Exhibit 4.35
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE PLEDGED, HYPOTHECATED, TRANSFERRED, OFFERED FOR SALE OR SOLD
EXCEPT PURSUANT TO A REGISTRATION UNDER SAID ACT OR AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
THIS NOTE, AND THE OBLIGATIONS OF THE COMPANY HEREUNDER, SHALL BE SUBORDINATE
AND JUNIOR TO ALL INDEBTEDNESS OF THE COMPANY CONSTITUTING SENIOR INDEBTEDNESS
(AS DEFINED IN SECTION 1.08 OF ANNEX A ATTACHED HERETO) ON THE TERMS AND
CONDITIONS SET FORTH IN ANNEX A ATTACHED HERETO, WHICH ANNEX A IS HEREIN
INCORPORATED BY REFERENCE AND MADE A PART HEREOF AS IF SET FORTH HEREIN IN ITS
ENTIRETY.
10% SUBORDINATED PROMISSORY NOTE
$1,238,772 November 12, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, the undersigned, Big V Supermarkets, Inc., a New York
corporation (the "Company"), hereby promises to pay to Xxxxxxxx X. Xxxxxxxx,
Xx., as trustee of the Laurenti Marital Trust (the "Holder"), pursuant to that
certain Agreement and Plan of Merger, dated as of November 12, 1999 (the "Merger
Agreement"), by and among the Company, ShopRite of Pennington, Inc. and its
stockholders, and BVNJ Partnership, L.P., the principal amount of One Million
Two Hundred Thirty Eight Thousand Seven Hundred Seventy-Two Dollars and 00/100
($1,238,772), payable on the terms specified below. This Promissory Note (the
"Note") is executed and delivered on this date in connection with the merger of
ShopRite of Pennington, Inc. with and into BVNJ Partnership, L.P., a New Jersey
limited partnership and an affiliate of the Company ("BVNJ"), all pursuant to
the terms and provisions of the Merger Agreement.
1. Payment of Principal.
(a) Scheduled Payment. Subject to prepayment as provided herein, the
entire principal amount of this Note shall be payable on February 12, 2003.
(b) Optional Prepayment. The Company may, at any time and from time
to time, prepay this Note in part or in full without premium or penalty. At the
time of any prepayment, the Company shall also pay all accrued interest on the
principal amount prepaid.
2. Interest.
(a) Interest shall accrue on the outstanding principal amount
hereof, commencing on the date hereof and continuing until the date of payment
in full, at the rate of
ten percent (10%) per annum, based on the actual number of days elapsed over a
365-day year, and shall be payable quarterly in arrears on the last day of
February, May, August and November, commencing on the last day of February,
2000.
3. Manner of Payment. All payments shall be made in lawful money of the
United States of America in immediately available funds and shall be made at the
address of the Holder for receiving notices hereunder or at such other address
as the Holder may designate for payments hereunder by notice given to the
Company.
4. Default; Remedy. Upon the occurrence of an Event of Default pursuant to
Section 4(b) hereof, the unpaid balance of the principal of this Note and all
accrued interest thereon shall automatically become immediately due and payable
without any action on the part of the Holder. Upon the occurrence of any other
Event of Default (as hereinafter defined), the Holder may by written notice to
the Company declare this Note to be in default, whereupon the unpaid balance of
the principal of this Note and all accrued interest thereon shall immediately
become due and payable. If within five (5) business days following either such
declaration of default or such automatic default pursuant to Section 4(b) the
Company shall fail to pay promptly in full the unpaid balance of this Note and
all interest accrued thereon, the Holder shall be entitled to pursue all such
remedies as it may have, at law or in equity, for the enforcement and collection
hereof, and to receive in addition to such principal and interest all costs of
collection (including reasonable attorney's fees). For the purpose of this Note,
an "Event of Default" shall consist only of one or more of the following:
(a) The Company shall fail to make any payment of principal or
interest within ten (10) business days of the date when due.
(b) The Company shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, be adjudicated insolvent or bankrupt,
petition or apply to any tribunal for the appointment of a receiver or any
trustee for it or a substantial part of its assets, or shall commence any
proceedings under any bankruptcy, reorganization, arrangement, adjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect, or there shall have been filed any such petition or
application against the Company or any such proceedings shall have been
commenced against the Company which remain undismissed for a period of sixty
(60) days or more.
5. Subordination. This Note, and the obligations of the Company hereunder,
shall be subordinate and junior to all indebtedness of the Company constituting
senior indebtedness (as defined in Section 1.08 of Annex A attached hereto) on
the terms and conditions set forth in Annex A attached hereto, which Annex A is
herein incorporated by reference and made a part hereof as if set forth herein
in its entirety.
The Company covenants and agrees that each payment of interest hereunder
shall be accompanied by a written certification of the chief financial officer
of the Company, addressed to the Holder, confirming the absence of any "Event of
Default" under the Senior Indebtedness, or, if any such Event of Default does
then exist, describing the nature of such Event of Default and any actions being
undertaken by the Company and/or the Lenders, or representatives of Lenders, of
the Senior Indebtedness with respect to such Event of Default.
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6. Transfer. Neither this Note nor any interest hereon may be transferred
or endorsed to any other party, except for testamentary and intestate transfers
upon the death of the Holder. Neither this Note nor any interest hereon has been
registered under the Securities Act of 1933, as amended, or any applicable state
securities laws, and may not be pledged, hypothecated, transferred, offered for
sale or sold, except pursuant to a registration under said Act or an opinion of
counsel, reasonably satisfactory to counsel for the Company, that such
registration is not required under said Act.
7. Miscellaneous.
(a) This Note shall be binding upon and inure to the benefit of the
Holder hereof and its successors and assigns. This Note shall be binding upon
the Company and any successor to the principal business interests of the
Company, whether by merger or otherwise.
(b) Any notice, request or communication pursuant to this Note shall
be deemed duly given if delivered by hand or mailed by certified or registered
mail, addressed to the parties as follows:
If to the Company: Big V Supermarkets, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Chief Financial Officer
Facsimile Transmission Number: (000) 000-0000
With a copy to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile Transmission Number: (000) 000-0000
If to the Holder: Xxxxxxxx X. Xxxxxxxx, Xx., as Trustee
of the Laurenti Marital Trust
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile Transmission Number: (000) 000-0000
With a copy to: Xxxx Xxxxx Xxxx and XxXxxx, LLP
Princeton Xxxxxxxxx Village
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Facsimile Transmission Number: (000) 000-0000
or, in the case of either party, to such other address as it may have designated
by a notice to the other party in the manner herein provided.
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(c) Except as otherwise provided herein, the Company waives
presentment, demand, protest, and notice of every kind in connection with the
enforcement and collection of this Note.
(d) The Company, by its delivery of this Note, and the Holder, by
its acceptance thereof, each acknowledges and agrees that this Note (x) shall
not be senior in right of payment to the "Senior Subordinated Notes" of the
Company, and (y) shall not be senior in right of payment to, but shall be pari
passu in right of payment with the "Junior Subordinated Notes" of the Company,
each such quoted term being defined in that certain Credit Agreement, dated as
of January 14, 1999, as amended, by and among the Company, Big V Holding Corp.,
BV Holdings Corporation, various Lenders party thereto, DLJ Capital Funding,
Inc., as Syndication Agent, Fleet National Bank as Administrative Agents and
Summit Bank as Documentation Agent.
(e) The Holder, by its acceptance thereof, acknowledges and agrees
that this Note is subject to certain contractual rights of setoff held by the
Company and/or BVNJ, all as more particularly set forth in the Merger Agreement.
(f) The execution, delivery and performance of this Note shall be
governed and construed in accordance with the laws of the State of New Jersey,
without reference to its conflicts of laws principles.
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EXECUTED as an instrument under seal as of the date first above written.
BIG V SUPERMARKETS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice Chairman, Chief Financial and
Administrative Officer
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