Exhibit 4.34
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of November 12, 1999,
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 (the "Credit
Agreement");
WHEREAS, the Borrower has requested, and the Lenders have agreed, to
certain amendments and/or modifications to the Credit Agreement to permit the
Borrower to consummate the acquisition of all of the outstanding capital stock
of ShopRite of Pennington, Inc., in each case as provided herein; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new clause (f) at the end thereof:
"(f) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche C Term Loan Commitment severally agrees
to make on the First Amendment Effective Date and on the Second Tranche C
Term Loan Borrowing Date, a term loan or term loans (each a "Tranche C Term
Loan" and, collectively, the "Tranche C Term Loans") to the Borrower, which
Tranche C Term Loans (i) shall, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that, except as specifically provided in Section 1.10(b),
all Tranche C Term Loans comprising the same Borrowing shall at all times
be of the same Type, and (ii) shall be made by each such Lender in that
aggregate principal amount which does not exceed the Tranche C Term Loan
Commitment of such Lender on any such Tranche C Term Loan Borrowing Date;
provided, however, no more than $36,000,000 of Tranche C Term Loans may be
incurred on the First Amendment Effective Date. Once repaid, Tranche C Term
Loans incurred hereunder may not be reborrowed."
2. Section 1.03(a) of the Credit Agreement is hereby amended by
inserting the following new text immediately after the words "Tranche B Term
Loans" appearing therein:
", Tranche C Term Loans".
3. Section 1.05(a) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (iii) of such Section
1.05(a) and inserting a comma in lieu thereof and (ii) inserting the following
new clause (v) immediately after the final parenthetical appearing therein:
"and (v) if Tranche C Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-5, with
blanks appropriately completed in conformity herewith (each a "Tranche C
Term Note" and, collectively, the "Tranche C Term Notes")".
4. Section 1.05 of the Credit Agreement is hereby further amended by
inserting the following new clause (g) at the end thereof:
"(g) The Tranche C Term Note issued to each Lender that has a
Tranche C Term Loan Commitment or outstanding Tranche C Term Loans shall
(i) be executed by the Borrower, (ii) be payable to such Lender or its
registered assigns and be dated the First Amendment Effective Date (or, if
issued after the First Amendment Effective Date, be dated the date of
issuance thereof), (iii) be in a stated principal amount equal to the
Tranche C Term Loan Commitment of such Lender on the First Amendment
Effective Date (before giving effect to the making of any Tranche C Term
Loans on such date by such Lender) (or, if issued after the First Amendment
Effective Date, be in a stated principal amount equal to the outstanding
Tranche C Term Loan Commitment, if any, of such Lender at such time plus
the outstanding principal amount of Tranche C Term Loans of such Lender at
such time) and be payable in the outstanding principal amount of Tranche C
Term Loans evidenced thereby, (iv) mature on the Tranche C Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents."
5. Section 1.07 of the Credit Agreement is hereby amended by
deleting the first sentence thereof and inserting the following new first
sentence in lieu thereof:
"All Borrowings of Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans and Revolving Loans under this Agreement shall be
incurred from the
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Lenders pro rata on the basis of their Tranche A Term Loan Commitments,
Tranche B Term Loan Commitments, Tranche C Term Loan Commitments or
Revolving Loan Commitments, as the case may be."
6. Section 1.09 of the Credit Agreement is hereby amended by deleting
clause (vii) thereof and inserting the following new clause (vii) in lieu
thereof:
"(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may
be, shall be selected which extends beyond any date upon which a mandatory
repayment of such Tranche of Term Loans will be required to be made under
Section 4.02(b)(i), (ii) or (iii), as the case may be, if the aggregate
principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans, as the case may be, which have Interest Periods which will
expire after such date will be in excess of the aggregate principal amount
of Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as
the case may be, then outstanding less the aggregate amount of such
required repayment."
7. Section 3.01 of the Credit Agreement is hereby amended by
inserting the following new clause (g) at the end thereof:
"(g) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Tranche C Term Loan
Commitment, a commitment commission (the "C TL Commitment Commission") for
the period from and including the First Amendment Effective Date to but
excluding the Tranche C Term Loan Availability Termination Date (or such
earlier date on which the Total Tranche C Term Loan Commitment shall have
been terminated), computed at a rate for each day equal to 4.00% per annum
on the daily Tranche C Term Loan Commitment of such Non-Defaulting Lender.
Accrued C TL Commitment Commission shall be due and payable in arrears on
the date on which the Total Tranche C Term Loan Commitment shall have been
terminated."
8. Section 3.02 of the Credit Agreement is hereby amended by inserting
the following new clause (c) at the end thereof:
"(c) Upon at least one Business Day's prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), the Borrower shall
have the right, at any time or from time to time, without premium or
penalty, to terminate in whole or in part, the remaining Total Tranche C
Term Loan Commitment, in a minimum amount of $500,000 or an integral
multiple of $500,000 in excess thereof in the case of the partial
terminations of the Total Tranche C Term Loan Commitment. Any reduction to
the Total Tranche C Term Loan Commitment pursuant to this Section 3.02(c)
shall be applied proportionately to permanently reduce the Tranche C Term
Loan Commitment of each Lender with such a Commitment."
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9. Section 3.03(c) of the Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
"In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche C Term Loan Commitment shall (i) be
reduced on each Tranche C Term Loan Borrowing Date (after giving effect to
the making of Tranche C Term Loans on each such date) in an amount equal to
the aggregate principal amount of Tranche C Term Loans incurred on each
such date, (ii) terminate in its entirety (to the extent not theretofore
terminated) on the earliest of (x) the Tranche C Term Loan Availability
Termination Date (after giving effect to the making of Tranche C Term Loans
on such date), (y) 5:00 P.M. (Boston, Massachusetts time) on the Tranche C
Term Loan Availability Termination Date, whether or not any Tranche C Term
Loans have been incurred on such date and (z) unless the Required Lenders
otherwise agree, the date on which a Change of Control occurs and (iii)
prior to the termination of the Total Tranche C Term Loan Commitment, be
reduced from time to time to the extent required by Section 4.02.
Notwithstanding anything to the contrary contained in clause (i) of the
immediately preceding sentence, in no event shall the Total Tranche C Term
Loan Commitment exceed $5,000,000 after giving effect to the incurrence of
Tranche C Term Loans on the First Amendment Effective Date and to the
extent that the Total Tranche C Term Loan Commitment on the First Amendment
Effective Date (and after giving effect to the incurrence of Tranche C Term
Loans on such date) would exceed $5,000,000, the Total Tranche C Term Loan
Commitment shall be reduced on such date to $5,000,000."
10. Section 3.03(e) of the Credit Agreement is hereby deleted and the
following new Section 3.03(e) is inserted in lieu thereof:
"(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Initial Borrowing
Date upon which a mandatory repayment of Term Loans, a mandatory reduction
to the Total Tranche A Term Loan Commitment and/or a mandatory reduction to
the Total Tranche C Term Loan Commitment pursuant to any of Sections
4.02(c) through (h), inclusive, or Section 4.02(m) is required (and exceeds
in amount the aggregate principal amount of Term Loans then outstanding
plus the sum of (1) the Total Tranche A Term Loan Commitment then in effect
and (2) the Total Tranche C Term Loan Commitment then in effect) or would
be required if Term Loans were then outstanding, the Total Tranche A Term
Loan Commitment was then in effect and/or the Total Tranche C Term Loan
Commitment was then in effect, the Total Revolving Loan Commitment shall be
permanently reduced by the amount, if any, by which the amount required to
be applied pursuant to said Sections (determined as if an unlimited amount
of Term Loans were actually outstanding) exceeds the aggregate principal
amount of Term Loans then outstanding plus the sum of (1) the Total Tranche
A Term Loan Commitment then in effect and (2) the Total Tranche C Term Loan
Commitment then in effect."
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11. Section 3.03(f) of the Credit Agreement is hereby deleted and the
following new Section 3.03(f) is inserted in lieu thereof:
"(f) Each reduction to, or termination of, the Total Tranche A
Term Loan Commitment, the Total Tranche B Term Loan Commitment, the Total
Tranche C Term Loan Commitment and the Total Revolving Loan Commitment
pursuant to this Section 3.03 shall be applied to proportionately reduce or
terminate the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment and the Revolving Loan
Commitment, as the case may be, of each Lender with such a Commitment."
12. Section 4.01 of the Credit Agreement is hereby deleted and the
following new Section 4.01 is inserted in lieu thereof:
"4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans, without premium (except as otherwise provided below) or
penalty, in whole or in part at any time and from time to time on the
following terms and conditions: (i) the Borrower shall give the
Administrative Agent prior to 1:00 P.M. (Boston, Massachusetts time) at the
Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Base Rate Loans (or same day notice in the case of a prepayment of
Swingline Loans) and (y) at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to
prepay Eurodollar Loans, which notice (in each case) shall specify whether
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Revolving
Loans or Swingline Loans shall be prepaid, the amount of such prepayment
and the Types of Loans to be prepaid and, in the case of Eurodollar Loans,
the specific Borrowing or Borrowings pursuant to which made, and which
notice the Administrative Agent shall, except in the case of Swingline
Loans, promptly transmit to each of the Lenders; (ii)(x) each partial
prepayment of Loans (other than Swingline Loans) pursuant to this Section
4.01 shall be in an aggregate principal amount of at least $250,000 or an
integral multiple of $50,000 in excess thereof and (y) each partial
prepayment of Swingline Loans pursuant to this Section 4.01 shall be in an
aggregate principal amount of at least $50,000 or an integral multiple of
$10,000 in excess thereof, provided that if any partial prepayment of
Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of
Eurodollar Loans and any election of an Interest Period with respect
thereto given by the Borrower shall have no force or effect; (iii) each
prepayment pursuant to this Section 4.01 in respect of any Loans made
pursuant to a Borrowing shall be applied pro rata among such Loans,
provided that at the Borrower's election in connection with any prepayment
of Revolving Loans pursuant to this Section 4.01, such prepayment shall
not, so long as no Default or Event of Default then exists, be applied to
any Revolving Loan of a Defaulting Lender; (iv) except to the extent that a
B Lender or a
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C Lender has waived its pro rata share of any such prepayment pursuant to
Section 4.02(k), each voluntary prepayment of Term Loans pursuant to this
Section 4.01 shall be applied pro rata to each Tranche of outstanding Term
Loans, with the Tranche A Term Loans to be allocated the Tranche A Term
Loan Percentage of the amount of such prepayment, the Tranche B Term Loans
to be allocated the Tranche B Term Loan Percentage of the amount of such
prepayment and the Tranche C Term Loans to be allocated the Tranche C Term
Loan Percentage of the amount of such prepayment, provided, however, so
long as any Tranche A Term Loans are then outstanding, the Borrower may
elect (as specified in the notice of prepayment given pursuant to this
Section 4.01) to have such prepayment applied solely to the then
outstanding Tranche A Term Loans; (v) each voluntary prepayment of any
Tranche of Term Loans pursuant to this Section 4.01 shall be applied (x) in
the case of Tranche A Term Loans, (1) first, to reduce the then remaining
Tranche A Term Loan Scheduled Repayments (other than the final Tranche A
Term Loan Scheduled Repayment) on a pro rata basis (based upon the
remaining unpaid principal amounts of such Tranche A Term Loan Scheduled
Repayments after giving effect to all prior reductions thereto, but
determined without regard to the final Tranche A Term Loan Scheduled
Repayment) and (2) second, to the extent in excess thereof, to reduce the
final Tranche A Term Loan Scheduled Repayment, (y) in the case of Tranche B
Term Loans, to reduce the then remaining Tranche B Term Loan Scheduled
Repayments on a pro rata basis (based upon the then remaining unpaid
principal amounts of such Tranche B Term Loan Scheduled Repayments after
giving effect to all prior reductions thereto), and (z) in the case of
Tranche C Term Loans, to reduce the then remaining Tranche C Term Loan
Scheduled Repayments on a pro rata basis (based upon the then remaining
unpaid principal amounts of such Tranche C Term Loan Scheduled Repayments
after giving effect to all prior reductions thereto); and (vi) in the case
of any voluntary prepayment of Tranche B Term Loans or Tranche C Term Loans
pursuant to this Section 4.01 (x) made on or prior to November 12, 2000,
such prepayment shall be an amount equal to the product of (A) the
principal amount specified pursuant to clause (i) of this Section 4.01 to
be allocated to such Tranche of Term Loans multiplied by (B) 102% and (y)
made after November 12, 2000 and on or prior to November 12, 2001, such
prepayment shall be an amount equal to the product of (A) the principal
amount specified pursuant to clause (i) of this Section 4.01 to be
allocated to such Tranche of Term Loans multiplied by (B) 101%."
13. Section 4.02(b) of the Credit Agreement is hereby amended by (i)
inserting the text "and the Tranche C Term Loan Scheduled Repayments"
immediately after the text "together with the Tranche B Term Loan Scheduled
Repayments" appearing in the parenthetical of clause (ii) thereof and (ii)
inserting the following new clause (iii) at the end thereof:
"(iii) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be
required to repay that principal amount of Tranche C Term Loans, to the
extent then outstanding, as is set forth opposite such date below (each
such repayment, as the same may be reduced as
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provided below in this clause (iii) and as provided in Sections 4.01 and
4.02(i), a "Tranche C Term Loan Scheduled Repayment"):
Tranche C Term Loan
Scheduled Repayment Date Amount
------------------------ ------
February 1, 2000 $102,500
May 1, 2000 $102,500
August 1, 2000 $102,500
November 1, 2000 $102,500
February 1, 2001 $102,500
May 1, 2001 $102,500
August 1, 2001 $102,500
November 1, 2001 $102,500
February 1, 2002 $102,500
May 1, 2002 $102,500
August 1, 2002 $102,500
November 1, 2002 $102,500
February 1, 2003 $102,500
May 1, 2003 $102,500
Tranche C Term Loan
Maturity Date $39,565,000.
If at the time of the termination of the Total Tranche C Term Loan
Commitment (and after giving effect to the incurrence of any Tranche C Term
Loans at such time) the Borrower has not theretofore incurred $41,000,000
of Tranche C Term Loans, then each of the Tranche C Term Loan Scheduled
Repayments set forth in the table above in this clause (iii) shall be
reduced on a pro rata basis (based on the relative proportion that the
amount of each such Tranche C Term Loan Scheduled Repayment as set forth in
such table above bears to the aggregate amount of all such Tranche C Term
Loan Scheduled Repayments)."
14. Section 4.02(c) of the Credit Agreement is hereby amended by
deleting the last parenthetical appearing therein and inserting the following
new parenthetical in lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the Total
Tranche C Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Tranche A Term Loan Commitment and/or the Total
Tranche C Term Loan Commitment, as the case may be)".
15. Section 4.02(d) of the Credit Agreement is hereby amended by (i)
deleting the text "Effective Date" appearing in the first parenthetical thereof
and inserting the text "First
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Amendment Effective Date" in lieu thereof and (ii) deleting the last
parenthetical appearing therein and inserting the following new parenthetical in
lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the Total Tranche
C Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Tranche A Term Loan Commitment and/or the Total
Tranche C Term Loan Commitment, as the case may be)".
16. Section 4.02(e) of the Credit Agreement is hereby amended by
deleting the first, third and last parentheticals appearing therein and
inserting, in each case, the following new parenthetical in lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the Total Tranche
C Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Tranche A Term Loan Commitment and/or the Total
Tranche C Term Loan Commitment, as the case may be)".
17. Section 4.02(g) of the Credit Agreement is hereby amended by
deleting the first, third and last parentheticals appearing therein and
inserting, in each case, the following new parenthetical in lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the Total Tranche
C Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Tranche A Term Loan Commitment and/or the Total
Tranche C Term Loan Commitment, as the case may be)".
18. Section 4.02(h) of the Credit Agreement is hereby amended by
deleting the fourth, sixth and last parentheticals appearing therein and
inserting, in each case, the following new parenthetical in lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the Total Tranche
C Term Loan Commitment has not yet been terminated, as a mandatory
reduction to the Total Tranche A Term Loan Commitment and/or the Total
Tranche C Term Loan Commitment, as the case may be)".
19. Section 4.02(i) of the Credit Agreement is hereby deleted and the
following new Section 4.02(i) is inserted in lieu thereof:
"(i) Any amount required to be applied to outstanding Term Loans,
the Total Tranche A Term Loan Commitment and/or to the Total Tranche C Term
Loan Commitment pursuant to Sections 4.02(c), (d), (e), (f), (g), (h) and
(m) shall be applied (i) first, to repay the outstanding principal amount
of Term Loans of the respective Tranche in accordance with the immediately
succeeding sentence and (ii) second, to the extent all outstanding Term
Loans have been repaid in full, to reduce the Total Tranche A Term Loan
Commitment and the Total Tranche C Term Loan Commitment in accordance with
the immediately succeeding sentence. Each amount
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required to be applied to outstanding Term Loans and/or to reduce the Total
Tranche A Term Loan Commitment and the Total C Term Loan Commitment
pursuant to Sections 4.02(c), (d), (e), (f), (g), (h) and (m) shall be
applied pro rata to each Tranche of Term Loans, with the Tranche A Term
Loans or the Total Tranche A Term Loan Commitment, as the case may be, to
be allocated the Tranche A Term Loan Percentage of the amount of such
repayment, the Tranche B Term Loans to be allocated the Tranche B Term Loan
Percentage of the amount of such repayment, and the Tranche C Term Loans or
the Total Tranche C Term Loan Commitment, as the case may be, to be
allocated the Tranche C Term Loan Percentage of the amount of such
repayment. The amount of each principal repayment of each Tranche of Term
Loans and the amount of each reduction to the Total Tranche A Term Loan
Commitment and the Total Tranche C Term Loan Commitment made as required by
said Sections 4.02(c), (d), (e), (f), (g), (h) and (m) shall be applied (x)
in the case of Tranche A Term Loans, (1) first, to reduce the then
remaining Tranche A Term Loan Scheduled Repayments (other than the final
Tranche A Term Loan Scheduled Repayment) on a pro rata basis (based upon
the remaining unpaid principal amounts of such Tranche A Term Loan
Scheduled Repayments after giving effect to all prior reductions thereto,
but determined without regard to the final Tranche A Term Loan Scheduled
Repayment) and (2) second, to the extent in excess thereof, to reduce the
final Tranche A Term Loan Scheduled Repayment, (y) in the case of Tranche B
Term Loans, to reduce the then remaining Tranche B Term Loan Scheduled
Repayments on a pro rata basis (based upon the then remaining unpaid
principal amounts of such Tranche B Term Loan Scheduled Repayments after
giving effect to all prior reductions thereto), and (z) in the case of
Tranche C Term Loans, to reduce the then remaining Tranche C Term Loan
Scheduled Repayments on a pro rata basis (based upon the then remaining
unpaid principal amounts of such Tranche C Term Loan Scheduled Repayments
after giving effect to all prior reductions thereto)."
20. Section 4.02(k) of the Credit Agreement is hereby deleted and the
following new Section 4.02(k) is inserted in lieu thereof:
"(k) Notwithstanding anything to the contrary contained in Section
4.01, this Section 4.02 or elsewhere in this Agreement (including, without
limitation, in Section 13.12), at any time that Tranche A Term Loans are
outstanding or the Total Tranche A Term Loan Commitment remains in effect,
the Borrower shall have the option, in its sole discretion, to give the
Lenders with outstanding Tranche B Term Loans (the "B Lenders") and the
Lenders with outstanding Tranche C Term Loans (the "C Lenders") the option
to waive their pro rata share of a voluntary prepayment or mandatory
repayment of Tranche B Term Loans and Tranche C Term Loans which is to be
made pursuant to Section 4.01 or Sections 4.02(c), (d), (e), (f), (g), (h)
and/or (m), as the case may be (each such prepayment or repayment, a
"Waivable Repayment"), in each case upon the terms and provisions set forth
in this Section 4.02(k). If the Borrower elects to exercise the option
referred to in the immediately preceding sentence, the Borrower shall give
to the Administrative Agent written notice of the Borrower's intention to
give the B Lenders and the C Lenders the right
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to waive a Waivable Repayment (including in such notice, the aggregate
amount of such proposed prepayment or repayment, as the case may be) at
least five Business Days prior to the date of the proposed prepayment or
repayment, as the case may be, which notice the Administrative Agent shall
promptly forward to all B Lenders and all C Lenders (indicating in such
notice the amount of such prepayment or repayment, as the case may be, to
be applied to each such B Lender's outstanding Tranche B Term Loans and
each such C Lender's outstanding Tranche C Term Loans). The Borrower's
offer to permit the B Lenders and the C Lenders to waive any such Waivable
Repayment may apply to all or part of such prepayment or repayment, as the
case may be, provided that any offer to waive part of such prepayment or
repayment, as the case may be, must be made ratably to the B Lenders and
the C Lenders on the basis of their outstanding Tranche B Term Loans and
outstanding Tranche C Term Loans. In the event that any such B Lender or C
Lender desires to waive its pro rata share of such Lender's right to
receive any such Waivable Repayment in whole or in part, such Lender shall
so advise the Administrative Agent no later than 5:00 P.M. (Boston,
Massachusetts time) on the date which is two Business Days after the date
of such notice from the Administrative Agent, which notice shall also
include the amount such Lender desires to receive in respect of such
prepayment or repayment, as the case may be. If any B Lender or C Lender
does not reply to the Administrative Agent within such two Business Day
period, such Lender will be deemed not to have waived any part of such
prepayment or repayment, as the case may be. If any B Lender or C Lender
does not specify an amount it wishes to receive, such B Lender or C Lender
will be deemed to have accepted 100% of its share of such prepayment or
repayment, as the case may be. In the event that any such B Lender or C
Lender waives all or part of its share of any such Waivable Repayment
(determined without regard to any premium that such B Lender or C Lender
might otherwise be entitled to), the Administrative Agent shall apply 100%
of the amount so waived by such Lender to the outstanding Tranche A Term
Loans and/or the Total Tranche A Term Loan Commitment in accordance with
Section 4.01 or Sections 4.02(i) and (j), as the case may be."
21. Section 4.02 of the Credit Agreement is hereby amended by
inserting the following new clause (m) at the end thereof:
"(m) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date on which Holdings or any of its
Subsidiaries receives any cash proceeds from any purchase price adjustment
under the ShopRite (Pennington) Merger Agreement, an amount equal to 100%
of the cash proceeds from such purchase price adjustment shall be applied
as a mandatory repayment of principal of outstanding Term Loans (and/or, if
the Total Tranche A Term Loan Commitment or the Total Tranche C Term Loan
Commitment has not yet been terminated, as a mandatory reduction to the
Total Tranche A Term Loan Commitment or the Total Tranche C Term Loan
Commitment, as the case may be) in accordance with the requirements of
Sections 4.02(i) and (j)."
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22. Section 7.08(b) of the Credit Agreement is hereby amended by
inserting the following new sentences at the end thereof:
"All proceeds of the Tranche C Term Loans incurred on the First
Amendment Effective Date will be used by the Borrower to make a
Borrower/BVNJ Intercompany Loan in an aggregate principal amount not to
exceed $36,000,000 to finance the purchase price for the ShopRite
(Pennington) Merger, to repay $1,000,000 of existing Indebtedness of BVNJ
and to pay the fees and expenses in connection therewith. All proceeds of
the Tranche C Term Loans incurred on the Second Tranche C Term Loan
Borrowing Date will be used by the Borrower to pay, in part, one-time
charges incurred in either the Borrower's third or fourth fiscal quarter in
fiscal year 1999 for employee severance costs in connection with the
Borrower's early retirement program."
23. Section 7.14 of the Credit Agreement is hereby amended by (i)
inserting the reference to clause "(a)" immediately following the text "7.14
Subsidiaries" appearing therein, (ii) deleting each reference to "Schedule VI"
appearing therein and inserting in each case the text "Schedule VI-A" in lieu
thereof and (iii) inserting the following new clause (b) at the end thereof:
"(b) As of the First Amendment Effective Date, the corporations,
partnerships and limited liability companies listed on Schedule VI-B are
all of the Subsidiaries of Holdings. Schedule VI-B correctly sets forth,
as of the First Amendment Effective Date, the percentage ownership (direct
or indirect) of Holdings in each class of capital stock or other equity of
each of its Subsidiaries and also identifies the direct owner thereof."
24. Section 7.25 of the Credit Agreement is hereby amended by deleting
clause (d) thereof and inserting the following new clause (d) in lieu thereof:
"(d) Dixx Mart has no significant assets (other than 99% of the
outstanding equity interests of BVNJ) or liabilities and engages in no
business activities other than those incidental to its ownership of such
equity interests."
25. Section 8.01(b) of the Credit Agreement is hereby amended by
deleting the words "stand-alone" appearing therein and inserting the word
"consolidated" in lieu thereof.
26. Section 8.01(c) of the Credit Agreement is hereby amended by
deleting the words "stand-alone" appearing therein and inserting the word
"consolidated" in lieu thereof.
27. Section 8 of the Credit Agreement is hereby amended by inserting
the following new Section 8.15 at the end thereof:
8.15 Intercompany Loans. The Borrower shall cause BVNJ to either
pay all interest on up to $36,000,000 of the initial Borrower/BVNJ
Intercompany Loan made on the First Amendment Effective Date (plus any
interest accrued
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thereon) in-kind rather than in cash or cause all such interest to continue
to accrue at the rate provided for in the Borrower/BVNJ Loan Agreement;
provided, however, that interest on additional Borrower/BVNJ Intercompany
Loans made after the First Amendment Effective Date and on the intercompany
note referred to in Section 9.05(xviii) may be paid in cash.
28. Section 9.01 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xiv) thereof, (ii)
deleting the period appearing at the end of clause (xv) thereof and inserting a
semi-colon in lieu thereof and (iii) inserting the following new clauses (xvi)
and (xvii) at the end thereof:
"(xvi) Liens on the assets of ShopRite Xxxxxxxxxx in existence on
the First Amendment Effective Date which are listed, and the property
subject thereto described, in Schedule XI, without giving effect to any
renewals, replacements or extensions thereof; and
(xvii) Liens created in favor of the Borrower pursuant to the
Borrower/BVNJ Intercompany Security Agreement."
29. Section 9.02 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (x) thereof, (ii)
deleting the period appearing at the end of clause (xi) thereof and inserting
the text "; and" in lieu thereof and (iii) inserting the following new clause
(xii) immediately following clause (xi) thereof:
"(xii) the ShopRite (Xxxxxxxxxx) Merger shall be permitted."
30. Section 9.04 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xiii) thereof, (ii)
deleting the period appearing at the end of clause (xiv) thereof and inserting a
semi-colon in lieu thereof and (iii) inserting the following new clauses (xv),
(xvi) and (xvii) at the end thereof:
"(xv) up to $425,000 of existing Indebtedness of ShopRite
Xxxxxxxxxx assumed in connection with the ShopRite (Xxxxxxxxxx) Merger and
listed on Schedule XII (as reduced by any permanent repayment of principal
thereof), without giving effect to any subsequent extension, renewal or
refinancing thereof, except to the extent set forth on Schedule XII,
provided that the aggregate principal amount of the Indebtedness to be
extended, renewed or refinanced does not increase from that amount
outstanding at the time of any such extension, renewal or refinancing;
(xvi) intercompany Indebtedness of BVNJ owing to the Borrower
under the Borrower/BVNJ Intercompany Loan Agreement to the extent permitted
by Sections 9.05(xvii) and (xviii) so long as (i) all of the terms and
conditions of the Borrower/BVNJ Intercompany Loan Agreement are
satisfactory to the Agents and (ii) such Indebtedness, and the related
security pledged and assigned pursuant to the Borrower/BVNJ Intercompany
Security Agreement, remain pledged and assigned to the Collateral Agent
pursuant to the respective Security Documents; and
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(xvii) Indebtedness of the Borrower under the ShopRite
(Xxxxxxxxxx) Seller Subordinated Notes in an aggregate principal amount not
to exceed $1,500,000 (as reduced by any repayments of principal thereof)."
31. Section 9.05 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xiv) thereof, (ii)
deleting the period appearing at the end of clause (xv) thereof and inserting a
semi-colon in lieu thereof and (iii) inserting the following new clauses (xvi),
(xvii), (xviii) and (xix) at the end thereof:
"(xvi) the ShopRite (Xxxxxxxxxx) Merger shall be permitted;
(xvii) the Borrower may (i) make a $36,000,000 intercompany loan
to BVNJ on the First Amendment Effective Date and (ii) make additional
intercompany loans to BVNJ from time to time thereafter in an aggregate
principal amount not to exceed $2,000,000 in any fiscal year, in each case
pursuant to the Borrower/BVNJ Intercompany Loan Agreement and so long as
all such intercompany loans are evidenced by a Borrower/BVNJ Intercompany
Note and are secured by the Borrower/BVNJ Intercompany Security Agreement;
(xviii) BVNJ may issue an intercompany note to the Borrower on the
First Amendment Effective Date in an aggregate principal amount equal to
the aggregate principal amount of the ShopRite (Pennington) Seller
Subordinated Notes so long as such intercompany note is issued pursuant to
the Borrower/BVNJ Intercompany Loan Agreement and is secured by the
Borrower/BVNJ Intercompany Security Agreement; and
(xix) on the First Amendment Effective Date, (i) the Borrower may
contribute $1,000 in cash to BVNJ and (ii) the Borrower may contribute
$9,900 in cash to Dixx Mart, who shall, in turn, contribute same to BVNJ."
32. Section 9.07(a) of the Credit Agreement is hereby amended by
deleting the reference to "$15,000,000" set forth opposite the text "December,
2000" appearing in the table therein and inserting the text "$30,000,000" in
lieu thereof.
33. Section 9.12 of the Credit Agreement is hereby amended by
inserting the following new clause (c) at the end thereof:
(c) No Credit Agreement Party will, nor will it permit any of its
Subsidiaries to, (i) make (or give any notice in respect of) any voluntary
or optional payment or prepayment on or redemption or acquisition for value
of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of (including in each case, without limitation,
by way of depositing with the trustee with respect thereto or any other
Person money or securities before due for the purpose of paying when due),
any ShopRite (Xxxxxxxxxx) Seller Subordinated Notes, (ii) make (or give any
notice in respect of) any payment (other than regularly scheduled
amortization payments), prepayment, redemption or acquisition for value of
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(including, without limitation, by way of depositing with the trustee with
respect thereto or any other Person money or securities before due for the
purpose of paying when due) the initial $36,000,000 Borrower/BVNJ
Intercompany Loan made on the First Amendment Effective Date (including any
interest accrued thereon except as provided in Section 8.16), or (iii)
amend or modify, or permit the amendment or modification of, any provision
of (A) the ShopRite (Xxxxxxxxxx) Seller Subordinated Notes or (B) any of
the Borrower/BVNJ Intercompany Agreements."
34. Section 9.13 of the Credit Agreement is hereby amended by deleting
the text "Sections 9.01(iii), (vi) and (vii)" appearing at the end of clause (x)
thereof and inserting "Sections 9.01(iii), (vi), (vii) and (xvi)" in lieu
thereof.
35. Section 9.15 of the Credit Agreement is hereby amended by deleting
clause (e) thereof and inserting the following new clause (e) in lieu thereof:
"(e) Dixx Mart shall engage in no business other than its
ownership of 99% of the outstanding equity interests of BVNJ and activities
incidental to its ownership of such equity interests."
36. Section 9.16(c) of the Credit Agreement is hereby amended by (i)
deleting the reference to "Schedule VI" appearing therein and inserting the text
"Schedule VI-B" in lieu thereof and (ii) inserting the following new sentence at
the end of such Section 9.16(c):
"Notwithstanding the foregoing, (i) BVNJ shall not be required to
execute and deliver any Credit Document so long as (and to the extent
that) it is prohibited from doing so under the Senior Subordinated
Note Documents and the Junior Subordinated Note Documents and (ii) the
99% of the equity interest in BVNJ held by Dixx Mart shall not be
required to be pledged as security for the Obligations so long as (and
to the extent that) such pledge is prohibited under the Senior
Subordinated Note Documents and the Junior Subordinated Note
Documents.".
37. The paragraph immediately following Section 10.11 of the Credit
Agreement is hereby amended by inserting the words ", C TL Commitment
Commission" immediately following the words "A TL Commitment Commission"
appearing in clause (i) thereof.
38. The definition of "Adjusted Consolidated Net Income" appearing in
Section 11.01 of the Credit Agreement is hereby amended by deleting the
parenthetical appearing in clause (ii) of the first sentence thereof and
inserting the following new parenthetical in lieu thereof:
"(and/or, if the Total Tranche A Term Loan Commitment or the
Total Tranche C Term Loan Commitment has not yet been
terminated, reduce the Total Tranche A Term Loan Commitment
or the Total Tranche C Term Loan Commitment, as the case may
be)".
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39. The definition of "Applicable Base Rate Margin" appearing in
Section 11.01 of the Credit Agreement is hereby amended by (i) deleting the word
"and" appearing at the end of clause (a) thereof, (ii) deleting the percentage
"2.50%" appearing in clause (b) thereof and inserting the percentage "2.75%" in
lieu thereof, (iii) deleting the period appearing at the end of clause (b)
thereof and inserting "; and" in lieu thereof and (iv) inserting the following
new clause (c) immediately following clause (b) thereof:
"(c) in the case of Tranche C Term Loans maintained as Base Rate
Loans, 3.00%."
40. The definition of "Applicable Eurodollar Rate Margin" appearing in
Section 11.01 of the Credit Agreement is hereby amended by (i) deleting the word
"and" appearing at the end of clause (a) thereof, (ii) deleting the percentage
"3.50%" appearing in clause (b) thereof and inserting the percentage "3.75%" in
lieu thereof, (iii) deleting the period appearing at the end of clause (b)
thereof and inserting "; and" in lieu thereof, and (iv) inserting the following
new clause (c) immediately following clause (b) thereof:
"(c) in the case of Tranche C Term Loans maintained as Eurodollar
Loans, 4.00%."
41. The definition of "Commitment" appearing in Section 11.01 of the
Credit Agreement is hereby amended by inserting the following text immediately
after the words "Tranche B Term Loan Commitment" appearing therein:
", the Tranche C Term Loan Commitment".
42. The definition of "Consolidated EBITDA" appearing in Section 11.01
of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (x)(iii) of the first sentence thereof and
inserting a comma in lieu thereof and (ii) inserting the following text
immediately following the words "of this Agreement" appearing in clause (x)(iv)
of the first sentence thereof:
"and the consummation of the ShopRite (Pennington) Merger and (v) for
purposes of Sections 9.08, 9.09, 9.10 and 9.11 only (but not for
purposes of the definitions of Applicable Base Rate Margin and
Applicable Eurodollar Rate Margin), up to $8,500,000 of one-time
charges incurred in either the Borrower's third or fourth fiscal
quarter in fiscal year 1999 for employee severance costs in connection
with the Borrower's early retirement program".
43. The definition of "Consolidated Interest Expense" appearing in
Section 11.01 of the Credit Agreement is hereby amended by inserting "and the
ShopRite (Xxxxxxxxxx) Merger" immediately after the words "to this Agreement"
appearing in clause (i) of the proviso thereof.
44. The definition of "Leverage Ratio" appearing in Section 11.01 of
the Credit Agreement is hereby amended by inserting the following new sentence
at the end thereof:
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"Notwithstanding anything to the contrary contained in this Agreement,
for purposes of calculating the Leverage Ratio only at any time prior
to the one-year anniversary of the First Amendment Effective Date,
Consolidated EBITDA for any portion of a Test Period ended prior to
the First Amendment Effective Date shall be calculated on a pro forma
basis as if the ShopRite (Xxxxxxxxxx) Merger (and the related
financing) had occurred on the date which is one year prior to the
First Amendment Effective Date (and giving pro forma effect to
factually supportable and identifiable cost savings and expenses which
would otherwise be accounted for as an adjustment pursuant to Article
11 of Regulation S-X under the Securities Act)."
45. The definition of "Loan" appearing in Section 11.01 of the Credit
Agreement is hereby amended by inserting the following text immediately after
the words "each Tranche B Term Loan," appearing therein:
"each Tranche C Term Loan,".
46. The definition of "Maturity Date" appearing in Section 11.01 of
the Credit Agreement is hereby amended by inserting the following text
immediately after the words "the Tranche B Term Loan Maturity Date," appearing
therein:
"the Tranche C Term Loan Maturity Date,".
47. The definition of "Note" appearing in Section 11.01 of the Credit
Agreement is hereby amended by inserting the following text immediately after
the words "each Tranche B Term Note," appearing therein:
"each Tranche C Term Note,".
48. The definition of "Required Lenders" appearing in Section 11.01 of
the Credit Agreement is hereby amended by inserting the words "and Tranche C
Term Loan Commitments" immediately following the words "Tranche A Term Loan
Commitments" appearing in the first and third parentheticals thereof.
49. The definition of "Term Loan" appearing in Section 11.01 of the
Credit Agreement is hereby deleted and the following new definition of "Term
Loan" is inserted in lieu thereof:
"Term Loan" shall mean each Tranche A Term Loan, each Tranche B
Term Loan and each Tranche C Term Loan.
50. The definition of "Tranche" appearing in Section 11.01 of the
Credit Agreement is hereby deleted and the following new definition of "Tranche"
is inserted in lieu thereof:
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being five separate
Tranches, i.e., Tranche A
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Term Loans, Tranche B Term Loans, Tranche C Term Loans, Revolving Loans and
Swingline Loans.
51. The definition of "Tranche A Term Loan Percentage" appearing in
Section 11.01 of the Credit Agreement is hereby amended by (i) inserting the
text "the sum of (i)" immediately prior to the text "the Total Tranche A Term
Loan Commitment" appearing in the second clause (y) thereof and (ii) inserting
the text "and (ii) the Total Tranche C Term Loan Commitment then in effect" at
the end of said definition.
52. The definition of "Tranche B Term Loan Percentage" appearing in
Section 11.01 of the Credit Agreement is hereby amended by (i) inserting the
text "the sum of (i)" immediately prior to the text "the Total Tranche A Term
Loan Commitment" appearing therein and (ii) inserting the text "and (ii) the
Total Tranche C Term Loan Commitment then in effect" at the end of said
definition.
53. Section 11.01 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"BVNJ" shall mean BVNJ Partnership, L.P., a New Jersey limited
partnership, 99% of which shall be owned by Dixx Mart as its limited
partner and 1% of which shall be owned by the Borrower as its general
partner."
"Borrower/BVNJ Intercompany Agreements" shall mean each of the
Borrower/BVNJ Intercompany Loan Agreement, the Borrower/BVNJ Intercompany
Security Agreement, the Borrower/BVNJ Intercompany Note and each of the
other documents related thereto.
"Borrower/BVNJ Intercompany Loan" shall mean each intercompany
loan made by the Borrower to BVNJ pursuant to the Borrower/BVNJ
Intercompany Loan Agreement.
"Borrower/BVNJ Intercompany Loan Agreement" shall mean the
Intercompany Loan Agreement, dated as of November 12, 1999, between the
Borrower and BVNJ, as same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Borrower/BVNJ Intercompany Notes" shall mean each of the
intercompany notes issued pursuant to the Borrower/BVNJ Intercompany Loan
Agreement.
"Borrower/BVNJ Intercompany Security Agreement" shall mean the
Intercompany Security Agreement, dated as of November 12, 1999, between the
Borrower and BVNJ, as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
"C Lenders" shall have the meaning provided in Section 4.02(k).
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"C TL Commitment Commission" shall have the meaning provided in
Section 3.01(g).
"First Amendment" shall mean the First Amendment, dated as of
November 12, 1999, to this Agreement.
"First Amendment Effective Date" shall mean November 12, 1999 so
long as all of the conditions precedent to the effectiveness of the First
Amendment shall have been satisfied on such date.
"Second Tranche C Term Loan Borrowing Date" shall mean a single
date occurring after the First Amendment Effective Date in which the
Borrower incurs Tranche C Term Loans for the purposes described in the
third sentence of Section 7.08(b), which date must occur on or prior to the
Tranche C Term Loan Availability Termination Date.
"ShopRite Xxxxxxxxxx" shall mean ShopRite of Pennington, Inc., a
New Jersey corporation.
"ShopRite (Xxxxxxxxxx) Merger" shall mean the merger of ShopRite
Xxxxxxxxxx with and into BVNJ pursuant to, and in accordance with the terms
of, the ShopRite (Xxxxxxxxxx) Merger Agreement for an aggregate
consideration of $36,350,000 to be paid to the existing shareholders (prior
to such merger) of ShopRite Xxxxxxxxxx, which merger consideration includes
approximately $3,000,000 of working capital consisting of inventory and
accounts receivables, the assumption of up to $425,000 of existing
Indebtedness as set forth on Schedule XII and the issuance of the ShopRite
(Xxxxxxxxxx) Seller Subordinated Notes in an aggregate principal amount not
to exceed $1,500,000.
"ShopRite (Xxxxxxxxxx) Merger Agreement" shall mean the Merger
Agreement, dated as of November 12, 1999, among the Borrower, BVNJ and the
shareholders of ShopRite Xxxxxxxxxx.
"ShopRite (Pennington) Seller Subordinated Notes" shall mean the
unsecured subordinated notes issued by the Borrower to the stockholders of
ShopRite Xxxxxxxxxx pursuant to the ShopRite (Pennington) Merger Agreement.
"Total Tranche C Term Loan Commitment" shall mean, at any time,
the sum of the Tranche C Term Loan Commitments of each of the Lenders.
"Tranche C Term Loan" shall have the meaning provided in Section
1.01(f).
"Tranche C Term Loan Availability Termination Date" shall mean
December 12, 1999.
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"Tranche C Term Loan Borrowing Date" shall mean each of the First
Amendment Effective Date and the Second Tranche C Term Loan Borrowing Date.
"Tranche C Term Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below
the column entitled "Tranche C Term Loan Commitment," as same may be (i)
reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10
or (ii) adjusted from time to time as a result of assignments to or from
such Lender pursuant to Section 1.13 or 13.04(b).
"Tranche C Term Loan Maturity Date" shall mean November 10, 2003.
"Tranche C Term Loan Percentage" shall mean, at any time, a
fraction (expressed as a percentage) the numerator of which is equal to the
sum of (x) the aggregate principal amount of all Tranche C Term Loans
outstanding at such time and (y) the Total Tranche C Term Loan Commitment
then in effect and the denominator of which is equal to the sum of (x) the
aggregate principal amount of all Term Loans outstanding at such time and
(y) the sum of (i) the Total Tranche A Term Loan Commitment then in effect
and (ii) the Total Tranche C Term Loan Commitment then in effect.
"Tranche C Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iii).
"Tranche C Term Note" shall have the meaning provided in Section
1.05(a).
55. Section 13.06(b) of the Credit Agreement is hereby amended by
inserting the text "C TL Commitment Commission," immediately after the text "A
TL Commitment Commission," appearing therein.
56. Section 13.07(c) of the Credit Agreement is hereby amended by
inserting the text "C TL Commitment Commission," immediately after each instance
the text "A TL Commitment Commission," appears therein.
57. Section 13.12(a) of the Credit Agreement is hereby amended by
deleting the text "any Tranche A Term Loan Scheduled Repayment or Tranche B Term
Loan Scheduled Repayment," appearing therein and inserting the following text in
lieu thereof:
"any Tranche A Term Loan Scheduled Repayment, Tranche B Term Loan
Scheduled Repayment or Tranche C Term Loan Scheduled Repayment,".
58. Section 13.17 of the Credit Agreement is hereby deleted and the
following new Section 13.17 is inserted in lieu thereof:
13.17 Certain Agreements with Respect to the Senior Subordinated
Notes and the Junior Subordinated Notes. Each Credit Agreement Party hereby
(A) represents
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and warrants that (i) $46,666,667 of Term Loans may be incurred under this
Agreement on the Initial Borrowing Date in reliance on clause (ii)(A) of
the respective definition of "Permitted Indebtedness" contained in the
Senior Subordinated Note Indenture and the Junior Subordinated Note
Agreement, (ii) $25,000,000 of Revolving Loans, Swingline Loans and Letters
of Credit in the aggregate incurred pursuant to the Total Revolving Loan
Commitment as in effect on the Initial Borrowing Date may be incurred in
reliance on clause (ii)(B) of the respective definition of "Permitted
Indebtedness" contained in the Senior Subordinated Note Indenture and the
Junior Subordinated Note Agreement, (iii) $13,333,333 of Term Loans may be
incurred on the Initial Borrowing Date in reliance on clause (xiv) of the
respective definition of "Permitted Indebtedness" contained in the Senior
Subordinated Note Indenture and the Junior Subordinated Note Agreement,
(iv) $36,000,000 of Tranche C Term Loans may be incurred on the First
Amendment Effective Date and up to $1,500,000 of Indebtedness pursuant to
the ShopRite (Pennington) Seller Subordinated Notes may be issued on the
First Amendment Effective Date, in each case 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, (v) up to $425,000 of
existing Indebtedness of ShopRite Xxxxxxxxxx may be assumed on the First
Amendment Effective Date, in each case in reliance on clause (vi) of the
respective definition of "Permitted Indebtedness" contained in the Senior
Subordinated Note Indenture and the Junior Subordinated Note Agreement, and
(vi) up to $5,000,000 of Tranche C Term Loans may be incurred on the Second
Tranche C Term Loan Borrowing Date in reliance on clause (xiv) of the
respective definition of "Permitted Indebtedness" contained in the Senior
Subordinated Note Indenture and the Junior Subordinated Note Agreement, and
(B) agrees it will not take any position contrary to the representations
and warranties set forth in preceding clause (A). In addition, each Credit
Agreement Party (A) acknowledges and agrees that the Borrower will not be
permitted to (i) incur any Tranche A Term Loans on any Additional Tranche A
Term Loan Borrowing Date or any Tranche C Term Loans on the Second Tranche
C Term Loan Borrowing Date unless such Tranche A Term Loans or Tranche C
Term Loans, as the case may be, may be incurred in reliance on clause (xiv)
of the respective definition of "Permitted Indebtedness" contained in the
Senior Subordinated Note Indenture or the Junior Subordinated Note
Agreement or (ii) incur any additional Revolving Loans, Swingline Loans or
Letters of Credit pursuant to an increase in the Total Revolving Loan
Commitment under Section 13.18 unless such additional extensions of credit
are incurred in reliance on clauses (ii)(B) and/or (xiv) of each respective
definition of "Permitted Indebtedness" contained in the Senior Subordinated
Note Indenture or the Junior Subordinated Note Agreement and (B) covenants
and agrees that it will take, and will cause each of its Subsidiaries to
take, all such actions as may be necessary so as to ensure that all
Indebtedness (including, without limitation, any Tranche A Term Loans
incurred on any Additional Tranche A Term Loan Date, any Tranche C Term
Loans incurred on the Second Tranche C Term Loan Borrowing Date and any
incremental Revolving Loans, Swingline Loans and/or Letters of Credit
incurred as a result of any increase to the Total Revolving Loan Commitment
by operation of
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Section 13.18) incurred under this Agreement and the other Credit Documents
shall, except as provided in clause (A)(iv) of the first sentence of this
Section 13.17, always be permitted to be incurred under clauses (ii) and
(xiv) of each respective definition of the "Permitted Indebtedness"
contained in the Senior Subordinated Note Indenture and the Junior
Subordinated Note Agreement without relying on any other provision of the
Senior Subordinated Note Indenture or the Junior Subordinated Note
Agreement.
59. Schedule I to the Credit Agreement is hereby amended by inserting
therein the information set forth on Annex A hereto.
60. The Credit Agreement is hereby further amended by (i) deleting the
reference to "Schedule VI" appearing on Schedule VI thereof and inserting the
text "Schedule VI-A" in lieu thereof and (ii) inserting a new Schedule VI-B
thereto in the form of Annex B hereto.
61. The Credit Agreement is hereby further amended by adding Schedules
XI and XII thereto in the forms of Annexes C and D hereto, respectively.
62. The Credit Agreement is hereby further amended by attaching
thereto as Exhibit B-5 the form of Exhibit B-5 attached hereto.
63. Exhibit A of the Credit Agreement is hereby amended by inserting
the text "[Tranche C Term Loans]" immediately after the text "[Tranche B Term
Loans]" appearing in clause (iii) of the first paragraph thereof.
64. Exhibit J of the Credit Agreement is hereby amended by (i)
inserting the following new clause (y) immediately following existing clause (y)
appearing in Section 1 thereof:
"(y) in the case of any assignment of any portion of the
Assignor's outstanding Tranche C Term Loans and Tranche C Term Loan
Commitment, all rights and obligations with respect to the Assigned Share
of such outstanding Tranche C Term Loans and Tranche C Term Loan
Commitment,",
and (ii) redesignating existing clauses (x) and (y) appearing in Section 1
thereof as clauses (v) and (x), respectively.
65. Exhibit J of the Credit Agreement is hereby further amended by (i)
inserting the following new clause (z) immediately following existing clause (z)
of Section 6 thereof:
"(z) all C TL Commitment Commission (if applicable) of the
Assigned Share of the Total Tranche C Term Loan Commitment at the rate
specified in Item 10 of Annex I hereto",
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and redesignating clauses (x), (y) and (z) of Section 6 as clauses (v), (x) and
(y), respectively.
