village10q012409ex4-8.htm


    
      

      

    

    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:



      
        
           


        

        
          1

          
            

          

        

        
           


        

      

      


      ""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.”


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      (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 obligations of it enforceable against it in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally, moratorium laws from time to
time in effect and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);

      


      (b)    No Event of
Default has occurred and is continuing under the Loan Agreement, and no event
has occurred that, with notice, lapse of time or both, would constitute such an
Event of Default; and


      
        
           


        

        
          3

          
            

          

        

        
           


        

      

      


      (c)      The
representations and warranties set forth in the Loan Agreement and the other
Loan Documents are true and correct as of the date hereof in all material
respects.

      


      Section
6.      Effect of Amendment; No Novation.
Except as expressly set forth herein, this Amendment shall not, by
implication or otherwise, limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lender under the Loan Agreement, nor
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Loan Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. All references to the Loan Agreement in anyLoan Document or other
instrument, agreement or document shall hereafter be deemed to refer to the Loan
Agreement as amended by this Amendment. This Amendment is given as a
modification of the Borrower's obligations under the Loan Agreement and is not
given in substitution therefor or extinguishment thereof and is not intended to
be a novation.

      


      Section
7.    
 Waiver of Claims and Defenses;
Release. The Borrower agrees that, as of the date hereof, it has no
claim, counterclaim, cause of action or defense of any kind by way of setoff or
otherwise (i) to the payment and satisfaction in full of the Revolving Loan,
(ii) inconnection with any provisions of the Loan Agreement and the other Loan
Documents and (iii) in connection with any and all acts or omissions of the Bank
in administering the amounts outstanding under the Loan Documents or otherwise.
The foregoing notwithstanding, to the extent that any such claim or defense may
or does exist as of the date hereof, the Borrower waives and releases any and
all such claims, counterclaims, causes of action and defenses. Section 8. Entire
Agreement. This Amendment constitutes the entire agreement of the parties hereto
with respect to an amendment of the Loan Agreement pertaining to the subject
matter hereof, and it supersedes and replaces all prior and contemporaneous
agreements, discussions and understandings (whether written or oral) with
respect to such amendment. Section 9. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.

       

      
        Section
8.       Entire Agreement. This Amendment
constitutes the entire agreement of the parties hereto with respect to an
amendment of the Loan Agreement pertaining to the subject matter hereof, and it
supersedes and replaces all prior and contemporaneous agreements, discussions
and understandings (whether written or oral) with respect to such
amendment.

        


        Section
9.       Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.

         

      

      Section
10.     Governing Law. This Amendment,
including the validity thereof and the rights and obligations of the parties
hereunder, shall be construed in accordance with and governed by the laws of the
State of New Jersey.

      


      Section
11.    
Execution Certification. This
Amendment has been executed by the Borrower and delivered to the Lender in the
State of New Jersey.

      


      Section
12.     Patriot Act Notice. To help the
funding of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record information that identifies
each person who opens an account. For purposes of this Section, account shall be
understood to include loan accounts.


      
        
           


        

        
          4

          
            

          

        

        
           


        

      

      


      Section
13.    OFAC Provisions. None of the Borrower,
any guarantor, any subsidiary of the Borrower or any guarantor nor any affiliate
of the Borrower or any guarantor is (i) named on the list of Specially
Designated Nationals or Blocked Persons maintained by the U.S. Department of the
Treasury's Office of Foreign Assets Control available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html,
or (ii) (A) an agency of the government of a country, (B) an organization
controlled by a country, or (C) a person resident in a country that is subject
to a sanctions program identified on the list maintained by the U.S. Department
of the Treasury's Office of Foreign Assets Control and available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html,
or as otherwise published from time to time, as such program may be applicable
to such agency, organization or person, and the proceeds from the loan will not
be used to fund any operations in, finance any investments or activities in, or
make any payments to, any such country, agency, organization or
person.

       

       

      
 

      [SIGNATURE
PAGE TO FOLLOW]

      


      



      
        
           


        

        
          5

          
            

          

        

        
           


        

      


      


      IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.

      


      
        
          
            
              
                
                  	 
      	
                          BORROWER

                        
	 
      	
                          VILLAGE
      SUPER MARKET, INC.,

                        
	
                          ATTEST:

                        	
                          a
      New Jersey Corporation

                        
	 	 
	
                          By:
      __________________________

                        	
                          By:
      __________________________

                        
	
                          Name:

                        	
                          Name:

                        
	
                          Title:

                        	
                          Title:

                        
	 	 
	 	 
	 
      	
                          LENDER

                        
	 
      	
                          WACHOVIA
      BANK, NATIONAL

                        
	 
      	
                          ASSOCIATION
      (formerly known as First

                        
	 
      	
                          Union
      National Bank)

                        
	 	 
	 
      	
                          By:
      ___________________________

                        
	 
      	
                          Name:

                        
	 
      	
                          Title:

                        


                

              

            

          

        

      

       

      
 


      
        
           


        

        
          6

          
            

          

        

        
           


        

      

       

      EXHIBIT
A

    

    


    REVOLVING NOTE

    (AMENDED
AND RESTATED)

    


    
      	
              $25,000,000

            	
              December
      ___, 2008

            


    

    


    FOR VALUE
RECEIVED, VILLAGE SUPER MARKET, INC. (the "Borrower")hereby promises to pay to
the order of WACHOVIA BANK, NATIONAL ASSOCIATION(formerly known as First Union
National Bank) (the "Lender") at its offices at 190 River Road,Summit, Mail Code
NJ 3161, New Jersey 07901, the principal sum of TWENTY FIVE MILLION AND 00/100
DOLLARS ($25,000,000), or such amount as is indicated from time totime on the
records of the Lender for this Revolving Note, in United States currency in
immediately available funds and to pay interest thereon at rates determined
pursuant to the Loan Agreement, dated September 16, 1999, between the Lender and
the Borrower, as amended by that First Amendment to Loan Agreement dated as of
July 15, 2004 and as further amended by that certain Second Amendment to Loan
Agreement dated as of the date hereof (the "Loan Agreement").

    


    This
Revolving Note is the "Revolving Note" referred to in the Loan Agreement and is
subject to all its terms and conditions. The Loan Agreement contains provisions
for the acceleration of the maturity and optional prepayment of this Revolving
Note and an increase in the interest rate upon an Event of Default. Capitalized
terms used in this Revolving Note and defined in the Loan Agreement shall have
the meanings and be construed as provided in the Loan Agreement.

    


    This
Revolving Note amends, restates and replaces that certain Revolving Note, dated
July 15, 2004, issued by the Borrower and payable to the Lender in an original
principal amount of up to $20,000,000.00 (the “Existing Note”). This Revolving
Note is a modification of the Borrower’s obligations under the Existing Note and
not an extinguishment and substitution, nor a novation of said obligations. As
of the date of this Revolving Note, all obligations of the Borrower owing under
the Existing Note shall be deemed evidenced by this Revolving Note.

    


    Interest
shall be payable in arrears on each Interest Payment Date as provided in the
Loan Agreement. Interest shall be calculated as provided in the Loan Agreement
on a 360-day year based on the number of days elapsed.

    


    The
Borrower shall pay interest on the unpaid principal amount of each advance that
the Lender makes from the date of each advance until the entire principal amount
and accrued interest shall be paid in full. To the extent permitted by law, and
in Lender's discretion, the Borrower shall pay interest on any overdue interest
payments from their due date.

    


    Except
for special circumstances set forth in the Loan Agreement or upon the occurrence
of an Event of Default, there shall be no mandatory principal payments prior to
the Maturity Date. On the Maturity Date, the entire principal sum outstanding,
plus all accrued and unpaid interest shall be due and payable and paid in
full.

     

    
      
         

      

      
        
        

        
          

        

      

      
         

      

    

     

    The
Lender shall endeavor to record in its records for this Revolving Note the
amount of all advances and extensions of credit and payments of principal and
interest. The failure of the Lender to make such notation upon the making of any
advance or the payment of any principal or interest, however, shall not alter or
impair the rights and remedies of the Lender if an advance has actually been
made or the rights and remedies of the Borrower if a payment has been
delivered.

    


    Upon the
occurrence of an Event of Default the principal and interest under this
Revolving Note may become, or may be declared to be, immediately due and payable
in the manner, upon the conditions and with the effect provided in the Loan
Agreement. The interest rate may also be increased upon the occurrence of an
Event of Default as provided in Section 9.8 of the Loan Agreement.

    


    The
Borrower acknowledges that the Lender does not presently intend for the
aggregate principal amount of the borrowings and extensions of credit under the
Revolving Loan to exceed the original principal amount of this Revolving Note.
Notwithstanding the foregoing, if, for any reason, the Lender shall make
advances and extensions of credit in excess of that amount, the Borrower hereby
agrees to repay those excess sums upon demand at the interest rate provided
under the Loan Agreement with respect to the Revolving Loan.

    


    All
payments shall be applied first to costs of collection, then to accrued interest
with the balance applied to the reduction of principal.

    


    This
Revolving Note shall be governed by, and construed in accordance with, the laws
of the State of New Jersey.

    


    The
Borrower and each endorser hereby waive presentment, demand, protest, notice of
protest, diligence and all other demands and notices in connection with the
payment and enforcement of this Revolving Note.

    


    IN
WITNESS WHEREOF, the Borrower has caused this Revolving Note to be duly executed
on the date first above written.

    


    
      
        
          
            
              
                
                  	
                          ATTEST:

                        	 	
                          VILLAGE
      SUPER MARKET, INC.,

                        
	 
      	 
      	 	
                          a
      New Jersey Corporation

                        
	 	 	 	 
	 	 	 	 
	 	 	 	 
	
                          By:

                        	 
      	 	
                          By:

                        	 
      
	 
      	
                          Name:

                        	 	 
      	
                          Name:

                        
	 
      	
                          Title:

                        	 	 
      	
                          Title: