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EXHIBIT 4(i)
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XXXXX SUPERMARKETS, INC.
XXXXX SUPERMARKETS, LLC
AMENDMENT TO NOTE AGREEMENTS
AND
ASSUMPTION AGREEMENT
Dated as of March 28, 1997
Re: Note Agreements dated as of October 15, 1992
and
$35,000,000 Original Principal Amount of 8.54% Senior Notes, Series A,
Due December 31, 2007
and
$15,000,000 Original Principal Amount of 8.13% Senior Notes, Series B,
Due December 31, 2004
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XXXXX SUPERMARKETS, INC.
XXXXX SUPERMARKETS, LLC
AMENDMENT TO NOTE AGREEMENTS
AND
ASSUMPTION AGREEMENT
Re: Note Agreements dated as of October 15, 1992
and
$35,000,000 Original Principal Amount of 8.54% Senior Notes, Series A,
Due December 31, 2007
and
$15,000,000 Original Principal Amount of 8.13% Senior Notes, Series B,
Due December 31, 2004
Dated as of
March 28, 1997
To the Holder (the "Holder") Named on
Schedule I hereto which is a
signatory to this Agreement
Ladies and Gentlemen:
Reference is made to the separate Note Agreements dated as of October
15, 1992 (the "Note Agreements"), between Xxxxx Supermarkets, Inc., an Indiana
corporation (the "Company"), and the original institutional purchasers of the
following described Notes, under and pursuant to which $35,000,000 aggregate
principal amount of 8.54% Senior Notes, Series A, Due December 31, 2007 and
$15,000,000 aggregate principal amount of 8.13% Senior Notes, Series B, Due
December 3l, 2004- of the Company (together the "Notes") were originally issued.
You and the other parties named in Schedule I hereto are herein sometimes
referred to as the "Holders".
The Company deems it desirable to transfer its retail operations and
all personnel, assets and liabilities relating thereto to Xxxxx Supermarkets,
LLC, an Indiana limited liability company and a Wholly-owned Subsidiary of the
Company (the "Additional Obligor"). In connection with and in consideration for,
among other things, such transfer of assets, the Additional Obligor is willing
to become a joint and several obligor on all obligations of the Company under
the Notes and the Note Agreements, as amended hereby, and by its execution and
delivery of this Amendment to Note Agreements and Assumption Agreement (this
"Agreement") and whether or not the Company and the Additional Obligor shall
hereafter execute and deliver the Exchange Notes pursuant to Section 4 hereof,
the Additional Obligor does from and after the date hereof undertake and become
a joint and
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several obligor in respect of all of the obligations of the Company
under the Notes and under the Note Agreements, as the same are amended hereby.
In connection with such transfer of assets by the Company and
undertaking as joint and several obligation by the Additional Obligor, the
Company and the Additional Obligor desire to amend certain provisions of the
Note Agreements and hereby request that you accept the amendments as set forth
below in the manner herein provided.
NOW, THEREFORE, in consideration of the premises and the benefits to
the Company and the Additional Obligor and for the purpose of inducing the
Holder to enter into this Agreement and the transactions contemplated hereby,
the Company and the Additional Obligor agree as follows:
SECTION 1. JOINT AND SEVERAL OBLIGATION; CONSENT.
Subject to the terms and provisions hereof and from and after the date
hereof, the Additional Obligor hereby irrevocably, absolutely, unconditionally
and expressly assumes, as a joint and several obligor with the Company (i) the
due and punctual payment of all of the principal of, and interest and premium,
if any, on the Notes and all other amounts to be paid under or pursuant to the
Note Agreements, as amended hereby, in accordance with the terms of the Notes
and of the Note Agreements, as so amended, and (ii) the due and punctual
observance and performance of all covenants and provisions contained in the Note
Agreements, as amended hereby. From and after the date hereof, all interest
accrued on the Notes shall become the joint and several obligation of the
Company and the Additional Obligor and shall be paid on the next scheduled
interest payment date thereunder. The Company and the Additional Obligor each
for itself covenants and agrees that its obligations and liabilities under the
Note Agreements, as amended, and in respect of the Notes shall be their joint
and several obligations, which obligations in each such case shall be those of a
primary obligor and not a guarantor, surety or other secondary party and shall
not be discharged, impaired or varied by reason of any breach or default by the
Company or the Additional Obligor or for any reason except payment of the
principal of, and interest and premium, if any, on the Notes and any other
amounts payable under the Notes and the Note Agreements, as amended, and in
accordance with the terms of the Notes and the Note Agreements, as amended, and
then only to the extent of such payments.
