UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): October 8, 2024
The Kroger Co.
(Exact Name of Registrant as Specified in Its Charter)
Ohio | No. 1-303 | 31-0345740 | ||
(State
or Other Jurisdiction of Incorporation) |
(Commission File Number) | (IRS
Employer Identification No.) |
1014 Vine Street Cincinnati, OH |
45202 |
(Address of Principal Executive Offices) | (Zip Code) |
(513) 762-4000
(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities Registered Pursuant to Section 12(b) of the Act:
Title of Each Class | Trading Symbol(s) |
Name Of Each Exchange On Which Registered | ||
Common Stock, $1.00 par value per share | KR | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 | Entry into a Material Definitive Agreement. |
On October 8, 2024, The Kroger Co. (“the Company”) entered into an amendment (the “RCF Amendment”) to its Credit Agreement, dated as of September 13, 2024 (the “Revolving Credit Agreement”), by and among the Company, the lenders from time to time party thereto, Wells Fargo Bank, National Association and Citibank, N.A., as co-administrative agents, and Wells Fargo Bank, National Association, as paying agent, pursuant to which (i) the definition of “Acorn Closing Date Additional Commitment Termination Date” was amended such that the additional $2.25 billion of commitments to be made available under the Revolving Credit Agreement upon the closing of the previously announced merger of a subsidiary of the Company with and into Albertsons Companies, Inc. (“ACI”), with ACI surviving the merger as a wholly owned subsidiary of the Company (the “Merger”), pursuant to that certain Agreement and Plan of Merger, dated as of October 13, 2022 (the “Merger Agreement”), among the Company, Kettle Merger Sub, Inc. and Albertsons Companies, Inc., would not terminate on the “Outside Date” under and as defined in the Merger Agreement and (ii) the definition of “Certain Funds Termination Date” was amended such that the ability of the Company to draw $750 million of loans on the closing date of the Merger to fund a portion of the consideration therefor would not terminate on the “Outside Date” under and as defined in the Merger Agreement.
On October 8, 2024, the Company also entered into an amendment (the “Term Loan Amendment” and, together with the RCF Amendment, the “Amendments”) to its Term Loan Credit Agreement, dated as of November 9, 2022 (as amended by Amendment No. 1 to Credit Agreement, dated as of July 26, 2024, and as further amended by Amendment No. 2 to Credit Agreement, dated as of September 13, 2024, the “Term Loan Agreement”) by and among the Company, the lenders from time to time party thereto and Citibank, N.A., as administrative agent, pursuant to which the definition of the “Commitment Termination Date” was amended, such that that the commitments under the Term Loan Agreement would not terminate on the “Outside Date” under and as defined in the Merger Agreement.
Certain parties to the Amendments, and affiliates of those parties, provide banking, investment banking, and other financial services to the Company from time to time.
The foregoing descriptions of the Amendments are not intended to be complete and is qualified in its entirety by the copies thereof which are filed herewith as Exhibits 10.1 and 10.2 and incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
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.
THE KROGER CO. | ||
By: | /s/ Christine S. Wheatley | |
Name: | Christine S. Wheatley | |
Title: | Senior Vice President, General Counsel and Secretary |
Date: October 9, 2024
EXECUTION VERSION WEIL:\100012870\2\57387.0027 #99189043v3 AMENDMENT NO. 1 TO CREDIT AGREEMENT This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of October 8, 2024 (this “Amendment”), is entered into among THE KROGER CO., an Ohio Corporation (the “Borrower”), the Lenders signatory hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION and CITIBANK, N.A., as co-administrative agents (in such capacity, the “Co-Administrative Agents”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the paying agent (in such capacity, the “Paying Agent”). WHEREAS, the Borrower, the Lenders and Issuing Banks from time to time party thereto, the Co-Administrative Agents and the Paying Agent have entered into that certain Credit Agreement, dated as of September 13, 2024 (as amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”). WHEREAS, pursuant to Section 8.01 of the Credit Agreement, the Borrower, the Lenders and Issuing Banks party hereto (constituting all of the Lenders and Issuing Banks under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment)) and the Paying Agent have agreed to amend the Credit Agreement as provided for herein. NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto hereby agree as follows: 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement. 2. Amendment. Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Acorn Outside Date”. (b) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Acorn Closing Date Additional Commitment Termination Date” to read as follows: ““Acorn Closing Date Additional Commitment Termination Date” means the earlier to occur of (i) the date on which the Acorn Acquisition Agreement is terminated in accordance with its terms without the closing of the Acorn Transactions and (ii) December 31, 2024.” (c) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Certain Funds Termination Date” to read as follows: ““Certain Funds Termination Date” means the earliest of (a) December 31, 2024, (b) the date that the Acorn Acquisition Agreement is terminated or expires in accordance with the terms thereof and (c) the Acorn Closing Date (after giving effect to the funding of any Certain Funds Advance on such date).” 3. Effectiveness. This Amendment will become effective upon the date (the “Amendment Effective Date”) on which the Paying Agent shall have received from the Borrower and each Lender and Issuing Bank under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment) an executed counterpart of this Amendment (or photocopies thereof |
