties made in the Loan Agreement to the extent the same are
not amended hereby and agrees that all such covenants,
representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
(c) After giving effect to this Amendment, no Event of Default or
Default has occurred (other than the Designated Defaults, as
defined in each of Consent, Waiver and Amendment No. 2 to Loan
Agreement dated January 21, 2003 and that certain waiver letter
agreement dated January 15, 2004, each among Agent, Lenders,
Borrowers and Guarantors) and is continuing or would exist.
(d) No Borrower or Guarantor has any defense, counterclaim or
offset with respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to
the Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and
effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of
Agent or Lenders, nor constitute a waiver of any provision of the
Loan Agreement, or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns and shall be governed by and construed in accordance with the
laws of the State of New York.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the
same agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
NEW LINDEN PRICE RITE, INC.,
as Borrower and as Guarantor
By:
Name:
Title:
FOODARAMA SUPERMARKETS, INC.,
as Borrower and as Guarantor
By:
Name:
Title:
GMAC COMMERCIAL FINANCE LLC
(successor by merger to GMAC Business
Credit, LLC), as Agent
By:
Name:
Title:
GMAC COMMERCIAL FINANCE LLC
(successor by merger to GMAC Business
Credit, LLC), as Lender
By:
Name:
Title:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
[CONTINUED SIGNATURES TO AMENDMENT NO. 6]
THE BANK OF NEW YORK,
as Lender
By:
Name:
Title:
CITIZENS BUSINESS CREDIT COMPANY,
as Lender
By:
Name:
Title:
NATIONAL CONSUMER COOPERATIVE BANK (d/b/a
National Cooperative Bank), as Lender
By:
Name:
Title:
CONSENTED AND AGREED TO:
SHOP RITE OF READING, INC.,
as Guarantor
By:
Name:
Title:
SHOP RITE OF MALVERNE, INC.,
as Guarantor
By:
Name:
Title: