EXHIBIT 10.2
WAIVER AND TENTH AMENDMENT TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
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TENTH AMENDMENT dated as of August 29, 1997 (this "Amendment") to
the AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 15, 1995 (as modified
by, or the terms thereof waived by, the Waiver and First Amendment thereto dated
as of February 16, 1996, the Second Amendment thereto dated as of May 10, 1996,
the Third Amendment thereto dated as of September 11, 1996, the Fourth Amendment
thereto dated as of January 13, 1997, the Fifth Amendment thereto dated as of
March 7, 1997, the Waiver and Sixth Amendment thereto dated as of April 4, 1997,
the Seventh Amendment thereto dated as of May 6, 1997, the Eighth Amendment
thereto dated as of June 9, 1997, the Waiver thereto dated as of July 25, 1997,
the Waiver and Ninth Amendment thereto dated as of July 31, 1997, the Waiver
thereto dated as of August 7, 1997, and the Waiver thereto dated as of August
14, 1997, the Waiver thereto dated as of August 21, 1997, the "Credit
Agreement"), each among THE GRAND UNION COMPANY, a Delaware corporation (the
"Borrower"), the lending institutions from time to time party thereto as lenders
(the "Current Banks"), and BANKERS TRUST COMPANY, as agent (the "Agent").
Capitalized terms used herein and not defined herein shall have the respective
meanings set forth for such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Current Banks amend
certain provisions of the Credit Agreement to provide for supplemental term
loans to the Borrower in the aggregate amount of $77,977,980 (the "Supplemental
Term Loans");
WHEREAS, the lending institutions identified on Schedule XVI to
Exhibit A hereto as supplemental term lenders (the "Supplemental Term Lenders")
are willing to make the Supplemental Term Loans upon the terms and subject to
the conditions set forth herein and in Exhibit A hereto;
WHEREAS, the Borrower has requested permission to surrender the
lease on the property known as the Miami Warehouse; and
WHEREAS, subject to and upon the terms and conditions hereinafter
set forth and in the Credit Agreement as amended hereby, the Current Banks and
the Supplemental Term Lenders (collectively, the "Banks") are agreeable to the
foregoing;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendments. (a) On the Amendment No. 10 Effective Date
(as defined below), the Credit Agreement shall be amended to read as set forth
in Exhibit A hereto (as so amended, the "Amended Credit Agreement"), with the
same effect as if each of the parties hereto has executed and delivered to the
Agent a counterpart of the Amended Credit Agreement. By executing and delivering
a copy of this Amendment, each Supplemental Term Lender agrees that, as of the
Amendment No. 10 Effective Date, such Supplemental Term Lender is a party to the
Credit Agreement.
(b) On the Amendment No. 10 Effective Date the aggregate Revolving
Commitment shall be reduced automatically to $67,877,649, such amount to be
allocated among the Revolving Loan Commitments of the Banks as set forth on
Schedule I-B to Exhibit A hereto.
(c) Notwithstanding anything herein to the contrary, this
Amendment shall terminate and be of no force and effect if the Amendment No. 10
Effective Date shall not have occurred on or prior to August 29, 1997.
Section 2. Waiver. The undersigned Banks hereby waive compliance
with the Credit Documents to the extent that the Borrower pays $75,000 to the
Landlord of the Miami Warehouse in exchange for a complete release of all
obligations under the remaining term of the lease thereof, and the undersigned
Banks agree to release the interest of the Borrower in the Miami Warehouse as
Collateral under the Credit Agreement, provided that the surrender of such lease
has been consummated by September 30, 1997.
Section 3. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and each Bank that:
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(a) assuming the effectiveness of this Amendment, no Default or
Event of Default has occurred and is continuing on and as of the date hereof;
and
(b) the representations and warranties of the Borrower and the
other Credit Parties contained in the Credit Agreement and the other Credit
Documents are true and correct on and as of the date hereof as if made on and as
of the date hereof other than as referred to herein, except to the extent such
representations and warranties expressly relate to a different specific date.
Section 4. Effectiveness. This Amendment shall become effective on
the date (the "Amendment No. 10 Effective Date") on which all the following
conditions have been satisfied:
(i) the Agent shall have executed and delivered a
counterpart of this Amendment and received duly executed counterparts
of this Amendment from (i) the Borrower, (ii) each Subsidiary of the
Borrower that is a party to any Credit Document, (iii) all the Current
Banks and (iv) all the Supplemental Term Lenders; the aforesaid
execution and delivery may be effected by delivery and receipt by
facsimile transmission;
(ii) the Borrower shall have paid a fee to the Agent
for the ratable benefit of the Current Banks in an amount equal to
2.5% of the aggregate amount of the aggregate Revolving Commitments
and the aggregate Term Loans immediately following the Amendment No.
10 Effective Date and the application of the proceeds of the
Supplemental Term Loans (which amount is $172,022,020 in the
aggregate);
(iii) the Borrower shall have paid a fee to the Agent
as provided in the Credit Agreement as amended hereby;
(iv) the Borrower shall have repaid a sufficient amount
of Loans outstanding prior to the Amendment No. 10 Effective Date so
that, after giving effect to such payment, the aggregate outstanding
principal amount of the Revolving Commitments and the Term Loans does
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not exceed $172,022,020 as of the Amendment No. 10 Effective
Date;
(v) the Agent shall have received from counsel to the
Borrower a legal opinion in form and substance acceptable to Agent and
Agent's legal counsel;
(vi) all the Supplemental Term Lenders shall have
become parties to this Amendment and the Credit Agreement;
(vii) the aggregate proceeds to the Borrower from the
Supplemental Term Loans shall be at least $77,977,980;
(viii) all the representations and warranties made in
Section 3 of this Amendment shall be true and correct, both before and
after giving effect to this Amendment, with the same effect as though
such representations and warranties had been made on and as of the
Amendment No. 10 Effective Date;
(ix) the Agent shall have received a certificate dated
the Amendment No. 10 Effective Date signed on behalf of the Borrower
by the President, any Executive Vice President or the Chief Financial
Officer of the Borrower stating that the condition in clause (viii) of
Section 4 of this Amendment has been satisfied;
(x) the Borrower shall have paid the cost of title
insurance required by the Banks to have been provided on the Amendment
No. 10 Effective Date; and
(xi) the Borrower shall have paid all costs of the
Banks and the Agent incurred in connection with this Amendment,
including the fees, charges and disbursements of counsel for the Agent
and the Banks.
Section 5. Status of Credit Documents. (a) This Amendment is
limited solely for the purposes and to the extent expressly set forth herein,
and, except as expressly modified or waived hereby, (i) the terms, provi-
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sions and conditions of the Credit Documents, (ii) the terms and provisions of
the Further Assurances Agreement dated as of June 15, 1995, as modified in
writing prior to the date hereof, between the Borrower and the Agent, and (iii)
the Liens granted under the Credit Documents shall continue in full force and
effect and are hereby ratified and confirmed in all respects.
(b) No amendment of any terms or provisions of the Credit
Agreement granted hereunder shall relieve the Borrower from complying with such
terms and provisions other than as amended hereby or from complying with any
other term or provision of the Credit Agreement.
Section 6. Counterparts. This Amendment may be executed and
delivered in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Borrower and
the Agent.
Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers to execute and deliver this Tenth Amendment
to the Amended and Restated Credit Agreement as of the date first above written.
THE GRAND UNION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial and Administrative
Officer
BANKERS TRUST COMPANY,
Individually and as Agent
By: /s/ Xxxx Xxx Xxxxx
-----------------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
CARGILL FINANCIAL SERVICES CORP.
By: /s/ [illegible]
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Name: [illegible]
Title: Vice President
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and
Portfolio Manager
XXXXXXX SACHS CREDIT PARTNERS LP
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Name: Xxxxxxx X. XxXxxxxxxx
Title: Authorized Signatory
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XXXXXX FINANCIAL, INC.
By: /s/ X. Xxxxxxxx
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Name: X. Xxxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD, LLC
By: Protective Asset Management,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx - CFA, CPA
Title: President
QUANTUM PARTNERS LDC
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
SWISS BANK CORPORATION, LONDON BRANCH
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Managing Director - SBC
SWISS BANK CORPORATION, LONDON BRANCH
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Director
Distressed Debt
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[SUPPLEMENTAL TERM LENDER A]
By:________________________
Name:
Title:
[SUPPLEMENTAL TERM LENDER B]
By:________________________
Name:
Title:
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The foregoing Tenth Amendment to the Amended and Restated Credit
Agreement is hereby consented and agreed to, and the Liens and guaranties under
the Credit Documents are hereby confirmed, by:
MERCHANDISING SERVICES, INC.
GRAND UNION STORES, INC. OF VERMONT
GRAND UNION STORES OF NEW HAMPSHIRE, INC.
SPECIALTY MERCHANDISING SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial and Administrative Officer
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