Exhibit 4.36
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of March 2, 2000, among
BIG V HOLDING CORP., a Delaware corporation ("Holdings"), BV HOLDINGS
CORPORATION, a Delaware corporation ("BV Holdings"), BIG V SUPERMARKETS, INC., a
New York corporation (the "Borrower"), the lenders from time to time party to
the Credit Agreement referred to below (each a "Lender" and, collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC., as Syndication Agent (in such capacity,
the "Syndication Agent"), FLEET NATIONAL BANK, as Administrative Agent (in such
capacity, the "Administrative Agent"), and SUMMIT BANK, as Documentation Agent
(in such capacity, the "Documentation Agent"). All capitalized terms used herein
and not otherwise defined herein shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, BV Holdings, the Borrower, the Lenders, the
Administrative Agent, the Syndication Agent and the Documentation Agent are
parties to a Credit Agreement, dated as of January 14, 1999 (as amended,
modified or supplemented through, but not including, the date hereof, the
"Credit Agreement"); and
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement as herein provided, subject to and on the terms and conditions
set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 1.05(g) of the Credit Agreement is hereby amended by
inserting the following text immediately after the last word appearing in the
second parenthetical of clause (iii) thereof:
", including any additional Tranche C Term Loans made pursuant to
Section 13.18(b)".
2. Section 4.02(b)(iii) of the Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
"To the extent that any additional Tranche C Term Loans are
incurred pursuant to Section 13.18(b), the final Tranche C Term
Loan Scheduled Repayment set forth in the table above shall be
increased by the aggregate principal amount of such additional
Tranche C Term Loans so incurred."
3. Section 7.08(b) of the Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
"All proceeds of Tranche C Term Loans incurred pursuant to Section
13.18(b) shall be used for the Borrower's and its Subsidiaries'
general corporate purposes."
4. The definition of "Tranche C Term Loan" appearing in Section
11.01 of the Credit Agreement is hereby amended by inserting the following new
text immediately after the last word thereof:
"and also shall include any additional Tranche C Term Loans made
pursuant to Section 13.18(b)".
5. Section 13.17 of the Credit Agreement is hereby amended as
follows:
(i) by deleting the word "or" appearing at the end of clause
(A)(i) of the second sentence thereof and inserting a comma in lieu thereof;
(ii) by inserting the following new text immediately after the
words "Junior Subordinated Note Agreement" appearing at the end of clause
(A)(ii) of the second sentence thereof:
"or (iii) incur any additional Tranche C Term Loans under Section
13.18 unless such additional Tranche C Term Loans are incurred in
reliance on the proviso to Section 4.12 of the Senior Subordinated
Note Indenture and the proviso to Section 7E of the Junior
Subordinated Note Agreement and/or clause (xiv) of the respective
definition of "Permitted Indebtedness" contained in the Senior
Subordinated Note Indenture and the Junior Subordinated Note
Agreement (although to the extent that such additional Tranche C
Term Loans are incurred in reliance on such Sections 4.12 and 7E,
the Borrower shall deliver to the Agents both (I) a certificate of
the Borrower's chief financial officer demonstrating (in
reasonable detail) that such additional Tranche C Term Loans may
be so incurred under such Sections and (II) an opinion of counsel,
in form and substance reasonably satisfactory to the Agents, with
respect to the matters referred to in the parenthetical to clause
(viii) of the proviso to each of the definition of "Senior Debt"
appearing in the Senior Subordinated Note Indenture and the
definition of "Superior Debt" appearing in the Junior Subordinated
Note Agreement";
(iii) by inserting the following new text immediately after the
words "Second Tranche C Term Loan Borrowing Date" appearing in clause (B) of the
second sentence thereof:
"and/or by operation of Section 13.18"; and
(iv) by inserting the following new text immediately after the
words "the first sentence of this Section 13.17" appearing in clause (B) of the
second sentence thereof:
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"and as provided in clause (A)(iii) above of this sentence".
6. Section 13.18 of the Credit Agreement is hereby amended as
follows:
(i) by deleting the heading thereof and inserting the
following new heading in lieu thereof:
"13.18 Increases of Revolving Loan Commitments and Additional
Tranche C Term Loans. (a)";
(ii) by deleting all references to "Section 13.18" appearing in
the existing text thereof and inserting "Section 13.18(a)" in lieu thereof;
(iii) by inserting the following new text immediately after the
text "Section 13.18" appearing in clause (iv) of the first sentence thereof:
"less the aggregate principal amount of additional Tranche C Term
Loans made pursuant to Section 13.18(b)"; and
(iv) by inserting the following new clause (b) at the end
thereof:
"(b) So long as no Default or Event of Default then exists or
would result therefrom, the Borrower shall have the right at any
time and from time to time to request one or more Lenders to make
additional Tranche C Term Loans, it being understood and agreed,
however, that (i) no Lender shall be obligated to make additional
Tranche C Term Loans as a result of any request by the Borrower,
(ii) any Lender may so make additional Tranche C Term Loans
without the consent of any other Lender, (iii) any additional
Tranche C Term Loans made pursuant to this Section 13.18(b) shall
be in a minimum amount of at least $1,000,000, (iv) no more than
$5,000,000 in the aggregate of additional Tranche C Term Loans may
be made pursuant to this Section 13.18(b) less the amount by which
the Total Revolving Loan Commitment has been increased pursuant to
Section 13.18(a), (v) the Borrower may not request any Lender to
make additional Tranche C Term Loans pursuant to this Section
13.18(b) without first obtaining the prior consent of the
Syndication Agent and the Administrative Agent, (vi) no additional
Tranche C Term Loans may be made pursuant to this Section 13.18(b)
unless same is permitted under Section 13.17 and (vii) any
additional Tranche C Term Loans made by any Lender pursuant to
this Section 13.18(b) shall be made in coordination with the
Administrative Agent. At the time of any additional Tranche C Term
Loans being made pursuant to this Section 13.18(b), (i) the
Borrower shall, in coordination with the Administrative Agent,
take all such actions as may be necessary to ensure that all
Lenders with outstanding Tranche C Term Loans continue to
participate in each Borrowing of outstanding Tranche C Term Loans
on a pro rata basis (after giving effect to any additional Tranche
C Term Loans made pursuant to this Section 13.18(b)), including by
adding such additional Tranche C Term Loans to the then
outstanding Borrowings of Tranche C Term Loans on a pro rata basis
even though as a result thereof such new additional Tranche C Term
Loans (to the extent required to be maintained as Eurodollar
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Loans) may effectively have a shorter Interest Period than the
then outstanding Borrowings of Tranche C Term Loans, and it is
hereby agreed that (x) to the extent any then outstanding
Borrowings of Tranche C Term Loans that are maintained as
Eurodollar Loans are affected as a result thereof, any costs of
the type described in Section 1.11 incurred by such Lenders in
connection therewith shall be for the account of the Borrower or
(y) to the extent the additional Tranche C Term Loans to be so
incurred are added to the then outstanding Borrowings of Tranche C
Term Loans which are maintained as Eurodollar Loans, the Lenders
that have made such additional Tranche C Term Loans shall be
entitled to receive an effective interest rate on such additional
Tranche C Term Loans as is equal to the Eurodollar Rate as in
effect two Business Days prior to the incurrence of such
additional Tranche C Term Loans plus the then Applicable
Eurodollar Rate Margin for such Tranche of Term Loans until the
end of the respective Interest Period or Interest Periods, (ii)
Schedule I shall be deemed modified to reflect the additional
Tranche C Term Loans made by the affected Lenders, and (iii) upon
surrender of any old Tranche C Term Notes by those Lenders that
have made such additional Tranche C Term Loans pursuant to this
Section 13.18(b), to the extent requested by such Lenders, new
Tranche C Term Notes will be issued, at the Borrower's expense, to
such Lenders to be in conformity with the requirements of Section
1.05 (with appropriate modifications). Any Lender agreeing to make
additional Tranche C Term Loans pursuant to this Section 13.18(b)
shall make such additional Tranche C Term Loans within one
Business Day after all of the procedures set forth in the first
sentence of this Section 13.18(b) have been complied with and
otherwise in accordance with the terms of this Agreement."
7. In order to induce the Lenders to enter into this Amendment, each
of Holdings, BV Holdings and the Borrower hereby represents and warrants that
(i) the representations and warranties contained in the Credit Agreement are
true and correct in all material respects on and as of the Second Amendment
Effective Date (as defined below) (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date), both before and after giving effect to this Amendment,
(ii) there exists no Default or Event of Default on the Second Amendment
Effective Date, both before and after giving effect to this Amendment, and (iii)
each Credit Party has the power and authority (corporate and otherwise) to incur
(and/or guaranty) any additional Tranche C Term Loans as contemplated by this
Amendment.
8. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
9. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
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10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
11. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when Holdings, BV Holdings, the Borrower and the
Required Lenders (i) shall have signed a counterpart hereof (whether the same or
different counterparts) and (ii) shall have delivered (including by way of
facsimile transmission) the same to the Administrative Agent at the Notice
Office.
12. From and after the Second Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
BIG V HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice Chairman
BV HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice Chairman
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice Chairman
DLJ CAPITAL FUNDING, INC., Individually
and as Syndication Agent
By: /s/ Xxxx Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, Individually
and as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx, XX
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
SUMMIT BANK, Individually and as
Documentation Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc., its
Agent/Manager
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:
-----------------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
-----------------------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, Xxxxx Xxx & Xxxxxxx
Incorporated, as Advisor to the Xxxxx
Xxx Floating Rate Limited Liability
Company
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
NUVEEN FLOATING RATE FUND
By: Nuveen Senior Loan Asset Management
Inc.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
KZH STERLING LLC
By: /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated, as
Porfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
LIBERTY-XXXXX XXX ADVISOR
FLOATING RATE ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated, as Advisor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ELF FUNDING TRUST I
By:
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Name:
Title:
OSPREY INEVESTMENT PORTFOLIO STRATEGIC MANAGED
LOAN FUND
By:
-----------------------------------------------
Name:
Title:
ELT Ltd.
By:
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Name:
Title:
