Exhibit 10.24
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of May 12, 2003 (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, and as the same may be further amended, 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 (in such capacity, the "Documentation
Agent"). 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 amending and restating the
following definition in its entirety to read as follows:
"Excluded Indebtedness": all Indebtedness permitted by
clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (j),
(k), (l), (m), (n) and (q) of Section 8.2.
(b) Section 1.1 of the Credit Agreement is also hereby
amended by, in the definition of "Excess Cash Flow", (i) deleting
the word "and" at the end of clause (b)(xiv) and substituting in
lieu thereof ",", (ii) deleting the period at the end of clause
(b)(xv) and substituting in lieu thereof "and", and (iii) adding
a new clause (b)(xvi) at the end thereof to read in its entirety
as follows:
(xvi) the cash purchase price paid in connection with
the Xxxxxxx Acquisition pursuant to Section 4.1(a)(i) of the
Xxxxxxx Asset Purchase Agreement.
(c) Section 1.1 of the Credit Agreement is also hereby
amended by inserting the following new definitions in the
appropriate alphabetical order:
"Xxxxxxx Acquisition": the acquisition of up to forty
retail stores and related operating assets located in and
around the Minneapolis/St. Xxxx, Minnesota metropolitan area
and two retail stores and related operating assets located
in Wisconsin in the transaction contemplated pursuant to,
and consummated in accordance with, the terms of the Xxxxxxx
Asset Purchase Agreement.
"Xxxxxxx Asset Purchase Agreement": the Asset Purchase
Agreement dated as of May 2, 2003, by and between Xxxxxxx
Companies, Inc., an Oklahoma corporation, Rainbow Food
Group, Inc., a Nevada corporation, RBF Corp., a Wisconsin
Corporation, and the Borrower, as amended.
SECTION 3. Amendment to Section 8.2. Section 8.2 of the
Credit Agreement is hereby amended by (a) deleting the word "and"
at the end of paragraph (o) thereof, (b) deleting the period at
the end of paragraph (p) thereof and substituting in lieu thereof
"; and" and (c) adding a new paragraph (q) at the end thereof to
read in its entirety as follows:
(q) Indebtedness consisting of Capital Lease
Obligations assumed in connection with the Xxxxxxx
Acquisition in an aggregate principal amount not to exceed
$60,500,000.
SECTION 4. Amendment to Section 8.3. Section 8.3 of the
Credit Agreement is hereby amended by adding the words "or
Section 8.2(q)" after the words "Section 8.2(h)(A) and (i)" in
paragraph (k) of such Section.
SECTION 5. Amendment to Section 8.7. Section 8.7 of the
Credit Agreement is hereby amended by replacing the table
appearing in such Section in its entirety and substituting in
lieu thereof the following new table:
(a) In the event that the Xxxxxxx Acquisition is
consummated:
Fiscal Amount
Year
2003 $105,000,
000
2004 $105,000,
000
2005 $90,000,0
00
2006 and thereafter $75,000,0
00
(b) In the event that the Xxxxxxx Acquisition is not
consummated:
Fiscal Amount
Year
2003 $85,000,0
00
2004 $65,000,0
00
2005 $60,000,0
00
2006 and thereafter $55,000,0
00
SECTION 6. Amendment to Section 8.8. Section 8.8 of the
Credit Agreement is hereby amended by (a) deleting the word "and"
at the end of paragraph (q) thereof, (b) deleting the period at
the end of paragraph (r) thereof and (c) by adding a new
paragraph (s) at the end thereof to read in its entirety as
follows:
(s) the Xxxxxxx Acquisition, provided that (A) in
connection with the Xxxxxxx Acquisition, the aggregate
consideration (including Indebtedness permitted under
Section 8.2(i), 8.2(p) and 8.2(q) incurred in connection
with the Xxxxxxx Acquisition and any other liabilities
assumed in connection therewith) for the Xxxxxxx Acquisition
shall not exceed $160,000,000, (B) not later than the
Business Day prior to the consummation of the Xxxxxxx
Acquisition, the Administrative Agent shall have received
and be satisfied with a certificate of a Responsible Officer
demonstrating compliance with the financial covenants in
Section 8.1 as of the end of the most recent fiscal quarter
for which financial statements are available, calculated on
a pro forma basis, as if the Xxxxxxx Acquisition had been
consummated on the first day of the relevant period or on
such last day, as appropriate, (C) the Borrower shall have
delivered to the Administrative Agent copies of all
amendments and waivers to the Xxxxxxx Asset Purchase
Agreement promptly after execution thereof and (D)
immediately after giving effect to the Xxxxxxx Acquisition,
no Event of Default shall have then occurred and be
continuing;
SECTION 7. Conditions to Effectiveness. The amendments set
forth in Sections 2, 3, 4, 5 and 6 above shall become effective
on the date (the "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, (b) the Administrative
Agent shall have received an executed copy of the Xxxxxxx Asset
Purchase Agreement, (c) the Xxxxxxx Acquisition shall have been
consummated in accordance with the Xxxxxxx Asset Purchase
Agreement on or prior to August 6, 2003, and (d) the
Administrative Agent shall have received the Consent Fee (as
defined below), together with an amendment fee for the account of
each Lender which executes this Amendment on or prior to May 12,
2003 in an amount equal to 0.05% of the sum of (i) the Revolving
Commitment of such Lender plus (ii) the aggregate principal
amount of such Lender's outstanding Term Loans, in each case as
of the date of this Amendment, provided that the conditions set
forth in clauses (b), (c) and (d) above shall not be conditions
to the amendments set forth in Section 5 or the amendment in
Section 2(c) inserting the definition of "Xxxxxxx Acquisition".
SECTION 8. Consent Fee. The Borrower hereby agrees to pay to
the Administrative Agent for the account of each Lender which
executes this Amendment on or prior to May 12, 2003 a consent fee
in an amount equal to 0.05% of the sum of (a) the Revolving
Commitment of such Lender plus (b) the aggregate principal amount
of such Lender's outstanding Term Loans, in each case as of the
date of this Amendment (the "Consent Fee"), which shall be fully
earned on the date on which the Amendment has been executed by
the Required Lenders and payable on the earliest of (x) the
Amendment Effective Date, (y) August 6, 2003, and (z) the date of
termination of the Xxxxxxx Asset Purchase Agreement.
SECTION 9. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and the
Lenders that as of the 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 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 10. Continuing Effect of the Credit Agreement. 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. This Amendment, once effective, shall
be binding on Holdings, the Borrower, the Lenders and the
Lenders' successors and assigns.
SECTION 11. 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), and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
SECTION 12. 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.
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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 ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXX'X, INC.
By: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President, Secretary & Treasurer
BEAR XXXXXXX CORPORATE LENDING
INC., as Administrative Agent and
as a Lender
By: /s/Xxxxxx Xxxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxxx
Title: Authorized Signatory
SIGNATURE PAGE TO SECOND AMENDMENT
DATED AS OF May 12, 2003, 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.
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Name of Financial Institution
By
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Name:
Title:
