1
EXHIBIT 4.8
AMENDMENT, WAIVER AND AGREEMENT dated as of
December 1, 1997 (this AAmendment and Waiver@), to the
Credit Agreement dated as of August 18, 1995, as amended
and restated as of June 2, 1997, and as further amended as
of September 5, 1997 (the ACredit Agreement@), among
BRUNO'S, INC., an Alabama corporation (the ABorrower@),
the lending institutions from time to time parties thereto
(the ALenders@) and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent (in such
capacity, the AAdministrative Agent@).
A. The Borrower has requested that the Lenders (a) agree to amend
certain provisions of the Credit Agreement, (b) grant certain waivers of
compliance by the Borrower with certain provisions of the Credit Agreement and
(c) enter into certain other agreements with respect to the Credit Agreement.
B. The Required Lenders are willing to agree to such amendments, grant
such waivers and enter into such agreements, in each case on the terms and
subject to the conditions set forth herein.
C. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1 of the Credit Agreement. Effective as
of the date of this Amendment and Waiver (the "Effective Date"), the Borrower
and the Lenders hereby amend Section 1 of the Credit Agreement as follows:
(a) by inserting, after the words "or other disposition"
in the first line of the definition of the term "Asset Sale
Prepayment Event", the following words:
"(including any loss, damage, destruction or
condemnation or similar event resulting in
insurance settlements or condemnation awards
other than any insurance settlement or
condemnation award the proceeds of which the
Borrower has reinvested (or intends to reinvest
within one year of such insurance settlement or
condemnation award) in business units, assets or
properties located in the immediate vicinity of
the business units, assets or properties to which
such insurance settlement or condemnation award
related, provided that any portion of such
proceeds that has not been so reinvested within
such one-year period shall be deemed to be Net
Cash Proceeds of an Asset Sale Prepayment Event
2
2
occurring on the last day of such one-year period
and be applied in accordance with Section
5.2(a)(i))".
(b) by inserting the following definition in the
appropriate alphabetical order:
"'Collateral' shall mean all the 'Collateral' as
defined in any Security Document and shall also include
the Mortgaged Properties.".
(c) by deleting the words "Pledge Agreement" in the
definition of the term "Credit Documents" and substituting
therefor the following words:
"Security Documents".
(d) by inserting the following definition in the
appropriate alphabetical order:
"'Mortgage' shall mean a mortgage, deed of trust,
deed to secure debt, assignment of leases and rents,
leasehold mortgage or other substantially similar
instrument granting a Lien on any Mortgaged Property to
secure the Obligations. Each Mortgage shall be
substantially in the form of Exhibit J.".
(e) by inserting the following definition in the
appropriate alphabetical order:
"'Joint Venture' shall mean any of the Persons
listed on Schedule 1.3.".
(f) by inserting the following definition in the
appropriate alphabetical order:
"'Mortgaged Property' shall mean, initially, each
parcel of real property and the improvements thereto owned
or leased by a Credit Party and identified on Schedule
1.2(a) (other than those properties (a) under contract of
sale (the "Real Property Contracted for Sale"), (b) having
a value not in excess of $100,000, (c) the environmental
condition of which, in the judgment of the Administrative
Agent, makes taking a mortgage thereon inadvisable, (d)
owned by a Joint Venture or (e) subject to Liens that
secure the Pledged IRBs (as defined in the Pledge
Agreement), in each case as specified on Schedule 1.2(a))
or Schedule 1.2(b) and, from time to time, includes each
other parcel of real property and improvements thereto
with respect to which a Mortgage is granted pursuant to
Section 9.12.".
(g) by amending and restating in its entirety clause (iv)
of the definition of the term "Net Cash Proceeds" to read as
follows:
3
3
"in the case of any Asset Sale Prepayment Event,
(A) until such time (the "Deduction Limitation Time") when
the aggregate amount of deductions from Net Cash Proceeds
on or after December 1, 1997, pursuant to this clause (iv)
equals $25,000,000, 100% of the amount of any proceeds of
such Asset Sale Prepayment Event that the Borrower has
used (or intends to use within one year of such Asset Sale
Prepayment Event) in the operation of the business of the
Borrower or any of the Subsidiaries (including for debt
service) and (B) after the Deduction Limitation Time, 50%
of the amount of any proceeds of such Asset Sale
Prepayment Event in excess of the amounts deducted from
Net Cash Proceeds in respect of such Asset Sale Prepayment
Event pursuant to clause (A) above, to the extent that the
Borrower has used (or intends to use within one year of
such Asset Sale Prepayment Event) such proceeds in the
operation of the business of the Borrower or any of the
Subsidiaries (including for debt service), provided that
the aggregate amount of proceeds from Asset Sale
Prepayment Events deducted from Net Cash Proceeds on or
after December 1, 1997, pursuant to this clause (B) shall
not exceed $35,000,000; provided, however, that any
portion of the proceeds from Asset Sale Prepayment Events
deducted pursuant to this clause (iv) that has not been so
used within the applicable one-year period shall be deemed
to be Net Cash Proceeds of an Asset Sale Prepayment Event
occurring on the last day of such one-year period and be
applied in accordance with Section 5.2(a)(i); provided,
further that with the consent of the Required Lenders, an
amount equal to 100% of any proceeds from an Asset Sale
Prepayment Event may be deducted from Net Cash Proceeds
pursuant to this clause (iv) and the dollar and percentage
limitations set forth in clauses (A) and (B) shall not
apply, and".
(h) by inserting the following definition in the
appropriate alphabetical order:
"'Secured Parties' shall have the meaning
assigned to such term in the Security Agreement.".
(i) by inserting the following definition in the
appropriate alphabetical order:
"'Security Agreement' shall mean the Security
Agreement, substantially in the form of Exhibit K, among
the Borrower, the Guarantors party thereto and the
Administrative Agent for the benefit of the Secured
Parties.".
(j) by inserting the following definition in the
appropriate alphabetical order:
"'Security Documents' shall mean the Mortgages,
the Security Agreement, the Pledge Agreement and each of
the security agreements, mortgages and other instruments
and documents
4
4
executed and delivered pursuant to any of
the foregoing or pursuant to Section 9.12.".
SECTION 2. Amendment to Section 5 of the Credit Agreement.
(a) Effective as of the Effective Date, the Borrower and the Lenders hereby
amend Section 5.2(a)(i) of the Credit Agreement as follows:
(i) by deleting the words "within five Business Days after the
occurrence of such Prepayment Event" set forth in such Section and
substituting therefor the words "promptly after the occurrence of such
Prepayment Event and in no event later than the end of the first Business
Day after the day on which such Prepayment Event occurred"; and
(ii) by deleting all the text after the words "in an amount equal
to" in the eighth line of such Section and substituting therefor the words
"100% of the Net Cash Proceeds therefrom.".
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend and restate in its entirety Section 5.2(g) of the Credit
Agreement to read as follows:
"(g) Minimum Amount. Notwithstanding the provisions of Section
5.2(a)(i), no payment shall be required pursuant to Section 5.2(a)(i)
unless and until the aggregate amount of all Net Cash Proceeds from all
Prepayment Events not previously used to prepay Loans pursuant to this
Section 5.2 exceeds $1,000,000.".
SECTION 3. Amendment to Section 8 of the Credit Agreement.
Effective as of the Effective Date, the Borrower and the Lenders hereby amend
Section 8 of the Credit Agreement by inserting after Section 8.15 the following
new section:
"SECTION 8.16 Security Documents. (a) The Pledge Agreement
is effective to create in favor of the Administrative Agent, for
the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the
Pledge Agreement) and, when such Collateral is delivered to the
Administrative Agent, the Pledge Agreement shall constitute a
fully perfected first-priority Lien on, and security interest in,
all right, title and interest of the pledgor thereunder in such
Collateral, in each case prior and superior in right to any other
Person.
(b) The Security Agreement is effective to create in favor
of the Administrative Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest
in the Collateral (as defined in the Security Agreement) in which
a Lien may be perfected by filing a financing statement and, when
financing statements in appropriate form are filed in the offices
specified on Schedule 6 to the Perfection Certificate, the
Security Agreement shall constitute a fully perfected Lien on all
right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property (as defined in
the Security Agreement)), in each case prior and superior in right
to any other Person, other than with respect to the rights of
Persons pursuant to Liens expressly permitted by Section 10.3.
5
5
(c) When the Security Agreement is filed in the United
States Patent and Trademark Office and the United States Copyright
Office, the Security Agreement shall constitute a fully perfected
Lien on all right, title and interest of the Credit Parties in the
Intellectual Property in which a Lien may be perfected by filing,
recording or registering a security agreement, financing statement
or analogous document in the United States Patent and Trademark
Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 10.3 (it being understood that
subsequent recordings in the United States Patent and Trademark
Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications
and copyrights acquired by the Credit Parties after the date
hereof).
(d) Each Mortgage is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable Lien on all of the Credit
Parties' right, title and interest in and to the Mortgaged
Properties thereunder and the proceeds thereof and, when the
Mortgages are filed in the offices specified on Schedule 8.16, the
Mortgages shall constitute a Lien on all right, title and interest
of the Credit Parties in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any
other Person, other than with respect to the rights of Persons
pursuant to Liens expressly permitted by Section 10.3.
SECTION 4. Amendment to Section 9.12 of the Credit Agreement.
Effective as of the Effective Date, the Borrower and the Lenders hereby amend
and restate Section 9.12 of the Credit Agreement in its entirety to read as
follows:
"(a) Further Assurances. (a) The Borrower will, and will cause
each of the Guarantors to, pledge to the Administrative Agent, for the ratable
benefit of the Secured Parties, (i) all the capital stock of each Subsidiary
(provided that not more than 65% of the capital stock of any foreign Subsidiary
is required to be pledged) formed or otherwise purchased or acquired after the
date hereof, in each case pursuant to a supplement to the Pledge Agreement in
form and substance reasonably satisfactory to the Administrative Agent and (ii)
all evidences of Indebtedness in excess of $100,000 received by the Borrower or
any of the domestic Subsidiaries in connection with any disposition of assets
pursuant to Section 10.5(b), in each case pursuant to a supplement to the Pledge
Agreement in form and substance reasonably satisfactory to the Administrative
Agent.
(b) The Borrower will, and will cause each of the Guarantors
to, execute any and all further documents, financing statements, agreements
and instruments, and take all further action (including filing Uniform
Commercial Code and other financing statements, mortgages and deeds of
trust), that may be required under applicable law, or that the Required
Lenders or the Administrative Agent may reasonably request, in order to
effectuate the transactions contemplated by the Credit Documents and in
order to grant, preserve, protect and perfect the validity and first
priority (with such exceptions as are expressly permitted by the Credit
Documents) of the security interests created or intended to be created by
the Security Documents. The Borrower will cause
6
6
any subsequently acquired or organized domestic Subsidiary to execute each
applicable Security Document in favor of the Administrative Agent. In
addition, from time to time, the Borrower will, at its cost and expense,
promptly secure the Obligations by pledging or creating, or causing to be
pledged or created, perfected security interests with respect to such of
its assets and properties as the Administrative Agent or the Required
Lenders shall designate (other than cash, except for the cash proceeds of
Collateral to the extent a security interest in such cash proceeds is
perfected by operation of law as a result of the Secured Parties' security
interest in such Collateral) it being understood that it is the intent of
the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower (including real and other
properties acquired subsequent to the Closing Date but excluding cash to
the extent described in the preceding parenthetical). Such security
interests and Liens will be created under the Security Documents and other
security agreements, mortgages, deeds of trust and other instruments and
documents in form and substance reasonably satisfactory to the
Administrative Agent, and the Borrower shall deliver or cause to be
delivered to the Lenders all such instruments and documents (including
legal opinions, title insurance policies, environmental assessment reports
or environmental insurance policies, appraisals, surveys and lien searches)
as the Administrative Agent shall reasonably request to evidence compliance
with this Section. The Borrower agrees to provide such evidence as the
Administrative Agent shall reasonably request as to the perfection and
priority status of each such security interest and Lien.
(c) Upon the request of the Administrative Agent with respect
to (i) any of the properties of the Borrower or any Subsidiary with respect
to which the Borrower had entered into negotiations for the sale thereof on
or before December 1, 1997, as indicated on Schedule 1.2(a) (the "Real
Properties Under Negotiation for Sale"), or (ii) any of the properties of
the Borrower or any Subsidiary with respect to which the Administrative
Agent has requested that a Mortgage be executed pursuant to clause (d)
below, the Borrower shall deliver or cause to be delivered to the
Administrative Agent instruments and documents with respect to such
property (including title insurance policies, environmental assessment
reports or environmental insurance policies, surveys, independent
appraisals and lien searches) that are comparable to the instruments and
documents delivered to the Administrative Agent with respect to the
Mortgaged Properties (other than the Real Properties Under Negotiation for
Sale), in each case in form and substance reasonably satisfactory to the
Administrative Agent.
(d) Upon the request of the Administrative Agent, the Borrower
or any Subsidiary shall deliver to the Administrative Agent with respect to
(i) any Real Property Contracted for Sale that has not been sold by
February 1, 1998, or (ii) any of the properties of the Borrower or any
Subsidiary the environmental condition of which, in the judgment of the
Administrative Agent, initially made taking a mortgage thereon inadvisable,
as indicated on Schedule 1.2(a), counterparts of a Mortgage signed on
behalf of the record owner of such property.".
SECTION 5. Amendment to Section 10 of the Credit Agreement. (a)
Effective as of the Effective Date, the Borrower and the Lenders hereby
amend Section 10.2(b) of the Credit Agreement by inserting after the words
"any other Subsidiary" set forth therein the following words:
7
7
", provided that any obligation of an obligor of such
Indebtedness in an amount in excess of $100,000 shall be evidenced by a
promissory note, which shall have been pledged to the Administrative
Agent pursuant to the Pledge Agreement, for the benefit of the Lenders,
as security for the Obligations (as defined in the Pledge Agreement)".
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10.5(b) of the Credit Agreement by deleting
the amount "$5,000,000" set forth therein and substituting therefor the
amount "$100,000".
(c) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10.5(b) of the Credit Agreement as follows:
(i) by deleting the words ", provided that (i)" set forth
therein and substituting therefor the following words:
"on an arms' length basis (as determined in good faith by the
board of directors of the Borrower at the time of such sale, transfer
or disposal (which determination shall be evidenced by a written
resolution of the board of directors of the Borrower approving such
sale, transfer or disposal, a copy of which, certified by the Secretary
of the Borrower, shall be provided to the Administrative Agent prior to
such sale, transfer or disposal)), provided that (i) any such sale,
transfer or disposal by the Borrower or any Subsidiary shall be to a
party unrelated to the Borrower or any Affiliate of the Borrower (other
than any Affiliate of KKR engaged in the Borrower's line of business),
(ii)"; and
(ii) by deleting the phrase "(ii)" set forth therein and
substituting therefor the following phrase "(iii)".
(d) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10.6(k) of the Credit Agreement by inserting
at the end of such Section the following words:
", provided that during the period from and
including December 1, 1997, to and including July 31,
1998, the amount of investments made pursuant to this
clause (k) shall not exceed $7,000,000 in the
aggregate".
(e) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10 of the Credit Agreement by inserting after
Section 10.12 thereof the following new section:
"10.13 Minimum Consolidated EBITDA. The
Borrower will not permit Consolidated EBITDA for any
Test Period ending on or about any date set forth
below to be less than the amount set forth below
opposite such date:
Period Amount
------ ------
January 31, 1998 $60,000,000
May 2, 1998 $40,000,000
8
8
SECTION 6. Amendment to Section 11 of the Credit Agreement.
(a) Effective as of the Effective Date, the Borrower and the Lenders hereby
amend Section 11.2 of the Credit Agreement by deleting the words "the Pledge
Agreement" set forth therein and substituting therefor the words "any Security
Document".
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 11.3 of the Credit Agreement by deleting the words
"the Pledge Agreement" set forth therein and substituting therefor the
following words "any Security Document".
(c) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend and restate in its entirety Section 11.8 of the Credit
Agreement to read as follows:
"SECTION 11.8 Security Interests. Any material security
interest created under any Security Document shall cease to be, or
shall be asserted by the Borrower or any Credit Party not to be, a
valid, perfected, first-priority (except as otherwise expressly
provided for in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority
results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under the
Pledge Agreement and except to the extent that such loss is covered by
a lender's title insurance policy and the related issuer promptly after
such loss shall have acknowledged in writing that such loss is covered
by such title insurance policy; or".
SECTION 7. Amendment to Section 13.16 of the Credit Agreement.
Effective as of the Effective Date, the Borrower and the Lenders hereby amend
Section 13.16 of the Credit Agreement by deleting the words "the Borrower's" in
the ninth line of such section and substituting therefor the words "such
Lender's".
SECTION 8. Amendment to Section 1 of the Credit Agreement. (a)
Effective as of the Effective Date, the Borrower and the Lenders hereby amend
Section 1 of the Credit Agreement by (i) inserting after Schedule 1.1 new
Schedules 1.2 (a) and 1.2(b) in the form of Exhibit A attached hereto and new
Schedule 1.3 in the form of Exhibit B attached hereto and (ii) inserting after
Schedule 8.12 a new Schedule 8.16 in the form of Exhibit C attached hereto.
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 1 of the Credit Agreement by inserting after
Exhibit I new Exhibits J and K in the form of Exhibits D and E, respectively,
attached hereto.
SECTION 9. Amendment to the Pledge Agreement. (a) Effective as
of the Effective Date, the Borrower, the other Credit Parties party to the
Pledge Agreement and the Lenders hereby amend the Pledge Agreement by deleting
the words "the indebtedness (the 'Pledged Debt')" in the sixth recital thereof
and substituting therefor the following words:
"(i) the Borrower's industrial revenue bonds as described on
Schedule II (the 'Pledged IRBs'), (ii) promissory notes
evidencing intercompany Indebtedness (the 'Intercompany
Notes') required to be pledged pursuant to Section 10.2(b) of
the Credit Agreement and (iii) the indebtedness (together with
the Pledged IRBs and the Intercompany Notes, the 'Pledged
Debt')".
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend the Pledge Agreement by inserting after Schedule I a new
Schedule II in
9
9
the form of Exhibit F attached hereto.
SECTION 10. Waiver. (a) The Lenders hereby waive any Defaults
and Events of Default that have occurred or may occur with respect to the
Borrower's failure to comply with the covenants set forth in Sections 10.9,
10.10 and 10.11 of the Credit Agreement with respect to the Test Period ending
on January 31, 1998.
(b) The Lenders hereby waive through 5:00 p.m., New York City
time, on July 23, 1998, any Defaults and Events of Default that have occurred or
may occur with respect to the Borrower's failure to comply with the covenants
set forth in Sections 10.9, 10.10 and 10.11 of the Credit Agreement with respect
to the Test Period ending on May 2, 1998, it being understood that (i) such
waiver shall not be effective after 5:00 p.m., New York City time, on July 23,
1998, and (ii) any Defaults and Events of Default that would, in the absence of
the waiver set forth above, have occurred with respect to the Borrower's failure
to comply with such covenants with respect to such Test Period shall be
reinstated immediately after such time and thereafter remain in effect
regardless of the Borrower's compliance with the covenants set forth in Section
10.9, 10.10 and 10.11 of the Credit Agreement with respect to subsequent Test
Periods.
(c) The Lenders hereby waive any Defaults that may occur prior
to August 1 1998 (but not any Defaults that may occur or otherwise be in effect
on or after August 1, 1998), with respect to the Borrower's failure to comply
with the covenants set forth in Sections 10.9, 10.10 and 10.11 of the Credit
Agreement with respect to the Test Period ending on August 1, 1998.
SECTION 11. Fees. In consideration of the agreements of the
Required Lenders contained in Sections 1 through 10 of this Amendment and
Waiver, the Borrower agrees to pay to the Administrative Agent (a) for the
account of each Lender, an amendment fee (a "Lender's Fee") in an amount equal
to 0.0625% of the sum of (i) such Lender's Revolving Credit Commitment as of the
Effective Date and (ii) the outstanding principal amount of Term Loans held by
such Lender as of the Effective Date and (b) for the account of each Lender that
has executed this Amendment and Waiver on or before December 10, 1997, an
amendment fee (a "Signing Fee"; all the Lender's Fees and Signing Fees are
collectively referred to herein as the "Amendment Fees") in an amount equal to
0.1875% of the sum of (i) such Lender's Revolving Credit Commitment as of the
Effective Date and (ii) the outstanding principal amount of Term Loans held by
such Lender as of the Effective Date. The Amendment Fees shall be payable in
immediately available funds. Once paid, the Amendment Fees shall not be
refundable.
SECTION 12. Agreement. (a) Notwithstanding any of the
provisions of the Credit Agreement, the Lenders shall not be obligated to make
or issue, and the Borrower shall not request the making or issuance of, any
Revolving Credit Loans, Swingline Loans or Letters of Credit that would, at any
time, have the effect of causing the sum of (i) the aggregate principal amount
of Revolving Credit Loans outstanding at such time, (ii) the aggregate principal
amount of Swingline Loans outstanding at such time and (iii) the Letter of
Credit Outstandings at such time to exceed $200,000,000, provided that with the
consent of the Supermajority Revolving Credit Lenders, the provisions of this
Section 12(a) shall not apply.
10
10
(b) On or before February 1, 1998, the Borrower and the
Subsidiaries that own Mortgaged Properties (as defined in the Credit Agreement
after giving effect to this Amendment and Waiver) shall deliver to the
Administrative Agent, (i) a policy or policies of title insurance issued by a
nationally recognized title insurance company, insuring the Lien of each
Mortgage (as defined in the Credit Agreement after giving effect to this
Amendment and Waiver) as a valid first Lien on the Mortgaged Property described
therein (other than any such Mortgaged Property that (A) is not owned in fee by
the Borrower or a Subsidiary and is not a ground lease or (B) is a Real Property
Under Negotiation for Sale), free of any other Liens except Liens permitted by
Section 10.3 of the Credit Agreement, in form and substance reasonably
acceptable to the Administrative Agent, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent or the Required Lenders
may reasonably request and (ii) an as-built survey of each Mortgaged Property
(other than any such Mortgaged Property that is (A) is not owned in fee by the
Borrower or a Subsidiary and is not a ground lease or (B) is a Real Property
Under Negotiation for Sale), in form and substance reasonably acceptable to the
Administrative Agent.
(c) On or before February 1, 1998, the Borrower and the
Subsidiaries that own Mortgaged Properties shall deliver to the Administrative
Agent an appraisal of (i) each Mortgaged Property (other than Real Properties
Under Negotiation for Sale) and (ii) each property subject to Liens that secure
the Pledged IRBs reasonably satisfactory to the Administrative Agent prepared by
an independent appraiser reasonably acceptable to the Administrative Agent. In
the event that the appraised value of any Mortgaged Property as set forth in the
appraisals required to be delivered pursuant to this clause (c) (the "Final
Appraised Value") is greater than the preliminary value established by the
Administrative Agent for such Mortgaged Property prior to the date hereof, the
Borrower and the Subsidiaries shall, to the extent reasonably required by the
Administrative Agent, (i) execute and deliver an amendment or supplement to the
Mortgage on such Mortgaged Property to ensure that the amount of the Obligations
secured by such Mortgage is not less than the Final Appraised Value of such
Mortgaged Property and (ii) pay any additional mortgage recording or similar tax
with respect to the difference between the preliminary appraised value
established by the Administrative Agent and the Final Appraised Value for such
Mortgaged Property and execute and deliver all amendments to the Mortgages and
other documents required in connection with the payment of any such tax.
(d) On or before December 31, 1997, the Borrower and the
Subsidiaries shall deliver to the Administrative Agent, with respect to each
Fee-owned Mortgaged Property (as defined below) for which the Administrative
Agent did not receive signed counterparts of a Mortgage pursuant to Section
14(e) of this Amendment and Waiver, counterparts of a Mortgage signed on behalf
of the record owner of such Fee-owned Mortgaged Property.
(e) On or before December 31, 1997, the Borrower and the
Subsidiaries shall deliver to the Administrative Agent, with respect to each
Leased Mortgaged Property (as defined below) for which the Administrative Agent
did not receive signed counterparts of a Mortgage pursuant to Section 14(e) of
this Amendment and Waiver, counterparts of a Mortgage signed on behalf of the
record owner of such Leased Mortgaged Property.
11
11
(f) On or before December 31, 1997, the Borrower and the
Guarantors shall deliver to the Administrative Agent (i) all documents and
instruments, including Uniform Commercial Code financing statements, required by
law or reasonably requested by the Administrative Agent to be filed, registered
or recorded to create or perfect the Liens intended to be created under the
Security Agreement on the Collateral (as defined in the Security Agreement) with
respect to which such documents and instruments were not delivered to the
Administrative Agent pursuant to Section 14(d)(i) of this Amendment and Waiver
and (ii) any additional results to the search requested in Section 14(d)(ii) of
this Amendment and Waiver of the Uniform Commercial Code (or equivalent) filings
made with respect to the Borrower and the Guarantors and copies of the financing
statements (or similar documents) disclosed by such search, and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 10.3
of the Credit Agreement or have been released.
(g) The Administrative Agent, in its reasonable discretion,
may retain an environment assessment firm to conduct, at the Borrower's expense,
environmental assessments, in form, scope and substance acceptable to the
Administrative Agent, of (i) each Mortgaged Property and (ii) each property of
the Borrower or any Subsidiary that is subject to Liens that secure the Pledged
IRBs, as set forth on Schedule 1.2(a). In addition, with respect to (i) each
Mortgaged Property and (ii) each property of the Borrower or any Subsidiary that
is subject to Liens that secure the Pledged IRBs, as indicated on Schedule
1.2(a), the Administrative Agent may require that the Borrower deliver to the
Administrative Agent on or before January 31, 1998, an environmental insurance
policy from an insurance company reasonably satisfactory to the Administrative
Agent and with such premiums and other terms and providing such coverage as is
reasonably satisfactory to the Administrative Agent, in each case with respect
to any environmental hazards, liabilities or remedial action to which the
Borrower or any of the Subsidiaries may be subject with respect thereto. The
Administrative Agent shall inform the Borrower on or before December 31, 1997,
whether it will require the Borrower to deliver such environmental insurance
policies.
(h) The Borrower will take, or cause the Subsidiaries to take,
such actions (including the payment of insurance premiums) as are necessary to
maintain in effect, with the same level of coverage, any environmental insurance
policies delivered to the Administrative Agent pursuant to clause (g)(ii) of
this Section 12.
(i) The Borrower will, or will cause the Subsidiaries to, use
commercially reasonable efforts to (a) obtain a consent and agreement in form
and substance reasonably satisfactory to the Administrative Agent from each
landlord under each lease of a Mortgaged Property and (b) record, with respect
to each Leased Mortgaged Property, the lease or a memorandum thereof in the real
property records where such Leased Mortgaged Property is located.
(j) The Borrower hereby agrees that any failure to comply with
the provisions of clauses (b) through (h) of this Section 12 shall be deemed to
be an Event of Default under the Credit Agreement.
(k) Notwithstanding any of the provisions of the Credit
Agreement, the
12
12
Borrower and the Lenders agree that, from and including December 1, 1997, to but
excluding July 31, 1998, (i) the Applicable ABR Margin shall be equal to (A) the
percentage applicable to Level VIII Status in the table set forth in the
definition of the term "Applicable ABR Margin" plus (B) 0.25% and (ii) the
Applicable Eurodollar Margin shall be equal to (A) the percentage applicable to
Level VIII Status in the table set forth in the definition of the term
"Applicable Eurodollar Margin" plus (B) 0.25%.
SECTION 13. Representations and Warranties. To induce the
other parties hereto to enter into this Amendment and Waiver, the Borrower
represents and warrants to each of the Lenders and the Administrative Agent
that, after giving effect to this Amendment and Waiver on the Effective Date:
(a) the representations and warranties set forth in Section 8
of the Credit Agreement are true and correct in all material respects on and as
of the date hereof with the same effect as though made on and as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date;
(b) no Default or Event of Default has occurred and is
continuing;
(c) Schedule 1.2(a) attached hereto lists completely and
correctly in all material respects as of the Effective Date all of the real
property owned by the Borrower and the other Credit Parties and the addresses
thereof (including those properties subject to ground leases as indicated) and
indicates (a) each such property that is a Real Property Contracted for Sale (as
defined in the Credit Agreement after giving effect to this Amendment and
Waiver), (b) each such property that has a value (determined in a manner
reasonably satisfactory to the Administrative Agent) not in excess of $100,000,
(c) each such property that is one of the Real Properties Under Negotiation for
Sale, (d) each such property that is owned by a Joint Venture and (e) each such
property that is subject to Liens that secure the Pledged IRBs. The Borrower and
such other Credit Parties own in fee all the real property (other than ground
leases as indicated on Schedule 1.2(a)) set forth on Schedule 1.2(a).
