Exhibit 10.1
SCHEDULE 1.01(a)
EXISTING CREDIT AGREEMENTS
Bilateral credit agreements with Bank of America and Wachovia (excluding Wachovia Letters of Credit).
S-1
SCHEDULE 1.01(c)
EXISTING INVESTMENTS
None.
S-2
SCHEDULE 1.01(d)
UNRESTRICTED SUBSIDIARIES
None.
S-3
SCHEDULE 2.01
COMMITMENTS AND
APPLICABLE PERCENTAGES
Lender | Commitment | Applicable Percentage | ||||
Bank of America, N.A. | $ | 75,000,000.00 | 42.857142857 | % | ||
Branch Banking and Trust Company | $ | 50,000,000.00 | 28.571428571 | % | ||
Wachovia Bank, National Association | $ | 50,000,000.00 | 28.571428571 | % | ||
Total | $ | 175,000,000.00 | 100.000000000 | % | ||
S-4
SCHEDULE 7.01
EXISTING LIENS
See attached.
S-5
Debtor | Secured Party | Jurisdiction | File Date | UCC File Number | Collateral Description | Amendments and Continuations | ||||||
Ingles Markets, Incorporated | Fleet Capital Corporation
Assignee: PNC Leasing Corp. | North Carolina Secretary of State | 07/02/1999 | 19990064763 | Specified machinery, equipment, furniture, fixtures, proceeds, products and income relating thereto for 5 North Carolina store locations. | Continuation: File Date: 4/27/2004 File#20040042008A | ||||||
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 07/07/1999 | 19990065996 | All grocery store furniture, trade fixtures, equipment and personal property relating to 3 store locations in Tennessee and Georgia. | Amendment: File Date: 2/10/2004 File#20040013551B Change Debtor’s name/address
Continuation: File Date: 2/11/2004 File#20040013890J | ||||||
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 11/17/1999 | 19990111017 | All grocery store furniture, trade fixtures, equipment and personal prop erty relating to store located in Canton, Georgia. | Amendment: File Date: 5/18/2004 File#20040050055B Change Debtor’s name/address
Continuation: File Date: 5/18/2004 File#20040050035M | ||||||
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 01/05/2000 | 20000001762 | All grocery store furniture, trade fixtures, equipment and personal property relating to 2 Georgia store locations. | Amendment: File Date: 8/2/2004 File#20040077390C Change Debtor’s name/address
Continuation: File Date: 8/3/2004 File#20040077716F | ||||||
Ingles Markets, Incorporated | Fifth Third Leasing Company | North Carolina Secretary of State | 05/25/2000 | 20000053302 | All grocery store furniture, trade fixtures, equipment and personal property for Shelby, North Carolina store location (Lease #2222-039). | Assignment: File Date: 5/21/01 File#20010048243 Assigned by General Electric Capital Corporation, as Agent
Assignment: File Date: 8/22/2002 File#20020091993E Assigned by Mellon US Leasing |
S-6
Continuation: File Date: 3/4/2005 File#20050020850C | ||||||||||||
Ingles Markets, Incorporated | Assignee: The Fifth Third Leasing Company | North Carolina Secretary of State | 05/31/2000 | 20000055061 | All grocery store furniture, trade fixtures, equipment and personal property relating to Greenville, South Carolina store location. | Assignment: File Date: 8/7/2002 File#20020086549L Assigned by General Electric Capital Corporation, as Agent
Continuation: File Date: 3/4/2005 File#20050020848M | ||||||
Ingles Markets, Incorporated | Assignee: Wells Fargo Equipment Finance, Inc. | North Carolina Secretary of State | 05/31/2000 | 2000055058 | All grocery store furniture, trade fixtures, equipment and personal property relating to Cartersville, Georgia store location. | Assignment: File Date: 8/21/2000 File#20000084393 Assigned by General Electric Capital Corporation, as Agent
Continuation & Amendment: File Date: 5/26/2005 File#20050050746M Changed Debtor’s name from “Inc.” to “Incorporated” | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation, as Agent | North Carolina Secretary of State | 07/06/2000 | 20000067899 | 5 utility trailers. | Amendment: File Date: 5/20/2005 File#20050049082A Change Debtor’s name/address
Continuation: File Date: 5/23/2005 File#20050049433A | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation, as Agent | North Carolina Secretary of State | 08/04/2000 | 20000089562 | One switch trailer. | Amendment: File Date: 6/16/2005 File#20050057935H Change Debtor’s name/address
Continuation: File Date: 6/17/2005 File#20050058441M |
S-7
Ingles Markets, Incorporated | Norlease, Inc. | North Carolina Secretary of State | 10/12/2000 | 20000101622 | Specified machinery, equipment, furniture, proceeds, products and income thereof with respect to Athens, Tennessee and Johnson City, Tennessee store locations. | Continuation: File Date: 9/19/2005 File#20050089848F | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation, as Agent | North Carolina Secretary of State | 10/17/2000 | 20000102943 | 5 trailers. (2222-059) | Amendment: File Date: 7/19/2005 File#20050068523B Change Debtor’s name/address
Continuation: File Date: 7/20/2005 File#20050069024K | ||||||
Ingles Markets, Incorporated | Assignee: The CIT Group/Equipment Financing, Inc. | North Carolina Secretary of State | 10/27/2000 | 20000106627 | Specified machinery, equipment, furniture, fixtures, proceeds, products and income thereof with respect to Thomasville, NC and Knoxville, TN store locations. | Assignment: File Date: 8/3/2005 File#20050073777K Assigned by Fleet Capital Corporation
Continuation: File Date: 8/3/2005 File#20050073778M | ||||||
Ingles Markets, Incorporated | Citizens Leasing Corporation | North Carolina Secretary of State | 11/09/2000 | 20000110850 | Specified machinery, equipment, furniture, fixtures, proceeds, products and income thereof with respect to Forsyth County, Georgia store location. | Continuation: File Date: 10/6/2005 File#20050095761G | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 03/12/2001 | 20010024280 | 10 leased utility trailers. | Continuation: File Date: 2/17/2006 File#20060016665C | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 03/12/2001 | 20010024281 | 10 leased utilty trailers. | Continuation: File Date: 2/17/2006 File#20060016673B | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 05/01/2001 | 20010041847 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016669H | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 05/01/2001 | 20010041848 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016694F | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 05/01/2001 | 20010041849 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016697J |
S-8
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 05/01/2001 | 20010041856 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016662M | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 05/30/2001 | 20010051293 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016704H | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 06/15/2001 | 20010057035 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016706K | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 06/20/2001 | 20010058328 | Leased equipment. | Continuation: File Date: 2/17/2006 File#20060016715K | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 07/17/2001 | 20010502045F | Filed in lieu of continuation statement for prior Forsyth, GA, Buncomb, NC and NC S/S filings. No collateral description included. | Amendment: File Date: 1/16/2002 File#20020007852C Restated Collateral –specified leased equipment.
Continuation: File Date: 2/17/2006 File#20060016791H | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 07/17/2001 | 20010502049J | Filed in lieu of continuation statement for prior NC S/S and Buncomb, NC filings. No collateral description included. | Amendment: File Date: 1/16/2002 File#20020007855G Restated Collateral—specified leased equipment.
Continuation: File Date: 2/17/2006 File#20060016735A | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 07/17/2001 | 20010502059J | Filed in lieu of continuation statement for prior SC S/S, NC S/S and Buncombe, NC filings. No collateral description included. | Amendment: File Date: 1/16/2002 File#20020007864F Restated Collateral—specified leased equipment.
Continuation: File Date: 2/17/2006 File#20060016719C | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 08/09/2001 | 20010509964F | Leased trailers. | Continuation: File Date: 2/17/2006 File#20060016739F |
S-9
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 08/21/2001 | 20010514417J | Leased trailers. | Amendment: File Date: 2/23/2006 File#20060018657G Change Debtor’s name/address
Continuation: File Date: 2/23/2006 File#20060018661A | ||||||
Ingles Markets, Incorporated | General Electric Capital Business Asset Funding Corporation | North Carolina Secretary of State | 10/01/2001 | 20010528768K | Fixture filing relating to Johnson City, TN store location. | Continuation: File Date: 7/3/2006 File#20060065672F | ||||||
Ingles Markets, Incorporated | General Electric Capital Business Asset Funding Corporation | North Carolina Secretary of State | 10/01/2001 | 20010529142C | Fixture filing relating to Karns, TN store location. | Continuation: File Date: 7/3/2006 File#20060065676K | ||||||
Ingles Markets, Incorporated | General Electric Capital Business Asset Funding Corporation | North Carolina Secretary of State | 10/01/2001 | 20010529147J | Fixture filing relating to Cartersville, GA store location. | Continuation: File Date: 7/3/2006 File#20060065657J | ||||||
Ingles Markets, Incorporated | ORIX Commercial Finance, LLC | North Carolina Secretary of State | 10/16/2001 | 20010535160A | Leased equipment. | Amendment: File Date: 9/20/2006 File#20060091279H Amended SP’s name.
Continuation: File Date: 9/21/2006 File#20060093548J | ||||||
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 11/30/2001 | 20010551673E | Leased utility trailers. | Continuation: File Date: 8/23/2006 File#200600821153J | ||||||
Ingles Markets, Incorporated | LaSalle Bank National Association, as Trustee | North Carolina Secretary of State | 07/08/2002 | 20020075694F | Fixture filing including equipment, contract rights, general intangibles and tangible personal property relating to Spalding County, GA store location. | Continuation: File Date: 4/9/2007 File#20070035492C | ||||||
Ingles Markets, Incorporated | Metropolitan Life Insurance Company | North Carolina Secretary of State | 11/13/2002 | 20020120331F | Fixture filing with respect to Asheville, NC and Black Mountain, NC store locations. | Continuation: File Date: 6/1/2007 File#20070053481A |
S-10
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 02/10/2004 | 20040013766M | In lieu of continuation filing with respect to prior TN S/S, Clayton County, GA and Carter County, TN filings covering grocery store furniture, trade fixtures, equipment and personal property located at Lake City, GA, Riverdale, GA and Elizabethton, TN store locations. | Continuation: File Date: 09/03/2008 File#20080080220C | ||||||
Ingles Markets, Incorporated | PNC Leasing, LLC | North Carolina Secretary of State | 04/27/2004 | 20040042020F | Leased equipment | None. | ||||||
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 05/18/2004 | 20040050021F | In lieu of continuation for prior Cherokee County, GA filing covering grocery store furniture, trade fixtures, equipment and personal property located at Canton, GA store location. | None. | ||||||
Ingles Markets, Incorporated | Heller Financial Leasing, Inc. | North Carolina Secretary of State | 08/02/2004 | 20040077408C | In lieu of continuation for prior Gwinnett County, GA filing covering grocery store furniture, trade fixtures, equipment and personal property located at Norcross and Carrollton, GA store locations. | None | ||||||
Ingles Markets, Incorporated | Wells Fargo Equipment Finance, Inc. | North Carolina Secretary of State | 05/24/2005 | 20050049382E | In lieu of continuation for prior Bartow County, GA and Buncombe County, GA filings covering grocery store furniture, trade fixtures, communication equipment and personal property. | None. | ||||||
Ingles Markets, Incorporated | Norlease , Inc. | North Carolina Secretary of State | 09/21/2005 | 20050090824A | In lieu of continuation for prior Buncombe County, NC, Washington County, TN and Tennessee S/S filings covering machinery, equipment, furniture, proceeds, products and income related thereto. | None. |
S-11
Ingles Markets, Incorporated | LaSalle National Leasing Corporation | North Carolina Secretary of State | 02/20/2006 | 20060017167A | In lieu of filing for several prior Buncombe County, NC filings covering leased supermarket furniture, fixtures and equipment located in Greenville, SC and Greer, SC store locations. | |||||||
Ingles Markets, Incorporated | Imaging Financial Services, Inc. | North Carolina Secretary of State | 11/06/2006 | 20060106226G | Leased equipment. | None. | ||||||
Ingles Markets, Incorporated | Wachovia Bank, National Association | North Carolina Secretary of State | 01/29/2007 | 20070010473F | In lieu of continuation for prior Tennessee S/S filings covering all personal property located in Hamblen County, TN | None. | ||||||
Ingles Markets, Incorporated | Imaging Financial Services, Inc. | North Carolina Secretary of State | 03/10/2008 | 20080022329K | Leased equipment. | None. | ||||||
Ingles Markets, Incorporated | VFS Financing, Inc. | North Carolina Secretary of State | 03/14/2008 | 20080024483B | Aircraft under an Aircraft Security Agreement. | None. | ||||||
Ingles Markets, Incorporated | Community Bank & Trust-West Georgia | North Carolina Secretary of State | 04/01/2008 | 20080030656A | Fixture filing relating to Barrow County, GA store location. | None. | ||||||
Ingles Markets, Incorporated | Regions Equipment Finance Corporation | North Carolina Secretary of State | 04/02/2008 | 20080030866E | All goods and other personal property specified on extensive attachment including any equipment, vehicles, inventory, or fixtures secured by a Promissory Note dated 3/28/08. | None. | ||||||
Ingles Markets, Incorporated | Alliance Leasing, Inc. | North Carolina Secretary of State | 04/25/2008 | 20080039307C | Leased machinery, fixtures and equipment located in Conyers, GA. | None. | ||||||
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 04/28/2008 | 20080040175J | Specified equipment. | None. | ||||||
Ingles Markets, Incorporated | Fifth Third Bank | North Carolina Secretary of State | 05/12/2008 | 20080044245M | Leased equipment located at specified store locations. | None. | ||||||
Ingles Markets, Incorporated | PNC Equipment Finance, LLC | North Carolina Secretary of State | 05/16/2008 | 200080045999H | Leased equipment located at Lawrence, GA and Cleveland, GA store locations. | None. | ||||||
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 06/05/2008 | 20080052413G | Equipment at Commerce, GA store location. | None. | ||||||
Ingles Markets, Incorporated | OFC Capital Corporation | North Carolina Secretary of State | 06/06/2008 | 20080052994M | Furniture, fixtures and equipment located at Clemson, SC store location. | None. |
S-12
Ingles Markets, Incorporated | OFC Capital Corporation | North Carolina Secretary of State | 06/06/2008 | 20080053085B | Furniture, fixtures and equipment located at Duncan, SC store location. | None. | ||||||
Ingles Markets, Incorporated | Banc of America Leasing & Capital, LLC | North Carolina Secretary of State | 06/09/2008 | 20080053897C | Leased machinery, fixtures and equipment located at Lake Lure, NC and Auburn, GA store locations. | None. | ||||||
Ingles Markets, Incorporated | Bank of the West | North Carolina Secretary of State | 06/172008 | 20080056090A | Leased machinery, fixtures and equipment located at Inman, SC store location. | None. | ||||||
Ingles Markets, Incorporated | Cornerstone Bank | North Carolina Secretary of State | 06/27/2008 | 20080060066K | Fixtures and personal property (in connection with GA mortgage) | None. | ||||||
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 07/16/2008 | 20080065885C | Specified equipment pursuant to a Master Security Agreement with respect to Granite Falls, NC store location. | None. | ||||||
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 07/16/2008 | 20080065916J | Specified equipment pursuant to a Master Security Agreement with respect to Arden, NC store location. | None. | ||||||
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 07/16/2008 | 20080065917K | Specified equipment pursuant to a Master Security Agreement with respect to Greenville, SC store. | None. | ||||||
Ingles Markets, Incorporated | Bank of North Georgia | North Carolina Secretary of State | 08/01/2008 | 20080070874H | Fixtures and personal property in connection with Clarksville, Auburn and Arden, GA mortgages. | None. | ||||||
Ingles Markets, Incorporated | U.S. Bancorp Equipment Finance, Inc.
Assignor: General Electric Capital Corporation | North Carolina Secretary of State | 09/30/2008 | 20080088474B | Specified equipment pursuant to a Master Security Agreement with respect to Bremen, GA store location. | None. | ||||||
Ingles Markets, Incorporated | U.S. Bancorp Equipment Finance, Inc.
Assignor: General Electric Capital Corporation | North Carolina Secretary of State | 09/30/2008 | 20080088479H | Specified equipment pursuant to a Master Security Agreement with respect to Flowery Branch, GA store location. | None. |
S-13
Ingles Markets, Incorporated | RBS Asset Finance, Inc. | North Carolina Secretary of State | 10/03/2008 | 20080089678K | All furniture, fixtures and equipment located at Canton, NC store location. | None. | ||||||
Ingles Markets, Incorporated | OFC Capital Corporation | North Carolina Secretary of State | 10/06/2008 | 20080090632A | All furniture, fixtures and equipment pursuant to a Master Security Agreement with respect to Forest City, NC store location. | None. | ||||||
Ingles Markets, Incorporated | NorLease, Inc. | North Carolina Secretary of State | 10/17/2008 | 20080093496B | All furniture, fixtures and equipment pursuant to a Master Security Agreement with respect to Anderson, SC store location. | None. | ||||||
Ingles Markets, Incorporated | NorLease, Inc. | North Carolina Secretary of State | 10/17/2008 | 20080093498E | All furniture, fixtures and equipment pursuant to a master Security Agreement with respect to Spartanburg, SC store location. | None. | ||||||
Ingles Markets, Incorporated | Wells Fargo Equipment Finance, Inc. | North Carolina Secretary of State | 10/20/2008 | 20080093908M | All furniture, fixtures and equipment pursuant to a Master Security Agreement with respect to Kings Mountain, NC store location. | None. | ||||||
Ingles Markets, Incorporated | Park National Bank | North Carolina Secretary of State | 10/21/2008 | 20080094570G | All furniture, fixtures and equipment pursuant to a Master Security Agreement with respect to Morganton, NC store location. | None. | ||||||
Ingles Markets, Incorporated | Wells Fargo Equipment Finance, Inc. | North Carolina Secretary of State | 10/28/2008 | 20080096471J | All furniture, fixtures, and equipment pursuant to a Master Security Agreement with respect to Easley, SC store location. | None. | ||||||
Ingles Markets, Incorporated | AmeriServ Financial Bank | North Carolina Secretary of State | 11/26/2008 | 20080104645A | All machinery, fixtures and equipment pursuant to a Master Security Agreement with respect to Spartanburg, SC store location. | None. | ||||||
Ingles Markets, Incorporated | SunTrust Equipment Finance & Lease Corp. | North Carolina Secretary of State | 11/26/2008 | 20080104647C | All specified machinery, fixtures and equipment located at Farraout, TN store location. | None. |
S-14
Ingles Markets, Incorporated | The Huntington National Bank | North Carolina Secretary of State | 12/04/2008 | 20080106592E | All specified machinery, fixtures and equipment located at Hayesville, NC, Clayton, GA and Brevard, NC store locations. | None. | ||||||
Ingles Markets, Incorporated | Key Equipment Finance, Inc. | North Carolina Secretary of State | 12/22/2008 | 20080111486B | All specified machinery, fixtures and equipment located at Greenville and Barnesville, GA store locations. | None. | ||||||
Ingles Markets, Incorporated | Atlantic Capital Bank | North Carolina Secretary of State | 12/31/2008 | 20080113358B | Fixtures with respect to Chestnut Mountain, GA store location. | None. | ||||||
Ingles Markets, Incorporated | SG Equipment Finance USA Corp. | North Carolina Secretary of State | 01/14/2009 | 20090003687G | All specified furniture, fixtures and equipment located at Douglasville, GA store location. | None. | ||||||
Ingles Markets, Incorporated | SG Equipment Finance USA Corp. | North Carolina Secretary of State | 01/14/2009 | 20090003814J | All specified furniture, fixtures and equipment located at Temple, GA store location. | None. | ||||||
Ingles Markets, Incorporated | Bank of Atlanta | North Carolina Secretary of State | 03/26/2009 | 20090022970B | All fixtures relating to mortgaged Temple, GA store location. | None. | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation | North Carolina Secretary of State | 03/31/2009 | 20090024752B | All specified equipment located at Elberton, GA store location. | None. | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation | North Carolina Secretary of State | 03/31/2009 | 20090024753C | All specified equipment located at Mars Hill, NC store location. | None. | ||||||
Ingles Markets, Incorporated | General Electric Capital Corporation | North Carolina Secretary of State | 03/31/2009 | 20090024754E | All specified equipment located at Dallas, NC store location. | None. |
S-15
SCHEDULE 7.02
EXISTING INDEBTEDNESS
See attached.
