EXHIBIT 10.11
MODIFICATION NO. 2 TO WAIVER DATED FEBRUARY 25, 1998
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
AND
THIRTEENTH AMENDMENT
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
This MODIFICATION NO. 2 AND THIRTEENTH AMENDMENT dated as of
April 16, 1998 (this "Modification and Amendment") to (1) the Waiver dated as
of February 25, 1998 (as modified by the Modification No. 1 thereto dated as
of March 30, 1998, the "February 25th Waiver"), among THE GRAND UNION COMPANY,
a Delaware corporation (the "Borrower"), the institutions party thereto as
lenders and BANKERS TRUST COMPANY, as agent (the "Agent"), and (2) the AMENDED
AND RESTATED CREDIT AGREEMENT dated as of June 15, 1995 (as modified by, or
the terms thereof waived by various waivers and ten amendments as set forth in
the composite Credit Agreement appended to and incorporated in the Waiver and
Tenth Amendment thereto dated as of August 29, 1997, and as modified by or the
terms thereof waived by the Eleventh Amendment thereto dated as of August 29,
1997, the Waiver and Consent thereto dated as of October 26, 1997, the Waiver
and Consent thereto dated as of November 14, 1997, the Twelfth Amendment
thereto dated as of January 9, 1998, and the February 25th Waiver, the "Credit
Agreement"), among the Borrower, the institutions from time to time party
thereto as lenders and the Agent, is being entered into by and among the
Borrower, the Agent and the undersigned lending institutions party to the
Credit Agreement (the "Banks"). 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 Banks, pursuant
to Section 12.12 of the Credit Agreement, modify certain provisions of the
February 25th Waiver and the Credit Agreement to (1) allow the Borrower to
renew and replace certain unsecured Indebtedness with respect to reimbursement
and other monetary obligations of the Borrower under certain surety,
performance and bid bonds, and (2) allow the Borrower to utilize the
availability created under the Credit Agreement through the replacement of a
certain Letter of Credit issued to the State of New York with respect to
workmen's compensation obligations for a Letter of Credit issued to a bonding
company in a lower amount with respect to such obligations;
WHEREAS, subject to and upon the terms and conditions
hereinafter set forth and in the Credit Agreement and the February 25th
Waiver, the Banks party hereto are agreeable to the foregoing;
Now, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Modifications. (a) Clause (v) of Section 1 of the
February 25th Waiver is hereby replaced with the following:
"(v) Unless otherwise agreed to in writing
by the Required Banks, the Total Unutilized Revolving
Commitment shall not be less than the sum of (a) $7,000,000,
plus (b) the aggregate amount of any increase in the Total
Unutilized Revolving Commitment on and after February 25,
1997 resulting from the reduction of any Letter of Credit or
the cancellation, expiration or substitution of any Letter
of Credit which is not immediately renewed or replaced in
favor of the same beneficiary (but excluding the $10,500,000
increase in Total Unutilized Revolving Commitment resulting
from the one time replacement of an existing Letter of
Credit in the amount of $28,000,000 issued in favor of the
State of New York in connection with workmen's compensation
obligations for a $17,500,000 Letter of Credit issued in
favor of a bonding company with respect to those same
obligations).;"
(b) Clause (xi) of Section 1 of the February 25th Waiver is
hereby replaced with the following:
"(xi) The level of usual and ordinary
course trade credit (including, without limitation, credit
limits, pricing, cash discounts, timing of payments,
allowances, rebates, coupon reconciliation, normal product
mix and availability and other applicable terms and programs
in effect between a vendor and the Borrower on a historical
basis) provided by vendors to the Borrower or its affiliates
shall not be materially reduced (as determined in the sole
opinion of the Agent and the Required Banks) from such usual
and ordinary course trade credit which existed during the
Borrower's period 12 fiscal month period ended February 28,
1998; and"
Section 2. Amendment. (a) Section 8.3(c) of the Credit
Agreement is hereby amended by inserting immediately after the phrase "Existing
Indebtedness" the following:
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"and any renewal or replacement of Existing Indebtedness of
the type described in clause (viii) of the definition of
"Indebtedness" in the ordinary course of business and in
amounts not to exceed that which is renewed or replaced"
(b) Section 8.3 of the Credit Agreement is hereby amended by
(i) deleting the word "and" at the end of clause (g) thereof, and (ii)
inserting the following immediately before the period at the end of clause (h)
thereof:
"; and
(i) Indebtedness resulting from unsecured
reimbursement obligations of the Borrower with respect to a
performance bond issued in connection with workmen's
compensation obligations in the State of New York in an
amount not to exceed $35,000,000."
Section 3. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and each Bank that:
(a) assuming the effectiveness of the February 25th Waiver,
no Default or Event of Default under the Credit Agreement 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 in all material respects 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 Modification and Amendment
shall become effective, as of April 16, 1998, when the Agent shall have
executed and delivered a counterpart of this Modification and Amendment and
received duly executed counterparts of this Modification and Amendment from
the Borrower, each Subsidiary of the Borrower that is a party to any Credit
Document and as many of the Banks as shall be necessary to comprise the
"Required Banks". The aforesaid execution and delivery may be effected by
delivery and receipt by facsimile transmission.
Section 5. Status of Credit Documents. (i) This Modification
and Amendment is limited solely for the purposes and to the extent expressly
set forth herein, and (i) the terms, provisions and conditions of the Credit
Documents, including, without limitation, the February 25th Waiver and the
Credit Agreement, (ii) the
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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.
(ii) No waiver of any terms or provisions of the Credit
Agreement or the waiver granted hereunder shall relieve the Borrower from
complying with such terms and provisions other than as waived hereby or from
complying with any other term or provision of the Credit Agreement or the
February 25th Waiver.
Section 6. Counterparts. This Modification and 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 MODIFICATION AND AMENDMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers to execute and deliver this Modification
No. 2 and Thirteenth Amendment as of the date first above written.
THE GRAND UNION COMPANY
By:________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
BANKERS TRUST COMPANY,
Individually and as Agent
By:________________________
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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AG CAPITAL FUNDING PARTNERS L.P.
By Xxxxxx Xxxxxx & Company
Its Authorized Agent
By:________________________
Name:
Title:
FLEET CAPITAL CORPORATION
By:________________________
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS LP
By:________________________
Name:
Title:
XXXXXX FINANCIAL, INC.
By:________________________
Name:
Title:
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HOUR L.L.C.
By: Sunrise Partners, L.L.C.
Its Authorized Agent
By:________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:________________________
Name:
Title:
PPM AMERICA SPECIAL INVESTMENTS
CBO II, L.P.
By: PPM America, Inc.,
Its Authorized Agent
By:________________________
Name:
Title:
QUANTUM PARTNERS LDC
By:________________________
Name:
Title:
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SWISS BANK CORPORATION,
LONDON BRANCH
By:________________________
Name:
Title:
WAYLAND INVESTMENT FUND LLC
By: CFSC Wayland Advisors, Inc.
Its Manager
By:________________________
Name:
Title:
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The foregoing Modification No. 2 and Thirteenth Amendment 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:_________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
of each of the above listed entities
