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EXHIBIT 10.8
THIRD AMENDMENT
TO REVOLVING CREDIT
AND GUARANTY AGREEMENT
THIRD AMENDMENT, dated as of April 21, 1998 (the "Amendment"), to the
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of February 2, 1998, among
BRUNO'S, INC., an Alabama corporation (the "Borrower"), a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code, the Guarantors
named therein (the "Guarantors"), THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), each of the other financial institutions party thereto
(together with Chase, the "Banks") and THE CHASE MANHATTAN BANK, as Agent (in
such capacity, the "Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent are
parties to that certain Revolving Credit and Guaranty Agreement, dated as of
February 2, 1998, as amended by the First Amendment to Revolving Credit and
Guaranty Agreement dated as of March 5, 1998 and the Second Amendment to
Revolving Credit and Guaranty Agreement dated as of March 25, 1998 (as the same
may be further amended, modified or supplemented from time to time, the "Credit
Agreement"); and
WHEREAS, Section 10.03(b) of the Credit Agreement provides that each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under the Credit Agreement (including, without
limitation, all or a portion of its Commitment and the same portion of the
related Loans at the time owing to it) by executing and delivering with such
Eligible Assignee an Assignment and Acceptance in substantially the form of
Exhibit D to the Credit Agreement (a copy of which is annexed hereto as Schedule
I); and
WHEREAS, Chase wishes to assign to each of the financial institutions
(other than Chase) that is named on Annex A hereto (such financial institutions
other than Chase, collectively the "New Banks"), and each of the New Banks
wishes to assume, a pro rata portion of Chase's interests, rights and
obligations under the Credit Agreement; and
WHEREAS, the Borrower, the Guarantors, Chase, the New Banks and the
Agent have determined that the execution and delivery of this Amendment to
effectuate a reallocation of the Total Commitment among Chase and the New Banks
will be more expeditious and administratively efficient than the execution and
delivery of a separate Assignment and Acceptance between Chase and each of the
New Banks; and
WHEREAS, upon the occurrence of the Effective Date (as hereinafter
defined) of this
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Amendment, each of the New Banks shall become a party to the Credit Agreement as
a Bank and shall have the rights and obligations of a Bank thereunder, the
respective Commitment of Chase and each of the New Banks under the Credit
Agreement shall be in the amount set forth opposite its name on Annex A hereto,
as the same may be reduced from time to time pursuant to Section 2.10 of the
Credit Agreement and The CIT Group and First Union National Bank shall become
Co-Agents for the Banks;
NOW, THEREFORE, it is agreed:
1. As used herein all terms that are defined in the Credit Agreement
shall have the same meanings herein.
2. The first paragraph appearing at the top of page one of the Credit
Agreement is hereby amended by (i) deleting the word "and" appearing in the
penultimate line thereof and inserting in lieu thereof a comma and (ii)
inserting the following at the end thereof:
"and THE CIT GROUP/BUSINESS CREDIT, INC. and FIRST UNION
NATIONAL BANK, as Co-Agents for the Banks."
3. Annex A to the Credit Agreement is hereby replaced in its entirety
by Annex A hereto.
4. The signature pages of the Credit Agreement are hereby amended to
conform to the signature pages hereto.
5. By its execution and delivery hereof, Chase shall be deemed to have
made each of the statements set forth in clauses (i) and (ii) of paragraph 2 of
the Assignment and Acceptance as if such statements were fully set forth herein
at length.
6. By its execution and delivery hereof, each of the New Banks shall be
deemed to have made each of the statements set forth in clauses (i), (ii),
(iii), (iv) and (v) of paragraph 3 of the Assignment and Acceptance as if such
statements were fully set forth herein at length.
7. On the Effective Date, (i) each New Bank will pay to the Agent (for
the account of Chase) such amount as represents such New Bank's pro rata portion
of the aggregate principal amount of the Loans, if any, that are outstanding on
the Effective Date and such New Bank's pro rata portion of the aggregate amount
of the then unreimbursed drafts, if any, that were theretofore drawn under
Letters of Credit, and (ii) the Agent shall pay to each of the New Banks such
fees as have been previously agreed to between the Agent and such New Bank.
Promptly following the occurrence of the Effective Date, and in accordance with
Section 10.03(e) of the Credit Agreement, the Agent shall record in the Register
the names and addresses of each New Bank and the principal amount equal to such
Bank's Commitment reflected on Annex A hereto.
8. By its execution and delivery hereof, each of the New Banks (i)
agrees that any interest, Commitment Fees and Letter of Credit Fees (pursuant to
Sections 2.08, 2.20 and 2.21 of
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the Credit Agreement) that accrued prior to the Effective Date shall not be
payable to such New Bank and authorizes and directs the Agent to deduct such
amounts from any interest, Commitment Fees or Letter of Credit Fees paid after
the date hereof and to pay such amounts to Chase (it being understood that
interest, Commitment Fees and Letter of Credit Fees respecting the Commitment of
Chase and each New Bank which accrue on or after the Effective Date shall be
payable to such Bank in accordance with its Commitment), (ii) acknowledges that
if such New Bank is organized under the laws of a jurisdiction outside of the
United States, such New Bank has heretofore furnished to the Agent the forms
prescribed by the Internal Revenue Service of the United States certifying as to
such New Bank's exemption from United States withholding taxes with respect to
any payments to be made to such New Bank under the Credit Agreement (or such
other documents as are necessary to indicate that all such payments are subject
to such tax at a rate reduced by an applicable tax treaty) and (iii)
acknowledges that such New Bank has heretofore supplied to the Agent the
information requested on the administrative questionnaire which is attached to
the Assignment and Acceptance as Exhibit A.
9. This Amendment shall not become effective (the "Effective Date")
until (i) the date on which this Amendment shall have been executed by the
Borrower, the Guarantors, Chase, the New Banks and the Agent, and the Agent
shall have received evidence satisfactory to it of such execution and (ii) the
payments provided for in clauses (i) and (ii) of paragraph 7 hereof shall have
been made.
10. The Borrower agrees that its obligations set forth in Section 10.05
of the Credit Agreement shall extend to the preparation, execution and delivery
of this Amendment.
11. This Amendment shall be limited precisely as written and shall not
be deemed (a) to be a consent granted pursuant to, or a waiver or modification
of, any other term or condition of the Credit Agreement or any of the
instruments or agreements referred to therein or (b) to prejudice any right or
rights which the Agent or the Banks may now have or have in the future under or
in connection with the Credit Agreement or any of the instruments or agreements
referred to therein. Whenever the Credit Agreement is referred to in the Credit
Agreement or any of the instruments, agreements or other documents or papers
executed or delivered in connection therewith, such reference shall be deemed to
mean the Credit Agreement as modified by this Amendment.
12. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
13. This Amendment shall in all respects be construed in accordance
with and governed by the laws of the State of New York applicable to contracts
made and to be performed wholly within such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
BORROWER:
BRUNO'S, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
and Chief Financial Officer
GUARANTORS:
PWS HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
FOOD MAX OF MISSISSIPPI, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
A.F. STORES, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
BR AIR, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
FOOD MAX OF GEORGIA, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
FOOD MAX OF TENNESSEE, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
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FOODMAX, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
LAKESHORE FOODS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Secretary
BRUNO'S FOOD STORES, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
GEORGIA SALES COMPANY
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
SSS ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President
THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
THE CIT GROUP/BUSINESS CREDIT, INC.,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ Xxxx Xxxxx
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Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
BNY FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ X.X. Xxxxxxxx
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Title: Second Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxxx Xxxxx
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Title: Vice President
By: /s/ Xxxx X. Xxxxxx
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Title: Assistant Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/ Xxx X. Xxxxxxxxxxx
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Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxx Xxxxxx
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Title: Senior Vice President/
Branch Manager
By: /s/ Xxxx Xxxx
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Title: Vice President
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IBJ XXXXXXXX BUSINESS CREDIT CORPORATION
By: /s/ Xxxx Xxxxx
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Title: Vice President
LASALLE BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Vice President
AT&T COMMERCIAL FINANCE CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Title: Assistant
DIME COMMERCIAL CORP.
By: /s/ Xxxxxx X. Love
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Title: Vice President
RABOBANK NEDERLAND, NEW YORK BRANCH
By: /s/ Xxx Xxxxx
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Title:
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Title: Vice President
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ANNEX A
TO THIRD AMENDMENT TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
ANNEX A
TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
DATED AS OF APRIL 21, 1998, AS AMENDED
COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
---- ---------- ----------
The Chase Manhattan Bank $18,000,000 9.000%
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
The CIT Group/Business Credit, Inc. $17,000,000 8.500%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
First Union National Bank $17,000,000 8.500%
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Ms. Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Foothill Capital Corporation $16,000,000 8.000%
00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
---- ---------- ----------
BNY Financial Corporation $16,000,000 8.000%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
The Travelers Insurance Company $16,000,000 8.000%
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. X.X. Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
BHF-Bank Aktiengesellschaft $14,500,000 7.250%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
BankAmerica Business Credit, Inc. $14,500,000 7.250%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxx X. Xxxxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Credit Agricole Indosuez $14,500,000 7.250%
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
IBJ Xxxxxxxx Business Credit Corporation. $14,500,000 7.250%
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
---- ---------- ----------
LaSalle Business Credit, Inc. $14,500,000 7.250%
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
AT&T Commercial Finance Coporation $12,500,000 6.250%
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Dime Commercial Corp. $10,000,000 5.000%
1180 Avenue of the Americas
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Love
Tel: 000-000-0000
Fax: 000-000-0000
Rabobank Nederland, New York Branch $5,000,000 2.500%
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxxx X. Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
TOTAL: $200,000,000 100.000%
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