EXHIBIT 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to the Credit Agreement (the "First Amendment") is
made as of the 6th day of January, 2006 by and among:
XXXXX SUPERMARKETS, LLC an Indiana limited liability company, having
its principal place of business at 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000 as Lead Borrower (in such capacity,
the "Lead Borrower") for the Borrowers;
the Borrowers;
the Facility Guarantors;
BANK OF AMERICA, N.A., as Issuing Bank; and
BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent for
the Lenders; and
the Lenders;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS, the Borrowers, entered into a certain Credit Agreement dated
as of November 9, 2005 (as amended and in effect, the "Credit Agreement") by and
among (i) Xxxxx Supermarkets, LLC, as Lead Borrower; (ii) the Borrowers; (iii)
the Facility Guarantors; (iv) the Lenders; (v) Bank of America, N.A., as Issuing
Bank; (vi) Bank of America, N.A., as Administrative Agent and Collateral Agent
for the Lenders and as Co-Lead Arranger; (vii) National City Business Credit,
Inc. as Lender, Syndications Agent and Co-Lead Arranger; and (viii) LaSalle Bank
National Association, as Lender, Documentation Agent; and
WHEREAS, the Borrowers have requested that the Agents and the Lenders
amend the Credit Agreement as provided herein; and
WHEREAS, the Lenders and the Agents are willing to effect such
amendments on the terms and conditions set forth herein.
NOW THEREFORE, it is hereby agreed as follows:
1. Definitions: All capitalized terms used herein and not otherwise
defined shall have the same meaning herein as in the Credit Agreement.
2. Amendments to Article I: The provisions of Article I of the Credit
Agreement are hereby amended as follows:
a. Section 1.01 of the Credit Agreement is hereby amended by
adding the following definitions in appropriate alphabetical
order:
"Intercreditor Agreement" means that certain Intercreditor
Agreement substantially in the form attached hereto as Exhibit
A entered into by and between the Administrative Agent and the
Term Agent as of January 6, 2006, as amended and in effect
from time to time, and any intercreditor agreement entered
into pursuant to Section 6.01(a)(xii) hereof in connection
with a refinancing of the Term Loan Indebtedness permitted
hereunder.
"Term Agent" means Back Bay Capital Funding LLC, in its
capacity as Administrative Agent and Collateral Agent pursuant
to the Term Loan Documents.
"Term Loan" means the term loan in the original principal
amount of $25,000,000 made January 6, 2006 by Back Bay Capital
Funding LLC to the Borrowers pursuant to the Term Loan
Documents.
"Term Loan Agreement" means the Term Loan Agreement dated as
of January 6, 2006 entered into by and among the Loan Parties
and Back Bay Capital Funding LLC, as amended.
"Term Loan Documents" means the "Loan Documents" under and as
defined in the Term Loan Agreement.
"Term Loan First Lien Collateral" means the "First Lien
Collateral" under and as defined in the Term Loan Agreement,
as in effect as of the date hereof.
"Term Loan Real Estate" means the "First Lien Real Estate"
under and as defined in the Term Loan Agreement, as in effect
as of the date hereof.
b. Section 1.01 of the Credit Agreement is hereby further amended
by amending the following definitions contained therein as
follows:
(A) The definition of Change in Control is amended by
deleting clause (c) to such definition and replacing
it with the following:
(c) The Parent fails at any time to own,
directly or indirectly, 100% of the Capital
Stock of each other Loan Party free and
clear of all Liens (other than the Liens in
favor of (i) the Collateral Agent for its
own benefit and the ratable benefit of the
other Credit Parties and (ii) the Term Agent
for its own benefit and the benefit of the
Secured Parties (as defined in the Term Loan
Agreement)).
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(B) The definition of "Loan Documents" is amended by
adding the term "Intercreditor Agreement" to the
definition thereof.
(C) The definition of "Permitted Encumbrances" is amended
as follows:
By adding a clause (k) thereto which
provides as follows:
(k) Liens to secure Indebtedness
permitted by clauses (xi) and (xii)
of Section 6.01(a), provided that
such Liens (other than Liens with
respect to the Term Loan First Lien
Collateral) are subordinated in
accordance with the Intercreditor
Agreement to the Liens created by
the Security Documents in favor of
the Secured Parties.
By deleting the proviso at the end of the definition
and replacing it with the following:
provided that, except as provided in
any one or more of clauses (a)
through (i) and (k) above, the term
"Permitted Encumbrances" shall not
include any Lien securing
Indebtedness.
..
3. Amendments to Article II. The provisions of Article II of the Credit
Agreement are hereby amended as follows:
Section 2.28 of the Credit Agreement is deleted in its
entirety and replaced with the following:
Section 2.28 Security Interest in Collateral.