(d) Schedule 1.2(b) attached hereto lists completely and
correctly in all material respects as of the Effective Date all of the real
property leased by the Borrower and the other Credit Parties (and the addresses
thereof) other than real properties leased by the Borrower or any other Credit
Party that are (a) subject to a lease that prohibits a leasehold mortgage or (b)
subject to a lease that has a value (determined in a manner reasonably
satisfactory to the Administrative Agent) not in excess of $100,000. The
Borrower and such other Credit Parties have valid leasehold interests in all the
real property set forth on Schedule 1.2(b) and in all ground leases as indicated
on Schedule 1.2(a).
SECTION 14. Conditions to Effectiveness. This Amendment and
Waiver shall become effective as of the Effective Date on the date that:
(a) the Administrative Agent shall have received counterparts
of this Amendment and Waiver that, when taken together, bear the
signatures of the Borrower, the other Credit Parties party to the
Pledge Agreement and the Required Lenders;
13
13
(b) the Administrative Agent shall have received the
Amendment Fees;
(c) the Administrative Agent shall have received the written
opinions of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York counsel to
the Borrower, and (ii) each local counsel listed on Schedule 1 attached
hereto, in each case in form and substance reasonably satisfactory to
the Administrative Agent and covering such matters relating to this
Amendment and Waiver and the other Credit Documents as the
Administrative Agent shall reasonably request (and the Borrower hereby
requests such counsels to deliver such opinions);
(d) the Administrative Agent shall have received counterparts
of the Security Agreement signed on behalf of the Borrower and each
Guarantor, together with the following:
(i) all documents and instruments, including
Uniform Commercial Code financing statements,
required by law or reasonably requested by the
Administrative Agent to be filed, registered or
recorded to create or perfect the Liens intended to
be created under the Security Agreement (with
exceptions reasonably acceptable to the
Administrative Agent); and
(ii) a completed Perfection Certificate
dated the Effective Date and signed by an executive
officer or financial officer of the Borrower,
together with all attachments contemplated thereby,
including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with
respect to the Borrower and the Guarantors in the
jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements
(or similar documents) disclosed by such search, and
evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such
financing statements (or similar documents) are
permitted by Section 10.3 of the Credit Agreement or
have been released;
(e)(i) the Administrative Agent shall have received
counterparts of a Mortgage with respect to a number of Mortgaged
Properties that are (A) owned in fee by the Borrower or any Subsidiary
or (B) subject to a ground lease (collectively, the "Fee-owned
Mortgaged Properties") constituting a substantial majority of, and in
no event less than 75% of, the total number of Fee-owned Mortgaged
Properties existing as of the Effective Date, in each case signed on
behalf of the record owner of the applicable Fee-owned Mortgaged
Property;
(ii) the Administrative Agent shall have received
counterparts of a Mortgage with respect to a number of Mortgaged
Properties that are leased by the Borrower or any Subsidiary (the
"Leased Mortgaged Properties") constituting not less than 10% of the
total number of Leased Mortgaged Properties existing as of the
Effective Date, in each case signed on behalf of the record owner of
the applicable Leased Mortgaged Property;
(f) the Administrative Agent shall have received the
instruments
14
14
evidencing the Pledged IRBs pledged under the Pledge Agreement (as
amended by this Amendment and Waiver) and such instruments of transfer
with respect to the Pledged IRBs as are satisfactory to the
Administrative Agent in order to give effect to the pledge granted
under the Pledge Agreement (as amended by this Amendment and Waiver);
(g) the Administrative Agent shall have received a certificate
of each Credit Party, dated the Effective Date with appropriate
insertions, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of such Credit Party, and
attaching the documents referred to in clauses (h) and (i) below;
(h) the Administrative Agent shall have received a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors of each Credit Party
(or a duly authorized committee thereof) authorizing the execution,
delivery and performance of this Amendment and Waiver and the Credit
Documents to which it is a party;
(i) the Administrative Agent shall have received true and
complete copies of the certificate of incorporation and by-laws of each
Credit Party;
(j) the representations and warranties set forth in Section 13
of this Amendment and Waiver shall be true and correct; and
(k) all legal matters incident to this Amendment and Waiver
and the other Credit Documents shall be reasonably satisfactory to the
Administrative Agent and Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent.
SECTION 15. Effect of Amendment and Waiver. Except as
expressly set forth herein, this Amendment and Waiver shall not by implication
or otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Lenders, the Administrative Agent, the Letter of
Credit Issuer or the Borrower under the Credit Agreement or any other Credit
Document, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Credit Document, all of which are ratified and affirmed
in all respects and shall continue in full force and effect. Nothing herein
shall be deemed to entitle the Borrower to a waiver, amendment, modification or
other change of any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Credit Document in
similar or different circumstances. This Amendment and Waiver shall apply and be
effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 16. Credit Document. This Amendment and Waiver shall
be a Credit Document for all purposes.
SECTION 17. Expenses. The Borrower agrees to pay the
reasonable out-of-pocket expenses of the Administrative Agent, including but not
limited to the reasonable fees, charges and disbursements (including but not
limited to any mortgage filing fees or any Uniform Commercial Code filing or
search fees) of Cravath,
15
15
Swaine & Xxxxx, counsel for the Administrative Agent, incurred in connection
with the preparation, execution and delivery of this Amendment and Waiver, the
Security Agreement or the Mortgages or any subsequent waiver, amendment or
modification of the Credit Agreement or any other Credit Document and the
security arrangements in connection herewith and therewith. In addition, the
Borrower agrees to pay any taxes due with respect to the Mortgages and any
amendments or supplements thereto and the reasonable costs and expenses incurred
in connection with the environmental assessment reports and the environmental
insurance policies requested by the Administrative Agent pursuant to Section
12(g) above.
SECTION 18. Counterparts. This Amendment and Waiver may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. Delivery of any executed counterpart of a signature
page of this Amendment and Waiver by facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof.
SECTION 19. Applicable Law. THIS AMENDMENT AND WAIVER SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 20. Headings. The headings of this Amendment and
Waiver are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed by their duly authorized officers, all as of the date
and year first above written.
BRUNO'S, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
A.F. STORES, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
16
16
BR AIR, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
FOOD MAX, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
FOOD MAX OF GEORGIA, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
FOOD MAX OF MISSISSIPPI, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
FOOD MAX OF TENNESSEE, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
BRUNO'S FOOD STORES, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
17
17
PWS HOLDING CORPORATION,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
GEORGIA SALES COMPANY,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
SEESSEL HOLDINGS, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
SSS ENTERPRISES, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
LAKESHORE FOODS, INC.,
by
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a
Lender,
by
/s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
18
18
AMSOUTH BANK OF ALABAMA,
by
/s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
BANK OF AMERICA,
by
--------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS,
by
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
by
/s/ X.X. XXXXX
--------------------------------
Name: X. X. Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
by
/s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY,
by
/s/ XXXXX X. XXXXXXXXXX
--------------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Vice President
19
19
CIBC INC,
by
/s/ XXXXXXXXXXX XXXXXXXXXXX
--------------------------------
Name: Xxxxxxxxxxx Kleczhowski
Title: Executive Director
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch,
by
/s/ W. XXXXXXX XXXXXXX
--------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Vice President
Manager, Special Asset
Management
by
/s/ XXXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Special
Asset Management
D.K. ACQUISITION PARTNERS, L.P.,
by
/s/
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
/s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK,
by
/s/ XXXX X. XXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
20
20
by
/s/ XXXXXXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
by
/s/ TAKUYA HONJO
--------------------------------
Name: Takuya Honjo
Title: Senior Vice President
KEYPORT LIFE INSURANCE COMPANY,
Chancellor LGT Senior Secured
Management, Inc., as Portfolio
Advisor,
by
/s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
KZH-SOLEIL CORPORATION (formerly
known as KZH Holding Corporation),
by
--------------------------------
Name:
Title:
KZH HOLDING CORPORATION III/OAKMONT,
by
--------------------------------
Name:
Title:
XXXXXXX XXXXX, PIERCE, FENNER,
by
/s/ XXXX XXXXXXX
--------------------------------
Name: Xxxx Xxxxxxx
Title: Director
21
21
MITSUI LEASING CAPITAL CORPORATION,
by
/s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
ML DEBT STRATEGIES FUND, INC.,
by
--------------------------------
Name:
Title:
NATIONSBANK, N.A.,
by
/s/ XXXXX X. XXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank),
by
--------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST,
by
/s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
THE SAKURA BANK, LIMITED,
by
/s/
--------------------------------
Name:
Title:
22
22
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
--------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
by
--------------------------------
Name:
Title:
SOUTHTRUST BANK, N.A.,
by
/s/ X. XXXXXXX
--------------------------------
Name: X. Xxxxxxx
Title: Senior Vice President
THE TRAVELERS INSURANCE COMPANY,
by
/s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by
/s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
DLJ CAPITAL FUNDING, INC.,
by
--------------------------------
Name:
Title:
23
23
XXXXXXX SACHS CREDIT PARTNERS,
by
/s/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: Authorized Signer
AERIES FINANCE LTD.,
by
--------------------------------
Name:
Title:
AMARA-2 FINANCE LTD.,
by
--------------------------------
Name:
Title:
CAPTIVA FINANCE LTD.,
by
--------------------------------
Name:
Title:
CAPTIVA II FINANCE LTD.,
by
--------------------------------
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I,
by
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title:
24
24
INDOSUEZ CAPITAL FUNDING III,
LIMITED,
by Indosuez Capital Luxembourg,
as Collateral Manager,
by
/s/ XXXXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
by
--------------------------------
Name:
Title:
PAMCO CAYMAN LTD.,
by
/s/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
STRATA FUNDING LTD.,
by
--------------------------------
Name:
Title:
