NASH-FINCH COMPANY
FIFTH AMENDMENT TO CREDIT AGREEMENT
Harris Trust and Savings Bank,
as Administrative Agent Chicago, Illinois
Other Banks party to the
Credit Agreement
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 8, 1996 (such
Credit Agreement, as heretofore amended and as may be amended from time to
time, being hereinafter referred to as the "CREDIT AGREEMENT") and currently
in effect between you and us. Capitalized terms used without definition below
shall have the same meanings herein as they have in the Credit Agreement.
The Borrower has requested that the Banks make certain modifications
to the borrowing arrangements provided for in the Credit Agreement and the
Banks have agreed to accommodate such request by the Borrower on the terms
and conditions set forth herein.
1 . CURRENT ASSET COLLATERAL.
Upon the effectiveness of this Amendment as hereinafter set forth,
Section 3 of the Credit Agreement shall be amended by inserting the following
new Section immediately at the end thereof:
SECTION 3.10. DOMESTIC CURRENT ASSET COLLATERAL. (a)
GENERALLY. The Loans and other Obligations and Hedging Liability shall
be secured by valid and perfected first Liens on all inventory and
accounts receivable of the Borrower and each Material Subsidiary and
all books and records of the Borrower and its Material Subsidiaries
related to any of the foregoing inventory or accounts receivable and
all proceeds of the foregoing, in each case limited by and pursuant to
a Security Agreement in the form or substantially the form of Exhibit 0
hereto, as each such Agreement may from time to time be modified or
amended (the "SECURITY AGREEMENT"); PROVIDED, HOWEVER, that (i) no such
Liens need be granted on, and the Collateral shall not include,
accounts receivable subject to securitizations, inventory subject to
purchase money security interests, inventory subject to capitalized
leases, and inventory on consignment to any Debtor, in each case to the
extent provided in the Security Agreement, (ii) such Liens need not be
perfected on (a) any Collateral which is covered by (i) above, (b) any
Collateral located outside the United States in the ordinary course of
business, and (c) any loans made by any Debtor in the ordinary course
of business to retail customers outstanding as of June 1, 1999 or to
finance capital improvements by, or provide working capital to, such
customers, in each case to the extent such loans do not directly or
indirectly constitute trade credit, and (iii) such Liens may be subject
to (a) the rights of holders of purchase money security interests, (b)
the rights of lessors under capitalized leases, and (c) the rights of
consignors under consignments, in each case to the extent such
arrangements are permitted in the Credit Agreement. The liens in the
Collateral shall be granted to the Administrative Agent for the ratable
account of the Banks and shall be valid and perfected first Liens
subject, however, to the proviso appearing at the end of the
immediately preceding sentence. The Borrower agrees that it will, and
will cause its Subsidiaries to, from time to time at the request of the
Administrative Agent, execute and deliver
such documents and do such acts and things, as the Administrative
Agent may reasonably request in order to provide for or perfect such
Liens on the Collateral, except to the extent any of the foregoing
represents action to perfect Liens on Collateral located outside the
United States in accordance with the Security Agreement. The
Administrative Agent agrees to execute and deliver such documents
(including UCC releases) and do such acts and things, as the Borrower
or any Subsidiary may reasonably request in order to confirm that the
Collateral does not include any Property which the forgoing provisions
of this Section 3. 10 exclude from the Collateral.
(b) LANDLORD'S WAIVERS. Notwithstanding anything herein or in any
Collateral Document to the contrary, the obligations of the Borrower and its
Subsidiaries to provide landlord's and mortgagee's waivers in form and
substance satisfactory to the Administrative Agent (collectively being
hereinafter referred to as "WAIVERS") with respect to locations of Collateral
(collectively, the "WAIVER LOCATIONS") which (x) are not owned by the
Borrower or any subsidiary or (y) if so owned, are subject to a mortgage in
favor of a third party shall be deemed satisfied by the following: (i) the
Borrower and its Subsidiaries shall use reasonable efforts to obtain a Waiver
for each Waiver Location at which is situated inventory aggregating in excess
of $500,000 and at all times on and after August 15, 1999, the Borrower and
its Subsidiaries shall have furnished Waivers for Waiver Locations, the
Collateral consisting of inventory at which is situated, when added to the
Collateral consisting of inventory situated at locations that are not Waiver
Locations is more than 90% of the aggregate value of all Collateral
consisting of inventory; (ii) the Borrower shall pay, and shall cause its
Subsidiaries to pay, when due all rents and other charges due under any
lease- or mortgage, as applicable, for such location or, with notice to the
Administrative Agent, will in good faith contest its obligation to make such
payments by appropriate proceedings which prevent enforcement of the matter
under contest; and (iii) the Borrower will, and will cause its Subsidiaries
to, furnish the Administrative Agent such information as the Administrative
Agent shall reasonably request to confirm the Borrower and its Subsidiaries
are in compliance with their respective obligations described in the
immediately preceding clause (ii).
(c) RELEASES. Notwithstanding anything herein or in the Loan
Documents to the contrary, the Lien of the Administrative Agent pursuant to
the Collateral Documents on any Property sold or otherwise disposed of as
otherwise permitted by Section 3(f) of the Security Agreement shall be
released upon the written request of the Borrower, if (A) at the time of such
sale or other disposition and immediately after giving effect thereto, no
Default or Event of Default shall occur or be continuing and (B) the net
proceeds of such sale or other disposition are paid to the Administrative
Agent for application in reduction of the Obligations if and to the extent
required herein or by the Loan Documents. The Administrative Agent shall, at
the Borrower's expense, execute and deliver such instruments (including UCC
termination statements) as the Borrower may from time to time reasonably
request to confirm such release made pursuant to the immediately preceding
sentence.
2. OTHER AMENDMENTS.
Upon satisfaction of the conditions precedent to effectiveness set
forth below, the Credit Agreement shall be amended (effective as of June 1,
1999) as follows:
SECTION 2.01. NEW APPLICABLE MARGIN. (a) Section 1.3(c) of the
Credit Agreement shall be amended by deleting the text appearing before the
proviso therein and inserting the following in lieu therefor:
"(c) APPLICABLE MARGIN. With respect to Committed Loans and the
facility fee payable under Section 4.1 hereof, the "Applicable Margin" shall
mean the rate specified for such Obligation below, subject to adjustment as
hereinafter provided:
When Following Applicable Applicable Applicable
Status Exists Margin Margin Margin
For Base Rate For Eurodollar Loans Is: For Facility Fee Is:
Loans Is:
Level I Status 0.000% .875% 0.125%
Level II Status 0.250% 1.250% 0.250%
Level III Status 0.375% 1.375% 0.375%
Level IV Status 0.500% 1.50% 0.500%
Level V Status 0.750% 1.750% 0.500%"
SECTION 2.02. APPLICATION OF HEDGING LIABILITIES. Section 5.1 of the
Credit Agreement shall be amended as follows:
(a) Section 5.1 shall be amended by inserting the phrase ", Hedging
Liabilities" after the word "Notes" as it appears in the line two of the
second paragraph thereof; and
(b) Section 5. 1 (c) shall be amended in its entirety and as amended
shall be stated to read as follows:
(c) third, to the payment of the principal of the Notes, the
Hedging Liability, any liabilities in respect of Reimbursement
Obligations and to the Administrative Agent to be held as collateral
security for any undrawn Letters of Credit (until the Administrative
Agent is holding an amount of cash equal to the then outstanding amount
of all such Letters of Credit), the aggregate amount paid to or held as
collateral security for the Banks to be allocated pro rata as among the
Banks (or the Affiliates thereof in the case of the Hedging Liability)
in accord with the then respective aggregate unpaid principal balances
of such indebtedness and liabilities owing to each such party;
SECTION 2.03. NEW DEFINITIONS. Section 6.1 of the Credit Agreement
shall be amended by inserting the following new definitions in the
appropriate alphabetical location:
"COLLATERAL" means all properties, rights, interests and
privileges from time to time subject to the Liens Granted to
the Administrative Agent by the Collateral Documents.
"COLLATERAL DOCUMENTS" means the Security Agreement and all
other security agreements, assignments, financing statements
and other documents as shall from time to time secure the
Obligations.
"ERICKSON ACQUISITION " MEANS the acquisition by the Borrower
of the capital stock of Erickson pursuant TO the Erickson
Purchase Agreement.
"ERICKSON" means Erickson's Diversified Corporation, a
Wisconsin corporation.
"ERICKSON PURCHASE AGREEMENT" means the Stock Purchase
Agreement dated as of May 3, 1999 by and among the Borrower
and the shareholders of Erickson's Diversified Corporation.
"HEDGING ARRANGEMENTS" means any interest rate swaps, interest
rate caps, interest rate collars or other interest rate
hedging arrangements as the Borrower may from time to time
enter into with any one or more of the Banks or their
Affiliates to hedge against interest rate risk on the Loans. -
"HEDGING LIABILITY" means the liability of the Borrower to the
Banks, their Affiliates or any of the foregoing in respect of
the Hedging Arrangements. Unless and until the amount of the
Hedging Liability is fixed and determined, the Hedging
Liability shall be deemed to be the market value OF the
relevant Hedging Arrangements, as reasonably determined by the
Banks or their Affiliates party to such Arrangements.
"GUARANTEED LIABILITIES" MEANS the Obligations and the Hedging
Liability.
SECTION 2.04. REVISED DEFINITIONS. Section 6.1 of the Credit
Agreement shall be amended by deleting the definitions of "LOAN DOCUMENTS"
and "SUBSIDIARY GUARANTY AGREEMENT" and replacing them in their entirety
which shall be stated to read as follows:
"LOAN DOCUMENTS" means this Agreement, the Collateral Documents, the
Notes, the Applications, the Letters of Credit, and each Subsidiary
Guarantee Agreement delivered to the Administrative Agent pursuant to
Sections 8.1 or 9.1 hereof, as applicable.
"SUBSIDIARY GUARANTEE AGREEMENT" means a letter to the Administrative
Agent in the form of Exhibit I hereto executed by a Subsidiary whereby
it acknowledges it is party hereto as a Guarantor under Section 13 and
any amendments hereof.
SECTION 2.05. NEW LEVERAGE RATIO LEVEL. Section 9.9 of the Credit
Agreement shall be amended and as so amended shall be restated in its
entirety to read as follows:
"SECTION 9.9. LEVERAGE RATIO. The Borrower shall not, as of the
close of any fiscal quarter of the Borrower set forth below, permit the
Leverage Ratio to be more than the amount set forth to the right of such
quarter:
As of Close of each Fiscal Quarter:
Leverage Ratio Shall
From and Including To and Including Not be More Than:
1st fiscal quarter of 3rd fiscal quarter of 4.75 to 1
fiscal year 1998 fiscal year 1998
4th fiscal quarter of 1st fiscal quarter of 4.50 to 1
fiscal year 1998 fiscal year 1999
2nd fiscal quarter of 2nd fiscal quarter of 4.75 to 1
fiscal year 1999 fiscal year 1999
3rd fiscal quarter of 1st fiscal quarter of 4.25 to 1
fiscal year 1999 fiscal year 2000
2nd fiscal quarter of each fiscal quarter 4.00 to 1
fiscal year 2000 thereafter
SECTION 2.06. ACQUISITION LIMIT. Subsection (h) of Section 9.14 of the
Credit Agreement shall be amended by inserting the following immediately at the
end thereof:
" and (v) except in the case of the Erickson Acquisition,
either (1) the aggregate amount of cash and cash equivalents expended
by the Borrower and its Subsidiaries as consideration for such
acquisition, when taken together with the aggregate amount of cash and
cash equivalents expended by the Borrower and its Subsidiaries as
consideration for all other acquisitions (other than the Erickson
Acquisition) on or at any time after January 1, 1999 on a cumulative
basis (the aggregate of the consideration for the acquisition in
question and all such other acquisitions being hereinafter referred to
the "AGGREGATE CUMULATIVE ACQUISITION CONSIDERATION"), does not exceed
$40,000,000 or (2) if the Aggregate Cumulative Acquisition
Consideration exceeds $40,000,000, both (A) the aggregate amount of
cash and cash equivalents expended as consideration for the acquisition
in question is less than $5,000,000 and (B) the aggregate purchase
price due from the Borrower and its Subsidiaries as consideration for
such acquisition (including the assumption of indebtedness but
excluding any such consideration in the form of capital stock of the
Borrower) does not exceed the product of 4.5 and EBITDA reasonably
attributable to the Person (in the case of an acquisition of such
Person's Voting Stock) or the Property so acquired (in the case of an
acquisition of such Person's Property), in each case for such Person's
twelve most recently completed monthly accounting periods ("EBITDA" for
such purposes to mean EBITDA as such term is defined herein, but with
such Person and its subsidiaries substituted in such definition and all
ancillary definitions in the place and stead of the Borrower and its
Subsidiaries).
SECTION 2.07. PERMITTED INDEBTEDNESS FOR HEDGING LIABILITY. Section
9.12 of the Credit Agreement shall be amended by striking the "." at the end
and adding "PROVIDED, HOWEVER; that the forgoing shall not restrict nor
operate to prevent the Hedging Liability owing to the Administrative Agent
and the Banks and (in the case of Hedging Liability) their Affiliates."
SECTION 2.08. PERMITTED LIENS. Section 9.13 of the Credit Agreement
shall be amended by striking "and" at the end of Section (e); striking the
"." at the end of Section (f) and replacing it with "; and"; and adding a new
Section (g) which shall be stated to read "the Liens granted in favor of the
Administrative Agent for the benefit of the Banks pursuant to the Collateral
Documents."
SECTION 2.09 ADDITIONAL EVENTS OF DEFAULT. Section 10 of the Credit
Agreement shall be amended as follows:
(a) Section 10.1(b) shall be amended by deleting the ";"
appearing at the end of the sentence and replacing it with "or of any
provision in any Loan Documents dealing with the use, disposition or
remittance of the proceeds of Collateral or requiring the maintenance
of insurance thereon;";
(b) Section 10. 1 (d) of the Credit Agreement shall be amended by
deleting the ";" appearing at the end of the sentence and replacing it with
"or any of the Collateral Documents shall for any reason fail to create a
valid and perfected first priority Lien in favor of the Administrative Agent
in any Collateral purported to be covered thereby except as expressly
permitted by the terms thereof,";
SECTION 2.10. CONFLICT OF PROVISIONS. Section 12 of the Credit
Agreement shall be amended by adding a new Section 12.11 which shall be
stated to read as follows:
"SECTION 12.11. CONFLICT. In the event of a conflict between the
provisions of this Section 12 and the provision of any Collateral
Document regarding the rights, duties and obligations of the
Administrative Agent, the provisions of this Section 12 shall govern."
SECTION 2. 11. COLLATERAL DOCUMENTS NOT SUPERSEDED. Section 14 of
the Credit Agreement shall be amended by adding a new Section 14.21 which
shall be stated to read as follows:
"SECTION 14.21. TERMS OF COLLATERAL DOCUMENTS NOT SUPERSEDED. Nothing
contained herein shall be deemed or construed to permit any act or
omission which is prohibited by the terms of any Collateral Document,
the covenants and agreements contained herein being in addition to and
not in substitution for the covenants and agreements contained in the
Collateral Documents."
SECTION 2.12. ADDITIONAL GUARANTEES. Section 13 of the Credit
Agreement shall be amended as follows:
(a) Section 13 shall be amended by replacing the phrase
"indebtedness guaranteed hereby" wherever it is found therein with the
phrase "Guaranteed Liabilities";
(b) Section 13.1 shall be amended by replacing the phrase
"indebtedness of the Borrower" with the phrase "Guaranteed
Liabilities";
(c) Section 13.2(c) shall be amended by replacing ";" at the
end of the sentences with "or other instrument or document for any
Hedging Arrangements;";
(d) Section 13.2(g) shall be amended by inserting the phrase
"or any other instrument or documents for any Hedging Arrangements"
after the word "Document" as it appears in line three thereof; and
inserting the phrase "or on the Guaranteed Liabilities" after the word
"Documents" as it appears in line five thereof;
(e) Section 13.3 shall be amended by inserting the phrase ",
Guaranteed Liabilities" after the word "Note" as it appears in lines
four and six thereof; and
(f) Section 13.4(b) shall be amended by replacing the word
"Obligations" appearing in line one with the phrase "Guaranteed
Liabilities".
3. WAIVER OF NASH-DE CAMP AND DAIRY SALES.
The Borrower is currently involved in negotiations to sell the
capital stock of Nash-De Camp Company ("NASH-DE CAMP") (such sale of Nash-De
Camp, to the extent made at arm's length to an unaffiliated third party,
being hereinafter referred to as the "NASH-DE CAMP SALE") and certain dairies
known as Nebraska Dairies, Inc. ("NEBRASKA DAIRIES") and Gillette Dairy of
the Black Hills, Inc. ("GILLETTE") (the sale of Nebraska Dairies and
Gillette, to the extent made at arm's length to an unaffiliated third party,
being hereinafter referred to as the "DAIRY SALES"). The Borrower has
requested that the Banks waive compliance with those provisions of the Credit
Agreement which would otherwise prohibit the Nash-De Camp Sale and Dairy
Sales, to the extent such sales are consummated. Accordingly, upon the
effectiveness of this Amendment as hereinafter set forth, the Banks hereby
waive compliance with Section 9.15(g) and Section 9.16 of the Credit
Agreement to the extent, and only to the extent, the same would otherwise
prohibit consummation of the Nash-De Camp Sale and Dairy Sales and hereby
agree that consummation of the Nash-De Camp Sale and Dairy Sales will not
cause any Default or Event of Default under such Sections. Upon such
effectiveness of this Amendment, the Banks also hereby agree that the Nash-De
Camp Sale and Dairy Sales shall be excluded from subsequent determinations of
whether other sales, transfers, leases or other dispositions of property
comply with such Section 9.15(g); PROVIDED, HOWEVER, the Borrower need not
provide the Administrative Agent with a Lien on the assets of Nash-De Camp
Company, Nebraska Dairies or Gillette except on such assets as to which the
Borrower has notified the Administrative Agent that the Borrower no longer
intends to pursue its sale of such assets as part of the Nash-De Camp Sale or
the Dairy Sales, as the case may be (the Borrower hereby agreeing to promptly
provide such notice), and in the event the Borrower so decides not to pursue
such a sale of such assets, such Lien on such assets shall be provided within
sixty (60) days after such notice.
Notwithstanding anything herein or in any Loan Document to the
contrary, upon the consummation of the Nash-De Camp Sale and the Dairy Sales,
if the Borrower so requests the Banks in writing, the Banks will release
their Liens and the Guaranties of Nash-De Camp, Nebraska Dairy and Gillette
under the Loan Documents on any assets if and to the extent that at the time
of such release and immediately after giving effect thereto, no Default or
Event of Default shall occur or be continuing.
4. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction
of all of the following conditions precedent:
(a) The Borrower and the Required Banks shall have executed this
Amendment.
(b) Each Guarantor shall have accepted this Amendment in the space
provided for that purpose below.
(c) The Administrative Agent shall have received the following for
the account of the Banks (each to be properly executed and completed) and the
same shall have been approved as to form and substance by the Banks:
(i) Erickson Purchase Agreement;
(ii) Security Agreement from Nash-Finch Company and
each Material Subsidiary; and
(iii) UCC Financing Statements required by the
Administrative Agent.
(d) The Administrative Agent shall have received evidence of the
insurance required by the Security Agreement.
(e) The Borrower shall have executed that certain fee letter dated
as of May 18, 1999 in connection with this Amendment.
(f) The Administrative Agent shall have received, for the account of
the Banks, an opinion of the Borrower's counsel with respect to this
Amendment, such opinion to be in form and substance reasonably acceptable to
the Administrative Agent and the Required Banks.
(g) The Borrower and the Guarantors shall be in full compliance with
the terms of the Credit Agreement and no Event of Default or Default shall
have occurred or be continuing after giving effect to this Amendment.
(h) Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Required Banks and their counsel.
Upon the satisfaction of such conditions precedent, this Amendment shall take
effect as of June 1, 1999.
5. REPRESENTATIONS REAFFIRMED.
In order to induce the Banks to execute and deliver this Agreement,
the Borrower hereby represents to the Banks that as of the date hereof and as
of the time that this Amendment becomes effective, each of the
representations and warranties set forth in Section 7 of the Credit
Agreement, after giving effect to the amendments made hereby, are and shall
be true and correct (except that the representations contained in Section 7.4
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Banks).
6. MISCELLANEOUS.
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed shall be an original but all of which shall constitute one and the
same instrument. Except as specifically amended and modified hereby, all of
the terms and conditions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. No reference to this Amendment need
be made in any note, instrument or other document making reference to the
Credit Agreement, any reference to the Credit Agreement in any such note,
instrument or other document to be deemed to be a reference to the Credit
Agreement as amended hereby. The Borrower confirms its agreement to pay the
reasonable fees and disbursements of Messrs. Chapman and
Cutler, counsel to the Administrative Agent, in connection with the
preparation, execution and delivery of this Amendment and the transactions
and documents contemplated hereby. This instrument shall be construed and
governed by and in accordance with the laws of the State of Illinois (without
regard to principles of conflicts of laws).
Dated as of this 28th day of May 1999, but effective as of June 1,
1999.
NASH-FINCH COMPANY
By
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Its
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Accepted and agreed to as of the date last above written.
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Administrative Agent
By
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Its
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PNC BANK, NATIONAL ASSOCIATION
By
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Its
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ABN AMRO BANK N.V.
By
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Its
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By
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Its
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THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By
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Its
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CIBC INC.
By
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Its
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ISTITUTO BANCARIO SANPAOLO DI TORINO
ISTITUTO MOBILLARE ITALIANO SPA
By
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Its
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KEYBANK, N.A.
By
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Its
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COMMERZBANK AKTIENGESELLSCHAFT
CHICAGO BRANCH
By
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Its
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THE FUJI BANK, LIMITED
By
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Its
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CREDIT AGRICOLE INDOSUEZ
By
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Its
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By
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Its
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FIRST BANK NATIONAL ASSOCIATION
By
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Its
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MELLON BANK, N.A.
By
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Its
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SUNTRUST BANK, ATLANTA
By
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Its
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THE MITSUBISHI TRUST AND BANKING CORPORATION
By
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Its
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NATIONAL CITY BANK, successor by merger
to NATIONAL CITY BANK OF COLUMBUS
By
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Its
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THE SANWA BANK, LIMITED
By
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Its
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THE SUMITOMO BANK, LIMITED
By
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Its
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BANKERS TRUST COMPANY
By
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Its
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THE BANK OF NEW YORK
By
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Its
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MITSUI TRUST AND BANKING COMPANY, LIMITED
By
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Its
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FIRSTAR BANK OF MINNESOTA, N.A.
By
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Its
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SUNTRUST BANK, CENTRAL FLORIDA N.A.
By
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Its
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CRESTAR BANK
By
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Its
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GUARANTORS' CONSENT
Each of the undersigned has heretofore executed and delivered to the
Administrative Agent a Subsidiary Guarantee Agreement and hereby consents to
the Amendment to the Credit Agreement as set forth above and confirms that
its Subsidiary Guarantee Agreement and all of each of the undersigned's
obligations thereunder remain in full force and effect and, without limiting
the foregoing, acknowledges and agrees that the Guaranteed Liabilities, as
defined in the Amendment to the Credit Agreement, constitutes the
indebtedness which is guaranteed by the undersigned under its Subsidiary
Guarantee Agreement. Each of the undersigned further agrees that the consent
of the undersigned to any further amendments to the Credit Agreement shall
not be required as a result of this consent having been obtained, except to
the extent, if any, required by its Subsidiary Guarantee Agreement.
NASH-DE CAMP COMPANY
By
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Its
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PIGGLY WIGGLY NORTHLAND CORPORATION
By
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Its
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GTL TRUCKLINES, INC.
By
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Its
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T.J. MORRIS COMPANY
By
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Its
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GILLETTE DAIRY OF THE BLACK HILLS, INC.
By
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Its
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NEBRAKSKA DAIRIES, INC.
By
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Its
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FORREST TRANSPORTATION SERVICE, INC.
By
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Its
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SUPER FOOD SERVICES, INC.
By
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Its
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KENTUCKY FOOD STORES, INC.
By
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Its
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GRAY BEAR, INC.
By
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Its
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FAME MARKETING CORP.
By
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Its
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SUPER FOODS, INC.
By
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Its
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