Exhibit 4.1
FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of December 27, 2002
is to the Amended and Restated Credit Agreement dated as of February 19, 2002
(the "Credit Agreement") among XXXXX SUPERMARKETS, INC. (the "Company") and
XXXXX SUPERMARKETS, LLC ("Xxxxx, LLC" and, collectively with the Company, the
"Borrowers"), THE PROVIDENT BANK, as Agent (in such capacity, the "Agent") and
Arranger, LASALLE BANK NATIONAL ASSOCIATION, as documentation agent, and various
financial institutions (the "Lenders"). Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement
which provides for the Lenders to make Loans to the Borrowers from time to time;
and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects, as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
Effective on the date of the effectiveness of this Amendment pursuant to
Section 3 below, the Credit Agreement shall be amended as set forth in this
Section 1.
1.1. Amendments to Definitions.
The definition of "Permitted Note Purchases" in Section
1.1 is amended in its entirety to read as follows:
"PERMITTED NOTE PURCHASES" means purchases of
Convertible Subordinated Notes or up to $15 million in
aggregate principal amount of Senior Subordinated Notes
meeting all the following requirements:
(a) no Default or Unmatured Default shall have
occurred and be continuing or would result from
such purchase or the incurrence of any
Indebtedness in connection therewith;
(b) the purchase shall be consummated in an open
market or privately negotiated transaction
pursuant to terms (including price), conditions
and documentation satisfactory to the Agent; and
(c) the purchase shall be consummated in compliance
with any documents governing any Subordinated
Debt and with all applicable laws, rules and
regulations.
1.2. Amendment to Use of Proceeds Covenant.
Section 7.2(J) is amended in its entirety to read as
follows:
(J) Use of Proceeds. The Borrowers shall use the
proceeds of the Revolving Loans to (i) repay existing
Indebtedness, (ii) provide funds for the additional
working capital needs and other general corporate
purposes of the Borrowers, (iii) provide funds for the
payment of fees and expenses incurred in connection with
the negotiation and documentation of this Agreement and
the Loan Documents (iv) to finance Permitted
Acquisitions and (v) to provide funds for Capital
Expenditures. The Borrowers shall use the proceeds of
the Debt Purchase Facility Loans to make Permitted Note
Purchases of Convertible Subordinated Notes. The
Borrowers will not, nor will it permit any of their
respective Subsidiaries to, use any of the proceeds of
the Loans to purchase or carry any Margin Stock or to
make any Acquisition, other than a Permitted Acquisition
pursuant to Section 7.3(G).
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrowers represent and warrant to the Agent and the Lenders (a) as
to the matters set forth in Section 5.2(i) and (ii) of the Credit Agreement, as
amended hereby (as so amended, the "Amended Credit Agreement"), as if the
representations and warranties set forth therein were made on the date hereof,
(b) that the execution and delivery by the Borrowers of this Amendment, and the
performance by the Borrowers of their obligations under the Amended Credit
Agreement, (i) are within the powers of the Borrowers, (ii) have been duly
authorized by proper organizational actions and proceedings, and such approvals
have not been rescinded and no other actions or proceedings on the part of the
Borrowers are necessary to consummate such transaction, (iii) do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, or if not made, obtained
or given individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect and (iv) do not and will not conflict with any
Requirement of Law or Contractual Obligation, except such that could not
reasonably be expected to have a Material Adverse Effect, or with the
certificate or articles of incorporation and by-laws or the operating agreement
of the Borrowers or any Subsidiary, and (c) that the Amended Credit Agreement is
the legal, valid and binding obligation of the Borrowers, enforceable against
the Borrowers in accordance with its terms (except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, or similar laws
affecting the enforcement of creditors' rights generally).
SECTION 3. EFFECTIVENESS.
The amendments set forth in Section 1 above shall become effective on
the date when the Agent shall have received the following:
3.1. First Amendment.
Counterparts of this Amendment signed by the Borrowers
and the Required Lenders.
3.2. Corporate Documents.
A certificate of the Secretary or an Assistant Secretary
of the Borrowers as to (a) resolutions of the Board of
Directors or limited liability company action, as
appropriate, of such entity authorizing the execution
and delivery of this Amendment and the other documents
contemplated hereby to which such entity is a party, (b)
the incumbency and signatures of the officers of such
entity which are to sign the documents referred to in
clause (a) above and (c) a certificate of
existence certificate issued by the Indiana Secretary of
State with respect to each Borrower.
SECTION 4. MISCELLANEOUS.
4.1. Continuing Effectiveness, etc.
The Amended Credit Agreement shall remain in full force and
effect and is hereby ratified and confirmed in all respects.
After the effectiveness hereof, all references in the Credit
Agreement and each other Loan Document to the "Credit Agreement"
or similar terms shall refer to the Amended Credit Agreement.
4.2. Counterparts.
This Amendment may be executed in any number of counterparts and
by the different parties on separate counterparts, and each such
counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same
Amendment.
4.3. Expenses.
The Borrowers agree to pay the reasonable costs and expenses of
the Agent (including reasonable attorneys' fees and charges) in
connection with the negotiation, preparation, execution and
delivery of this Amendment and the other documents contemplated
hereby.
4.4. Governing Law.
This Amendment shall be a contract made under and governed by
the internal laws of the State of Indiana.
4.5. Successors and Assigns.
This Amendment shall be binding upon the Borrowers, the Lenders
and the Agent and their respective successors and assigns, and
shall inure to the benefit of the Borrowers, the Lenders and the
Agent and their respective successors and assigns, as permitted
by the provisions of the Amended Credit Agreement.
[Signature page follows]
Delivered at Indianapolis, Indiana, as of the day and year first above
written.
XXXXX SUPERMARKETS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
XXXXX SUPERMARKETS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
THE PROVIDENT BANK
as Agent and Arranger and as a Lender
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
as documentation agent and as a Lender
By: /s/
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Name:
Title:
FIRST MERCHANTS BANK, N.A.
as a Lender
By: /s/
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Name:
Title:
UNION PLANTERS BANK, NATIONAL ASSOCIATION
as a Lender
By: /s/
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Name:
Title:
OLD NATIONAL BANK, N.A.
as a Lender
By: /s/
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Name:
Title:
FIFTH THIRD BANK
as a Lender
By: /s/
----------------------------------------
Name:
Title:
UNION FEDERAL BANK
as a Lender
By: /s/
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Name:
Title:
