LIMITED WAIVER
THIS LIMITED WAIVER, (this "Waiver"), dated as of December
15, 1993, relates to that certain Credit Agreement dated as of
October 12, 1988, and amended and restated as of September 14,
1989 (as further amended through the date hereof, the "Credit
Agreement"), among Kash n' Karry Food Stores, Inc. (the
"Borrower"), the Senior Lenders referred to therein and Bank of
America National Trust & Savings Association (as successor in
interest to Security Pacific National Bank) as agent (in such
capacity, the "Agent") for the Senior Lenders. Unless otherwise
defined herein, terms defined in the Credit Agreement are used
herein with the same meanings ascribed to them therein. In
additions to the covenants and agreements made in the Credit
Agreement, Borrower, the Senior Lenders and the Agent further
covenant and agree as follows:
1. Limited Waiver. Subject to the terms and
conditions set forth herein, the Requisite Senior Lenders hereby
agree to waive, from the Effective Date (as defined below) to the
Expiration Date (as defined below), the provisions of:
(a) Section 9.01 of the Credit Agreement in
respect (and solely in respect) of Borrower's failure to
comply with the Minimum Net Worth amount set forth therein
for the first quarter of Fiscal Year 1994;
(b) Section 9.03 of the Credit Agreement in
respect (and solely in respect) of Borrower's failure to
comply with the Fixed Charge Coverage Ratio set forth
therein for the first quarter of Fiscal Year 1994; and
(c) Section 9.04 of the Credit Agreement in
respect (and solely in respect) of Borrower's failure to
comply with the Interest Coverage Ratio set forth therein
for the first quarter of Fiscal Year 1994.
In addition to the foregoing, and for the duration of this
Waiver, none of the Senior Lenders shall be obligated to make a
Fixed Rate Loan.
2. Effective Date. This Waiver shall become
effective upon the date (the "Effective Date") on or before
December 15, 1993, on which the Agent has received each of the
following:
(a) Counterparts hereof signed by Borrower, the
Requisite Senior Lenders and the Agent; and
(b) Payment in the amount of $50,000 in cash in
same day funds to be shared pro rata among the Senior
Lenders.
3. Termination Date. This Waiver shall expire and
cease to be of any force or effect automatically (without any
action by the Agent or any Senior Lender) at 5:00 p.m., Los
Angeles time, on the date (the "Termination Date") which is the
earlier of (a) March 31, 1994 and (b) the earliest date on which
any of the conditions set forth below fails to be satisfied:
(i) No Potential Event of Default shall have
occurred (other than those expressly waived by this Waiver);
(ii) No event shall have occurred and be
continuing (for at least two Business Days after notice
thereof from Agent to Borrower) which materially adversely
affects the business, condition, properties or prospects of
Borrower and any Subsidiary of Borrower, taken as a whole;
and
(iii) Borrower shall have executed and delivered,
on or before December 22, 1993, a restricted account
agreement with respect to each of Borrower's existing
deposit accounts in form and substance acceptable to the
Requisite Senior Lenders and Barnett Bank of Tampa (in its
capacity as the depositary institution with which such
deposit accounts are maintained).
4. Representations and Warranties. The Borrower
hereby represents and warrants that, as of the date hereof, and
after giving effect to this Waiver:
(a) The execution, delivery and performance by
Borrower of this Waiver has been duly authorized by all
necessary corporate action;
(b) No Event of Default or Potential Event of
Default (other than those expressly waived by this Waiver)
has occurred or is continuing; and
(c) The representations and warranties of Borrower
contained in Section 5.03 of the Credit Agreement and any
other Loan Document (other than representations and
warranties which expressly speak as of a different date) are
true, correct and complete in all material respects, except
that such representations and warranties need not be true,
correct and complete to the extent that changes in the facts
and conditions on which such representations and warranties
are based are required or permitted under the Credit
Agreement.
5. Limitation on Waiver. This Waiver shall be
limited solely to the matters expressly set forth herein and
shall not (i) constitute a waiver or amendment of any other term
or condition of the Credit Agreement, or of any instruments or
agreements referred to therein, (ii) prejudice any right or
rights which the Agent or any of the Senior Lenders may now have
or may have in the future under or in connection with the Credit
Agreement or any instruments or agreements referred to therein,
or (iii) require the Senior Lenders to agree to similar waiver or
grant a similar waiver for a similar transaction or on a future
occasion. Except to the extent specifically waived herein, the
provisions of the Credit Agreement shall not be amended,
modified, impaired or otherwise affected hereby, and the Credit
Agreement and all of the Obligations are hereby confirmed in full
force and effect.
6. Miscellaneous. This Waiver is a Loan Document and,
together with the Credit Agreement and the other Loan Documents,
comprises the complete and integrated agreement of the parties on
the subject matter hereof. The headings herein are for
convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
7. Governing Law. This Amendment shall be governed
by, and shall be construed and enforced in accordance with, the
laws of the State of New York.
8. Counterparts. This Amendment may be executed in
any number of counterparts which, when taken together, shall be
deemed to constitute one and the same instrument.
WITNESS the due execution hereof as of the date first
above written.
KASH N' KARRY FOOD STORES, INC.,
as Borrower
By: /s/ R. P. Springer
Title: Executive Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION (as successor
in interest to SECURITY PACIFIC
NATIONAL BANK), as Agent
By: /s/ Laura Knight
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION (as successor
in interest to SECURITY PACIFIC
NATIONAL BANK), as a Senior Lender
By:
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ [illegible]
Title:
BARNETT BANK OF TAMPA (as successor
in interest to FIRST FLORIDA BANK,
N.A.)
By: /s/ Emily D. Waterman
Title: Vice President
NATIONSBANK OF FLORIDA, N.A.
By:
Title:
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