EXHIBIT 4(n)
FIRST AMENDMENT TO THE SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
This first amendment (this "Amendment") dated as of May ___, 2003 is to
the Second Amended and Restated Credit Agreement dated as of March 21, 2003 (the
"Credit Agreement") 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") and
National City Bank of Indiana. 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 to add
National City Bank of Indiana as an additional Lender;
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. 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
Ninety-Five Million and 00/100 Dollars ($95,000,000.00).
1.2. 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.
SECTION 2. AGREEMENT OF NATIONAL CITY BANK OF INDIANA TO BE BOUND BY
CREDIT AGREEMENT. National City Bank of Indiana acknowledges and agrees by
executing this Amendment that, upon the Effective Date, it will become bound by
the Credit Agreement (as amended by this Amendment, the "Amended Credit
Agreement") as if it were an original signatory thereto and will thereafter have
all the rights and obligations of a Lender (as defined in the Amended Credit
Agreement) under the Amended Credit Agreement and the other Loan Documents.
SECTION 3. ADDITION OF LENDER. The parties hereto agree that upon the
Effective Date, National City Bank of Indiana shall be a Lender under the
Amended Credit Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the
Agent, the Lenders and National City Bank of Indiana 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
Amended 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 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 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 Requirement 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 5. 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:
5.1. First Amendment. Counterparts of this Amendment signed by the
Borrowers, the Lenders and National City Bank of Indiana.
5.2. Guaranty. A Reaffirmation of Guaranty signed by the Guarantors in
favor of the Lenders and National City Bank as a Lender.
5.3. Note. A Second Amended and Restated Revolving Note signed by the
Borrowers payable to the order of National City Bank of Indiana pursuant to
Section 2.1 of the Amended Credit Agreement.
5.4. 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.
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5.5. Pro Rata Share. Payment by National City Bank of Indiana to the
Agent of its Pro Rata Share of the outstanding Revolving Loans under the Amended
Credit Agreement.
5.6. Legal Opinion. A written opinion of internal counsel of each of
the Borrowers and Xxxxx Realty, Inc., addressed to the Agent, updating the
opinions rendered on March 21, 2003 to reflect the transactions contemplated by
this Amendment.
5.7. Mortgage Amendment. A First Modification of Security Documents
signed by Xxxxx Realty, Inc. in favor of the Lenders and National City Bank of
Indiana as a Lender for each of the Mortgaged Properties.
5.8. Other Documents. Such other documents as the Agent shall
reasonably request.
SECTION 6. MISCELLANEOUS.
6.1. 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.
6.2. 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.
6.3. 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.
6.4. Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Indiana.
6.5. 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]
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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
First 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
First 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
First 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
First Amendment to
Second Amended and Restated
Credit Agreement
UNION PLANTERS BANK, NATIONAL ASSOCIATION
as a Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Title: Vice President
Signature Page to
First 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: Vice President and Senior Lender
Signature Page to
First 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
First 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
First Amendment to
Second Amended and Restated
Credit Agreement
NATIONAL CITY BANK OF INDIANA
as a party hereto and as a Lender
(upon the Effective Date)
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to
First Amendment to
Second Amended and Restated
Credit Agreement
