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EXHIBIT 10.36
FOURTH AMENDMENT
TO REVOLVING CREDIT
AND GUARANTY AGREEMENT
FOURTH AMENDMENT, dated as of July 31, 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"), THE CHASE MANHATTAN BANK, as Agent (in such
capacity, the "Agent") for the Banks, and THE CIT GROUP/BUSINESS CREDIT, INC.
and FIRST UNION NATIONAL BANK, as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks, the Agent and the
Co-Agents 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, the Second Amendment to
Revolving Credit and Guaranty Agreement dated as of March 25, 1998 and the Third
Amendment to Revolving Credit and Guaranty Agreement dated as of April 21, 1998
(as the same may be further amended, modified or supplemented from time to time,
the "Credit Agreement");
WHEREAS, the Borrower and the Guarantors have requested that from and
after the Effective Date (as hereinafter defined) of this Amendment, the Credit
Agreement be amended subject to and upon the terms and conditions set forth
herein;
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. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new definition in appropriate alphabetical order:
"Fourth Amendment" shall mean the Fourth Amendment,
dated as of July 31, 1998, to this Agreement.
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3. Section 6.05 of the Credit Agreement is hereby amended by
deleting the cumulative EBITDA amounts set forth opposite the dates August 1,
1998, August 29, 1998 and September 26, 1998 appearing in the table therein and
inserting in lieu thereof the following amounts:
Period Ending EBITDA
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August 1, 1998 3,000,000
August 29, 1998 2,000,000
September 26, 1998 2,000,000
4. Section 6.11 of the Credit Agreement is hereby amended by
deleting the word "and" immediately preceding clause (iii) appearing therein and
inserting in lieu thereof a comma, and by inserting the following new clauses
(iv) and (v) at the end thereof:
", (iv) the sale or disposition pursuant to that certain Asset Purchase
Agreement (the "Asset Purchase Agreement") dated as of July 30, 1998,
among the Borrower, FoodMax of Tennessee, Inc. and Albertson's, Inc (or
pursuant to a higher and better offer) of, among other things, the 15
stores listed on Schedule I to the Fourth Amendment and (v) the closing
or sale of the 20 stores listed on Schedule II to the Fourth Amendment;
it being acknowledged and agreed that (x) in accordance with the
definition of the term "Real Property Component," upon the closing
under the Asset Purchase Agreement, the Real Property Component of the
Borrowing Base shall be reduced by the aggregate amount of $6,705,478
and (y) in accordance with the definition of such term, when any of
Store Nos. 16, 110, 52 or 184 listed on Schedule II to the Fourth
Amendment is sold, the Real Property Component of the Borrowing Base
shall be further reduced by an amount set forth opposite such Store on
Schedule II."
5. This Amendment shall not become effective until the date
(the "Effective Date") on which this Amendment shall have been executed by the
Borrower, the Guarantors and Banks constituting the Required Banks, and the
Agent shall have received evidence satisfactory to it of such execution,
provided, however, that this Amendment shall be of no further force or effect
if, on or before September 15, 1998, (i) the Borrower shall not have paid to the
Agent, for the respective accounts of the Banks, an amendment fee in an
aggregate amount equal to $218,750 and (ii) the Bankruptcy Court shall not have
entered an order (in form and substance satisfactory to the Agent) approving the
terms hereof, including, without limitation, the payment of the amendment fee
referred to in clause (i) above.
6. 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.
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7. 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.
8. 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.
9. 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.
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/ Xxxx Xxxxxx
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Title: Vice President and Treasurer
GUARANTORS:
PWS HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
FOOD MAX OF MISSISSIPPI, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
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A.F. STORES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
BR AIR, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
FOOD MAX OF GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
FOOD MAX OF TENNESSEE, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
FOODMAX, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
LAKESHORE FOODS, INC.
By: /s/ Xxxxxx Xxxxx
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Title: Secretary
BRUNO'S FOOD STORES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
GEORGIA SALES COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
SSS ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
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AGENT:
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/ Xxxxxx Xxxxxxxxxx
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Title: Assistant Secretary
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/ Xxxxxx Xxxxxx
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Title: Vice President
BNY FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxx
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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/ Xxxxxx X. Xxxxx
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Title: Assistant Vice President
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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/ Xxxxx Xxxxx
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Title: FVP / Head of Corporate
Banking, Chicago
IBJ XXXXXXXX BUSINESS CREDIT CORPORATION
By:
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Title:
LASALLE BUSINESS CREDIT, INC.
By:
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Title:
AT&T COMMERCIAL FINANCE CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Title: Assistant Vice President
DIME COMMERCIAL CORP.
By: /s/ Xxxxxx X. Love
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Title: Vice President
COOPERATIVE CENTRALE RAIFFEISAN BORRENLEEN
BANK
RABOBANK NEDERLAND, NEW YORK BRANCH
By: /s/ W. Xxxxxxx Xxxxxxx
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Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Title: Vice President
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SCHEDULE I TO
FOURTH AMENDMENT
STORES BEING TRANSFERRED
BY BORROWER TO
ALBERTSON'S, INC. PURSUANT TO
ASSET PURCHASE AGREEMENT
DATED AS OF JULY 30, 1998
STORE LOCATION
NASHVILLE MARKET
#180 FOODMAX NASHVILLE TN
#181 FOODMAX HERITAGE TN
#182 FOODMAX NASHVILLE TN
#183 FOODMAX MADISON TN
#000 XXXXXXX XXXXX XXXXXX XXXXXXXX XX
#000 FOODMAX SUPER CENTER HENDERSONVILLE TN
#227 FOODMAX XXXXXXXXXXXX XX
#000 BRUNO'S SUPER CENTER NASHVILLE TN
#238 BRUNO'S SUPER CENTER BRENTWOOD TN
#242 BRUNO'S FRANKLIN TN
#249 [NOT YET OPENED] NASHVILLE TN
XXXXXXXXXXX XXXXXX
# 00 FOODMAX CHATTANOOGA TN
#212 FOODMAX FT. XXXXXXXXXX XX
#000 FOODMAX CHATTANOOGA TN
#224 FOODMAX CHATTANOOGA TN
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SCHEDULE II TO
FOURTH AMENDMENT
STORES TO BE CLOSED OR SOLD
REAL PROPERTY
COMPONENT
STORE LOCATION REDUCTION
# 16 FOOD WORLD BESSEMER AL $1,144,956
# 17 FOOD WORLD MOBILE AL
# 22 FOOD FAIR BIRMINGHAM AL
# 31 FOOD FAIR JASPER AL
# 32 FOOD WORLD HUNTSVILLE AL
# 85 FOOD WORLD HUNTSVILLE AL
# 65 FOOD WORLD MADISON AL
#110 FOODMAX VALLEY AL $1,316,294
#199 FOOD FAIR PRICHARD AL
#118 FOOD WORLD FORT XXXXX AL
# 52 FOOD WORLD CRESTVIEW FL $1,263,400
#150 FOOD WORLD XXXX XXXXXX XX
#000 BRUNO'S FOOD & PHARMACY TALLAHASSEE FL $2,243,854
#187 BRUNO'S FOOD & PHARMACY TALLAHASSEE FL
#235 BRUNO'S FOOD & PHARMACY TALLAHASSEE FL
#155 FOOD WORLD XXXXXXXXXX XX
#000 FOOD WORLD XXXXXXXXXX XX
#000 PIC A FLICK XXXXXXXXXX XX
#000 FOODMAX XXXXXXX XX
#000 FOODMAX CORDELE GA
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