Exhibit 4.8
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND
AMENDMENT (this “Amendment”), dated as of December
___, 2008, is made between VILLAGE SUPER MARKET, INC., a New
Jersey corporation, as borrower (the “Borrower”), and
WACHOVIA BANK, NATIONAL ASSOCIATION, a National Banking
Association (formerly known as First Union National Bank) ,
as lender (the “Lender”).
RECITALS
A.
Reference is made to the Loan Agreement, dated as of
September 16, 1999 as amended by that certain First Amendment to
Loan Agreement dated as of July 15, 2004 (said loan agreement as
amended from time to time being referred to hereinafter as the
“Loan Agreement”), between the Borrower and the Lender,
pursuant to which Lender made available to Borrower the Revolving
Loan (as defined in the Loan Agreement).
B.
The Borrower has requested (i) an increase of the maximum
amount available under the Revolving Loan from $20,000,000 to
$25,000,000, (ii) an extension of the Maturity Date of the
Revolving Loan to December 31, 2011, and (iii) certain other
modifications to the terms and conditions of the Loan Agreement, as
specified herein.
C.
The Lender is amenable to said modifications in accordance
with, and subject to, the terms and conditions of this
Amendment.
NOW, THEREFORE , for good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the
parties hereto agree as follows:
Section 1.
Definitions
All capitalized terms used but not otherwise defined in this
Amendment shall have the meanings given to such terms in the Loan
Agreement.
Section 2.
Acknowledgment of Revolving Loan and
Waiver.
The Borrower acknowledges and agrees that the Revolving Loan is a
valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with the terms of the Loan Documents,
and that there are no claims, set-offs or defenses to the
paymentthereof.
Section 3.
Amendment to the Loan
Agreement.
(a)
References in the following Sections of the Loan Agreement to
“$20,000,000” shall be deleted and replaced by
references to “$25,000,000”: the defined term
“Commitment” in Section 1.1 of the Loan Agreement;
Section 2.1 of the Loan Agreement; and Section 2.2 of the Loan
Agreement.
(b)
The defined term "Maturity Date" set forth in Section 1.1 of
the Loan Agreement shall be amended and restated to read as
follows:
""Maturity Date"
means December 31, 2011; subject, however to extension as provided
in Section 3.6 hereof."
(c) The defined
term "Rent" set forth in Section 1.1 of the Loan Agreement shall be
amended and restated to read as follows:
""Rent" means
the minimum amount of rental and other obligations actually due and
payable during the relevant period by any of the Companies as
lessee under all leases of real property (other than the current
portion of any Capital Leases), excluding any amounts required to
be paid by the lessee (whether or not therein designated as rent or
additional rent) (a) that are on account of maintenance and
repairs, insurance, taxes, assessments and similar charges or (b)
that are based on profits, revenues or sales realized by the lessee
from the leased property or otherwise based on the performance of
the lessee. "
(d)
Section 3.6 of the Loan Agreement shall be amended and
restated as follows:
“3.6 Term.
The Term of this Loan Agreement shall expire at midnight on the
Maturity Date. The Maturity Date, and therefore the Term of this
Agreement, may be extended for additional one (1) year periods as
of December 31st of each year during the Term of this Agreement
upon the written request of the Borrower to the Lender made at
least two (2) months prior (but not more than three (3) months
prior) to said date during the Term of this Agreement. Such notice
shall be accompanied (i) by a certificate from the Chief Financial
Officer of the Borrower stating that no Default or Event of Default
has occurred and is then continuing and the representations and
warranties contained herein and in the other Loan Documents are
true and correct in all material respects on such date and (ii)
three year financial projections in GAAP format. The Lender shall
not be obligated to grant any such extension, it being acknowledged
that the Lender may or may not grant any such extension in its sole
and absolute discretion, however, the Lender agrees to reply to any
such request within thirty days after receipt of a request therefor
in accordance with this Section 3.6. The foregoing notwithstanding,
the Borrower and the Lender may agree on further extensions of the
Maturity Date and therefore the Term of this Agreement from time to
time and on such terms as the parties may propose and
accept.”
(e) Section 5.12 of the Loan Agreement shall be amended and
restated to read as follows:
“5.12 INTENTIONALLY OMITTED.”
(f) Section 7.4(B) of the Loan Agreement shall be amended and
restated to read as follows:
“(B) INTENTIONALLY OMITTED.”
(g)
Section 7.4(E) of the Loan Agreement shall be amended and
restated to read as follows:
“(E)
INTENTIONALLY OMITTED.”
(h)
Section 7.11 of the Loan Agreement shall be amended and
restated to read as follows:
“7.11
Management Changes. Permit or suffer a change in management that
would result in less than three of the following individuals being
in active, full time and direct control of the business of each of
the Companies: Perry Sumas, James Sumas, Robert Sumas, William
Sumas, John P. Sumas, Kevin Begley, John J. Sumas and Nicholas
Sumas.”
Section 4.
Conditions Precedent . The agreement of the Lender to amend
the Loan Agreement as set forth herein is subject to the conditions
precedent that, on or before the date hereof, the Lender shall have
received the following, each in form and substance satisfactory to
the Lender:
(a) this Amendment, duly executed and delivered by the
Borrower;
(b) an Amended and Restated Revolving Note made by Borrower in
favor of
Lender in the aggregate principal amount of $25,000,000,
substantially in the form attached hereto as EXHIBIT
"A" , duly executed and delivered by the Borrower;
(c) payment in full to Lender of a loan processing fee in
connection with this Amendment in the amount of $25,000;
(d) payment in full of all fees and expenses incurred by the
Lender's outside counsel for legal services rendered in connection
with this Amendment; and
(e) such other documents and information as the Lender may
reasonably request.
Section 5.
Representations and Warranties . To
induce the Lender to enter into this Amendment, the Borrower makes
the following representations and warranties to the Lender, which
shall survive the execution and delivery hereof:
(a)
The execution and delivery of this Amendment has been
authorized by all necessary corporate action on its part, this
Amendment has been duly executed and delivered by it, and this
Amendment and the Loan Agreement, as amended hereby, constitutes
the legal, valid and binding obligat