66. Annex I of Exhibit J of the Credit Agreement is hereby amended by
inserting the following column in Section 4 immediately to the right of the
second column of such Section 4:
"Outstanding Principal of "Tranche C Term Loan
Tranche C Term Loans Commitment
$_______________ $_______________
________% ________%
$______________ $______________".
67. Annex I of Exhibit J of the Credit Agreement is hereby amended by
inserting the following Section 10 (together with the related footnote)
immediately following existing Section 9 thereof:
"10. C TL Commitment
Commission to
the Assignee: As set forth in Section 3.01(g) of the
Credit Agreement (unless otherwise agreed
to by the Assignor and the Assignee).(5)
(5) Insert "Not Applicable" in lieu of text if no portion of the Total Tranche
C Loan Commitment is being assigned or if same has been terminated.
Otherwise the Borrower and the Administrative Agent shall, following
recordation of such assignment by the Administrative Agent on the Register,
direct the entire amount of the C TL Commitment Commission to the Assignee
at the rate set forth in Section 3.01(g) of the Credit Agreement, with the
Assignor and the Assignee effecting any agreed upon sharing of the C TL
Commitment Commission through payment by the Assignee to the Assignor."
68. The Borrower agrees that on or promptly after the First Amendment
Effective Date (as defined below), and at its own expense, the Borrower will
issue Tranche C Term Notes to those Lenders with Tranche C Term Loan Commitments
(or their assignees), which Tranche C Term Notes shall be in conformity with the
requirements of Section 1.05(g) of the Credit Agreement (as amended hereby).
69. All parties hereto acknowledge and agree that all extensions of
credit pursuant to the Credit Agreement, as amended hereby, shall be entitled to
the benefits of the Guaranties and the Security Documents.
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70. All parties hereto acknowledge and agree, and the Security
Agreement is hereby amended to reflect, that (i) the term "Contracts" under, and
as defined in, the Security Agreement includes each of the Borrower/BVNJ
Intercompany Agreements and (ii) the term "Contract Rights" under, and as
defined in, the Security Agreement includes all rights, interests and claims of
the Borrower, whether now existing or hereafter arising, in connection with each
of the Borrower/BVNJ Intercompany Agreements and, accordingly, a security
interest in each of the Borrower/BVNJ Intercompany Agreements and all such
rights, interest and claims of the Borrower thereunder have been granted by the
Borrower pursuant to the terms of the Security Agreement.
71. All parties hereto acknowledge and agree, and each of the Security
Agreement and the Pledge Agreement (as applicable) is hereby amended to reflect,
that (i) the term "General Intangibles" under, and as defined in, the Security
Agreement includes all of the partnership interests in BVNJ now or in the future
owned by the Borrower, (ii) the term "Partnership Interests" under, and as
defined in, the Pledge Agreement includes all of the partnership interest in
BVNJ now or in the future owned by the Borrower and (iii) the term "Pledged
Notes" under, and as defined in, the Pledge Agreement includes each
Borrower/BVNJ Intercompany Note from time to time issued to the Borrower
pursuant to the Borrower/BVNJ Intercompany Loan Agreement and, accordingly, a
security interest in all such partnership interests and promissory notes has
been granted by the Borrower pursuant to the terms of the Security Agreement and
the Pledge Agreement.
72. In order to induce the Lenders to enter into this Amendment, each
Credit Agreement Party hereby represents and warrants that:
(i) all representations and warranties contained in the Credit
Documents (including in this Amendment) are true and correct in all
material respects on and as of the First Amendment Effective Date, both
before and after giving effect to this Amendment (unless such
representations and warranties relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date);
(ii) there exists no Default or Event of Default on the First
Amendment Effective Date, both before and after giving effect to this
Amendment;
(iii) each Credit Agreement Party, BVNJ Partnership, L.P.
("BVNJ") and ShopRite Xxxxxxxxxx has the corporate power and authority to
execute, deliver and perform the terms and provisions of each of this
Amendment, the ShopRite (Xxxxxxxxxx) Merger Agreement and the Borrower/BVNJ
Intercompany Agreements (collectively, the "Transaction Documents") to the
extent that such Person is a party to each such Transaction Document, and
has taken all necessary corporate action to authorize the execution,
delivery and performance by it of each of such Transaction Documents. Each
Credit Agreement Party, BVNJ and ShopRite Xxxxxxxxxx has duly executed and
delivered each of the Transaction Documents to which it is party, and each
of such Transaction Documents constitutes its legal, valid and binding
obligation enforceable in
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accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) neither the execution, delivery nor performance by any
Credit Agreement Party, by BVNJ or by ShopRite Pennington of the
Transaction Documents to which it is a party, nor compliance by it with the
terms and provisions thereof, (i) will contravene any provision of any law,
statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict with or result in
any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except pursuant to the
Security Documents and/or the Borrower/BVNJ Intercompany Security
Agreement) upon any of the property or assets of Holdings, any of its
Subsidiaries or ShopRite Xxxxxxxxxx pursuant to the terms of any indenture,
mortgage, deed of trust, credit agreement or loan agreement (including,
without limitation, the Senior Subordinated Note Indenture and the Junior
Subordinated Note Agreement), or any other material agreement, contract or
instrument, in each case to which Holdings, any of its Subsidiaries or
ShopRite Pennington is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the certificate or articles of incorporation or by-laws (or
equivalent organizational documents) of Holdings, any of its Subsidiaries
or ShopRite Pennington;
(v) all necessary governmental (domestic and foreign) and
third party approvals and/or consents in connection with the transactions
contemplated by the Transaction Documents and otherwise referred to herein
or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes
materially adverse conditions upon the consummation of the transactions
contemplated by the Transaction Documents and otherwise referred to herein
or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking
injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the
transactions contemplated by the Transaction Documents;
(vi) the consolidated balance sheet of ShopRite Pennington for
its fiscal year and six-month period ended on January 2, 1999 and July 3,
1999, respectively, and the related consolidated statements of income, cash
flows and shareholders' equity of ShopRite Xxxxxxxxxx for the fiscal year
or six-month period, as the case may be, ended on such dates, copies of
which have been furnished to the Lenders prior to the First Amendment
Effective Date, present fairly in all material respects the financial
position of ShopRite Pennington at the dates of such balance sheets and the
consolidated results of the operations of ShopRite Xxxxxxxxxx for the
periods covered thereby. All of the foregoing historical financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except, in the case of the
-24-
aforementioned six-month interim financial statements, for normal year-end
audit adjustment and the absence of footnotes). The pro forma consolidated
balance sheet of Holdings and its Subsidiaries as of June 12, 1999 (after
giving effect to the transactions contemplated herein), and the related pro
forma consolidated statements of income and cash flows of Holdings and its
Subsidiaries for the twelve-month period ended on June 12, 1999 (after
giving effect to the transactions contemplated herein and the financing
therefor and assuming that the transactions contemplated herein had
occurred on July 2, 1998), copies of which have been furnished to the
Lenders prior to the First Amendment Effective Date, present fairly in all
material respects the pro forma consolidated financial position of Holdings
and its Subsidiaries as of June 12, 1999 and the pro forma consolidated
results of the operations of Holdings and its Subsidiaries for the period
covered thereby. All of the foregoing pro forma financial statements have
been prepared on a basis consistent with the historical financial
statements of Holdings delivered pursuant to the Credit Agreement. After
giving effect to the transactions contemplated herein, since December 26,
1998, there has been no material adverse change in the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, of Holdings and its Subsidiaries
taken as a whole or of ShopRite Xxxxxxxxxx;
(vii) the projections dated on or about October 18, 1999
relating to the business of Holdings and its Subsidiaries after giving
effect to the ShopRite (Pennington) Merger (the "ShopRite (Xxxxxxxxxx)
Projections") and delivered to the Agents and the Lenders prior to the
First Amendment Effective Date have been prepared in good faith and are
based on reasonable assumptions, and there are no statements or conclusions
in the ShopRite (Pennington) Projections which are based upon or include
information known to any Credit Agreement Party to be misleading in any
material respect or which fail to take into account material information
known to any Credit Agreement Party regarding the matters reported therein.