Subject to the satisfaction of the conditions set forth in ss.3 hereof,
the Holder hereby waives the provisions of ss.5.11 of the Note Agreements, to
the extent such Section would prevent the transfer of assets referred to above.
SECTION 2. AMENDMENTS TO SECTION 5 OF THE NOTE AGREEMENT.
Section 2.1. Amendments to Section 5.1. Section 5.1 of the Note
Agreement shall be amended in its entirety as follows:
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Section 5.1 Corporate Existence, Etc. The Company will
preserve and keep in force and effect, and will cause each
Subsidiary to preserve and keep in force and effect, its legal
existence as a corporation or limited liability company, as the
case may be, and all licenses and permits necessary to the
proper conduct of its business; provided that the foregoing
shall not prevent any transaction permitted by ss.5.11.
Section 2.2. Amendment to Section 5.6 Section 5.6(a) of the Note
Agreements shall be amended in its entirety to read as follows:
(a) The Company will not and will not permit any
Restricted Subsidiary to create, assume or incur or in any
manner become liable in respect of any Indebtedness for money
borrowed, except:
(1) the Notes;
(2) Indebtedness of the Company and any Restricted
Subsidiary outstanding as of the date of this Agreement
and reflected on the balance sheet of the Company as of
June 20, 1992;
(3) other Funded Debt of the Company and the Addition-
al Obligor, provided that, at the time of issuance thereof
and after giving effect thereto and to the application of
the proceeds thereof, Consolidated Funded Debt shall not
exceed 60% of Consolidated Net Tangible Assets;
(4) other Funded Debt of Restricted Subsidiaries other
than the Additional Obligor, provided that (i) at the
time of issuance thereof and after giving effect thereto
and to the application of the proceeds thereof, Funded
Debt of such Restricted Subsidiaries plus Secured Funded
Debt of the Company and of the Additional Obligor (other
than Indebtedness secured by liens permitted by clauses
(a) through (h) of ss.5.7) shall not exceed 15% of
Consolidated Net Tangible Assets, and (ii) the Company
and the Additional Obligor would be permitted to incur at
least $1 of Additional Funded Debt under the provisions
of ss.5.6(a)(3);
(5) unsecured Current Debt of the Company and of the
Additional Obligor; and
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(6) Current Debt or Funded Debt of a Restricted
Subsidiary to the Company or to a Wholly-owned Restricted
Subsidiary.
Section 2.3. Amendments to Section 5.7. The last sentence of Section
5.7 of the Note Agreements shall be amended to read in its entirety as follows:
Notwithstanding the foregoing provisions of this ss.5.7, the
Company and any Restricted Subsidiary may create, incur, issue
or assume liens securing Indebtedness in an aggregate amount
which, together with all unsecured Funded Debt of Restricted
Subsidiaries (other than the obligation of the Additional
Obligor on the Notes and any other Funded Debt of the Additional
Obligor permitted under ss.5.6(a)(3)), and other Indebtedness of
the Company and its Restricted Subsidiaries secured by liens
which (if originally created, incurred, issued or assumed at
such time) would otherwise be subject to the foregoing
restrictions (other than liens permitted under clauses (a)
through (h) above), does not at the time exceed 15% of
Consolidated Net Tangible Assets.
Section 2.4. Amendment to Section 5.8. Clause (ii) of the last sentence
of Section 5.8 of the Note Agreements shall be amended in its entirety to read
as follows:
(ii) at any time when a business entity becomes a Restricted
Subsidiary, all investments of such business entity at such time
shall be deemed to have been made by such business entity, as a
Restricted Subsidiary, at such time,
Section 2.5. Amendment to Section 5.11. Section 5.11 of the Note
Agreements shall be amended in its entirety to read as follows:
Section 5.11. Mergers, Consolidations and Sales of Assets.
(a) The Company will not, and will not permit any Restricted
Subsidiary to (i) consolidate with or be a party to a merger
with any other corporation or (ii) sell, lease or otherwise
dispose of all or any substantial part of the assets of the
Company or its Restricted Subsidiaries, provided, however, that:
(1) any Restricted Subsidiary may merge or xxxxxxx-
date with or into the Company or, except in the case of
the Additional Obligor, with or into any Wholly-owned
Restricted Subsidiary so long as in any merger or
consolidation involving the Company)any, the Company
shall be the surviving or continuing corporation;
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(2) the Company may consolidate or merge with any
other corporation or sell, lease or otherwise dispose of
all of its assets to any other corporation if (i) either
the Company shall be the surviving or continuing
corporation or the corporation formed by or resulting from
such merger or consolidation, if not the Company, or to
which such assets shall have been sold, leased or
otherwise disposed of (hereinafter referred to as the
"surviving corporation"), shall be a corporation organized
under he laws of any state of the United States and shall
expressly assume the obligation of the Company under this
Agreement and the Notes, (ii) at the time of such
transaction and immediately after giving effect thereto no
Default or Event of Default shall have occurred and be
continuing, and (iii) after giving effect to such
transaction the Company or the surviving corporation would
be permitted to incur at least $1.00 of additional] Funded
Debt under the provisions of ss.5.6(a)(3); and
(3) any Restricted Subsidiary may sell, lease or
otherwise dispose of all or any substantial part of its
assets to the Company or, except in the case of the
Additional Obligor, to any Wholly-owned Restricted
Subsidiary.
(b) The Company will not permit any Restricted Subsidiary
to issue or sell any shares of stock of any class (including as
"stock" for the purposes of this ss.5.11, any warrants, rights
or options to purchase or otherwise acquire stock or other
securities exchangeable for or convertible into stock) of, or
ownership interest of any class in, such Restricted Subsidiary
to any Person other than the Company or a Wholly-owned
Restricted Subsidiary if, after giving effect to such issuance
or sale, less than 80% of the Voting Stock or ownership interest
of such Restricted Subsidiary is owned by the Company and/or one
or more of its Wholly-owned Restricted Subsidiaries.
(c) The Company will not sell, transfer or otherwise
dispose of any ownership interest in the Additional Obligor or
any Indebtedness of the Additional Obligor. The Company will not
sell, transfer or otherwise dispose of any shares of stock or
ownership interest in any other Restricted Subsidiary or any
Indebtedness of any other Restricted Subsidiary, and will not
permit any Restricted Subsidiary to sell], transfer or otherwise
dispose of (except to the Company or a Wholly-owned Restricted
Subsidiary) any shares of stock or ownership interest or any
Indebtedness of any other Restricted Subsidiary if, after giving
effect to such sale, transfer or disposition, less than 80% of
the
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Voting Stock or controlling ownership interest, as the case
may be, of such Restricted Subsidiary is owned by the Company
and/or one or more of its Wholly-owned Restricted Subsidiaries,
unless:
(1) simultaneously with such sale, transfer or
disposition, all shares of stock and all Indebtedness of
such Restricted Subsidiary at the time owned by the
Company and by every other Subsidiary shall be sold,
transferred or disposed of as an entirety;
(2) the Board of Directors of the Company shall have
determined, as evidenced by a resolution thereof, that the
retention of such stock or ownership interest and
Indebtedness is no longer in the best interests of the
Company;
(3) such stock or ownership interest and
Indebtedness is sold, transferred or otherwise disposed of
to a Person, for a cash consideration and on terms
reasonably deemed by the Board of Directors to be adequate
and satisfactory;
(4) the Restricted Subsidiary being disposed of
shall not have any continuing investment in the Company or
any other Subsidiary not being simultaneously disposed of;
and
(5) such sale or other disposition does not involve
a substantial part (as hereinafter defined) of the assets
of the Company and its Restricted Subsidiaries.
As used in this Section5.11, a sale, lease or other
disposition of assets shall be deemed to be a "substantial part"
of the assets of the Company or its Restricted Subsidiaries only
if the net book value of such assets when added to the net book
value of all other assets sold, leased or otherwise disposed of
by the Company and its Restricted Subsidiaries (other than in
the ordinary course of business) during the most recent
twelve-month period, exceeds 10% of the Consolidated Net
Tangible Assets of the Company and its Restricted Subsidiaries
determined as of the end of the immediately preceding fiscal
quarter. Sales or other realization on delinquent receivables
shall not be included in any computation of sales or other
dispositions thereunder.
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Section 2.6. Amendment to Section 5.16. Section 5.16 of the Note
Agreements shall be amended in its entirety to read as follows:
Section 5.16. Designation of Subsidiaries. The Company may
from time to time designate any Unrestricted Subsidiary:
(i) that is organized under the laws of the United
States or any State thereof;
(ii) that conducts substantially all of its business
and has substantially all of its assets within the United
States; and
(iii) of which more than 80% (by number of votes) of
the Voting Stock or, if such Unrestricted Subsidiary is
not a corporation, more than 80% of the ownership
interest, is owned by the Company and/or one or more
Wholly-owned Restricted Subsidiaries,
as a Restricted Subsidiary if immediately thereafter such
Subsidiary is in compliance with all of the covenants of this
Agreement applicable to Restricted Subsidiaries and the Company
would be permitted to incur at least $1.00 of additional Funded
Debt under the provisions of ss.5.6(a)(3). The Company may
rescind the designation of any Restricted Subsidiary (other than
the Additional Obligor) if immediately thereafter (i) such
Subsidiary shall not own, directly or indirectly, any
Indebtedness or capital stock of, or other ownership interest
in, any Restricted Subsidiary or any Indebtedness of the Company
and (ii) the Company would be permitted to incur at least $1.00
of additional Funded Debt under the provisions of ss.5.6(a)(3).
Each change in the designation of a Subsidiary shall be made by
resolution of the Board of Directors of the Company and the
Company shall within 10 days after such action give written
notice thereof to the holders of the Notes.
SECTION 3. AMENDMENTS TO SECTION 8.1 OF THE NOTE AGREEMENTS.
Section 3.1. Amendment to Definition of "Affiliate". The second
sentence of the definition of Affiliate shall be amended to read as follows :
The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of
Voting Stock (or in the case of a Person which is not a
corporation, equity interest), by contract or otherwise.
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Section 3.2. Amendment to definition of "Minority Interests". The first
sentence of the definition of Minority Interests shall be amended to read as
follows:
"Minority Interests" shall mean any shares of stock, in the
case of a corporation, or ownership interests, in the case of a
limited liability company, of any class of a Restricted
Subsidiary (other than directors' qualifying shares as required
by law) that are not owned by the Company and/or one or more of
its Restricted Subsidiaries.
Section 3.3. Amendment to definition of "Person". The definition of
Subordinated Debt shall be amended in its entirety to read as follows:
"Person " shall mean an individual, partnership, corpora-
tion, limited liability company, trust or unincorporated
organization, and a government or agency or political
subdivision vision thereof.
Section 3.4. Amendment to definition of "subsidiary". The definition of
subsidiary shall be amended to read as follows :
The term "subsidiary" shall mean, as to any particular
parent business entity, any business entity of which such parent
business entity and/or one or more business entities which are
themselves subsidiaries of such parent business entity, (a) in
the case of any corporation own more than 50% of the Voting
Stock, or (b) in the case of any limited liability company or
other business entity, own a majority of the outstanding
interests in such limited liability Company or other business
entity. The term "Subsidiary " shall mean a subsidiary of the
Company.
Section 3.5. Amendment to definition of "Wholly-owned". The definition
of Wholly-owned shall be amended to read as follows :
"Wholly-owned" when used in connection with any Subsidiary
shall mean (a) in the case of a corporation, a Subsidiary of
which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) and all
Indebtedness for borrowed money shall be owned by the Company
and/or one or more of its Wholly-owned Subsidiaries and (b) in
the case of a limited liability company or other business entity
shall mean a Subsidiary of which all of the outstanding
ownership interests (except nominal amounts of interests
required to be held other than by such Person under applicable
law) shall be owned by the Company and/or one or more of its
Wholly-owned subsidiaries.
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Section 3.6. Additional Definition. Section 8.1 of the Note Agreement
shall be amended by inserting the following definition in Section 8. 1 in the
correct alphabetical order:
"Additional Obligor" shall mean Xxxxx Supermarkets, LLC,
an Indiana limited liability company.
SECTION 4. AMENDMENT TO FORMS OF NOTES; EXCHANGE OF NOTES.
The respective forms of Notes, Series A and Series B, attached to the
Note Agreements as Exhibits A and B shall be amended to provide as set forth in
Exhibits A and B hereto. As provided in Section 2 hereof, from and after the
date of this Agreement, each Note, Series A and Series B, currently outstanding
shall be deemed amended to provide as set forth for the appropriate series in
Exhibits A and B, hereto whether or not the Holder elects to exchange such Note
pursuant to the following sentence. On or after the date hereof, the Holder may
exchange the Note or Notes currently held by it (individually an "Old Note" and
collectively the "Old Notes") for a new Note or Notes substantially in the form
attached to this Agreement as Exhibits A and B, respectively (individually a
"New Note" and collectively the "New Notes"). Upon surrender of any Old Note at
its office, the Company will deliver in exchange therefor within 1 0 business
days, without expense to such Holder, a New Note for the same series and in the
same aggregate principal amount as the then unpaid Principal amount of such Old
Note, dated as of the date to which interest has been paid on such Old Note and
registered in the name of such Holder.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Company and the Additional Obligor each represent and warrant that
all representations and warranties set forth in Exhibit C to this Agreement are
true and correct as of the date hereof and are incorporated herein by reference
with the same force and effect as though herein set forth in full.
SECTION 6. SUBSIDIARIES AND RESTRICTED SUBSIDIARIES.
Upon the execution and delivery of this Agreement, Annex A to the Note
Agreements shall be updated and restated to read as Annex A attached to this
Agreement.
SECTION 7. CONDITIONS PRECEDENT.
The effectiveness and validity of this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) The Holder shall have received the following, each of which
must be satisfactory in form and substance to the Holder:
(i) this Agreement, duly executed by the Company; and
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(ii) an opinion of counsel to the Company and the Additional
Obligor, addressed to the Holders, to the effect provided in
paragraphs 1, 2 and 3 of Exhibit C hereto.
(b) This Agreement shall have been executed and delivered by
Holders of not less than 66-2/3% of the unpaid principal balance of the
Notes.
(c) The Company shall have paid (by wire transfer of immediately
available funds) to all Holders of the outstanding Notes, as an
amendment fee and in consideration for the execution and delivery of
this Agreement by the requisite Holders, an amount equal to 0.125% of
the unpaid principal amount of the Notes held by such Holders as set
forth in Schedule I attached hereto.
Upon satisfaction of the conditions set forth above, this Amendment to Note
Agreements and Assumption Agreement shall be a binding agreement of the Company,
the Additional Obligor and the Holders; provided that the effectiveness of the
amendments contemplated hereby shall be determined pursuant to Section 8.1.
SECTION 8. MISCELLANEOUS.
Section 8.1. Effective Date; Ratification. The amendments contemplated by
this Agreement shall be effective as of the date (the "Effective Date") upon
which (a) all conditions set forth in Section 7 hereof have been satisfied, (b)
the Company consummates transfer of assets and related transactions contemplated
by this Agreement, and (c) the fees and expenses of Xxxxxxx and Xxxxxx provided
for in Section 8.4- shall have been paid by the Company. Except as amended
herein, the terms and provisions of the Note Agreements are hereby ratified,
confirmed and approved in all respects.
Section 8.2. Successors and Assigns. This Agreement shall be binding upon
the Company and the Additional Obligor and their respective successors and
assigns and shall inure to the benefit of the Holders and to the benefit of
their successors and assigns, including each successive holder or holders of any
Notes.
Section 8.3. Counterparts. This Agreement may be executed in any number
of counterparts, each executed counterpart constituting an original but all
together one and the same instrument.
Section 8.4. Fees and Expenses. Whether or not the Effective Date occurs,
the Company agrees to pay all reasonable fees and expenses of the Holders and of
special counsel to the Holders in connection with the preparation of this
Amendment to Note Agreements and Assumption Agreement.
Section 8.5. No Legend Required. Any and all notices, requests,
certificates and other instruments including, without limitation, the Notes, may
refer to the Note Agreement or the Note Agreement dated as of October 15, 1992
without making specific reference to this Amendment to Note Agreements and
Assumption Agreement, but nevertheless all such
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references shall be deemed to include this Amendment to Note Agreements and
Assumption Agreement unless the context shall otherwise require.
Section 8.6. Governing Law. This Agreement and the Notes shall be
governed by and construed in accordance with Indiana law.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Note Agreements and Assumption Agreement as of March 28, 1997.
XXXXX SUPERMARKETS, INC.
By: /s/
-------------------------------
Its
XXXXX SUPERMARKETS, LLC
By: XXXXX SUPERMARKETS, INC.,
Its Chief Operating Officer
By: /s/
-------------------------------
Its
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Accepted as of March 28, 1997 :
FIRST COLONY LIFE INSURANCE COMPANY
By:
----------------------------------
Its
AMERICAN UNITED LIFE INSURANCE COMPANY
By:
----------------------------------
Its
WOODMEN ACCIDENT AND LIFE COMPANY
By:
----------------------------------
Its
GUARANTEE LIFE INSURANCE COMPANY
By:
----------------------------------
Its
GREAT-WEST LIFE AND ANNUITY INSURANCE
COMPANY
By:
----------------------------------
Its
By:
----------------------------------
Its
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By:
----------------------------------
Its
By:
----------------------------------
Its
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SCHEDULE I
ORIGINAL
PRINCIPAL PRINCIPAL BALANCE
NAME OF AMOUNT OF OF NOTES AMENDMENT
NOTEHOLDER NOTES ISSUED OUTSTANDING FEE PAYABLE
First Colony Life Insurance $20,000,000 $20,000,000 $25,000
Company
American United Life $10,000,000 $10,000,000 $12,500
Insurance Company
Great-West Life and Annuity $ 10,000,000 $7,272,728.02 $9,090.91
Insurance Company
Principal Mutual Life $ 5,000,000 $3,636,364-.01 $4,545.46
Insurance Company
Woodmen Accident and Life $ 2,500,000 $2,500,000 $3,125
Company
Guarantee Life Insurance $ 2,500,000 $2,500,000 $3,125
Company (formerly
Guarantee Mutual Life
Company)
SCHEDULE I
(to Amendment to Note Agreements
and Assumption Agreement)
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XXXXX SUPERMARKETS, INC.
XXXXX SUPERMARKETS, LLC
8.54% Senior Note, Series A, Due December 31, 2007
PPN #___________
$ ___________ ____________, 19__
No. AR-
XXXXX SUPERMARKETS, INC., an Indiana corporation (the "Company"), and
XXXXX SUPERMARKETS, LLC, an Indiana limited liability company (the "Additional
Obligor") (the Company and the Additional Obligor being herein sometimes
together referred to as the "Co-Obligors"), for value received, hereby jointly
and severally promise to pay to
or registered assigns,
on the 31st day of December, 2007,
the principal amount of
DOLLARS ($________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at the
rate of 8.54% per annum from the date hereof until maturity, payable
semiannually on June 30 and December 31 in each year commencing December 31,
1992, and at maturity. The Co-Obligors agree to pay interest on overdue
principal (including any overdue required or optional prepayment of principal)
and premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest, at the rate of 10.54% per annum after the date due,
whether by acceleration or otherwise, until paid. Both the principal hereof and
interest hereon are payable at the principal office of the Company in
Indianapolis, Indiana, in coin or currency of the United States of America which
at the time of payment shall be legal tender for the payment of public and
private debts.
This Note is one of the 8.54% Senior Notes, Series A, of the Co-Obligors
in the aggregate principal amount of $35,000,000 issued or to be issued under
and pursuant to the terms and provisions of separate and several Note
Agreements, each dated as of October 15, 1992, entered into by the Company with
the original purchasers therein referred to, as amended by an Amendment to Note
Agreements and Assumption Agreement dated as of March 28, 1997 entered into by
the Co-Obligors and a requisite percentage of the then holders of the
outstanding Notes, and this Note and the holder hereof are entitled equally and
EXHIBIT A
(to Amendment to Note Agreements
and Assumption Agreement)
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ratably with the holders of all other Notes outstanding under the Note
Agreements, as amended, to all the benefits and security provided for thereby or
referred to therein, to which Note Agreements, as amended, reference is hereby
made for the statement thereof,
This Note and the other Notes outstanding under the Note Agreements, as
amended, may be declared due prior to their expressed maturity dates and certain
prepayments are required to be made thereon, all in the events, on the terms and
in the manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of
the Co-Obligors prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, ,if any, set forth in
Section 2 of the Note Agreements.
This Note is registered on the books of the Co-Obligors and is
transferable only by surrender thereof at the principal office of the
Co-Obligors duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of this Note or its attorney duly
authorized in writing. Payment of. or on account of principal, premium, if any,
and interest on this Note shall be made only to or upon the order in writing of
the registered holder.
XXXXX SUPERMARKETS, INC.
By:__________________________
Its
XXXXX SUPERMARKETS, LLC
By: XXXXX SUPERMARKETS, INC.
Its Chief Operating Officer
By:__________________________
Its
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XXXXX SUPERMARKETS, INC.
XXXXX SUPERMARKETS, LLC
8.13% Senior Note, Series B, Due December 31, 2004
PPN #___________
$ _____________ ________, 19__
No. BR-
XXXXX SUPERMARKETS, INC., an Indiana corporation (the "Company"), and
XXXXX SUPERMARKETS, LLC, an Indiana limited liability company (the "Additional
Obligor") (the Company and the Additional Obligor being herein sometimes
together referred to as the "Co-Obligors"), for value received, hereby jointly
and severally promise to pay to
or registered assigns,
on the 31st day of December, 2004,
the principal amount of
DOLLARS ($__________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at the
rate of 8.13% per annum from the date hereof until maturity, payable
semiannually on June 30 and December 3l in each year commencing December 31,
1992, and at maturity. The Co-Obligors agree to pay interest on overdue
principal (including any overdue required or optional prepayment of principal)
and premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest, at the rate of 10.13% per annum after the date due,
whether by acceleration or otherwise, until paid. Both the principal hereof and
interest hereon are payable at the principal office of the Company in
Indianapolis, Indiana, in coin or currency of the United States of America which
at the time of payment shall be legal tender for the payment of public and
private debts.
This Note is one of the 8.13% Senior Notes, Series B, of the Co-Obligors
in the aggregate principal amount of $15,000,000 issued or to be issued under
and pursuant to the terms and provisions of separate and several Note
Agreements, each dated as of October 15, 1992, entered into by the Company with
the original purchasers therein referred to, as amended by an Amendment to Note
Agreements and Assumption Agreement dated as of March 28, 1997 entered into by
the Co-Obligors and a requisite percentage of the then holders of the
outstanding Notes, and this Note and the holder hereof are entitled equally and
EXHIBIT B
(to Amendment to Note Agreements
and Assumption Agreement)
19
ratably with the holders of all other Notes outstanding under the Note
Agreements, as amended, to all the benefits and security provided for thereby or
referred to therein, to which Note Agreements, as amended, reference is hereby
made for the statement thereof.
This Note and the other Notes outstanding under the Note Agreements, as
amended, may be declared due prior to their expressed maturity dates and certain
prepayments are required to be made thereon, all in the events, on the terms and
in the manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of the
Co-Obligors prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in Section
2 of the Note Agreements.
This Note is registered on the books of the Co-Obligors and is transfera-
ble only by surrender thereof at the principal office of the Co-Obligors duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of this Note or its attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
holder.
XXXXX SUPERMARKETS, INC.
By
-----------------------------
Its
XXXXX S SUPERMARKETS , LLC
By XXXXX SUPERMARKETS, INC.
Its Chief Operating Officer
By
-----------------------------
Its
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20
REPRESENTATIONS AND WARRANTIES
The Company and the Additional Obligor each represent and warrants to each
Holder as follows:
1. Corporate Organization and Authority. The Company, and
each Restricted Subsidiary, is a corporation or limited liability company, as
the case may be, duly organized and validly existing under the laws of its
jurisdiction of organization.
