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EXHIBIT 4.38
FOURTH AMENDMENT
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FOURTH AMENDMENT (this "Amendment"), dated as of November 6, 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 the Credit Agreement as
herein provided, subject to and on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 9.04(xiv) of the Credit Agreement is hereby deleted and
the following new Section 9.04(xiv) is inserted in lieu thereof:
"(xiv) subject to Section 13.17, additional unsecured Indebtedness
incurred by the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $4,000,000 at any one time outstanding
(it being understood and agreed, however, to the extent that any
Indebtedness incurred pursuant to this clause (xiv) is guaranteed by
any Affiliate of Holdings or any of its Subsidiaries, such guaranty
shall expressly provide that each such Affiliate agrees not to
exercise any right of subrogation that it would otherwise have as a
result of such guaranty until all of the Obligations have been paid in
full in cash);".
2. The Borrower hereby acknowledges that as a result of the recently
completed sale of three of its stores located in Hyde Park, New York,
Poughkeepsie, New York
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and Beekman, New York for approximately $8,700,000, as well as its failure to
apply the Net Sale Proceeds from such sales to repay Term Loans in accordance
with the Credit Agreement, two separate Events of Default have occurred and are
continuing under the Credit Agreement.
3. 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.
4. 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.
5. 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.
6. This Amendment shall become effective on the date (the "Fourth
Amendment Effective Date") when Holdings, BV Holdings, the Borrower and the
Required Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office.
7. From and after the Fourth 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/ James A. Toopes, Jr.
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Name: James A. Toopes, Jr.
Title: Vice President
BV HOLDINGS CORPORATION
By: /s/ James A. Toopes, Jr.
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Name: James A. Toopes, Jr.
Title: Vice President
BIG V SUPERMARKETS, INC.
By: /s/ James A. Toopes, Jr.
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Name: James A. Toopes, Jr.
Title: President & Chief Executive Officer
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication Agent
By:
-----------------------------
Name:
Title:
3
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FLEET NATIONAL BANK, Individually
and as Administrative Agent
By: /s/ Peter Haley
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Name: Peter Haley
Title: Authorized Officer
SUMMIT BANK, Individually and as
Documentation Agent
By: /s/ William T. Frahey
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Name: William T. Frahey
Title: Vice President
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor
By: /s/ Anthony Heyman
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Name: Anthony Heyman
Title: Authorized Signatory
MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST
By:
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Name:
Title:
4
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STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY
By:
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Name:
Title:
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Management Inc., as Collateral
Manager
By: /s/ Douglas L. Winchell
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Name: Douglas L. Winchell
Title: Vice President
NUVEEN FLOATING RATE FUND
By: Nuveen Senior Loan Asset Management Inc.
By:
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Name:
Title:
KZH STERLING LLC
By:
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Name:
Title:
5
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STEIN ROE & FARNHAM CLO I LTD.
By: Stein Roe & Farnham Incorporated, as
Portfolio Manager
By: /s/ Brian W. Good
-----------------------------
Name: Brian W. Good
Title: Sr. Vice President & Portfolio
Manager
LIBERTY- STEIN ROE ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Stein Roe & Farnham Incorporated, as
Advisor
By:
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Name:
Title:
ELF FUNDING TRUST I
By: /s/ Mark K. Okada
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Name: Mark K. Okada
Title: Executive Vice President
ELT LTD.
By:
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Name:
Title:
6
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CAPTIVA FINANCE LTD.
By:
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Name:
Title:
ML CBO (IV) (CAYMAN) LTD.
By: /s/ Mark K. Okada
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Name: Mark K. Okada
Title: Executive Vice President
GENERAL ELECTRIC CAPITAL CORP.
By:
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Name:
Title:
OSPREY INVESTMENTS PORTFOLIO
By:
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Name:
Title:
STRATEGIC MANAGED LOAN PORTFOLIO
By:
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Name:
Title:
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