S-16
INGLES MARKETS, INC.
NOTES PAYABLE
May 1, 2009
PAYEE | A/C # | INT RATE | Due Date | PAYMENT | BALLOON PAYMENT | Final Maturity Date | TERMS | COLLATERAL | CURRENT | LONG-TERM | TOTAL | ||||||||||||
Metropolitan Life | 633 | 9.95 | % | 858,788.01 | 05/2015 | Monthly Incl. Interest | SC 36,37,38,40,42,56,69,72,73,85,86,98,103,370 401,402,404,410,old 414,415,old 418,421,436,437,455 | 6,002,711.30 | 39,942,982.96 | 45,945,694.26 | |||||||||||||
Protective Life | 658 | 9.75 | % | 200,563.89 | 08/2015 | Monthly Incl. Interest | DT 9, 306, 313, 442, 453, 494, 496, 497, 601 | 1,371,998.73 | 9,858,815.02 | 11,230,813.75 | |||||||||||||
Protective Life | 685 | 9.00 | % | 125,961.64 | 07/2017 | Monthly Incl. Interest | DT 403, 457, 489 | 757,524.25 | 7,962,003.46 | 8,719,527.71 | |||||||||||||
Protective Life | 708 | 7.75 | % | 82,096.00 | 07/2018 | Monthly Incl. Interest | DT 239, 397 | 502,888.47 | 5,947,142.74 | 6,450,031.21 | |||||||||||||
Protective Life Subtotal | 1st | 408,621.53 | 2,632,411.45 | 23,767,961.22 | 26,400,372.67 | ||||||||||||||||||
GE Capital Business Fund | 751 | 7.58 | % | 48,907.13 | 10/2016 | Monthly Incl. Interest | DT 304 | 346,985.66 | 2,974,786.22 | 3,321,771.88 | |||||||||||||
GE Capital Business Fund | 752 | 7.58 | % | 55,893.86 | 10/2016 | Monthly Incl. Interest | DT 372 | 396,554.98 | 3,399,756.10 | 3,796,311.08 | |||||||||||||
GE Capital Business Fund | 753 | 7.58 | % | 50,267.21 | 10/2016 | Monthly Incl. Interest | DT 476 | 356,682.51 | 3,056,862.49 | 3,413,545.00 | |||||||||||||
GE Commercial Finance | 766 | 6.19 | % | 274,540.63 | 04/01/28 | Monthly Incl. Interest | DT 53, 93, 208, 121, 130 | 1,069,842.58 | 35,354,373.44 | 36,424,216.02 | |||||||||||||
GE Capital Business Fund Subtotal | 1st | 429,608.83 | 2,170,065.73 | 44,785,778.25 | 46,955,843.98 | ||||||||||||||||||
Regions Bank | 761 | 2.08 | % | 1st | 407,628.77 | 08/2013 | Monthly Payment + Int | DT 24,72,206,313,398,399,445,483,484,486, 492 | 4,081,014.87 | 36,768,985.03 | 40,849,999.90 | ||||||||||||
CapitalBank | 763 | 6.00 | % | 3rd | 65,069.16 | 03/2013 | Monthly Incl. Interest | DT 44 Laurens, SC | 263,709.34 | 8,474,527.72 | 8,738,237.06 | ||||||||||||
| — | — | ||||||||||||||||||||||
General Electric Capital | 764 | 6.08 | % | 4th | 128,454.00 | 04/04/2018 | Monthly Incl. Interest | Falcon 50 Aircraft | 908,019.01 | 9,921,839.42 | 10,829,858.43 | ||||||||||||
Farmers Bank | 765 | 6.00 | % | 1st | 115,576.77 | 04/01/2013 | Interest Only - Quarterly | DT 200 | — | 7,500,000.00 | 7,500,000.00 | ||||||||||||
Community Bank & Trust | 767 | 3.25 | % | 5th | 53,808.14 | 04/05/2011 | Monthly Incl. Interest | DT 57 | 414,474.69 | 6,888,933.18 | 7,303,407.87 | ||||||||||||
| — | — | ||||||||||||||||||||||
Regions - (Equipment) | 768 | 5.67 | % | 28th | 191,797.05 | 03/2013 | Monthly Incl. Interest | Equip. 24, 72, 398, 441, 486 (5 stores) | 1,883,970.63 | 6,335,670.21 | 8,219,640.84 | ||||||||||||
RBS Asset Finance -769 | 769 | 6.07 | % | 23rd | 211,128.50 | 04/2013 | Monthly Incl. Interest | Equipment 7 ,30 & 44 | 2,044,866.97 | 6,932,777.94 | 8,977,644.91 | ||||||||||||
Alliance Leasing -Maxus | 770 | 6.01 | % | 1st | 47,248.70 | 05/2013 | Monthly Incl. Interest | Equipment #469 | 458,590.46 | 1,552,881.63 | 2,011,472.09 | ||||||||||||
| — | — | ||||||||||||||||||||||
PNC Equipment | 771 | 6.17 | % | 15th | 96,048.09 | 05/2013 | Monthly Incl. Interest | Equipment #102,489 | 922,256.06 | 3,228,665.67 | 4,150,921.73 | ||||||||||||
Fifth Third Bank | 772 | 6.20 | % | 1st | 288,679.23 | 06/2013 | Monthly Incl. Interest | Equipment 36,57,66,249,428 | 2,768,910.33 | 9,699,559.65 | 12,468,469.98 | ||||||||||||
Bank of the West | 773 | 6.05 | % | 22nd | 58,068.18 | 05/2013 | Monthly Incl. Interest | Equipment Store 200 | 559,987.06 | 1,955,548.27 | 2,515,535.33 | ||||||||||||
RBS Asset Finance | 774 | 6.35 | % | 1st | 74,047.22 | 05/2013 | Monthly Incl. Interest | Equipment 419 | 702,691.04 | 2,542,867.96 | 3,245,559.00 | ||||||||||||
INGLES MARKETS, INC.
NOTES PAYABLE
May 1, 2009
PAYEE | A/C # | INT RATE | Due Date | PAYMENT | BALLOON PAYMENT | Final Maturity Date | TERMS | COLLATERAL | CURRENT | LONG-TERM | TOTAL | ||||||||||||
General Electric Capital -775 | 775 | 6.56 | % | 1st | 169,072.28 | 07/01/2011 | Monthly Incl. Interest | Equipment 121, 130, 208,53 and 93 | 1,600,152.16 | 5,659,881.18 | 7,260,033.34 | ||||||||||||
Banc of America | 776 | 6.25 | % | 5th | 182,823.06 | 06/2013 | Monthly Incl. Interest | Equipment 127, 409 and 451 | 1,750,421.16 | 6,138,114.72 | 7,888,535.88 | ||||||||||||
Cornerstone Bank | 777 | 5.75 | % | 1st | 50,785.61 | 06/01/2011 | Monthly Incl. Interest | DT 419 | 160,157.18 | 7,725,881.69 | 7,886,038.87 | ||||||||||||
Bank of North Georgia | 778 | 3.19 | % | 5th | 113,837.21 | 06/05/2011 | Monthly Payment + Int | DT 411, 428, 451 | 782,013.71 | 17,894,073.07 | 18,676,086.78 | ||||||||||||
GE Equipment Finance | 779 | 6.52 | % | 1st | 50,896.35 | 10/01/2011 | Monthly Incl. Interest | Equipment 55 | 472,240.36 | 1,866,138.23 | 2,338,378.59 | ||||||||||||
GE Equipment Finance | 780 | 6.34 | % | 1st | 81,995.58 | 10/01/2011 | Monthly Incl. Interest | Equipment 412 | 766,217.91 | 3,015,168.21 | 3,781,386.12 | ||||||||||||
GE Equipment Finance | 781 | 6.34 | % | 1st | 63,935.79 | 10/01/2011 | Monthly Incl. Interest | Equipment 105 | 597,455.96 | 2,351,067.55 | 2,948,523.51 | ||||||||||||
GE Equipment Finance | 782 | 6.75 | % | 1st | 58,453.86 | 10/01/2011 | Monthly Incl. Interest | Equipment 120 | 537,451.55 | 2,135,439.04 | 2,672,890.59 | ||||||||||||
GE Equipment Finance | 783 | 6.47 | % | 1st | 63,751.39 | 10/01/2011 | Monthly Incl. Interest | Equipment 147 | 592,679.45 | 2,339,436.48 | 2,932,115.93 | ||||||||||||
GE Equipment Finance | 784 | 6.47 | % | 1st | 35,905.66 | 10/01/2011 | Monthly Incl. Interest | Equipment 251 | 333,805.22 | 1,317,602.85 | 1,651,408.07 | ||||||||||||
GE Equipment Finance | 785 | 6.49 | % | 1st | 41,078.08 | 11/01/2011 | Monthly Incl. Interest | Equipment 27 | 378,787.97 | 1,551,638.61 | 1,930,426.58 | ||||||||||||
GE / Norlease | 786 | 6.24 | % | 3rd | 88,254.26 | 10/03/2011 | Monthly Incl. Interest | Equipment 39 & 202 | 827,930.21 | 3,251,134.59 | 4,079,064.80 | ||||||||||||
Suntrust Equipment Finance | 787 | 6.65 | % | 26th | 88,735.80 | 11/26/2013 | Monthly Incl. Interest | Equipment 91 | 805,666.92 | 3,456,359.07 | 4,262,025.99 | ||||||||||||
AmeriServ Financial | 788 | 6.00 | % | 28th | 112,365.30 | 11/2012 | Monthly Incl. Interest | Equipment 37 & 253 | 1,112,972.63 | 3,315,143.86 | 4,428,116.49 | ||||||||||||
Huntington National Bank | 789 | 6.87 | % | 5th | 153,009.85 | 12/2011 | Monthly Incl. Interest | Equipment 116, 488 and 867 | 1,587,684.46 | 2,747,215.96 | 4,334,900.42 | ||||||||||||
Key Equipment | 790 | 8.00 | % | 19th | 150,459.24 | 12/2011 | Monthly Incl. Interest | Equipment 32 & 498 | 1,514,410.50 | 2,808,457.44 | 4,322,867.94 | ||||||||||||
Atlantic Capital | 791 | 2.94 | % | 15th | 71,170.84 | 11/15/2011 | Monthly Payment + Int | DT # 412 | 571,627.32 | 9,303,372.67 | 9,874,999.99 | ||||||||||||
GE/Societe Generale | 792 | 7.00 | % | 24th | 168,310.19 | 12/24/2011 | Monthly Incl. Interest | Equipment 405 & 414 | 1,505,965.36 | 6,514,955.59 | 8,020,920.95 | ||||||||||||
Bank of Atlanta | 793 | 7.25 | % | 9th | 73,316.65 | 02/28/2014 | Monthly Incl. Interest | DT # 405 | 222,316.75 | 8,946,980.49 | 9,169,297.24 | ||||||||||||
GE Capital Business Fund | 794 | 9.41 | % | 1st | 103,891.81 | 04/01/2012 | Monthly Incl. Interest | Equipment @ 65 | 821,213.56 | 4,070,466.39 | 4,891,679.95 |
INGLES MARKETS, INC.
NOTES PAYABLE
May 1, 2009
PAYEE | A/C # | INT RATE | Due Date | PAYMENT | BALLOON PAYMENT | Final Maturity Date | TERMS | COLLATERAL | CURRENT | LONG-TERM | TOTAL | ||||||||||||
GE Capital Business Fund | 795 | 9.41 | % | 1st | 82,190.72 | 04/01/2012 | Monthly Incl. Interest | Equipment @ 80 | 649,677.14 | 3,220,220.74 | 3,869,897.88 | ||||||||||||
GE Capital Business Fund | 796 | 9.41 | % | 1st | 82,103.98 | 4/01/2012 | Monthly Incl. Interest | Equipment @ 146 | 648,991.47 | 3,216,822.62 | 3,865,814.09 | ||||||||||||
Wells Fargo Bank | SF01 | 8.2250 | % | 1st | 110,927.45 | 12/01/2010 | Monthly Incl. Interest | DT 67, 79, 440 (3 reserves) | 218,383.11 | 13,409,058.21 | 13,627,441.32 | ||||||||||||
Gemsa (GE Capital Loan Serv) | SF02 | 8.2250 | % | 1st | 98,935.29 | 12/01/2010 | Monthly Incl. Interest | DT 8, 60, 66, 450 | 194,774.05 | 11,959,430.83 | 12,154,204.88 | ||||||||||||
Shopping Center Fin I & II Subtotal |
| 209,862.74 | 413,157.16 | 25,368,489.04 | 25,781,646.20 | ||||||||||||||||||
Senior Subordinated Notes | 8.78 | % | Semi-Annual Int Due 2011 | — | 349,750,000.00 | 349,750,000.00 | |||||||||||||||||
Senior Subordinated Notes Subtotal |
| — | 349,750,000.00 | 349,750,000.00 | |||||||||||||||||||
NOTES PAYABLE TOTAL |
| 5,730,778.43 | 44,466,675.05 | 688,263,039.20 | 732,729,714.25 | ||||||||||||||||||
Total Debt | 44,466,675.05 | 688,263,039.20 | 732,729,714.25 | ||||||||||||||||||||
SCHEDULE 7.08
BURDENSOME AGREEMENTS
1. | Senior Note Indenture; |
2. | Existing Subordinated Note Indenture; and |
3. | Indebtedness set forth onSchedule 7.02. |
S-17
SCHEDULE 10.02
ADMINISTRATIVE AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
INGLES MARKETS, INCORPORATED
2913 US Highway 70 W
Black Mountain, North Carolina 28711-9103
Attention: | Ronald B. Freeman Chief Financial Officer and Vice President of Finance | |
Telephone: | 828.669.2941, Ext. 223 | |
Telecopier: | 828.669.3511 |
Electronic Mail: rfreeman@ingles-markets.com
Website Address:www.ingles-markets.com
U.S. Taxpayer Identification Number: 56-0846267
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
101 N. Tryon Street
Mail Code: NC1-001-04-39
Charlotte, North Carolina 28255-0001
Attention: | Mallory Kohler | |
Telephone: | 980.387.2419 | |
Telecopier: | 704.602.3672 |
Electronic Mail:mallory.b.kohler@bankofamerica.com
Account No.: 136-621-225-0600
Ref: Ingles Markets, Incorporated
ABA#026009593
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
231 S. LaSalle Street
Mail Code: IL1-231-10-41
Chicago, Illinois 60604
Attention: | Laura Call | |
Telephone: | 312.828.3559 | |
Telecopier: | 877.207.2883 |
Electronic Mail:laura.call@bankofamerica.com
S-18
L/C ISSUER:
Bank of America, N.A.
Trade Operations
1 Fleet Way
Mail Code: PA6-580-02-30
Scranton, Pennsylvania 18507
Attention: | Alfonso Malave | |
Telephone: | 570.330.4212 | |
Telecopier: | 570.330.4186 |
Telecopier: 570.330.4186
Electronic Mail:alfonso.malave@bankofamerica.com
SWING LINE LENDER: (autoborrow)
Bank of America, N.A.
1901 Main Street
Mail Code: SC3-240-03-07
Columbia, South Carolina 29201-2435
Attention: | Debbie Tyson | |
Telephone: | 803.255.7466 | |
Telecopier: | 866.743.9266 |
Electronic Mail:debbie.s.tyson@bankofamerica.com
Account No.: 136-621-225-0600
Ref: Ingles Markets, Incorporated
ABA# 026009593
S-19
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ,
To: | Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 12, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Ingles Markets, Incorporated, a North Carolina corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
The undersigned hereby requests (select one):
¨ A Borrowing of Committed Loans ¨ A conversion or continuation of Loans
1. | On (a Business Day). |
2. | In the amount of $ . |
3. | Comprised of . |
[Type of Committed Loan requested]
4. | For Eurodollar Rate Loans: with an Interest Period of months. |
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence ofSection 2.01 of the Agreement.
INGLES MARKETS, INCORPORATED | ||
By: |
| |
Name: |
| |
Title: |
| |
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ,
To: | Bank of America, N.A., as Swing Line Lender |
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 12, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Ingles Markets, Incorporated, a North Carolina corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
The undersigned hereby requests a Swing Line Loan:
1. | On (a Business Day). |
2. | In the amount of $ . |
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence ofSection 2.04(a) of the Agreement.