2. Transaction is Legal and Authorized. The execution, delivery and
performance of the Amendment to Note Agreements and Assumption Agreement and
compliance by the Company and the Additional Obligor with all of the provisions
of the Amendment to Note Agreements and Assumption Agreement:
(a) are within the corporate powers of the Company and the Additional
Obligor;
(b) will not violate any provisions of any law or any order of any court
or governmental authority or agency and will not conflict with or result in
any breach of any of the terms, conditions or provisions of, or constitute
a default under the Articles of Incorporation or Articles of Organization
of the Company or the Additional Obligor or any indenture or other
agreement or instrument to which the Company or the Additional Obligor is a
party or by which either may be bound or result in the imposition of any
Liens or encumbrances on any property of the Company or the Additional
Obligor; and
(c) have been duly authorized by proper corporate action on the part of
the Company and the Additional Obligor (no action by the stockholders of
the Company and the Additional Obligor being required by law, by the
Articles of Incorporation or Articles of Organization or By-laws of the
Company or the Additional Obligor or otherwise) and the Amendment to Note
Agreements and Assumption Agreement have been executed and delivered by the
Company and the Additional Obligor and constitute the legal, valid and
binding obligation, contract and agreement of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. Governmental Consent. No approval, consent or withholding of objection
on the part of any regulatory body, state, Federal or local, is necessary in
connection with the execution and delivery by the Company or the Additional
Obligor of the Amendment to Note Agreements and Assumption Agreement or
compliance by the Company or the Additional Obligor with any of the provisions
of the Amendment to Note Agreements and Assumption Agreement.
EXHIBIT C
(to Amendment to Note Agreements
and Assumption Agreement)
21
4. No Defaults. No Default or Event of Default (as defined in the Note
Agreements, as amended) has occurred and is continuing. Neither the Company nor
any Restricted Subsidiary is in default in the payment of principal or interest
on any Indebtedness or is in default under any instrument or instruments or
agreements under and subject to which any Indebtedness has been issued, and no
event has occurred and is continuing under the provisions of any such instrument
or agreement which with the lapse of time or the giving of notice, or both,
would constitute an event of default thereunder.
5. Subsidiaries. Annex A attached hereto states the name of each of the
Company' s Subsidiaries, its jurisdiction of incorporation or organization and
the percentage of its Voting Stock or ownership interest owned by the Company
and/or its Subsidiaries. The Company and each Subsidiary has good and marketable
title to all of the shares or ownership interest it purports to own of the stock
or ownership interest of each Subsidiary, free and clear in each case of any
lien. All such shares or ownership interest have been duly issued and are fully
paid and non-assessable.
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22
SUBSIDIARIES OF THE COMPANY
1. RESTRICTED SUBSIDIARIES:
PERCENTAGE OF VOTING
STOCK OR OTHER
JURISDICTION OF OWNERSHIP INTEREST
INCORPORATION OR OWNED BY COMPANY AND
NAME OF SUBSIDIARY ORGANIZATION EACH OTHER SUBSIDIARY
C. E. Publishing, Inc. 100%
Crystal Food Services, LLC 100%
Contract Transport, Inc. Indiana 100%
Convenience Store Ohio 100%
Distributing Company
(a partnership)
Mar Properties, Inc. Indiana 100%
Maraines Greenery, Inc. Indiana 100%
Limited Holdings, Inc. 100%
LoBill, LLC l00%
Marlease, Inc. Indiana 100%
Xxxxx Drugs Inc. Indiana 100%
Xxxxx International, Inc., 100%
Xxxxx P.Q., Inc. Indiana 100%
Xxxxx Supermarkets, LLC Indiana 100%
Xxxxx Village Pantries, Inc. Indiana 100%
Xxxxx Realty, Inc. Indiana 100%
North Xxxxxx Development Indiana 100%
Corporation
S.C.T., Inc. Indiana 100%
23
PERCENTAGE OF VOTING
STOCK OR OTHER
JURISDICTION OF OWNERSHIP INTEREST
INCORPORATION OR OWNED BY COMPANY AND
NAME OF SUBSIDIARY ORGANIZATION EACH OTHER SUBSIDIARY
Trademark Holdings Corp. Delaware 100%
Village Pantry, LLC Indiana 100%
Walnut Hills Association 100%
(a partnership)
2. SUBSIDIARIES (OTHER THAN RESTRICTED SUBSIDIARIES):
NONE
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