Exhibit 10.21
FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of March 10, 2005
(this "Amendment"), to the Credit Agreement, dated as of June 6, 2002
(as amended pursuant to the First Amendment, dated as of December 10, 2002, the
Second Amendment, dated as of May 12, 2003, and the Third Amendment, dated as of
March 29, 2004, and as the same may be further amended (including pursuant to
this Amendment), supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxx'x Acquisition Corp., a Delaware corporation
("Holdings"), Xxxxxx'x, Inc., a Wisconsin corporation (the "Borrower"), the
several banks, financial institutions and other entities from time to
time parties thereto (the "Lenders"), Bear, Xxxxxxx & Co. Inc., as sole lead
arranger and sole bookrunner (in such capacity, the "Lead Arranger"), Bear
Xxxxxxx Corporate Lending Inc., as administrative agent (in such
capacity, the "Administrative Agent"), Canadian Imperial Bank of Commerce, as
syndication agent (in such capacity, the "Syndication Agent"), and the
institutions listed in the Credit Agreement as documentation agents
(collectively, in such capacity, the "Documentation Agents"). Terms defined in
the Credit Agreement and not otherwise defined herein are used herein with the
meanings so defined.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower;
WHEREAS, Holdings and the Borrower have requested certain
amendments to the Credit Agreement as more fully set forth herein; and
WHEREAS, the Lenders have agreed to such amendments but only
on the terms and conditions contained in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Section 1.1. (a) Section 1.1
of the Credit Agreement is hereby amended by inserting the following new
definitions in the appropriate alphabetical order:
"Xxxx Asset Purchase Agreement": the Asset Purchase
Agreement, dated as of February 24, 2005, between the Borrower
and Xxxx Xxxxx Company, a Delaware corporation, as amended,
restated, supplemented or otherwise modified from time to
time.
"Purchased Business": as defined in the Xxxx Asset
Purchase Agreement. (b) Section 1.1 of the Credit Agreement is
also hereby amended by deleting clause (c) in the definition of
"Acquisition" in its entirety and substituting in lieu thereof the following:
"(c) assets constituting one or more business units
(which may include any individual store or groups of stores)
of any other Person used in a related, complementary or
ancillary line of business of such Person."
SECTION 3. Amendment to Section 8.5. Section 8.5 of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
paragraph (i), by deleting the period at the end of paragraph (j) and
substituting "; and" in lieu thereof and by adding the following new
paragraph (k):
"(k) the Disposition of the Purchased Business
pursuant to the Xxxx Asset Purchase Agreement; provided that
$125,000,000 of the Net Cash Proceeds of such Disposition
shall be applied toward the prepayment of the Term B-1 Loans
in accordance with Section 4.2(b) of this Agreement; provided,
further, that notwithstanding clause (i) of the proviso to
Section 4.2(b) of this Agreement to the contrary and except as
provided in Section 8.7(b) of this Agreement, the Borrower may
be permitted to deliver a Reinvestment Notice with respect to
all remaining Net Cash Proceeds of such Disposition and that
all such remaining Net Cash Proceeds shall be deemed to be a
Reinvestment Deferred Amount."
SECTION 4. Amendment to Section 8.7. Section 8.7 of the
Credit Agreement is hereby amended by deleting the table appearing in clause
(a) in its entirety and substituting in lieu thereof the following table:
Fiscal Year Amount
____________ ____________
2005 and thereafter $100,000,000
-------------------------------------------------------------------------------
SECTION 5. Amendment to Section 8.8. (a) Section 8.8
of the Credit Agreement is hereby amended by deleting the amount "$20,000,000"
in clause (A) of paragraph (i) and substituting in lieu thereof "$50,000,000".
(b) Section 8.8 of the Credit Agreement is hereby amended in
its entirety by deleting clause (E)(ii) of paragraph (i) and substituting in
lieu thereof the following:
"(ii) financial statements relating to such Person or
Persons that is the subject of such Acquisition or
Pick 'n Save Acquisition for the most recently ended fiscal
year"
SECTION 6. Amendment to Section 8. Section 8 of the Credit
Agreement is hereby further amended by inserting a new section 8.17 at the end
thereof to read as follows:
"8.17 Amendments to the Xxxx Asset Purchase
Agreement. Amend, supplement or otherwise modify the terms
and conditions of the Xxxx Asset Purchase Agreement except for
any such amendment, supplement or modification that could not
reasonably be expected to have a Material Adverse Effect."
