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LIMITED WAIVER AND CONSENT
THIS LIMITED WAIVER AND CONSENT (this "Waiver"), dated as of November
1, 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, modified
or supplemented 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 other Loan Documents, the Borrower, the Agent and the
Senior Lenders 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 the provisions of
Section 6.01(c) 6.01(f) and 6.01(g) of the Credit Agreement in respect (and
solely in respect) of the Borrower's failure to comply with the preparation and
delivery of the annual financial statements, consisting of balance sheets,
income statements and cash flow statements, and related documents with respect
to the 1994 Fiscal Year.
2. Effective Date. This Waiver shall become effective upon the date
(the "Effective Date") on or before November 3, 1994 on which the Agent has
received counterparts hereof signed by the Borrower, the Requisite Senior
Lenders and the Agent.
3. 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.
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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 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.
5. 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.
6. 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.
7. 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:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor
in interest to SECURITY PACIFIC
NATIONAL BANK), as Agent
By: /s/ 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: /s/ H.G. Wheelock
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Title: VICE PRESIDENT
WELLS FARGO BANK, N.A.
By: /s/ Jeffrey P. Rose
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Title: VICE PRESIDENT
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:
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Title:
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