Exhibit 4
SECOND AMENDMENT TO THE SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
This second amendment (this "Amendment") dated as of October 3, 2003 is
to the Second Amended and Restated Credit Agreement dated as of March 21, 2003
among XXXXX SUPERMARKETS, INC. (the "Company") and XXXXX SUPERMARKETS, LLC
("Xxxxx, LLC" and, collectively with the Company, the "Borrowers"), THE
PROVIDENT BANK, as Agent (in such capacity, the "Agent") and Arranger, LASALLE
BANK NATIONAL ASSOCIATION, as documentation agent, various financial
institutions party to the Credit Agreement (the "Lenders"), as amended by that
First Amendment to the Second Amended and Restated Credit Agreement dated as of
May 23, 2003 (collectively, the "Credit Agreement"). Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as defined
therein.
WHEREAS, the parties hereto have entered into the Credit Agreement
which provides for the Lenders to make Loans to the Borrowers from time to time;
and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
provided hereby;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective on the date of the effectiveness of
this Amendment pursuant to Section 3 below, the Credit Agreement shall be
amended as set forth in this Section 1.
1.1. Amendments to Definitions. (a) The definition of "Aggregate
Revolving Loan Commitment" in Section 1.1 is amended in its entirety to read as
follows:
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The Aggregate Revolving Loan Commitment is
Eighty-Two Million Five Hundred Thousand and 00/100 Dollars ($82,500,000.00).
(b) The definition of "Excess Permitted Note Purchases" in Section 1.1
is amended in its entirety to read as follows:
"EXCESS PERMITTED NOTE PURCHASES" means purchases of Senior
Subordinated Notes in excess of Permitted Note Purchases meeting all the
following requirements:
(a) no Default or Unmatured Default shall have occurred and be
continuing or would result from such purchase or the incurrence of any
Indebtedness in connection therewith;
(b) the purchase shall be consummated in an open market or privately
negotiated transaction pursuant to terms (including price), conditions and
documentation satisfactory to the Agent;
(c) the purchase shall be consummated in compliance with any documents
governing any Subordinated Debt and with all applicable laws, rules and
regulations;
(d) the purchase will not result in the aggregate amount of Senior
Subordinated Notes outstanding to be less than $75 million; and
(e) immediately following such purchase, Revolving Credit Availability
shall be at least $15 million.
1.2. Additional Definitions. The following definition is added to
Section 1.1 in the appropriate alphabetical sequence:
"Consolidated Senior Indebtedness" means Consolidated Indebtedness less
the outstanding principal amount of Subordinated Debt.
"Fee Letter" means the letter agreement among the Agent, the Arranger
and the Borrowers dated March 30, 2003, as the same may be amended or
supplemented by fee letters relating to amendments to the Credit Agreement.
1.3. Amendment of Exhibit A. Exhibit A to the Credit Agreement is
amended in its entirety to read as set forth on Attachment 1 to this Amendment.
1.4. Amendment to Schedule 1.1.5. Schedule 1.1.5 to the Credit
Agreement is amended in its entirety to read as set forth on Attachment 2 to
this Amendment.
1.5. Amendment to Section 2.14(C)(ii). Section 2.14(C)(ii) is amended
in its entirety to read as follows:
(ii) The Borrowers agree to pay to the Agent and the Arranger (unless
otherwise agreed between the Agent and the Arranger and any Lender) the fees set
forth in the Fee Letter, payable at the times and in the amounts set forth
therein.
1.6. Amendment to Section 2.14 (D)(ii). Section 2.14(D)(ii) is amended
in its entirety to read as follows:
(ii) The Applicable Floating Rate Margin and Applicable Eurodollar
Margin and the Applicable Commitment Fee Percentage shall be determined from
time to time by reference to the table set forth below, on the basis of the then
applicable Leverage Ratio as described in this Section 2.14(D)(ii):
2
Applicable Applicable Applicable
Eurodollar Floating Rate Commitment
Leverage Ratio Margin Margin Fee Percentage
-------------------- ---------- ------------- ---------------
Greater than or
equal to 2.75 to 1.0 3.50% 1.25% 0.50%
Greater than or
equal to 2.25 to 1.0
and less than
2.75 to 1.0 3.00% 1.00% 0.50%
Greater than or
equal to 1.75 to 1.0
and less than
2.25 to 1.0 2.75% 0.75% 0.50%
Less than
1.75 to 1.0 2.25% 0.50% 0.375%
For purposes of this Section 2.14(D)(ii), the Leverage Ratio shall be
determined as of the last day of each fiscal quarter based upon (a) the
outstanding balance of Consolidated Senior Indebtedness as of such date; and (b)
the actual amount of EBITDA for the four fiscal quarter period ending on such
day, adjusted, with respect to Permitted Acquisitions, to reflect the EBITDA of
the acquired entity (calculated consistent with the definition of EBITDA
contained herein) during such portion of the four fiscal quarter period which is
prior to the consummation of such Permitted Acquisition. Upon receipt of the
financial statements delivered pursuant to Section 7.1(A)(i) and (ii), as
applicable, the Applicable Floating Rate Margin, Applicable Eurodollar Margin
and Applicable Commitment Fee Percentage shall be adjusted, such adjustment
being effective five (5) Business Days following the Agent's receipt of such
financial statements and the compliance certificate required to be delivered in
connection therewith pursuant to Section 7.1(A)(iii); provided, that if the
Borrowers shall not have timely delivered its financial statements in accordance
with Section 7.1(A)(i) or (ii), as applicable, then commencing on the date upon
which such financial statements should have been delivered and continuing until
such financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Commitment Fee Percentage that the Leverage
Ratio was greater than or equal to 2.75 to 1.0.
