EXHIBIT 4.22
CONSENT
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CONSENT (this "Consent"), dated as of October 10, 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");
WHEREAS, pursuant to a Consent to the Credit Agreement, dated as of
August 2, 1996 (the "August 2 Consent"), the Banks agreed to allow the Borrower
to incur the Wakefern Equipment Financing Loan (as defined therein);
WHEREAS, in lieu of the Wakefern Equipment Financing Loan, the
Borrower desires to incur a $2,039,886.44 Equipment Financing Loan from MetLife
Capital Corporation (the "MetLife Equipment Financing Loan") pursuant to
Sections 7.01(vi) and 7.05(n) of the Credit Agreement and, in connection
therewith, the Borrower has requested that the Banks consent to a certain
modification to Section 7.0l(vi) of the Credit Agreement as set forth in Section
1 below;
WHEREAS, concurrently with the effectiveness of this Consent, the
August 2 Consent shall no longer be effective and the Borrower shall not be
permitted to incur the Wakefern Equipment Financing Loan; and
WHEREAS, subject to the terms and conditions set forth herein, the
Banks wish to consent to the modification
to Section 7.0l(vi) of the Credit Agreement as set forth in Section 1 below;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in Section
7.01(vi) of the Credit Agreement, the Banks hereby agree that the Borrower shall
use the proceeds from the MetLife Equipment Financing Loan to finance the
original purchase by the Borrower of the equipment and machinery located at its
supermarket in Montgomery, New York even though such original purchase occurred
more than 90 days prior to the incurrence of the MetLife Equipment Financing
Loan so long as the terms and conditions of the MetLife Equipment Financing Loan
otherwise comply with the provisions of Sections 7.0l(vi) and 7.05(n) of the
Credit Agreement.
2. 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 hereinafter defined)
both before and after giving effect to this Consent, (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 both before and 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) and (z) except as otherwise specifically provided in Section 1 of
this Consent, the terms and conditions of the MetLife Equipment Financing Loan
comply with the terms and conditions of the Credit Agreement.
3. 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.
4. 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.
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5. 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.
6. 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.
7. 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 WHEREOF, 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/ Xxxxx X. Xxxxxx
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Title: Executive Vice President
BV HOLDINGS CORPORATION
By /s/ Xxxxx X. Xxxxxx
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Title: Executive Vice President
BIG V SUPERMARKETS, INC.
By /s/ Xxxxx X. Xxxxxx
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Title: Executive Vice President
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxx Xxxxx
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Title: Vice President
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: Assistant Treasurer
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: Sr. Vice Pres. - Portfolio Mgr.
FIRST SOURCE FINANCIAL LLP.
By : First Source Financial, Inc.
its Agent/Manager.
By /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President
BANK POLSKA KASA OPIEKI S.A.
By /s/ Xxxxxxx X. Xxxx
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Title: Vice President
Senior Lending Officer
XXXXXX FINANCIAL, INC.
By /s/ Xxxxx X. Xxxxxxxx
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Title: AVP
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