INGLES MARKETS, INCORPORATED | ||
By: |
| |
Name: |
| |
Title: |
| |
B-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF NOTE
FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of May 12, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. Except as otherwise provided inSection 2.04(f) of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
C-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
INGLES MARKETS, INCORPORATED | ||
By: |
| |
Name: |
| |
Title: |
|
C-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
Date | Type of Loan Made | Amount of Loan Made | End of Interest Period | Amount of Principal or Interest Paid This Date | Outstanding Principal Balance This Date | Notation Made By | ||||||
C-3
Form of Note
EXHIBIT E-1
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between[the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and[the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”).[It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration,[the][each] Assignor hereby irrevocably sells and assigns to[the Assignee][the respective Assignees], and[the][each] Assignee hereby irrevocably purchases and assumes from[the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of[the Assignor’s][the respective Assignors’] rights and obligations in[its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of[the Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of[the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by[the][any] Assignor to[the][any] Assignee pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as[the][an] “Assigned Interest”). Each such sale and assignment
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. |
3 | Select as appropriate. |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
E-1-1
Form of Assignment and Assumption
is without recourse to[the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by[the][any] Assignor.
1. | Assignor[s]: |
2. | Assignee[s]: [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
3. | Borrower: Ingles Markets, Incorporated |
4. | Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement |
5. | Credit Agreement: Credit Agreement, dated as of May 12, 2009, among Ingles Markets, Incorporated, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer |
6. | Assigned Interest: |
Assignor[s]5 | Assignee[s]6 | Aggregate Amount of Commitment for all Lenders7 | Amount of Commitment/ Assigned | Percentage Assigned of Commitment8 | CUSIP Number | |||||
$ | $ | % | ||||||||
$ | $ | % | ||||||||
$ | $ | % |
[7. | Trade Date: ]9 |
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
5 | List each Assignor, as appropriate. |
6 | List each Assignee, as appropriate. |
7 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
8 | Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder. |
9 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
E-1-2
Form of Assignment and Assumption
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR | ||
[NAME OF ASSIGNOR] | ||
By: |
| |
Title: | ||
ASSIGNEE | ||
[NAME OF ASSIGNEE] | ||
By: |
| |
Title: | ||
[Consented to and]10 Accepted:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: |
| |
Title: | ||
[Consented to:]11
INGLES MARKETS, INCORPORATED | ||
By: |
| |
Title: | ||
10 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
11 | To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement. |
E-1-3
Form of Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.Representations and Warranties.
1.1.Assignor.[The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of[the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.Assignee.[The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee underSection 10.06(b)(iii),(v),(vi) and(vii) of the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of[the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type presented by[the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire[the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant toSection 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase[the][such] Assigned Interest, (vi) it has independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent,[the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms
E-1-4
Form of Assignment and Assumption
all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of[the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to[the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to[the][relevant] Assignee for amounts which have accrued from and after the Effective Date.
3.General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of North Carolina.
E-1-5
Form of Assignment and Assumption
EXHIBIT E-2
FORM OF ADMINISTRATIVE QUESTIONNAIRE
See attached.
E-2-1
Form of Administrative Questionaire
FAX ALONG WITH COMMITMENT LETTER TO:
FAX #
I. | Borrower Name:Ingles Markets, Incorporated |
$ Type of Credit Facility
II. Legal Name of Lender of Record for Signature Page:
• | Signing Credit Agreement YES NO |
• | Coming in via Assignment YES NO |
III. Type of Lender:
(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other – please specify)
IV. Domestic Address: | V. Eurodollar Address: | |
|
| |
|
| |
|
| |
|
|
VI. | Contact Information: |
Syndicate level information (which may contain material non-public information about the Borrower and its related parties or their respective securities will be made available to the Credit Contact(s). The Credit Contacts identified must be able to receive such information in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and State securities laws.
Credit Contact | Primary Operations Contact | Secondary Operations Contact | ||||
Name: |
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Title: |
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Address: |
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Telephone: |
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Facsimile: |
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| |||
E Mail Address: |
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|
|
Does Secondary Operations Contact need copy of notices? YES NO
E-2-1
Form of Administrative Questionnaire
Letter of Credit Contact | Draft Documentation Contact | Legal Counsel | ||||
Name: |
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| |||
Title: |
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| |||
Address: |
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| |||
Telephone: |
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Facsimile: |
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| |||
E Mail Address: |
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| |||
VII. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable):
Pay to:
| ||
(Bank Name) | ||
| ||
(ABA #) | ||
| ||
(Account #) | ||
| ||
(Attention) |
VIII. Lender’s Fed Wire Payment Instructions:
Pay to:
| ||||
(Bank Name) | ||||
| ||||
(ABA#) | (City/State) | |||
| ||||
(Account #) | (Account Name) | |||
| ||||
(Attention) | ||||
E-2-2
Form of Administrative Questionnaire
IX. Organizational Structure and Tax Status
Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:
Lender Taxpayer Identification Number (TIN): -
Tax Withholding Form Delivered to Bank of America*:
| W-9 | |
| W-8BEN | |
| W-8ECI | |
| W-8EXP | |
| W-8IMY | |
NON–U.S. LENDER INSTITUTIONS
1. Corporations:
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.An original tax form must be submitted.
2. Flow-Through Entities
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.Original tax form(s) must be submitted.
U.S. LENDER INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).Please be advised that we require an original form W-9.
E-2-3
Form of Administrative Questionnaire
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.
*Additional guidance and instructions as to where to submit this documentation can be found at this link:
X. Bank of America Payment Instructions:
Pay to: | Bank of America, N.A. | |
ABA # 026009593 | ||
New York, NY | ||
Acct. # | ||
Attn: Corporate Credit Services | ||
Ref: Ingles Markets, Incorporated |
E-2-4
Form of Administrative Questionnaire
EXHIBIT F
OPINION MATTERS
See attached.
F-1
Opinion Matters
| EPHRAIM SPIELMAN Direct Dial: (770) 951-6568 Direct FAX: (770) 303.1188 E-MAIL: espielman@hssw.com |
May 12, 2009
Banc of America Securities, LLC
Bank of America, N.A.
One Bryant Street
New York, New York 10036
Re: | $175,000,000.00 Revolving Line of Credit provided by Bank of America, N. A. (“Bank of America”) for itself and as administrative agent for Branch Banking & Trust Company (“BB&T”) and Wachovia Bank National Association (“Wachovia”) (collectively, Bank of America, BB&T and Wachovia will be referred to as the “Lenders” or each as a “Lender”) in favor of Ingles Markets, Incorporated, a North Carolina corporation; HSSW File No. 2043.0090000 |
Ladies and Gentlemen:
We have acted as counsel to Ingles Markets, Incorporated, a North Carolina corporation (the“Company”), in connection with the negotiation, execution and delivery of that certain Credit Agreement (“Credit Agreement”) and related loan documents dated as of May 12, 2009 (collectively, the“Agreements”) by and between the Company and Lenders in connection with the $175,000,000.00 revolving line of credit transaction contemplated by the Agreements and consummated on or about May 12, 2009 (the“Transaction”). Unless otherwise defined herein, or as the context hereof requires, each capitalized term used herein has the meaning given to such term in the Agreements.