To secure their Obligations, the Loan
Parties shall grant to the Collateral Agent, for its
benefit and the ratable benefit of the Secured
Parties, (i) a first-priority security and mortgage
interest (subject to Permitted Encumbrances) in all
of the Collateral, other than the Term Loan First
Lien Collateral, pursuant hereto and to the Security
Documents and (ii) a second-priority security and
mortgage interest (subject to the Lien of the Term
Agent and Permitted Encumbrances) in the Term Loan
First Lien Collateral. Upon the written request of
the Lead Borrower, the Collateral Agent shall release
and discharge its security and mortgage interest
solely with respect to the Term Loan First Lien
Collateral, provided that at the time of the request
(i) no Default or Event of Default exist, and (ii)
the Term Loan Agreement has been terminated and all
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Indebtedness evidenced by the Term Loan Documents has
been paid in full. Notwithstanding the foregoing,
upon the written request of the Term Agent in
accordance with the Intercreditor Agreement the
Collateral Agent shall release and discharge its
security and mortgage interest solely with respect to
the Term Loan First Lien Collateral.
4. Amendments to Article III. The provisions of Article III of the Credit
Agreement are hereby amended as follows:
Section 3.15 of the Credit Agreement is deleted in its
entirety and replaced with the following:
Section 3.15 Security Documents.
The Security Documents create in favor of
the Collateral Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security or
mortgage interest in the Collateral, and the Security
Documents constitute the creation of a fully
perfected (a) first priority Lien on, and security or
mortgage interest, as applicable, in, all right,
title and interest of the Loan Parties in and to such
Collateral (other than the Term Loan First Lien
Collateral), in each case prior and superior in right
to any other Person (other than Permitted
Encumbrances having priority under Applicable Law)
and (b) second priority Lien on, and security or
mortgage interest, as applicable, in, all right,
title and interest of the Loan Parties in and to the
Term Loan First Lien Collateral, in each case prior
and superior in right to any other Person (other than
(x) the Liens of the Term Agent securing the
Indebtedness evidenced by the Term Loan Documents and
(y) Permitted Encumbrances having priority under
Applicable Law).
5. Amendments to Article V. The provisions of Article V of the Credit
Agreement are hereby amended as follows:
a. Section 5.01 of the Credit Agreement is amended by adding the
following clauses thereto:
(o) to the extent not otherwise delivered to the
Administrative Agent hereunder, (i) a copy of each notice or
other written communication outside of the ordinary course of
business delivered by them or on their behalf in connection
with the Term Loan Documents, such delivery to be made at the
same time and by the same means as such notice or other
communication is delivered to the Term Agent and (ii) a copy
of each notice or other written communication outside of the
ordinary course of business received by the Borrowers in
connection with the
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Term Loan Documents, such delivery to be made promptly after
such notice or other communication is received by the
Borrowers; and
(p) on or before thirty (30) days prior to the "Maturity Date"
(as defined in the Term Loan Documents) financial statements
evidencing sufficient liquidity, as determined by the
Administrative Agent in its reasonable discretion, to satisfy
in full the Indebtedness evidenced by the Term Loan Documents.
b. The following sections are added to Article V of the Credit
Agreement:
Section 5.15 Designated Senior Indebtedness
Each Loan Party shall at all times cause the Obligations to
constitute "Designated Senior Indebtedness" under the
Indenture.
Section 5.16 Guarantor Senior Indebtedness
Each Loan Party shall at all times cause the Obligations to
constitute "Guarantor Senior Indebtedness" under the
Indenture.
6. Amendments to Article VI. The provisions of Article VI of the Credit
Agreement are hereby amended as follows:
a. Section 6.01(a) of the Credit Agreement is amended by adding
the following clauses thereto:
(xi) Indebtedness incurred pursuant to the Term Loan
Documents; provided that the outstanding principal amount
thereof shall not exceed $25,000,000; and
(xii) Indebtedness resulting from the refinancing of the Term
Loan; provided, that (i) after giving effect to the
refinancing (a) the principal amount of the outstanding
Indebtedness is not increased, (b) neither the fees paid,
interest on, or principal payments made with respect to the
Term Loan are increased from those set forth in the Term Loan
Documents, and (c) the holders of Indebtedness resulting from
any such refinancing are not afforded covenants, defaults,
rights or remedies more burdensome in any material respect to
the obligor or obligors than those contained in the Term Loan
Documents as determined by the Administrative Agent in its
reasonable credit judgment; and (ii) the holders of such
Indebtedness enter into an intercreditor agreement acceptable
to the Administrative Agent in its discretion.
b. Section 6.06(b) of the Credit Agreement is amended as follows:
(A) Clause (iv) of Section 6.06(b) is amended in its entirety
to read as follows:
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(iv) the repayment in full of Permitted Indebtedness, other
than Indebtedness evidenced by either (x) the Senior
Subordinated Notes and Senior Subordinated Note Documents or
(y) the Term Loan Documents, in the aggregate amount greater
than $5,000,000.00 during any twelve (12) month period
provided that (a) the Payment Conditions are satisfied
immediately prior to such payment and (b) the Administrative
Agent determines in its reasonable discretion that the Payment
Conditions shall be met on a pro forma basis for the thirteen
(13) Fiscal Periods immediately following the proposed payment
based upon projections provided by the Lead Borrower to the
Administrative Agent (provided such projections give effect to
the proposed payment);
(B) By adding a new clause (vi) to Section 6.06(b) which reads
as follows:
(vi) the repayment in full or in part of the Indebtedness
evidenced by the Term Loan Documents (A) from net proceeds of
any disposition of any Term Loan First Lien Collateral (B)
from net proceeds of insurance or condemnation awards paid in
respect of any Term Loan First Lien Collateral or (C) from
Indebtedness permitted pursuant to clause (xii) of Section
6.01(a).
(C) By adding a new clause (vii) to Section 6.06(b) which
reads as follows:
(vii) the repayment in full or in part of the Indebtedness
evidenced by the Term Loan Documents; provided that, the
Payment Conditions are met (x) immediately prior to such
payment and (y) on a proforma basis determined as if such
payment occurred on the first day of the thirteen (13) Fiscal
Periods ended on the last day of the most recent Fiscal Period
for which the Borrowers were required to deliver financial
reports pursuant to Section 5.01(b) hereof.
c. Section 6.08 of the Credit Agreement is amended as follows:
Clause (i) of the proviso in Section 6.08 is amended in its
entirety to read as follows:
(i) the foregoing shall not apply to restrictions and
conditions imposed by law, any Loan Document or any Term Loan
Document.
d. Section 6.09 of the Credit Agreement is amended by adding the
following clause thereto:
(c) No Loan Party shall, and no Loan Party shall permit or
cause any of its Subsidiaries to, directly or indirectly,
amend, supplement or otherwise modify any of the Term Loan
Documents to the extent the effect of such change or amendment
is to: (i) change the dates upon which payments of principal,
interest or fees are due thereunder; (ii) add, or change in a
manner adverse to any Loan
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Party, any event of default or add, or make more
restrictive, any covenant with respect to the Indebtedness
thereunder; (iii) change in a manner adverse to any Loan
Party the prepayment provisions of such Indebtedness; or
(iv) change or amend any other term if such change or
amendment would (x) increase the obligations of the Loan
Parties or (y) confer additional rights on the holder of
such Indebtedness in a manner adverse to any Loan Party,
Agent or Lenders.
7. Amendments to Article VII. The provisions of Article VII of the Credit
Agreement are hereby amended as follows:
Section 7.01 of the Credit Agreement is amended by adding a
new clause (t) which provides as follows:
(t) any occurrences of an event of default under the Term Loan
Documents.
8. Conditions to Effectiveness. This First Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Administrative Agent:
a. This First Amendment shall have been duly executed and
delivered by the Loan Parties, the Agents and the Lenders and
the Administrative Agent shall have received a fully executed
copy hereof and of each other document required hereunder.
b. The Agents shall have received such documents and certificates
as the Agents or their counsel may reasonably request relating
to the authorization of the transactions contemplated by this
First Amendment all in form and substance reasonably
satisfactory to the Agents and their counsel.
c. The Collateral Agent shall have received all documents and
instruments, including Uniform Commercial Code financing
statements and mortgages, required by law or reasonably
requested by the Collateral Agent to be filed, registered or
recorded to create or perfect the second priority Liens with
respect to the Term Loan First Lien Collateral and all such
documents and instruments shall have been so filed, registered
or recorded to the satisfaction of the Collateral Agent.
d. The Borrowers shall have reimbursed the Administrative Agent
for all expenses due and payable in connection herewith,
including, without limitation, its reasonable attorneys' fees.
e. The Borrowers shall have paid the Amendment Fee to the
Administrative Agent for the ratable benefit of the Lenders.
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f. The Administrative Agent shall have entered into the
Intercreditor Agreement with the Term Agent regarding the Term
Loan substantially in the form attached hereto as Exhibit A
and otherwise reasonably satisfactory to the Administrative
Agent and its counsel.
g. No Default or Event of Default shall have occurred and be
continuing.
h. The Borrowers shall have provided such additional instruments
and documents to the Administrative Agent as the
Administrative Agent or its counsel may reasonably request.
