FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (the "Amendment"), dated as of March 28, 1996, is
entered into by and among KASH N' KARRY FOOD STORES, INC., a
Delaware corporation (the "Company"), each of the lenders that is
a signatory to this Amendment (collectively, the "Lenders") and
THE CIT GROUP/BUSINESS CREDIT, INC., as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), and
amends that certain Amended and Restated Credit Agreement dated
as of December 19, 1995 among the Company, the Lenders and the
Administrative Agent (as the same is in effect immediately prior
to the effectiveness of this Amendment, the "Existing Credit
Agreement" and as the same may be amended, supplemented or
modified and in effect from time to time, the "Credit
Agreement"). Capitalized terms used and not otherwise defined in
this Amendment shall have the same meanings in this Amendment as
set forth in the Credit Agreement, and the rules of
interpretation set forth in Section 1.05 of the Credit Agreement
shall be applicable to this Amendment.
RECITAL
The Company has request that the Lenders amend certain
covenants and consent to certain actions under the Existing
Credit Agreement, and the Lenders are willing to agree to so
amend the Existing Credit Agreement and to give such consent all
on the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants and agreements set forth below and other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. Amendments. On the terms of this Amendment
and subject to the satisfaction of the conditions precedent set
forth below in Section 3, the Existing Credit Agreement shall be
amended as follows:
(a) Section 8.12 of the Existing Credit Agreement
is amended by inserting the parenthetical phrase "(or $36,000,000
solely with respect to the Company's fiscal year ending in July
of 1996)" immediately following the figure $30,000,000 in clause
(a) of Section 8.12.
(b) Section 8.13 of the Existing Credit Agreement
is amended to read in its entirety as follows:
"8.13 Lease Obligations. The aggregate obligations of
the Company and its Consolidated Subsidiaries for the
payment of rent for any Property under operating leases
or agreements to lease (including pursuant to any such
arrangements with the Trusts) shall not exceed
$32,000,000 during any fiscal year of the Company."
SECTION 2. Consent. On the terms hereof and subject
to the satisfaction of the conditions precedent set forth below
in Section 3, the Lenders consent and agree that, for purposes of
Section 2.10(c) of the Credit Agreement:
(a) the Commitments shall not be subject to
automatic reduction as otherwise set forth in such section upon
the Disposition by the Company pursuant to Section 8.05 of the
Credit Agreement of (i) the Company's fee interest in Store Nos.
702, 878, 886 and 891, (ii) the beneficial interest of the
Company in the Trusts that are or become the fee owners of Store
Nos. 702, 886 and 891 in connection with any Disposition referred
to in clause (i) above, (iii) improvements relating to the
Company's Store No. 722 and (iv) certain raw land owned by the
Company in Hillsborough County, Florida that the Company commonly
refers to as the "Dale Mabry/Lambright Land" or "Store No. 734"
(and the Company agrees that the Net Available Proceeds of all
such Dispositions shall promptly be paid to the Administrative
Agent and applied to the prepayment of the Revolving Credit Loans
as set forth in Section 2.10(d)(i) of the Credit Agreement); and
(b) the Net Available Proceeds of any such
Disposition referred to in clause (a) above as well as any
Dispositions made by the Company during the period after the
Restatement Effective Date and prior to the Amendment Effective
Date (collectively, the "Designated Dispositions") shall be
deemed to be zero solely for purposes of determining whether
Commitment reductions (but not prepayments) are required to be
made pursuant to Section 2.10(c) of the Credit Agreement in
connection with Dispositions other than the Designated
Dispositions.
SECTION 3. Conditions to Effectiveness. The
amendments and consent set forth in Sections 1 and 2 of this
Amendment shall become effective only upon the satisfaction of
all of the following conditions precedent on or prior to March
29, 1996 (the date of satisfaction of all such conditions being
referred to as the "Amendment Effective Date"):
(a) On or before the Amendment Effective Date,
the Company shall deliver to the Administrative Agent, on behalf
of the Lenders, the following described documents (each of which
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel):
2
(i) This Amendment, duly executed and
delivered by the Company, the Lenders and the Administrative
Agent;
(ii) Any and all documents and instruments
required to be delivered on or before the Amendment
Effective Date pursuant to Section 8.18 of the Credit
Agreement; and
(iii) Such other documents, instruments,
approvals or opinions as the Administrative Agent, any
Lender or special counsel to the Administrative Agent may
reasonably request.
(b) On or before the Amendment Effective Date,
all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated by this Amendment,
and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Administrative Agent
and its counsel, and the Administrative Agent and such counsel
shall have received all such counterpart originals or certified
copies of such documents, opinions, certificates and evidence as
they may reasonably request.
(c) All governmental actions or filings necessary
for the execution, delivery and performance of this Amendment
shall have been made, taken or obtained, and no order, statutory
rule, regulation, executive order, decree, judgment or injunction
shall have been enacted, entered, issued, promulgated or enforced
by any court or other governmental entity which prohibits or
restricts the transactions contemplated by this Amendment nor
shall any action have been commenced or threatened seeking any
injunction or any restraining or other order to prohibit,
restrain, invalidate or set aside the transactions contemplated
by this Amendment.
(d) The representations and warranties set forth
in this Amendment shall be true and correct as of the Amendment
Effective Date.
SECTION 4. The Company's Representations and
Warranties. In order to induce the Lenders to enter into this
Amendment and to give the consent and to amend the Existing
Credit Agreement in the manner provided in this Amendment, the
Company represents and warrants to each Lender as of the
Amendment Effective Date as follows:
(a) Power and Authority. The Company has all
requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Existing Credit Agreement as
amended by this Amendment (hereafter referred to as the "Amended
Credit Agreement").
3
(b) Authorization of Agreements. The execution
and delivery of this Amendment by the Company, and the
performance of the Amended Credit Agreement by the Company have
been duly authorized by all necessary action, and this Amendment
has been duly executed and delivered by the Company.
(c) Enforceability. The Amended Credit Agreement
constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights
in general. The enforceability of the Company's obligations
hereunder is subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
(d) No Conflict. The execution and delivery by
the Company of this Amendment and the performance by the Company
of the Amended Credit Agreement do not and will not
(i) contravene, in any material respect, any provision of any
law, regulation, decree, ruling, judgment or order that is
applicable to the Company or its properties or other assets,
(ii) result in a breach of or constitute a default under the
charter or bylaws of the Company or any material agreement,
indenture, lease or instrument binding upon it, or its properties
or other assets or (iii) result in the creation or imposition of
any Liens on its Properties or Collateral other than as permitted
under the Credit Agreement.
(e) Governmental Consents. No authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution, delivery and performance by the Company of this
Amendment.
(f) Representations and Warranties in the Credit
Agreement. The Company confirms that as of the Amendment
Effective Date the representations and warranties contained in
Section 7 of the Credit Agreement are (before and after giving
effect to this Amendment) true and correct in all material
respects (except to the extent any such representation and
warranty is expressly stated to have been made as of a specific
date, in which case it shall be true and correct as of such
specific date) and that no Default has occurred and is
continuing.
SECTION 5. Miscellaneous.
(a) Reference to and Effect on the Existing
Credit Agreement and the Other Basic Documents.
(i) Except as specifically amended by this
Amendment and the documents executed and delivered in
connection herewith, the Existing Credit Agreement and the
4
other Basic Documents shall remain in full force and effect
and are hereby ratified and confirmed.
(ii) The execution and delivery of this
Amendment and performance of the Amended Credit Agreement
shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any
right, power or remedy of the Lenders under, the Existing
Credit Agreement or any of the other Basic Documents.
(iii) Upon the conditions precedent set forth
herein being satisfied, this Amendment shall be construed as
one with the Existing Credit Agreement, and the Existing
Credit Agreement shall, where the context requires, be read
and construed throughout so as to incorporate this Amendment.
(b) Fees and Expenses. The Company acknowledges
that all costs, fees and expenses incurred in connection with
this Amendment will be paid in accordance with Section 11.03 of
the Existing Credit Agreement.
(c) Headings. Section and subsection headings in
this Amendment are included for convenience of reference only and
shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
(d) Counterparts. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
(e) Governing Law. This Amendment shall be
governed by and construed according to the laws of the State of
New York.
5
IN WITNESS WHEREOF, the parties hereto have duly
executed this Amendment as of the date first above written.
KASH N' KARRY FOOD STORES, INC., a
Delaware corporation
By:/s/ Richard D. Coleman
_______________________________
Title: Sr. V-P, Administration
LENDERS
THE CIT GROUP/BUSINESS CREDIT, INC.
By:/s/ Guy Fuchs
_______________________________
Title: V.P.
HELLER FINANCIAL, INC.
By:/s/ Dwayne L. Coker
_______________________________
Title: Vice President
NATWEST BANK, N.A.
By:/s/ Therese M. Earley
_______________________________
Title: V.P.
ADMINISTRATIVE AGENT
THE CIT GROUP/BUSINESS CREDIT,
INC., as Administrative Agent
By:/s/ Guy Fuchs
_______________________________
Title: V.P.
6