[Signature Page to Amendment No. 1 to Credit Agreement] CITIBANK, N.A., as Co-Administrative Agent By: Name: -;?t/ � Michael Vondriska Title: Vice President |
CITIBANK, N .A., as a Lender and an Issuing Bank Name: By:� Michael � Vondriska Title: Vice President [Signature Page to Amendment No. 1 to Credit Agreement] |
[Signature Page to Amendment No. 1 to Credit Agreement] MIZUHO BANK, LTD. as a Lender and Issuing Bank By: Name: Tracy Rahn Title: Managing Director |
[Signature Page to Amendment No. 1 to Credit Agreement] U.S. Bank National Association, as a Lender as a Lender and Issuing Bank By: Name: Joyce P. Dorsett Title: Senior Vice President |
[Signature Page to Amendment No. 1 to Credit Agreement] Goldman Sachs Bank USA, as a Lender By: Name: Priyankush Goswami Title: Authorized Signatory |
[Signature Page to Amendment No. 1 to Credit Agreement] ROYAL BANK OF CANADA as a Lender By: Name: Julia Ivanova Title: Authorized Signatory |
[Signature Page to Amendment No. 1 to Credit Agreement] SUMITOMO MITSUI BANKING CORPORATION as a Lender By: Name: Rosa Pritsch Title: Director |
[Signature Page to Amendment No. 1 to Credit Agreement] THE BANK OF NEW YORK MELLON as a Lender By: Name: Thomas J. Tarasovich, Jr. Title: Senior Vice President |
[Signature Page to Amendment No. 1 to Credit Agreement] The Bank of Nova Scotia as a Lender By: Name: Todd Kennedy Title: Managing Director |
[Signature Page to Amendment No. 1 to Credit Agreement] BMO Bank N.A. as a Lender By: Name: Andrew Degrassi Title: Director |
Signature Page to Amendment No. 1 to Credit Agreement BNP Paribas as a Lender, By: Name: David Foster Title: Director By: Name: Claudia Zarate Title: Managing Director |
REGIONS BANK :; Name: Sankar R. Nair Title: Vice President [Signature Page to Amendment No. Ito Credit Agreement] |
[Signature Page to Amendment No. 1 to Credit Agreement] FARM CREDIT BANK OF TEXAS as a Lender By: Name: Jerardo Jasso Title: Portfolio Manager |
EXECUTION VERSION WEIL:\100012861\2\57387.0027 #99189045v3 AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT This AMENDMENT NO. 3 TO TERM LOAN CREDIT AGREEMENT, dated as of October 8, 2024 (this “Amendment”), is entered into among THE KROGER CO., an Ohio Corporation (the “Borrower”), the Lenders signatory hereto and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”). WHEREAS, the Borrower, the Lenders from time to time party thereto and the Administrative Agent have entered into that certain Term Loan Credit Agreement, dated as of November 9, 2022 (as amended by that certain Amendment No. 1 to Term Loan Credit Agreement, date as of July 26, 2024, as further amended by that certain Amendment No. 2 to Term Loan Credit Agreement, dated as of September 13, 2024, and as further amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”). WHEREAS, pursuant to Section 8.01 of the Credit Agreement, the Borrower, the Lenders party hereto (constituting all of the Lenders under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment)) and the Administrative Agent have agreed to amend the Credit Agreement as provided for herein. NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto hereby agree as follows: 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement. 2. Amendment. Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended as follows: (a) Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Acorn Outside Date”. (b) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Commitment Termination Date” to read as follows: ““Commitment Termination Date” means the earliest of (a) December 31, 2024, (b) the date that the Acorn Acquisition Agreement is terminated or expires in accordance with the terms thereof, (c) receipt by the Administrative Agent of written notice from the Borrower of its election to terminate all Commitments hereunder in full and (d) the Closing Date (after giving effect to the funding of any Advances on such date).” 3. Effectiveness. This Amendment will become effective upon the date (the “Amendment Effective Date”) on which the Administrative Agent shall have received from the Borrower and each Lender under the Credit Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment) an executed counterpart of this Amendment (or photocopies thereof sent by fax, .pdf or other electronic means, each of which shall be enforceable with the same effect as a signed original). 4. Representations and Warranties. The Borrower represents and warrants, as of the date hereof, that, after giving effect to the provisions of this Amendment, (a) each of the representations and warranties made by the Borrower in Section 4.01 of the Credit Agreement is true in all material respects on and as of the date hereof as if made on and as of the date hereof, except (i) to the extent that such |
CITIBANK, N.A. as Administrative Agent Name: By:7U� Michael Vondriska Title: Vice President [Signature Page to Amendment No. 3 Term Loan Credit Agreement] |
[Signature Page to Amendment No. 3 Term Loan Credit Agreement] CITIBANK, N.A. as a Lender Name: By-fi Michael � Vondriska Title: Vice President |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] MIZUHO BANK, LTD. as a Lender By: Name: Tracy Rahn Title: Managing Director |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] U.S. Bank National Association, as a Lender By: Name: Joyce P. Dorsett Title: Senior Vice President |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] ROYAL BANK OF CANADA as a Lender By: Name: Julia Ivanova Title: Authorized Signatory |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] The Bank of Nova Scotia as a Lender By: Name: Todd Kennedy Title: Managing Director |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] THE BANK OF NEW YORK MELLON as a Lender By: Name: Thomas J. Tarasovich, Jr. Title: Senior Vice President |
[Signature Page to Amendment No. 3 to Term Loan Credit Agreement] FARM CREDIT BANK OF TEXAS as a Lender By: Name: Jerardo Jasso Title: Portfolio Manager |