9. Amendment Fee. As an inducement for the Agents and the Lenders to enter
into this First Amendment with the Loan Parties and to continue to make
loans and advances to the Borrowers, the Borrowers shall pay to the
Agents and Lenders an Amendment Fee (the "Amendment Fee") in the amount
of $75,000.00. The Amendment Fee shall be due and payable upon
execution of this First Amendment by the Borrowers, shall be deemed
fully earned upon the execution hereof and shall not be subject to
refund or rebate under any circumstances.
10. Miscellaneous.
a. Except as provided herein, all terms and conditions of the
Credit Agreement and the other Loan Documents remain in full
force and effect. Except as specifically amended hereby, the
Borrowers hereby ratify, confirm, and reaffirm all of the
representations, warranties and covenants contained in the
Credit Agreement.
b. This First Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered, shall be an original, and all
of which together shall constitute one instrument. Delivery of
an executed counterpart of a signature page hereto by telecopy
shall be as effective as delivery of a manually executed
counterpart hereof.
c. This First Amendment expresses the entire understanding of the
parties with respect to the matters set forth herein and
supersedes all prior discussions or negotiations hereon. Any
determination that any provision of this First Amendment or
any application hereof is invalid, illegal or unenforceable in
any respect and in any instance shall not effect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any
other provisions of this First Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed and their seals to be hereto affixed as the date first above
written.
XXXXX SUPERMARKETS, LLC, as
Lead Borrower:
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President, Chief
Financial Officer and Treasurer
Attest: /s/ X. Xxxxxxxx Butt
--------------------------------------------
X. Xxxxxxxx Butt, Secretary
Address:
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer and General Counsel
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BORROWERS:
XXXXX SUPERMARKETS, INC.
XXXXX DRUGS, INC.
XXXXX VILLAGE PANTRIES, INC.
X.X. XXXX & SONS, INC.
XXXXX REALTY, INC.
MAR PROPERTIES, INC.
MARLEASE, INC.
XXXXX INTERNATIONAL, INC.
XXXXX DRUGS OF ILLINOIS, INC.
LIMITED HOLDINGS, INC.
XXXXX SUPERMARKETS OF ILLINOIS, INC.
TEMPORARY SERVICES, INC.
CONTRACT TRANSPORT, INC.
NORTH XXXXXX DEVELOPMENT CORPORATION
O'MALIA FOOD MARKETS, LLC
FLORAL FASHIONS, LLC
CRYSTAL FOOD SERVICES, LLC
XXXXXXXX, LLC
LOBILL FOODS, LLC
CONTRACT TRANSPORT, LLC
VILLAGE PANTRY, LLC
XXXXX DRUGS, LLC
XXXXX CLEARING HOUSE, LLC
CRYSTAL CAFE MANAGEMENT GROUP, LLC
CONVENIENCE STORE TRANSPORTATION COMPANY, LLC
CRYSTAL FOOD MANAGEMENT SERVICES, LLC
XXXXXXXXXXX FOODS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President, Chief
Financial Officer and Treasurer
Attest: /s/ X. Xxxxxxxx Butt
--------------------------------------------
X. Xxxxxxxx Butt, Secretary
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PANTRY PROPERTY, LLC
BY: VILLAGE PANTRY, LLC
MS PROPERTY, LLC
BY: XXXXX SUPERMARKETS, LLC
BF PROPERTY, LLC
BY: XXXXXXXXXXX FOODS, LLC
CF PROPERTY, LLC
BY: CRYSTAL FOOD SERVICES, LLC
MD PROPERTY, LLC
BY: XXXXX DRUGS, LLC
LB PROPERTY, LLC
BY: LOBILL FOODS, LLC
MCN PROPERTY, LLC
BY: XXXXXXXX, LLC
CSD PROPERTY, LLC
BY: CRYSTAL CAFE MANAGEMENT GROUP, LLC
FLORAL PROPERTY, LLC
BY: XXXXX SUPERMARKETS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President, Chief
Financial Officer and Treasurer
Attest: /s/ X. Xxxxxxxx Butt
-----------------------------------
X. Xxxxxxxx Butt, Secretary
TRADEMARK HOLDINGS, INC.
By: /s/ X. Xxxxxxxx Butt
--------------------------------------------
X. Xxxxxxxx Butt, Assistant Treasurer
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BANK OF AMERICA, N.A., As Administrative Agent,
as Collateral Agent, Co-Lead Arranger as Swingline
Lender, Issuing Bank, and Lender
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
Address:
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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NATIONAL CITY BUSINESS CREDIT, INC., as Syndications
Agent, as Co-Lead Arranger, and as Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: 0000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxx #0000
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
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LASALLE BANK, NATIONAL ASSOCIATION, as Documentation
Agent and as Lender
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------------
Title: VP
------------------------------------------
Address: 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
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GENERAL ELECTRIC CAPITAL CORPORATION as Lender
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Duly Authorized Signatory
Address: 000 Xxxxxxx 0, X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
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