In rendering this opinion, we have reviewed the following:
• | Certificate of the Secretary of Ingles Markets, Incorporated dated May 12, 2009. |
• | Amended and Re-Stated By-Laws of Ingles Markets, Incorporated dated August 29, 2007. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Incorporation of Ingles Markets, Incorporated dated February 20, 2008 for articles filed on June 2, 1965. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on February 19, 1973. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on December |
HARTMAN, SIMONS, SPIELMAN & WOOD, LLP
6400 Powers Ferry Road, N.W. • Suite 400 • Atlanta, Georgia 30339 • www.hssw.com • (770) 955-3555
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15, 1976. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on June 23, 1982. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on September 9, 1987. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on August 10, 1988. |
• | North Carolina Department of the Secretary of State certified copy of the Articles of Amendment of Ingles Markets, Incorporated dated February 20, 2008 for amendment filed on February 3, 2005. |
The opinions set forth herein are limited solely to the laws of the State of Georgia.
Each opinion in this opinion letter is subject to the following assumptions: (a) that each party to the Transaction and to each of the Agreements other than the Company has complied with all laws applicable to it that affect such transactions; (b) that each natural person acting on behalf of any party to the Transaction has sufficient legal competency to carry out such person’s role in the Transaction; (c) that each document submitted to us for review is accurate and complete; (d) that each document purporting to be original is authentic; (e) that each document purporting to be a copy conforms to an authentic original; (f) that each signature on a document is genuine; and (g) that the Agreements and the Transaction are governed solely by the laws of the State of Georgia irrespective of the designation of any other governing venues or jurisdictions set forth in the Agreements (including, without limitation, the State of North Carolina).
Based upon the qualifications, exceptions, and other limitations set forth herein, it is our opinion that:
1. Based solely on the Certificate of Existence dated April , 2009 issued by the North Carolina Secretary of State in regard to the Company, a copy of which is attached hereto and made a part hereof onExhibit “A-1” and the certified copies of the Articles of Incorporation referenced above together with all amendments thereto, Borrower was duly organized as a corporation and is existing and in good standing under the laws of North Carolina. Based solely upon the following the following certificates, Borrower is in good standing or validly existing under the laws of the following jurisdictions where its conduct of business requires qualification: (i) State of Alabama Certificate of Qualification dated April 28, 2009, a copy of which is attached
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hereto asExhibit “A-2”; (ii) State of Georgia Certificate of Existence dated April 27, 2009, a copy of which is attached hereto asExhibit “A.3”; (iii) State of South Carolina Certificate of Authorization dated April 28, 2009, a copy of which is attached hereto asExhibit “A-4”; (iv) Tennessee Certificate of Authorization dated April 27, 2009, a copy of which is attached hereto asExhibit “A-5”; and (v) Commonwealth of Virginia Certificate of Authority dated April 27, 2009, a copy of which is attached hereto asExhibit “A-6”.
2. The Company has the corporate power to execute and deliver each of the Agreements and to perform its obligations under the Agreements. The Agreements are valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such terms may be affected by applicable bankruptcy, insolvency, reorganization, moratorium or similar debtor relief laws from time to time in effect, and other laws affecting the rights of creditors generally, The Company (a) duly authorized the execution of each of the Agreements by Robert P. Ingle, Chief Executive Officer and Ron Freeman, Chief Financial Officer, (b) duly authorized the delivery of each of the Agreements to Lenders, and (c) duly authorized all performance by the Company under each of the Agreements as provided therein.
3. The execution and delivery by the Company of each of the Agreements do not, and if the Company were now to perform its obligations under any of the Agreements such performance would not, result in any:
(i) violation of its Articles of Incorporation or Bylaws; or
(ii) breach of or default under any material written agreements to which, to our actual knowledge, the Company is bound, which would have a material adverse effect on the ability of the Company to fulfill its obligations under the Agreements; or
(iii) violation of any judicial or administrative decree, writ, judgment or order to which, to our actual knowledge, the Company is subject, which would have a material adverse effect on the ability of the Company to fulfill its obligations under the Agreements.
4. No consent, approval, authorization or other action by, or filing with, any court or governmental authority is required for the Company’s execution and delivery of any of the Agreements or consummation of any of the Transaction contemplated by the Agreements to be effected by the Company.
5. The Borrower is not to our actual knowledge engaged in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the
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FRB), or extending credit for the purpose of purchasing or carrying margin stock. The Borrower is not to our actual knowledge required to be registered as an “investment company” under the Investment Company Act of 1940.
6. Based upon the qualifications, exceptions, and other limitations set forth herein and based solely upon such certifications provided to us by the Company, we hereby confirm to you that, to our actual knowledge, there are no actions or proceedings against the Company, pending or threatened in writing, before any court, governmental agency or arbitrator that seek to affect the enforceability of any of the Agreements or of the Transaction or that, if determined adversely to the Company, would have a material adverse effect on the ability of the Company to fulfill its obligations under the Agreements.
This opinion letter speaks as of the date of its delivery, and we have no obligation to advise you or anyone else of any matter of fact or law thereafter occurring, whether or not brought to our attention, even though that matter affects any analysis or conclusion in this opinion letter.
This opinion letter is provided to the Lenders for exclusive use solely in connection with the Transaction, and may not be relied upon by any other person or for any other purpose or quoted, published or otherwise disseminated without our prior written consent.
Very truly yours, | ||
HARTMAN, SIMONS, SPIELMAN & WOOD, LLP | ||
By: |
| |
EPHRAIM SPIELMAN | ||
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Exhibit “A-1”
North Carolina Certificate of Existence
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Exhibit “A-2”
Alabama Certificate of Authority
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Exhibit “A-3”
Georgia Certificate of Existence
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Exhibit “A-4”
South Carolina Certificate of Authorization
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Exhibit “A-5”
Tennessee Certificate of Authorization
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Exhibit “A-6”
Virginia Certificate of Authority
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