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EXHIBIT 4.7
AMENDMENT, WAIVER AND AGREEMENT dated as of
September 5, 1997 (this "Amendment and Waiver"), to
the Credit Agreement dated as of August 18, 1995, as
amended and restated as of June 2, 1997 (the "Credit
Agreement"), among BRUNO'S, INC., an Alabama
corporation (the "Borrower"), the lending
institutions from time to time parties thereto (the
"Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent (in such
capacity, the "Administrative Agent").
A. The Borrower has requested that the Lenders (a) agree to amend
certain provisions of the Credit Agreement, (b) grant certain waivers of
compliance by the Borrower with certain provisions of the Credit Agreement and
(c) enter into certain other agreements with respect to the Credit Agreement.
B. The Required Lenders are willing to agree to such amendments, grant
such waivers and enter into such agreements, in each case on the terms and
subject to the conditions set forth herein.
C. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. (a) Effective as of the date of this Amendment
and Waiver (the "Effective Date"), the Borrower and the Lenders hereby amend
Section 10.9 of the Credit Agreement by deleting in its entirety the first line
of the table set forth in such Section.
(b) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10.10 of the Credit Agreement by deleting in its
entirety the first line of the table set forth in such Section and substituting
the following text therefor:
August 2, 1997 1.25:1.00
November 1, 1997 1.10:1.00
January 31, 1998 through October 31, 1998 1.50:1.00
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(c) Effective as of the Effective Date, the Borrower and the
Lenders hereby amend Section 10.11 of the Credit Agreement by deleting in its
entirety the first line of the table set forth in such Section and substituting
the following text therefor:
August 2, 1997 1.00:1.00
November 1, 1997 1.00:1.00
(d) For the purposes of the foregoing amendments, Section
10.10 and Section 10.11 of the Credit Agreement are hereby amended by inserting
the words "or on any date" after the words "during any period" and inserting the
words "or date" after the words "such period" immediately prior to the proviso
therein.
SECTION 2. Waiver. (a) The Lenders hereby waive any Defaults and Events
of Default under the Credit Agreement that have occurred on or prior to the
Effective Date as a result of the Borrower's failure to comply on or prior to
the Effective Date with the covenants set forth in Sections 10.9, 10.10 and
10.11 of the Credit Agreement with respect to the Test Period ending on August
2, 1997.
(b) The Lenders hereby waive any Default that may occur prior
to January 31, 1998 (but not any Default that may occur or otherwise be in
effect on or after January 31, 1998), with respect to the Borrower's failure to
comply with the covenants set forth in Sections 10.9, 10.10 and 10.11 of the
Credit Agreement with respect to the Test Period ending on January 31, 1998.
SECTION 3. Agreement. (a) The Borrower hereby agrees that it will work
diligently and in good faith with the Administrative Agent and the Lenders to
agree upon and enter into, by November 30, 1997, an amendment to the Credit
Agreement that will (i) address the long-term financial arrangements of the
Borrower and (ii) be satisfactory to the Borrower, the Administrative Agent and
the Required Lenders.
(b) Notwithstanding any of the provisions of the Credit
Agreement, the Lenders shall not be obligated to make or issue, and the Borrower
shall not request the making or issuance of, any Revolving Credit Loans,
Swingline Loans or Letters of Credit that would, at any time, have the effect of
causing the sum of (i) the aggregate principal amount of Revolving Credit Loans
outstanding at such time, (ii) the aggregate principal amount of Swingline Loans
outstanding at such time and (iii) the Letter of Credit Outstandings at such
time to exceed $200,000,000.
(c) Notwithstanding any of the provisions of the Credit
Agreement, the Borrower and the Lenders agree that, from and including August
25, 1997, to but excluding the date on which the amendment referred to in
Section 3(a) above is approved by the
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Borrower and the Required Lenders, Level VIII Status shall be deemed to be in
effect for purposes of determining the Applicable ABR Margin and the Applicable
Eurodollar Margin.
SECTION 4. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment and Waiver, the Borrower represents and
warrants to each of the Lenders and the Administrative Agent that, after giving
effect to this Amendment and Waiver, (a) the representations and warranties set
forth in Section 8 of the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 5. Conditions to Effectiveness. This Amendment and Waiver shall
become effective as of the Effective Date on the date that the Administrative
Agent shall have received counterparts of this Amendment and Waiver that, when
taken together, bear the signatures of the Borrower and the Required Lenders.
SECTION 6. Effect of Amendment and Waiver. Except as expressly set
forth herein, this Amendment and Waiver shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders, the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer or the Borrower under the Credit Agreement or any other
Credit Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Credit Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower to a waiver, amendment,
modification or other change of any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Credit
Document in similar or different circumstances. This Amendment and Waiver shall
apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to herein.
SECTION 7. Expenses. The Borrower agrees to pay the reasonable
out-of-pocket expenses of the Administrative Agent, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent, incurred in connection with the preparation, execution and
delivery of this Amendment and Waiver or any subsequent waiver, amendment or
modification of the Credit Agreement or any other Credit Document.
SECTION 8. Counterparts. This Amendment and Waiver may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of
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which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Delivery
of any executed counterpart of a signature page of this Amendment and Waiver by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 9. Applicable Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment and Waiver are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed by their duly authorized officers, all as of the date
and year first above written.
BRUNO'S, INC.,
by \s\ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender,
by \s\ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
AMSOUTH BANK OF ALABAMA,
by \s\ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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BANK OF AMERICA ILLINOIS,
by \s\ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA,
by \s\ M. D. Xxxxx
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Name: M. D. Xxxxx
Title: Agent Operations
BANKERS TRUST COMPANY,
by \s\ Xxxx Xx Xxxxx
-----------------
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY,
by
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Name:
Title:
CIBC INC,
by \s\ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Director
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch,
by
---------------------
Name:
Title:
by
---------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
by \s\ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
by
--------------------
Name:
Title:
by
--------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
by \s\ Takuya Honjo
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Name: Takuya Honjo
Title: Senior Vice President
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KEYPORT LIFE INSURANCE COMPANY, by
Chancellor LLT Senior Secured Management, I
as Portfolio Advisor
by \s\Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
KZH-SOLEIL CORPORATION (formerly
known as KZH Holding Corporation),
by
------------------------
Name:
Title:
KZH-ING-1 CORPORATION (formerly
known as KZH Holding Corporation II),
by
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Name:
Title:
MITSUI LEASING (U.S.A.) INC.,
by
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Name:
Title:
NATIONSBANK, N.A.,
by \s\ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank),
by
------------------------
Name:
Title:
THE SAKURA BANK, LIMITED,
by
------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
by
------------------------
Name:
Title:
SOUTHTRUST BANK OF ALABAMA, N.A.,
by \s\ X. Xxxxxxx
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Name: T. Knuesen
Title: Senior Vice President
THE TRAVELERS INSURANCE COMPANY,
by \s\ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Investment Officer
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XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by \s\ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior vice President & Director
DLJ CAPITAL FUNDING, INC.,
by
------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS,
by
------------------------
Name:
Title:
AERIES FINANCE LTD.,
by \s\ Ian Xxxxx Xxxxx
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Name: Ian Xxxxx Xxxxx
Title: Director
AMARA-2 FINANCE LTD.,
by
------------------------
Name:
Title:
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CAPTIVA FINANCE LTD.,
by \s\ Xxxx X. Cullimane
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Name: Xxxx X. Cullimane
Title: Director
CAPTIVA II FINANCE LTD.,
by \s\ Xxxx X. Cullimane
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Name: Xxxx X. Cullimane
Title: Director
COMMERCIAL LOAN FUNDING TRUST I,
by
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Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED,
by Indosuez Capital Luxembourg,
as Collateral Manager,
by
------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
by
------------------------
Name:
Title:
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XXXXXXX XXXXX PRIME RATE PORTFOLIO,
by
------------------------
Name:
Title:
PAMCO CAYMAN LTD.,
by
------------------------
Name:
Title:
STRATA FUNDING LTD.,
by \s\ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Director
