EXHIBIT 4.23
CONSENT AND WAIVER
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CONSENT AND WAIVER (this "Consent"), dated as of November 5, 1996,
among BIG V HOLDING CORP. ("Holdings"), BV HOLDINGS CORPORATION ("BV Holdings"),
BIG V SUPERMARKETS, INC. (the "Borrower"), the financial institutions party to
the Credit Agreement referred to below (the "Banks") and BANKERS TRUST COMPANY,
as Agent (the "Agent"). Unless otherwise defined herein, all capitalized terms
used 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 :
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WHEREAS, Holdings, BV Holdings, the Borrower, the Banks and the Agent
are parties to an Amended and Restated Credit Agreement, dated as of December
28, 1990, and amended and restated as of November 1, 1993, and further amended
and restated as of December 17, 1993 (as amended, modified or supplemented
through the date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions set forth herein, the
Borrower has requested the Banks to consent to a modification of the Credit
Agreement as set forth in Section 1 below, and the Banks wish to consent to such
modification of the Credit Agreement;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in the Credit
Agreement, the Borrower hereby covenants and agrees that in no event shall
Capital Expenditures made by the Borrower and its Subsidiaries for fiscal year
1996 exceed $10,900,000, and with any breach of such covenant to constitute an
Event of Default.
2. Notwithstanding anything to the contrary contained in the Credit
Agreement, with respect to the Borrower's fiscal quarters ended on October 5,
1996 and ending on December 28, 1996, the Banks hereby waive any Default or
Event of Default which has arisen or may arise under Sections 7.08 and/or 7.10
of the Credit Agreement solely as a result of the Borrower incurring up to
$3,990,000
of one-time charges during the Borrower's fiscal quarter ended on
October 5, 1996, it being understood and agreed, however, that the waiver of any
Default or Event of Default contained in this Section 2 shall expire at 5:00
P.M. (New York time) on January 31, 1997, and any Default or Event of Default
which has arisen under such Sections 7.08 and/or 7.10 of the Credit Agreement
without giving effect to the waiver contained in this Section 2 shall be
reinstated on and after such time.
3. In order to induce the Banks to enter into this Consent,
Holdings, BV Holdings and the Borrower hereby represent and warrant that (x) no
Default or Event of Default exists on the Consent Effective Date (as defined
below) after giving effect to this Consent and (y) all of the representations
and warranties contained in the Credit Documents shall be true and correct in
all respects on the Consent Effective Date after giving effect to this Consent
with the same effect as though such representations and warranties had been made
on and as of the Consent Effective Date (it being understood that any
representation or warranty made as of a specified date shall be true and correct
in all material respects as of such specific date).
4. This Consent 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.
5. This Consent 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 Agent.
6. THIS CONSENT 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.
7. This Consent shall become effective on the date (the "Consent
Effective Date") when Holdings, BV Holdings, the Borrower and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier) the same
to the Agent at its Notice Office.
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8. From and after the Consent Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement after giving effect to
this Consent.
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IN WITNESS WHEROF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of
the date first above written.
BIG V HOLDING CORP.
By /s/ Xxxxxx X. Xxxxxx
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Title: Xxxxxx X. Xxxxxx
President and Chief Executive Officer
BV HOLDINGS CORPORATION
By /s/ Xxxxxx X. Xxxxxx
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Title: Xxxxxx X. Xxxxxx
President and Chief Executive Officer
BIG V SUPERMARKETS, INC.
By /s/ Xxxxxx X. Xxxxxx
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Title: Xxxxxx X. Xxxxxx
President and Chief Executive Officer
BANKERS TRUST COMPANY,
Individually and as Agent
By
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Title:
BANQUE NATIONAL DE PARIS
By
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Title:
By
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Title:
BANKERS TRUST (DELAWARE)
By
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Title:
IN WITNESS WHEROF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
BIG V HOLDING CORP.
By
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Title:
BV HOLDINGS CORPORATION
By
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Title:
BIG V SUPERMARKETS, INC.
By
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Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxx Xxxxx
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Title: Xxxx Xxxxx
Vice President
BANQUE NATIONAL DE PARIS
By
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Title:
By
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Title:
BANKERS TRUST (DELAWARE)
By
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Title:
IN WITNESS WHEROF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
BIG V HOLDING CORP.
By
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Title:
BV HOLDINGS CORPORATION
By
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Title:
BIG V SUPERMARKETS, INC.
By
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Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By
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Title:
BANQUE NATIONAL DE PARIS
By /s/ [SIGNATURE APPEARS HERE]
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Title: Vice President
By /s/ Xxxxxx Xxxxxx
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Title: Xxxxxx Xxxxxx
Assistant Treasurer
BANKERS TRUST (DELAWARE)
By
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Title:
IN WITNESS WHEROF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
BIG V HOLDING CORP.
By
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Title:
BV HOLDINGS CORPORATION
By
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Title:
BIG V SUPERMARKETS, INC.
By
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Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By
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Title:
BANQUE NATIONAL DE PARIS
By
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Title:
By
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Title:
BANKERS TRUST (DELAWARE)
By /s/ [SIGNATURE APPEARS HERE]
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Title: Vice President
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XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ Xxxxxxx X. Xxxxxxx
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Title: XXXXXXX X. XXXXXXX
SENIOR VICE PRESIDENT & DIRECTOR
FIRST SOURCE FINANCIAL LLP.
By: First Source Financial, Inc.
its Agent/Manager.
By
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Title:
BANK POLSKA KASA OPIEKI S.A.
By
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Title:
XXXXXX FINANCIAL, INC.
By
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Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By
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Title:
FIRST SOURCE FINANCIAL LLP.
By: First Source Financial, Inc.
its Agent/Manager.
By /s/ Xxxx X. Xxxxxxx
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Title: XXXX X. XXXXXXX
SENIOR VICE PRESIDENT
BANK POLSKA KASA OPIEKI S.A.
By
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Title:
XXXXXX FINANCIAL, INC.
By
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Title:
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