First Amendment

Exhibit 10.1

 

CONFORMED AS EXECUTED

 

FIRST AMENDMENT

 

FIRST AMENDMENT (this “First Amendment”), dated as of February22, 2005, among Nash-Finch Company, a Delaware corporation (the “Borrower”),the lenders party to the Credit Agreement referred to below (the “Lenders”)and Deutsche Bank Trust Company Americas, as Administrative Agent for theLenders (the “Administrative Agent”). All capitalized terms used herein and not otherwise defined shall havethe respective meanings provided such terms in the Credit Agreement referred tobelow.

 

W I T NE S S E T H :

 

WHEREAS, the Borrower, the Lenders, the SyndicationAgent, the Documentation Agents and the Administrative Agent have entered intothat certain Credit Agreement, dated as of November 12, 2004 (as amended,modified or supplemented through, but not including, the date hereof, the “CreditAgreement”); and

 

WHEREAS, subject to the terms, conditions andagreements herein set forth, the parties hereto have agreed to amend the CreditAgreement as set forth herein;

 

NOW, THEREFORE, it is agreed:

 

I.                      Amendmentsto the Credit Agreement:

 

1.             Section 4.02(c) of the CreditAgreement is hereby amended by (i) inserting the text “First Amendment”immediately prior to the text “Effective Date” appearing in said Section and(ii) inserting the following text immediately after the text “Sections 4.02(g)and (h)” appearing in said Section:

 

“; provided that notwithstanding anything to the contrarycontained in this Section 4.02(c), (i) to the extent that the Borrower haselected pursuant to Section 10.04(vi) to incur Indebtedness under theSecond-Lien Loan Documents, an amount equal to 100% of the Net Debt Proceedsfrom any issuance of the Convertible Subordinated Notes shall be required to beapplied as a mandatory repayment of all outstanding Indebtedness incurredpursuant to the Second-Lien Loan Documents in accordance with the terms thereofand (ii) to the extent that the Borrower has not elected pursuant to Section10.04 to incur Indebtedness under the Second-Lien Loan Documents and the NetDebt Proceeds of the Convertible Subordinated Notes have not been applied tofinance, in part, the Marble Acquisition by the date set forth in clause(K)(x)(i) of Section 10.04(ix), an amount equal to 100% of the Net DebtProceeds of the Convertible Subordinated Notes shall be applied on such date asa mandatory repayment of outstanding Term Loans in accordance with therequirements of Sections 4.02(g) and (h).”

 

2.             Section 8.13 of the CreditAgreement is hereby amended by (i) inserting the text “(x)” immediately afterthe text “except for” appearing in the second sentence of said Section and (ii)inserting the text “and (y) the Convertible Subordinated Notes (which may beexchanged for shares of the Borrower’s common stock in accordance with theterms of the

 



 

ConvertibleSubordinated Note Indenture and the terms of this Agreement)” immediately afterthe text “compensation plan” appearing at the end of the second sentence ofsaid Section.

 

3.             Section 9.14(a)(vii) of theCredit Agreement is hereby amended by (i) inserting the text “(x) except asotherwise provided in clause (y) below, “ immediately prior to the text “theAggregate Consideration for all Permitted Acquisitions consummated during anyfiscal year” and (ii) inserting the text “and (y) the Aggregate Considerationfor the Marble Acquisition shall not exceed $240,000,000 (subject topost-closing purchase price adjustments in accordance with the terms of theMarble Acquisition Agreement)” immediately before the semi-colon appearing atthe end of said Section.

 

4.             Section 9.14(a)(viii) of theCredit Agreement is hereby amended by deleting the text “is otherwise permittedpursuant to Section 10.04(x)” and inserting the text “is otherwise permittedpursuant to Section 10.04(ix) or (x) “ in lieu thereof.

 

5.             Section 10.01 of the CreditAgreement is hereby amended by (i) deleting the word “and” appearing at the endof clause (xvii) appearing in said Section, (ii) deleting the period appearingat the end of clause (xviii) of said Section and inserting the text “; and” inlieu thereof and (iii) inserting the following new clause (xix) immediatelyafter clause (xviii) of said Section:

 

“(xix)       if, and only if theBorrower elects, pursuant to Section 10.04(vi), to enter into the Second-LienLoan Documents, “silent second-priority” Liens granted in favor of thecollateral agent and lenders under the Second-Lien Loan Documents on assets(and only on those assets) of the Borrower and the Subsidiary Guarantors whichsecure (and on which Liens have been granted pursuant to the Credit Documentsto secure) the Obligations of the Borrower (or the guarantees of suchObligations by the Subsidiary Guarantors) and are expressly subject (andsubordinate) to the Liens on such assets granted (or purported to be granted)pursuant to any then existing, or any later executed, Credit Documents; providedthat (x) an intercreditor agreement, in form and substance reasonablysatisfactory to the Administrative Agent, shall be required to be entered intoconcurrently with the entering into of the Second-Lien Loan Documents with thecollateral agent on behalf of the lenders under Second-Lien Loan Documents,which intercreditor agreement (any such intercreditor agreement being hereincalled an “Intercreditor Agreement”) shall contain, among other things, Liensubordination provisions, limitations on the exercise of remedies with respectto the collateral, limitations on certain rights of the lenders under theSecond-Lien Loan Documents as secured creditors (both in and out of anybankruptcy context) and such other provisions as the Administrative Agent mayreasonably determine is necessary or desirable in connection therewith and (y)the Administrative Agent shall have received (1) from the general counsel ofthe Borrower, an opinion addressed to each Agent and each of the Lenderscovering general corporate matters as the Administrative Agent may reasonablyrequest and (2) from Shearman & Sterling LLP, special counsel to the CreditParties, an opinion addressed to each Agent and each of the Lenders coveringenforceability of any Intercreditor Agreement

 

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and such other matters incident to the transactions contemplated by theSecond-Lien Loan Documents as the Administrative Agent may reasonably request.”

 

6.             Section 10.02 of the CreditAgreement is hereby amended by (i) deleting the word “and” appearing at the endof clause (xvii) appearing in said Section, (ii) deleting the period appearingat the end of clause (xviii) of said Section and inserting the text “; and” inlieu thereof and (iii) inserting the following new clause (xix) immediatelyafter clause (xviii) of said Section:

 

“(xix)  on or after thePreliminary Effective Date, the Borrower may enter into a definitive asset purchaseagreement with a seller previously identified to the Administrative Agent anddesignated with the code-name “Marble” (such seller, “Marble”) in respect ofthe Marble Acquisition (the “Marble Acquisition Agreement”); providedthat (i) the Marble Acquisition Agreement is in form and substance reasonablysatisfactory to the Administrative Agent and (ii) the Marble Acquisition maynot be consummated, and shall not constitute a Permitted Acquisition, in eachcase, unless (1) each of the material conditions precedent to the consummationof the Marble Acquisition as set forth in the Marble Acquisition Agreementshall have been satisfied (or waived with the consent of the AdministrativeAgent, which consent shall not be unreasonably withheld), (2) there shall havebeen delivered to the Administrative Agent true and correct copies of theMarble Acquisition Agreement and all other agreements and documents to beentered into, or to be delivered in connection with the Marble AcquisitionAgreement (collectively, the “Marble Acquisition Documents”), certified as suchby an Authorized Officer of the Borrower, and the Marble Acquisition Documentsshall be in form and substance reasonably satisfactory to the AdministrativeAgent and shall be in full force and effect (other than immaterial documentswhich the Administrative Agent may reasonably approve), (3) the MarbleAcquisition Documents shall not have been amended in any material respect adverseto the Administrative Agent or the Lenders without the consent of the AdministrativeAgent and (4) the First Amendment Effective Date shall have occurred.”

 

7.             Section 10.03 of the CreditAgreement is hereby amended by (i) deleting the word “and” appearing at the endof clause (vi) appearing in said Section, (ii) deleting the period appearing atthe end of clause (vii) of said Section and inserting the text “; and” in lieuthereof and (iii) inserting the following new clause (viii) immediately afterclause (vii) of said Section:

 

“(viii) on the terms and conditions provided in the ConvertibleSubordinated Note Indenture, the Borrower may make cash payments to holders ofthe Convertible Subordinated Notes after the election of any such holder toconvert Convertible Subordinated Notes held by it upon certain increases in thevalue of the Borrower’s common stock; provided that, if any RevolvingLoans are used to make any such cash payments the Borrower shall be incompliance with each of the Financial Covenants on a Pro FormaBasis after giving effect to the incurrence of such Revolving Loans and theapplication of the proceeds thereof.”

 

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8.             Section 10.04(vi) of the CreditAgreement is hereby amended by deleting said Section in its entirety andinserting the following new Section 10.04(vi) in lieu thereof:

 

“(vi)        if, and only if theBorrower has not issued the Convertible Subordinated Notes, Indebtedness of theBorrower under the Second-Lien Loan Agreement and the other Second-Lien LoanDocuments and of the Subsidiary Guarantors under guarantees of the obligationsof the Borrower under the Second-Lien Loan Documents, in an aggregate principalamount (without duplication in the case of such guaranteed amounts) not inexcess of $150,000,000 on the date such Indebtedness is incurred by theBorrower, so long as (A) such Indebtedness is incurred in accordance with therequirements of the definition of “Second-Lien Loan Agreement” appearing inSection 12.01 of this Agreement, (B) 100% the Net Debt Proceeds from any suchIndebtedness are applied within 5 days of the incurrence of such Indebtednessto finance, in part, the Marble Acquisition, (C) the Liens securing theIndebtedness under the Second-Lien Loan Documents shall meet the requirementsof Section 10.01(xix) and all actions required to be taken in accordancetherewith shall have been taken (including, without limitation, the enteringinto of the Intercreditor Agreement), in each case, to the reasonablesatisfaction of the Administrative Agent, (D) at the time of, and immediatelyafter giving effect to, any incurrence of Indebtedness under the Second-LienLoan Documents, no Default or Event of Default shall be in existence and (E)the Borrower shall have delivered to the Administrative Agent a certificate ofthe Borrower’s Chief Financial Officer certifying (and showing the calculationstherefor in reasonable detail) that the Borrower and its Subsidiaries shall bein compliance with the Financial Covenants on a ProForma Basis after giving effect to the incurrence of Indebtedness under theSecond-Lien Loan Documents and the application of the proceeds thereof on thedate such Indebtedness is incurred.”

 

9.             Section 10.04(ix) of the CreditAgreement is hereby amended by (i) inserting the following text at the end ofsub-clause (C) of said Section:

 

 “; providedthat the Convertible Subordinated Notes may include (x) mandatory redemptionand/or repurchase provisions so long as no such mandatory redemption and/orrepurchase provision is exercisable by the holders of the ConvertibleSubordinated Notes prior to the eight year anniversary of the issuance of theConvertible Subordinated Notes and (y) provisions affording the holders of theConvertible Subordinated Notes the right to receive cash payments upon theelection of such holders to convert their Convertible Subordinated Notes uponthe occurrence of certain increases in the value of the Borrower’s commonstock, the Borrower’s issuance of rights to purchase its common stock at lessthan the then current market price thereof or certain distributions by theBorrower of assets, debt securities or rights to purchase its securities”,

 

(ii) deleting theword “and” appearing immediately before sub-clause (J) of said Section andinserting a comma (“,”) in lieu thereof and (iii) inserting the following textimmediately after sub-clause (J) of said Section:

 

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“and (K) in the case of any Permitted Subordinated Debt evidenced bythe Convertible Subordinated Notes, (x) the Net Debt Proceeds of such PermittedSubordinated Debt shall be applied (i) by June 30, 2005 to finance, in part,the Marble Acquisition or to repay Term Loans in accordance with Section4.02(c) or (ii) to the extent the Marble Acquisition has been consummated priorto the issuance of the Convertible Subordinated Notes and any Indebtednessunder the Second-Lien Loan Documents is outstanding at the time of the issuanceof the Convertible Subordinated Notes, as a mandatory repayment of all suchIndebtedness in accordance with the proviso of Section 4.02(c) (with anyamounts in excess of those required to be applied pursuant to clause (ii) aboveto be retained by the Borrower) and (y) the aggregate amount of Indebtednessunder the Convertible Subordinated Notes does not at any time exceed $175,000,000plus the aggregate amount of accreted original issue discount in respectof the Convertible Subordinated Notes at such time.”

 

10.           Section 10.05(ii) of the CreditAgreement is hereby amended by inserting the text “except for the (x) Net DebtProceeds received from the issuance of the Convertible Subordinated Notes (tothe extent permitted to be held pursuant to clause (K) of Section 10.04(ix))and (y) the Net Debt Proceeds from the incurrence of loans pursuant to theSecond-Lien Loan Agreement (to the extent permitted to be held pursuant toclause (B) of Section 10.04(vi)),” immediately after the text “; provided that” appearing in saidSection.

 

11.           Section 10.12(i) of the CreditAgreement is hereby amended by (i) deleting the word “or” appearing immediatelyafter sub-clause (B) of said Section and inserting a comma (“,”) in lieuthereof, (ii) inserting the following text immediately after the text “PermittedSubordinated Debt” appearing in sub-clause (C) of such Section:

 

“; provided that (i) outstandingPermitted Subordinated Debt may be refinanced with new issuances of PermittedSubordinated Debt and (ii) on the terms and conditions provided in theConvertible Subordinated Note Indenture, the Convertible Subordinated Notes maybe converted into cash and/or common stock of the Borrower at the option ofholders thereof upon certain increases in value of the Borrower’s common stock(although if any Revolving Loans are to be incurred to finance any suchconversion, the Borrower shall be in compliance with each of the FinancialCovenants on a Pro Forma Basis after giving effect to theincurrence of such Revolving Loans and the application of the proceedsthereof);”

 

and (iii) insertingthe text “or (D) any Indebtedness evidenced by any Second-Lien Loan Document; providedthat the Indebtedness under the Second-Lien Loan Documents may be repaid infull with the proceeds of Permitted Subordinated Debt (including, withoutlimitation, the Convertible Subordinated Notes)” immediately followingsub-clause (C) of said Section.

 

12.           Section 10.12(ii) of the CreditAgreement is hereby amended by inserting the text “, any Second-Lien LoanDocument (except as expressly set forth in the Intercreditor Agreement)”immediately after the text “Existing Senior Subordinated Note Document”appearing in said Section.

 

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13.           Section 10.13 of the CreditAgreement is hereby amended by (i) deleting the word “and” appearingimmediately before clause (xi) of said Section and inserting a comma (“,”) inlieu thereof and (ii) inserting the text “and (xii) the Second-Lien LoanDocuments” immediately after clause (xi) of said Section.

 

14.           Section 10 of the CreditAgreement is hereby amended by inserting the following new Section 10.20immediately after Section 10.19 thereof:

 

“10.20 Limitations on Specified Corporate Transactions Relating to theConvertible Subordinated Note Indenture. The Borrower will not distribute to the holders of its common stock (i)any rights entitling such holders to purchase the Borrower’s common stock atless than the then current market price thereof or (ii) any of the Borrower’sassets, debt securities or rights to purchase the Borrower’s securities, in anysuch case if such action would give rise to the right of the holders of theConvertible Subordinated Notes to convert the Convertible Subordinated Notesinto cash (or would require any cash payment to be made by the Borrower inconnection with such conversion).”

 

15.           Section 11 of the CreditAgreement is hereby amended by (i) adding the word “or” immediately at the endof Section 11.10 and (ii) inserting the following new Section 11.11 immediatelyafter Section 11.10 thereof:

 

“11.11     Intercreditor Agreement.  After the executionand delivery thereof and prior to the termination thereof in accordance withthe terms of such Intercreditor Agreement, any Intercreditor Agreement or anyprovision thereof shall cease to be in full force and effect, or any Liensecuring or purporting to secure Indebtedness or other obligations owing underthe Second-Lien Loan Documents shall, for any reason, cease to be subordinatedto the Liens created under the Security Documents securing (or purporting tosecure) the obligations described therein (including, without limitation, theObligations under this Agreement);”

 

16.           The definition of “CreditDocuments” appearing in Section 12.01 of the Credit Agreement is hereby amendedby (i) deleting the word “and” appearing immediately before the text “eachSecurity Document” and inserting a comma (“,”) in lieu thereof and (ii)inserting the text “and, until the termination thereof in accordance with itsterms, any Intercreditor Agreement” immediately preceding the period at the endof said definition.

 

17.           The definition of “MaterialPermitted Acquisition” appearing in Section 12.01 of the Credit Agreement ishereby amended by inserting the text “(including, without limitation, theMarble Acquisition)” immediately after the first instance of the text “PermittedAcquisition” appearing in said definition.

 

18.           The definition of “PermittedAcquisition” appearing in Section 12.01 of the Credit Agreement is herebyamended by (i) deleting the text “Section 10.04(x)” appearing in clause (A) ofsaid definition and inserting the text “Section 10.04(ix) or (x)” in lieuthereof and (ii) deleting the last sentence thereof in its entirety andinserting the following new sentence in lieu thereof:

 

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“Notwithstandinganything to the contrary contained in the immediately preceding sentence, (x)an acquisition which does not otherwise meet the requirements set forth abovein the definition of “Permitted Acquisition” shall constitute a PermittedAcquisition if, and to the extent, the Required Lenders agree in writing, priorto the consummation thereof, that such acquisition shall constitute a PermittedAcquisition for purposes of this Agreement and (y) on and after the FirstAmendment Effective Date, the Marble Acquisition shall constitute a PermittedAcquisition for purposes of this Agreement; provided that suchacquisition is consummated in accordance with Section 9.14 and Section10.02(xix).”

 

19.           The definition of “PermittedSubordinated Debt” appearing in Section 12.01 of the Credit Agreement is herebyamended by inserting the text “(including, without limitation, the ConvertibleSubordinated Notes)” immediately after the text “unsecured subordinated debtsecurities” appearing in said definition.

 

20.           Section 12.01 of the CreditAgreement is hereby further amended by inserting the following new definitionsin the appropriate alphabetical order:

 

“Convertible Subordinated Note Documents” shall meanthe Convertible Subordinated Note Indenture and all other documents executedand delivered with respect to the Convertible Subordinated Notes and theConvertible Subordinated Note Indenture, as in effect on the date of theissuance of the Convertible Subordinated Notes and as the same may be amended,modified or supplemented from time to time in accordance with the terms hereofand thereof.

 

“Convertible Subordinated Note Indenture” shall meanthat certain Indenture, among the Borrower and the Trustee thereunder, as ineffect on the date of the issuance of the Convertible Subordinated Notes and asthe same may be amended, modified or supplemented from time to time inaccordance with the terms hereof and thereof.

 

“Convertible Subordinated Notes” shall mean theBorrower’s convertible debt securities issued pursuant to the ConvertibleSubordinated Note Indenture (which for the avoidance of doubt shall constitute “PermittedSubordinated Debt” to the extent issued in accordance with the definitionthereof and Section 10.04(ix), in each case as amended by the First Amendment).

 

“First Amendment” shall mean the First Amendment tothis Agreement, dated as of February 23, 2005, among the Borrower, theAdministrative Agent and the Lenders party thereto.

 

“First Amendment Effective Date” shall have themeaning provided in the First Amendment.

 

“Intercreditor Agreement” shall have the meaningprovided in Section 10.01(xix).

 

“Preliminary Effective Date” shall have the meaningprovided in the First Amendment.

 

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“Marble” shall have the meaning provided in Section10.02(xix).

 

“Marble Acquisition” shall mean the acquisition ofassets from Marble consisting of, with certain exceptions, all of the assetsrelating to (i) two wholesale food and non-food distribution centers owned byMarble or certain of its subsidiaries (the “Marble Distribution Centers”) andthe wholesale food and non-food distribution business conducted by Marbleand/or certain of its subsidiaries out of the Marble Distribution Centers andan additional leased warehouse, in each case, as further described in theMarble Acquisition Agreement, (ii) two retail grocery stores leased by Marbleand/or its affiliates and the retail grocery business conducted therefrom, ineach case, as further described in the Marble Acquisition Agreement and (iii)the general merchandise and health and beauty care products distributionbusiness of Marble involving customers of the Marble Distribution Centers, asfurther described in the Marble Acquisition Agreement.

 

“Marble Acquisition Agreement” shall have the meaningprovided in Section 10.02(xix).

 

“Marble Acquisition Documents” shall have the meaningprovided in Section 10.02(xix).

 

“Marble Distribution Centers” shall have the meaningprovided in the definition of Marble Acquisition.

 

“Second-Lien Loan Agreement” shall mean the creditagreement governing any loans or other extensions of credit incurred pursuantto Section 10.04(vi) which credit agreement shall be in form and substancereasonably satisfactory to the Administrative Agent, as in effect on the datesuch credit agreement is entered into by the parties thereto and as same may beamended, modified or supplemented from time to time in accordance with theterms hereof and thereof.

 

“Second-Lien Loan Documents” shall mean theSecond-Lien Loan Agreement, any Intercreditor Agreement and each other agreement,note, guaranty or security document entered in connection with, or evidencing,any Indebtedness incurred pursuant to Section 10.04(vi), in each case, in formand substance reasonably satisfactory to the Administrative Agent and as ineffect on the date each of the respective agreements, notes, guaranties orsecurity documents are entered into by the parties thereto and as same may beamended, modified or supplemented from time to time in accordance with theterms hereof and thereof.

 

21.           Section 14 of the CreditAgreement is hereby amended by inserting the following new Section 14.19immediately after Section 14.18 thereof:

 

“14.19  IntercreditorAgreement; Etc.  Each Lender and eachother Secured Creditor hereby agrees that (i) the Administrative Agent, theCollateral Agent, the Borrower and the Subsidiary Guarantors shall be permittedto (and are hereby authorized to) enter into amendments (and/or amend andrestate) the Security Documents and/or enter into new additional SecurityDocuments, in each case to provide for a “silent second priority” securityinterest in the Collateral to be

 

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granted in favor of the collateral agent under the Second-Lien LoanDocuments for its benefit and for the benefit of the lenders thereunder, (ii)the Collateral Agent and the Administrative Agent are hereby authorized toenter into any Intercreditor Agreement (in form and substance reasonablysatisfactory to the Administrative Agent) as agent for the Secured Creditors,as contemplated by Section 10.04(vi), and to take such other actions inconnection therewith as are deemed reasonably necessary or appropriate by theAdministrative Agent and the Collateral Agent, (iii) the Administrative Agentand the Collateral Agent are hereby authorized to execute and deliver anyadditional documentation that may be necessary or desirable in the discretionof the Administrative Agent and/or Collateral Agent in connection with thetransactions contemplated by the First Amendment and (iv) neither theAdministrative Agent nor the Collateral Agent shall be liable to such Lender orSecured Creditor, as the case may be, for any action taken pursuant to thisSection 14.19 absent gross negligence or willful misconduct (as determined by acourt of competent jurisdiction in a final and non-appealable decision).

 

II.                    MiscellaneousProvisions:

 

1.             In order to induce the Lendersto enter into this First Amendment, the Borrower hereby represents and warrantsthat, both before and after giving effect to this First Amendment, (x) noDefault or Event of Default exists on the Preliminary Effective Date or theFirst Amendment Effective Date (as defined below) and (y) all of therepresentations and warranties contained in the Credit Agreement and the other CreditDocuments shall be true and correct in all material respects on the PreliminaryEffective Date and the First Amendment Effective Date with the same effect asthough such representations and warranties had been made on and as of such date(is being understood that any representation or warranty made as of a specificdate shall be true and correct in all material respects as of such specificdate).

 

2.             This First Amendment is limitedas specified and shall not constitute a modification, acceptance or waiver ofany other provision of the Credit Agreement or any other Credit Document, andthe Administrative Agent and the Lenders hereby reserve all of their rights andremedies otherwise available to them under the Credit Agreement, the CreditDocuments and applicable law.

 

3.             This First Amendment may beexecuted in any number of counterparts and by the different parties hereto onseparate counterparts, each of which counterparts when executed and deliveredshall be an original, but all of which shall together constitute one and thesame instrument.  A complete set ofcounterparts shall be lodged with the Borrower and the Administrative Agent.

 

4.             THIS FIRST AMENDMENT AND THERIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED INACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

 

5.             This First Amendment shallbecome effective as to the amendments contained in Section I.6 of this FirstAmendment on the date (the “Preliminary Effective Date”) when theBorrower and the Required Lenders shall have signed a counterpart hereof(whether the same or different counterparts) and shall have delivered(including by way of facsimile

 

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transmission) thesame to the Administrative Agent at the Notice Office.

 

6.             This First Amendment shallbecome effective as to all amendments contained in Article I of this FirstAmendment (other than Section I.6 of this First Amendment which shall becomeeffective as provided in Section II.5 of this First Amendment) on the date (the“First Amendment Effective Date”) when:

 

(i)            thePreliminary Effective Date shall have occurred;

 

(ii)           the MarbleAcquisition Agreement (as defined in Section I.6 of this First Amendment) shallhave been duly executed and delivered by the parties thereto;

 

(iii)          ifthe Convertible Subordinated Notes (as defined in Section I.20 of this FirstAmendment) are to be issued to (1) finance, in part, the Marble Acquisition (asdefined in Section I.20 of this First Amendment) or (2) to repay Term Loans inaccordance with Section 4.02(c) of the Credit Agreement (as in effect aftergiving effect to this First Amendment), the Borrower shall have delivered trueand correct copies of the Convertible Subordinated Note Documents (as definedin Section I.20 of this First Amendment), certified as such by an AuthorizedOfficer of the Borrower and the Convertible Subordinated Note Documents shallbe in form and substance reasonably satisfactory to the Administrative Agentand shall be in full force and effect (other than immaterial documents whichthe Administrative Agent may reasonably approve);

 

(iv)          if loansunder the Second-Lien Loan Documents (as defined in Section I.20 of this FirstAmendment) are to be incurred to finance, in part, the Marble Acquisition, theBorrower shall have delivered true and correct copies of the Second-Lien LoanDocuments (as defined in Section I.20 of this First Amendment), certified assuch by an Authorized Officer of the Borrower and the Second-Lien LoanDocuments shall be in form and substance reasonably satisfactory to theAdministrative Agent and shall be in full force and effect (other thanimmaterial documents which the Administrative Agent shall reasonably approve);and

 

(v)           theBorrower shall have paid to the Administrative Agent all fees, costs andexpenses (including, without limitation, the reasonable legal fees and expensesof White & Case LLP) payable to the Administrative Agent to the extent thendue.

 

7.             Notwithstanding anything to thecontrary contained in this First Amendment (or in the Credit Agreement aftergiving effect to this First Amendment), the parties hereto agree that theagreements, amendments, waivers, consents and modifications made to, or inrespect of, the Credit Agreement hereunder pursuant to Article I of thisAmendment (other than Section 5 of such Article) shall be rescinded and of nofurther force and effect on June 30, 2005, unless on or prior to such date (x)the Marble Acquisition has been consummated or (y) the Convertible Notes shallhave been issued and the Net Debt Proceeds thereof have been applied to repayTerm Loans in accordance with Section 4.02(c) (as in effect after giving effectto this First Amendment).

 

8.             From and after the FirstAmendment Effective Date, all references in the Credit Agreement and each ofthe Credit Documents to the Credit Agreement shall be deemed to be referencesto the Credit Agreement as amended hereby.

 

* * *

 

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IN WITNESS WHEREOF, each of the parties hereto hascaused a counterpart of this First Amendment to be duly executed and deliveredas of the date first above written.

 

 

NASH-FINCH COMPANY

 

 

 

 

 

By:

  /s/  LeAnne M. Stewart

 

 

 

Title: Senior Vice President and Chief

 

 

Financial Officer

 

 

 

 

 

DEUTSCHE BANK TRUST COMPANY

 

AMERICAS, Individually and as

 

Administrative Agent

 

 

 

 

 

By:

  /s/  Scottye Lindsey

 

 

 

Title: Director

 

 

 

By:

  /s/  Carin Keegan

 

 

 

Title: Vice President

 

 

 

 

 

GENERAL ELECTRIC CAPITAL
CORPORATION

 

 

 

 

 

By:

  /s/  Robert M. Kadlick

 

 

 

Title: Duly Authorized Signatory

 

 

 

 

 

HARRIS TRUST AND SAVINGS BANK

 

 

 

 

 

By:

  /s/  Michael Johns

 

 

 

Title: Vice-President

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

NATIONAL CITY BANK

 

 

 

 

 

By:

  /s/  Patrick M. Pastore

 

 

 

Title: Senior Vice President

 

 

 

 

 

COÖPERATIEVE CENTRALE

 

RAIFFEISEN-BOERENLEENBANK

 

B.A., “RABOBANK

 

INTERNATIONAL”, NEW YORK

 

BRANCH

 

 

 

 

 

By:

  /s/  Ivan Rodriguez

 

 

 

Title: Vice President

 

 

 

By:

  /s/  Brett Delfino

 

 

 

Title: Executive Director

 

 

 

 

 

WELLS FARGO BANK, NATIONAL
ASSOCIATION

 

 

 

 

 

By:

  /s/  Kent A. Paulson

 

 

 

Title: Vice President

 

 

 

 

 

GRAYSON & CO

 

By: Boston Management and Research as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

SENIOR DEBT PORTFOLIO

 

By: Boston Management and Research as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

FIRST TRUST/FOUR CORNERS SENIOR

 

FLOATING RATE INCOME FUND II

 

By: Four Corners Capital Management,

 

LLC As Sub-Adviser

 

 

 

 

 

By:

  /s/  Vijay Srinivasan

 

 

 

Title: Assistant Vice President

 

 

 

 

 

FORTRESS PORTFOLIO TRUST

 

By: Four Corners Capital Management,

 

LLC As Investment Manager

 

 

 

 

 

By:

  /s/  Vijay Srinivasan

 

 

 

Title: Assistant Vice President

 

 

 

 

 

FOUR CORNERS CLO 2005-1, LTD.

 

By: Four Corners Capital Management,

 

LLC As Collateral Manager

 

 

 

 

 

By:

  /s/  Vijay Srinivasan

 

 

 

Title: Assistant Vice President

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

SEMINOLE FUNDING LLC

 

 

 

 

 

By:

  /s/  Meredith J. Koslick

 

 

 

Title: Assistant Vice President

 

 

 

 

 

EATON VANCE INSTITUTIONAL

 

SENIOR LOAN FUND

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

CONSTANTINUS EATON VANCE CDO

 

V, LTD.

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

EATON VANCE CDO VI LTD.

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

THE NORINCHUKIN BANK, NEW

 

YORK BRANCH, through State Street

 

Bank and Trust Company N.A. as

 

Fiduciary Custodian

 

By: Eaton Vance Management Attorney-

 

in-fact

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

EATON VANCE CDO III, LTD.

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

TOLLI & CO.

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

 

 

 

 

EATON VANCE VT FLOATING RATE

 

INCOME FUND

 

By: Eaton Vance Management as

 

Investment Advisor

 

 

 

 

 

By:

  /s/  Michael B. Botthof

 

 

 

Title: Vice President

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

ALZETTE EUROPEAN CLO S.A.

 

By: INVESCO Senior Secured

 

Management, Inc. As Collateral Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

CHAMPLAIN CLO, LTD.

 

By: INVESCO Senior Secured

 

Management, Inc. As Collateral Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

CHARTER VIEW PORTFOLIO

 

By: INVESCO Senior Secured

 

Management, Inc. As Investment Advisor

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

DIVERSIFIED CREDIT PORTFOLIO
LTD.

 

By: INVESCO Senior Secured

 

Management, Inc. As Investment Adviser

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

AIM FLOATING RATE FUND

 

By: INVESCO Senior Secured

 

Management, Inc. As Sub-Adviser

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

INVESCO EUROPEAN CDO I S.A.

 

By: INVESCO Senior Secured

 

Management, Inc. As Collateral Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

LOAN FUNDING IX LLC, for itself or as

 

agent for Corporate Loan Funding IX

 

LLC

 

By: INVESCO Senior Secured

 

Management, Inc. As Portfolio Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

SEQUILS-LIBERTY, LTD.

 

By: INVESCO Senior Secured

 

Management, Inc. As Collateral Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]

 



 

 

PETRUSSE EUROPEAN CLO S.A.

 

By: INVESCO Senior Secured

 

Management, Inc. As Collateral Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

SARATOGA CLO I, LIMITED

 

By: INVESCO Senior Secured

 

Management, Inc. As Asset Manager

 

 

 

 

 

By:

  /s/  Scott Baskind

 

 

 

Title: Authorized Signatory

 

 

 

 

 

LA SALLE BANK N.A.

 

 

 

 

 

By:

  /s/  Ward Nixon

 

 

 

Title: Senior Vice President

 

 

 

 

 

 

 

THE BANK OF TOKYO-MITSUBISHI,

 

LTD., CHICAGO BRANCH

 

 

 

 

By:

  /s/  Patrick McCue

 

 

 

Title: Vice President & Manager

 

[Signature Page to First Amendment to Nash-Finch Credit Agreement]