SECTION 7. Conditions to Effectiveness. This Amendment
shall become effective upon the date (the "Fourth Amendment Effective Date") on
which (a) the Administrative Agent shall have received this Amendment, executed
and delivered by a duly authorized officer of each of Holdings, the Borrower and
the Required Lenders and (b) the Administrative Agent shall have received an
executed copy of the Xxxx Asset Purchase Agreement.
SECTION 8. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and the Lenders that as of
the Fourth Amendment Effective Date, after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing and the
representations and warranties made by the Borrower in or pursuant to the Credit
Agreement or any other Loan Document are true and correct in all material
respects on and as of the Fourth Amendment Effective Date as if made on such
date (except to the extent that any such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and as of such
earlier date).
SECTION 9. Effect of Amendment. (a) This Amendment shall
not constitute an amendment or waiver of or consent to any provision of the
Credit Agreement not expressly referred to herein and shall not be construed as
an amendment, waiver or consent to any action on the part of the Borrower that
would require an amendment, waiver or consent of the Administrative Agent or the
Lenders except as expressly stated herein. Except as expressly amended hereby,
the provisions of the Credit Agreement are and shall remain in full force and
effect in accordance with its terms.
(b) On and after the Fourth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
herein", or words of like import, and each reference to the Credit Agreement in
any other Loan Document shall be deemed a reference to the Credit Agreement as
amended hereby. This Amendment shall constitute a "Loan Document" for all
purposes of the Credit Agreement and the other Loan Documents.
SECTION 10. Costs and Expenses. The Borrower agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent.
SECTION 11. Headings. The headings of this Amendment are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 12. Counterparts. This Amendment may be executed
by one or more of the parties to this Amendment on any number of separate
counterparts (including by facsimile), each of which when so executed and
delivered shall be deemed an original and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
SECTION 13. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
XXXXXX'X, INC., as Borrower
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Group Vice President,
Legal, Risk and Treasury,
Corporate Secretary
XXXXXX'X ACQUISITION CORP., as Holdings
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent
By: /s/XXXXXX XXXXXXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO FOURTH AMENDMENT DATED
AS OF MARCH 10, 2005, TO THE CREDIT
AGREEMENT DATED AS OF JUNE 6, 2002,
AMONG XXXXXX'X ACQUISITION CORP.,
XXXXXX'X, INC., THE LENDERS PARTY
THERETO, BEAR, XXXXXXX & CO. INC., AS
LEAD ARRANGER, BEAR XXXXXXX CORPORATE
LENDING INC., AS ADMINISTRATIVE AGENT,
CANADIAN IMPERIAL BANK OF COMMERCE, AS
SYNDICATION AGENT, AND THE INSTITUTIONS
LISTED IN THE CREDIT AGREEMENT AS
DOCUMENTATION AGENTS.
AMMC CDO II, LIMITED
By: American Money Management Corp., as
Collateral Manager
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXX
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
PREMIUM LOAN TRUST I, LTD.
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXX XXXX
------------------------------------
Name: Xxxxxxx X. Xxx Xxxx
Title: Managing Director
LIGHT POINT CLO 2004-I, LTD.
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXX XXXX
------------------------------------
Name: Xxxxxxx X. Xxx Xxxx
Title: Managing Director
BANK ONE, A DIVISION OF X.X. XXXXXX
CASE BANK, N.A.
---------------------------------------
Name of Financial Institution
By /s/XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
COMMERICA BANK
---------------------------------------
By /s/XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Account Officer
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH
INVESTMENT ADVISOR
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: XXXXX XXXXX MANAGEMENT
INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX XXXXX CDO III, LTD
By: XXXXX XXXXX MANAGEMENT
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COSTANITINUS XXXXX XXXXX CDO V, LTD
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX XXXXX CDO VI, LTD
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX & CO.
By: BOSTON MANAGEMENT AND
RESEARCH INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BIG SKY SENIOR LOAN FUND, LTD.
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
---------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX XXXXX VT FLOATING-RATE
INCOME FUND
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TOLLI & CO.
By: XXXXX XXXXX MANAGEMENT AS
INVESTMENT ADVISOR
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX TRUST & SAVINGS BANK
-------------------------------------
Name of Financial Institution
By /s/ X. XXXXX PLACE
-----------------------------------
Name: X. Xxxxx Place
Title: Director
FARM CREDIT BANK OF TEXAS
-------------------------------------
Name of Financial Institution
By /s/ XXXX X.XXXX
-----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
U.S. BANK, N.A.
--------------------------------------
Name of Financial Institution
By /s/ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
DENALI CAPITAL LLC, MANAGING MEMBER OF
DC FUNDING PARTNERS, PORTFOLIO MANAGER
FOR DENALI CAPITAL CLO I, LTD, OR AN
AFFILIATE
--------------------------------------
Name of Financial Institution
By /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
DENALI CAPITAL LLC, MANAGING MEMBER OF
DC FUNDING PARTNERS, PORTFOLIO MANAGER
FOR DENALI CAPITAL CLO II, LTD, OR AN
AFFILIATE
--------------------------------------
Name of Financial Institution
By /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
DENALI CAPITAL LLC, MANAGING MEMBER OF
DC FUNDING PARTNERS, PORTFOLIO MANAGER
FOR DENALI CAPITAL CLO III, LTD, OR AN
AFFILIATE
--------------------------------------
Name of Financial Institution
By /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
--------------------------------------
Name of Financial Institution
By /s/ XXXXX XXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
ARCHIMEDES FUNDING III, LTD.
By: ING CAPITAL ADVISORS LLC, AS
COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX X XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING CAPITAL ADVISORS LLC, AS
COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX X XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
ING-ORYX CLO, LTD.
By: ING CAPITAL ADVISORS LLC, AS
COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX X XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
NEMEAN CLO, LTD.
By: ING CAPITAL ADVISORS LLC, AS
COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX X XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
SEQUILS-ING I (HBDGM), LTD.
By: ING CAPITAL ADVISORS LLC, AS
COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX X XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
CIBC INC., AS LENDER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
ASSOCIATED BANK, N. A.
--------------------------------------
Name of Financial Institution
By /s/ XXXXXX HARDNAUER
-----------------------------------
Name: Xxxxxx Hardnauer
Title: AVP
NATIONAL CONSUMER COOPERATIVE BANK
-------------------------------------
Name of Financial Institution
By /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
M&I XXXXXXXX & XXXXXX BANK
--------------------------------------
Name of Financial Institution
By /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By /s/ XXXXXX X. BUEYEGER
----------------------------------
Name: Xxxxxx X. Bueyeger
Title: Vice President
PPM SHADOW CREEK FUNDING LLC
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
PPM SPYGLASS FUNDING TRUST
--------------------------------------
Name of Financial Institution
By /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Agent
BEAR XXXXXXX LOAN TRUST
By: BEAR XXXXXXX ASSET MANAGEMENT,
INC., AS ITS ATTORNEY-IN-FACT
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Associate Director
GALLATIN FUNDING I LTD.
By: BEAR XXXXXXX ASSET MANAGEMENT,
INC., AS ITS COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Associate Director
BRAYMOOR & CO.
By: BEAR XXXXXXX ASSET MANAGEMENT,
INC., AS ITS ATTORNEY-IN-FACT
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Associate Director
GRAYSTON CLO 2001-01 LTD.
By: BEAR XXXXXXX ASSET MANAGEMENT,
INC., AS ITS COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Associate Director
GRAYSTON CLO II 2004-01 LTD.
By: BEAR XXXXXXX ASSET MANAGEMENT,
INC., AS ITS COLLATERAL MANAGER
--------------------------------------
Name of Financial Institution
By /s/ XXXXXXXX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Associate Director
NATEXIS BANQUES POPULAIRES
--------------------------------------
Name of Financial Institution
By /s/ XXXXX X. XXXXXX, XX.
-----------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President &
Group Manager
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
