[Execution Copy: 3/10]
LIMITED WAIVER
THIS LIMITED WAIVER, (this "Waiver"), dated as of March 11,
1994, 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
addition 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 and second quarters of the Fiscal Year ending
in 1994 ("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 and second quarters 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 and second quarters of Fiscal Year 1994.
Among other things, the effect of this Waiver is to extend, on
the terms and conditions set forth herein, the Limited Waiver
dated as of December 15, 1993 among the Borrower, the Agent and
the Requisite Senior Lenders for the period from the Effective
Date to the Expiration Date. 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 March
15, 1994, on which the Agent has received each of the following:
(a) Counterparts hereof signed by Borrower, the
Requisite Senior Lenders and the Agent;
(b) Financial statements and certificates required
by Section 6.01 of the Credit Agreement (including without
limitation Sections 6.01(b) and 6.01(f) thereof) with
respect to the second quarter of Fiscal Year 1994 which
shall demonstrate, among other things, compliance with the
following revised covenant levels:
(i) Minimum Net Worth (Section 9.01) of at least
$54,000,000;
(ii) Fixed Charge Coverage Ratio (Section 9.03) of
at least 0.80:1.0;
(iii) Interest Coverage Ratio (Section 9.04) of at
least 1.05:1.0; and
(b) Payment in cash in same day funds in the
amount of $60,000 (as a waiver fee and as reimbursement for
certain travel costs of the Senior Lenders) 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) June 30, 1994 and (b) the earliest date on which
any of the conditions set forth below fails to be satisfied:
(i) No Event of Default or Potential Event of
Default (including without limitation failure to pay costs
and expenses upon demand in accordance with Section 12.03 of
the Credit Agreement) shall have occurred (other than those
expressly waived by this Waiver); and
(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.
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 a 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.
[Execution Copy: 3/10]
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: /s/ Daniel McCready
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ Jeffrey [illegible]
Title: Vice President
[Execution Copy: 3/10]
BARNETT BANK OF TAMPA (as successor
in interest to First Florida Bank,
N.A.), by BARNETT BANKS, INC., as
attorney-in-fact for Barnett Bank
of Tampa
By: /s/ Julie M. Smith
Title: Vice President
NATIONSBANK OF FLORIDA, N.A.
By: /s/ Beth Lamping
Title: Assistant Vice President
13/sec.law/1994/K6313.LW3