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LIMITED WAIVER
THIS LIMITED WAIVER (this "Waiver"), dated as of September 14, 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 and 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 and the other Loan
Documents, 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:
(a) The provisions of Section 9.01 of the Credit Agreement in
respect (and solely in respect) of the Borrower's failure to comply with
the Minimum Net Worth amount set forth therein for the fourth quarter of
Fiscal Year 1994;
(b) The provisions of Section 9.03 of the Credit Agreement in
respect (and solely in respect) of the Borrower's failure to comply with
the Fixed Charge Coverage Ratio set forth therein for the fourth quarter of
Fiscal Year 1994; and
(c) The provisions of Section 9.04 of the Credit Agreement in
respect (and solely in respect) of the Borrower's failure to comply with
the Interest Coverage Ratio set forth therein for the fourth quarter of
Fiscal Year 1994.
2. Expenses. In addition to the costs and expenses payable under
Section 12.03(b) of the Credit Agreement, the Borrower agrees to pay or
reimburse the Agent and the Senior Lenders (and any of their respective
Affiliates), promptly upon receipt of demand therefor, for costs and expenses
incurred or accrued in connection with the amendment, waiver, refinancing,
restructuring, reorganization, enforcement or collection of any of the
Obligations (including without limitation (a) appraisal fees, search fees and
other out-of-pocket expenses incurred or accrued by the Agent, (b) the
reasonable fees and expenses of any legal counsel, independent public
accountants and other outside experts retained by or on behalf of the Agent and
(c) reasonable
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travel expenses and allocated costs of internal legal counsel incurred or
accrued by the Agent or any of the Senior Lenders). The Borrower's agreements
and obligations under this Section 2 shall survive the Termination Date (as
defined below) and shall not be limited in any way by the passage of time or
occurrence of any event.
3. Effective Date. This Waiver shall become effective as of
September 14, 1994 (the "Effective Date") upon the Agent's receipt of
counterparts hereof signed by the Borrower, the Requisite Senior Lenders and
the Agent.
4. Termination Date. This Waiver (other than the Borrower's
agreements and obligations under Section 2) 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) September 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);
(ii) No event shall have occurred and be continuing (for at
least two Business Days after notice thereof from Agent to the
Borrower) which materially adversely affects the business, condition
(financial or otherwise), properties or prospects of the Borrower and
any Subsidiary of the Borrower, taken as a whole; and
(iii) None of the holders of any of the Senior Notes, the New
Senior Notes and the Junior Subordinated Debentures nor any
representative of any of them (including without limitation a trustee
under an indenture governing the terms of any of them) shall have
exercised any remedies available to any of them by reason of a default
under the Senior Notes, the New Senior Notes or the Junior
Subordinated Debentures or any of the indentures governing the terms
thereof.
5. Representations and Warranties. The Borrower hereby represents
and warrants that, as of the date hereof, and after giving effect to this
Waiver:
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(a) The execution, delivery and performance by the 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 the 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.
6. 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.
7. 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.
8. 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.
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9. 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
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Title: Executive Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor
in interest to SECURITY PACIFIC
NATIONAL BANK), as Agent
By: Laura Knight
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Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor
in interest to SECURITY PACIFIC
NATIONAL BANK), as a Senior Lender
By: H. G. Wheelock
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Title: Vice President
WELLS FARGO BANK, N.A.
By: Jeffrey P. Rose
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Title: Vice President
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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:
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Title:
NATIONSBANK OF FLORIDA, N.A.
By: /s/ Samuel P. McNeil
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Title: Vice President
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