On the First Amendment Effective Date, each Credit Agreement Party believes
that the ShopRite (Xxxxxxxxxx) Projections are reasonable and attainable,
it being recognized by the Lenders, however, that projections as to future
events are not to be viewed as facts and that the actual results during the
period or periods covered by the ShopRite (Pennington) Projections may
differ from the projected results and that the differences may be material;
and
(viii) there are no actions, suits or proceedings pending or, to
the best knowledge of each Credit Agreement Party, threatened (i) with
respect to any Transaction Document, or (ii) that are reasonably likely to
materially and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower, of Holdings and its Subsidiaries taken as a whole or of ShopRite
Xxxxxxxxxx.
73. This Amendment is limited to the specific modifications and
amendments set forth herein and shall not constitute a modification, amendment,
acceptance or waiver of any other provision of the Credit Agreement or any other
provision of any other Credit Document.
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74. 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.
75. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW
OF THE STATE OF NEW YORK.
76. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of the following conditions have been
satisfied:
(i) each Credit Agreement Party, the Required Lenders
(determined before giving effect to this Amendment) and each Lender which
is providing a Tranche C Term Loan Commitment pursuant to this Amendment
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office;
(ii) the Agents shall have received true and correct copies of
the ShopRite Merger Agreement, and all of the terms and conditions thereof
shall be in form and substance reasonably satisfactory to the Agents;
(iii) the ShopRite (Pennington) Merger shall have been
consummated in accordance with the ShopRite (Xxxxxxxxxx) Merger Agreement
(without giving effect to any amendment or modification thereof or waiver
with respect thereto unless consented to by the Agents), the relevant
requirements of the Credit Agreement (as amended hereby) and all applicable
laws;
(iv) the Agents shall have received one or more opinions of
Xxxxxxxx, Xxxxxxx & Xxxxxxx, special counsel to the Credit Parties, each in
form and substance reasonably satisfactory to the Agents, with respect to
the transactions contemplated by this Amendment (which opinion or opinions
also shall address 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
Indebtedness" appearing in the Junior Subordinated Note Agreement);
(v) all of the representations and warranties set forth in
Section 72 of this Amendment shall be true and correct in all material
respects as of the First Amendment Effective Date, and the Agents shall
have received one or more certificates, each in form and substance
reasonably satisfactory to the Agents, dated the First Amendment Effective
Date and signed on behalf of the Borrower by the Chief Financial Officer of
the Borrower and another authorized officer of the Borrower, stating that
all of the conditions in Section 72 of this Amendment and in clause (iii)
of this Section 76 have been satisfied on such date and such certificates
also shall demonstrate (in reasonable detail) that up to $36,000,000 of
Tranche C Term Loans may be incurred, up to $425,000 of existing
-26-
Indebtedness of ShopRite Xxxxxxxxxx may be assumed, and up to $1,500,000 of
ShopRite (Xxxxxxxxxx) Seller Subordinated Notes may be issued, in each case
in accordance with the proviso to Section 4.12 of the Senior Subordinated
Note Indenture and the proviso to Section 7E of the Junior Subordinated
Note Agreement;
(vi) the Borrower shall have paid to the Agents and the Lenders
all costs, fees and expenses (including, without limitation, legal fees and
expenses) payable to the Agents and the Lenders to the extent then due and
as has been agreed upon by the Borrower and the Agents, including the
amendment fee referred to in clause (xiv) of this Section 76;
(vii) the Administrative Agent shall have received from each
Credit Agreement Party, BVNJ and ShopRite Xxxxxxxxxx certified copies of
resolutions of their respective Boards of Directors (or the equivalent
governing body) or statements of unanimous written consent in lieu thereof
of each such Person with respect to the matters set forth in this Amendment
and the transactions contemplated herein, and such resolutions or
statements, as the case may be, shall be in form and substance reasonably
satisfactory to the Agents;
(viii) the Agents shall have received a solvency certificate from
the Chief Financial Officer of Holdings, in form and substance reasonably
satisfactory to the Agents;
(ix) the Agents shall have received true and correct copies of
the historical financial statements, the pro forma financial statements and
the projections referred to in Sections 72(vi) and (vii) of this Amendment,
all of which shall be in form and substance reasonably satisfactory to the
Agents and the Required Lenders;
(x) the Agents shall have received copies of all environmental
and hazardous substance assessments and analyses with respect to the real
property of ShopRite Xxxxxxxxxx, all of which shall be in scope, form and
substance reasonably satisfactory to the Agents and the Required Lenders;
(xi) all corporate, partnership and legal proceedings and all
instruments and agreements in connection with the transactions contemplated
by this Amendment, the ShopRite (Xxxxxxxxxx) Merger and each of the
Borrower/BVNJ Intercompany Agreements shall be reasonably satisfactory in
form and substance to the Agents, and the Agents shall have received all
information and copies of all documents and papers, including records of
corporate and partnership proceedings or governmental approvals, good
standing certificates and bring-down telegrams or facsimiles, if any, which
the Agents may have reasonably requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate,
partnership or governmental authorities;
(xii) the Agents shall have received updated certificates of
insurance complying with the requirements of Section 8.03 for the business
and properties of Holdings and its
-27-
Subsidiaries (including BVNJ), in form and substance reasonably
satisfactory to the Agents and naming the Collateral Agent as an additional
insured and as loss payee, and stating that such insurance shall not be
canceled without at least 30 days prior written notice by the insurer to
the Collateral Agent (or such shorter period of time as a particular
insurance company generally provides);
(xiii) the Borrower and BVNJ shall have duly authorized, executed
and delivered the Borrower/BVNJ Intercompany Agreements, each in form and
substance satisfactory to the Agents, together with:
(A) executed Financing Statements (Form UCC-1) in appropriate
form for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Borrower/Big V of New Jersey LP Loan and Security
Agreement;
(B) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name ShopRite Xxxxxxxxxx as debtor and that are filed in the
jurisdictions referred to in clause (A) above, together with copies of such
other financing statements that name ShopRite Xxxxxxxxxx as debtor (none of
which shall cover the Collateral except to the extent evidencing Permitted
Liens or in respect of which the Collateral Agent shall have received
appropriate termination statements executed by the secured party
thereunder);
(C) proper Assignment Statements (Form UCC-3 or the equivalent)
evidencing the assignment of the security interests created pursuant to the
Borrower/BVNJ Intercompany Security Agreement to the Collateral Agent,
fully executed for filing under the UCC or other appropriate filing offices
in the jurisdictions referred to in clause (A) above; and
(D) proper termination statements (form UCC-3 or the equivalent)
terminating the security interests created pursuant to the certain
Indebtedness of BVNJ to be repaid by on the First Amendment Effective Date;
and
(xiv) the Borrower shall have paid to each Lender which has
executed and delivered to the Administrative Agent a counterpart of this
Amendment on or before 2:00 p.m. (New York time) on the First Amendment
Effective Date, a fee equal to 0.25% of the sum of (I) such Lender's
Revolving Loan Commitment on the First Amendment Effective Date, (II) such
Lender's Tranche A Term Loan Commitment on the First Amendment Effective
Date and (III) the aggregate outstanding principal amount of such Lender's
Tranche A Term Loans and Tranche B Term Loans on the First Amendment
Effective Date (it being understood that this fee is in addition to any
other fees that the Borrower has agreed to pay to the Agents and the
Lenders with respect to the transactions contemplated by this Amendment).
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Notwithstanding anything to the contrary contained above or elsewhere in this
Amendment, unless both the First Amendment Effective Date and the ShopRite
(Xxxxxxxxxx) Merger occur on or prior to November 15, 1999, the First Amendment
Effective Date shall not thereafter occur and this Amendment shall be of no
further force or effect. The acceptance by the Borrower of the proceeds of the
Tranche C Term Loans shall be deemed to constitute a representation and warranty
by each Credit Agreement Party (including, without limitation, for purposes of
Section 10.02 of the Credit Agreement) to the effect that all conditions
contained above in this Section 76 have been satisfied as of the First Amendment
Effective Date.
77. From and after the First Amendment 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 as amended or
modified 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.
-------------------------------------
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
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK, Individually
and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X.. Xxxxxx
Title: 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
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
XXXXX XXX & FARNHAM FLOATING RATE LTD.
By: /s/ Xxxxx X. Good
----------------------------------
Name: Xxxxx X. Good
Title: Vice President,
Xxxxx Xxx & Xxxxxxx Incorporated,
as Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
XXX XXXXXX CLO I, LTD.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