1.7. Amendment to Section 7.2(M). Section 7.2(M) shall be amended in
its entirety as follows:
On or before November 30, 2003, the Borrowers shall, and shall cause
Xxxxx Realty to, provide the Agent, for and on behalf of the Lenders (a) with a
first mortgage lien on all real property identified on Schedule 1.1.5 as
"additional mortgaged property" (hereinafter referred to as the "Additional
Mortgaged Property"), (b) FIRREA conformed appraisals, addressed to the
3
Agent, which establish that the appraised value of the Mortgaged Property is in
excess of $110 Million, (c) (i) owner's policies of title insurance for the
appraised value of the Additional Mortgaged Property with such endorsements as
Agent shall require; (ii) ALTA/ACSM Minimum Standard Detail Surveys of the
Additional Mortgaged Property with the following Table A items: 1-4, 6,
7(a)-(c), 8-10, 11(b) and 13-16; (iii) Phase I environmental audits with respect
to the Additional Mortgaged Property; (iv) FEMA flood plain certification with
respect to the Additional Mortgaged Property; and all such documentation,
mortgages, appraisals, reports and surveys shall be acceptable to Agent in its
sole and exclusive discretion.
1.8. Amendment to Section 7.4(B). Section 7.4(B) is amended in its
entirety as follows:
(B) Maximum Leverage Ratio. The Borrowers shall not permit the ratio
(the "LEVERAGE RATIO") of (i) Consolidated Senior Indebtedness to (ii) EBITDA,
to be greater than 3.00 to 1.00 at any time. The Leverage Ratio shall be
calculated, in each case, determined as of the last day of each fiscal quarter
based upon (a) the outstanding balance of Consolidated Senior Indebtedness as of
such date; and (b) the actual amount of EBITDA for the four fiscal quarter
period ending on such day, adjusted, with respect to Permitted Acquisitions, to
reflect the EBITDA of the acquired entity (calculated consistent with the
definition of EBITDA contained herein) during such portion of the four fiscal
quarter period which is prior to the consummation of such Permitted Acquisition.
1.9. Amendment to Section 7.4(C). Section 7.4(C) is hereby amended in
its entirety as follows:
(C) Minimum Adjusted EBITDA. The Borrowers shall not permit Adjusted
EBITDA to be less than $45 Million. For purposes of this Section 7.4(C),
Adjusted EBITDA shall mean the actual amount of EBITDA for the four fiscal
quarter period ending on such day, adjusted (i) with respect to Permitted
Acquisitions to reflect the EBITDA of the acquired entity (calculated consistent
with the definition of EBITDA contained herein) during such portion of the four
fiscal quarter period which is prior to the consummation of such Permitted
Acquisition, and (ii) to exclude pre-opening and first year losses on up to four
(4) supermarket locations in such four fiscal quarter period.
1.10. Amendment to Section 7.4(D). Section 7.4(D) will be amended in
its entirety as follows:
(D) Consolidated Senior Indebtedness to Consolidated Total
Capitalization. The Borrowers will not permit the ratio of (i) the sum of
Consolidated Senior Indebtedness, to (ii) Consolidated Total Capitalization, to
be greater than .4 to 1.0 at any time.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent
and the Lenders to enter into this Amendment, the Borrowers represent and
warrant to the Agent and each of the Lenders (a) as to the matters set forth in
Section 5.2(i) and (ii) of the Credit Agreement, as if the representations and
warranties set forth therein were made on the date hereof, (b) that the
execution and delivery by the Borrowers of this Amendment, and the performance
by the Borrowers of their obligations under the Credit Agreement as amended by
this Amendment (the "Amended Credit Agreement"), (i) are within the powers of
the Borrowers, (ii) have been duly authorized by proper organizational actions
and proceedings, and such approvals have not been rescinded and no other actions
or proceedings on the part of the
4
Borrowers are necessary to consummate such transaction, (iii) do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, or if not made, obtained
or given individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect and (iv) do not and will not conflict with any
Requirements of Law or Contractual Obligation, except such that could not
reasonably be expected to have a Material Adverse Effect, or with the
certificate or articles of incorporation and by-laws or the operating agreement
of the Borrowers or any Subsidiary, and (c) that the Amended Credit Agreement is
the legal, valid and binding obligation of the Borrowers, enforceable against
the Borrowers in accordance with its terms (except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, or similar laws
affecting the enforcement of creditors' rights generally).
SECTION 3. EFFECTIVENESS. The amendments set forth in Section 1 above
shall become effective on the date when the Agent shall have received the
following, all in a form satisfactory to Agent:
3.1. Second Amendment. Counterparts of this Amendment signed by the
Borrowers, and the Required Lenders.
3.2. Guaranty. A Reaffirmation of Guaranty signed by the Guarantors in
favor of the Lenders.
3.3. Corporate Documents. A certificate of the Secretary or an
Assistant Secretary of the Borrowers and Xxxxx Realty, Inc. as to (a)
resolutions of the Board of Directors or limited liability company action, as
appropriate, of such entity authorizing the execution and delivery of this
Amendment and the other documents contemplated hereby to which such entity is a
party, (b) the incumbency and signatures of the officers of such entity which
are to sign the documents referenced in clause (a) above, and (c) a certificate
of existence certificate issued by the Indiana Secretary of State with respect
to each Borrower and Xxxxx Realty, Inc.
3.4. Fee Letter. A fee letter to the Agent dated the date hereof
executed by the Borrowers.
3.5. Other Documents. Such other documents as the Agent shall
reasonably request.
SECTION 4. MISCELLANEOUS.
4.1. Continuing Effectiveness, etc. The Amended Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed in all
respects. After the effectiveness hereof, all references in the Credit Agreement
and each other Loan Document to the "Credit Agreement" or similar terms shall
refer to the Amended Credit Agreement.
4.2. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5
4.3. Expenses. The Borrowers agree to pay the reasonable costs and
expenses of the Agent (including reasonable attorneys' fees and charges) in
connection with the negotiation, preparation, execution and delivery of this
Amendment and the other documents contemplated hereby.
4.4. Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Indiana.
4.5. Successors and Assigns. This Amendment shall be binding upon the
Borrowers, the Lenders and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrowers, the Lenders and the
Agent and their respective successors and assigns, as permitted by the
provisions of the Amended Credit Agreement.
[signature pages immediately follow]
6
Delivered at Indianapolis, Indiana, as of the day and year first above
written.
XXXXX SUPERMARKETS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
XXXXX SUPERMARKETS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
THE PROVIDENT BANK
as Agent and Arranger and as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxx X. Xxxxx
Title: Senior Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION
as documentation agent and as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------------
Xxxxxxx Xxxxx
Title: First Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
FIRST MERCHANTS BANK, N.A.
as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxx
Title: Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxx
Title: Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
OLD NATIONAL BANK, N.A.
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Xxxx X. Xxxxxx
Title: Senior Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
FIFTH THIRD BANK, INDIANA
as a Lender
By: /s/Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
UNION FEDERAL BANK
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------
Xxxx X. Xxxxxx
Title: First Vice-President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
NATIONAL CITY BANK OF INDIANA
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to
Second Amendment to
Second Amended and Restated
Credit Agreement
ATTACHMENT 1
EXHIBIT A
TO
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
LENDER COMMITMENTS
REVOLVING LOAN COMMITMENTS
% of Aggregate
Lender Revolving Loan Commitment Revolving Loan Commitment
------ ------------------------- -------------------------
The Provident Bank $21,276,750.00 25.79%
LaSalle Bank National Association $19,536,000.00 23.68%
Union Planters Bank, National Association $ 8,687,250.00 10.53%
Old National Bank $ 8,687,250.00 10.53%
Fifth Third Bank $ 8,687,250.00 10.53%
First Merchants Bank $ 6,946,500.00 8.42%
National City Bank of Indiana $ 4,339,500.00 5.26%
Union Federal Bank $ 4,339,500.00 5.26%
-------------- ----
TOTAL
$82,500,000.00 100%
ATTACHMENT 2
SCHEDULE 1.1.5
1. Xxxxx Store #3, 1825 Xxxxxx Pike, Bloomington, Indiana
2. Xxxxx Store #21, 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx
3. Village Pantry #630, 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx
4. Xxxxx Xxxxx #00, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
0. Village Pantry #415, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
6. Xxxxx Xxxxxxxxx Xxxxxxxxxxxx #000, 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx,
Xxxxxxx
7. Xxxxx Store #73, 00000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
8. Xxxxx Xxxxx #00, 0000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx
0. Xxxxx Store #83, 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
Additional Mortgaged Property
1. Xxxxx Store #96, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
2. Xxxxx Store #5, 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
3. Xxxxx Xxxxx #00, 00 Xxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx
0. Xxxxx Xxxxx #00, 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
0. Xxxxx Store #71, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxx
6. Xxxxx Xxxxx #00, 0000 X. Xxxxxxxx, Xxxxxxxx, Xxxxxxx
0. LoBill Store #307, 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
8. LoBill Store #331, 0000 X. Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
9. Village Pantry #412, 00 X. Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
10. Xxxxx Xxxx #754, 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
2
