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EXHIBIT 10.39
FIFTH AMENDMENT
TO REVOLVING CREDIT
AND GUARANTY AGREEMENT
FIFTH AMENDMENT, dated as of October 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, the Third
Amendment to Revolving Credit and Guaranty Agreement dated as of April 21, 1998
and the Fourth Amendment to Revolving Credit and Guaranty Agreement dated as of
July 31, 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 6.04 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"Capital Expenditures. Make Capital Expenditures (x) in an
aggregate amount in excess of $65,000,000 for the fiscal year ending
January 30, 1999 (in accordance with and as described in Schedule
6.04) or (y) during any fiscal quarter ending on each of the dates
listed below, in an aggregate amount in excess of the amount specified
opposite such date:
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Capital
Quarter Ending Expenditures
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May 1, 1999 $13,355,000
July 31, 1999 12,580,000
October 30, 1999 14,855,000
January 29, 2000 8,180,000
If the amount that is expended for Capital Expenditures during
any of the fiscal quarters appearing in the table set forth above
is less than the permitted amount thereof for such fiscal
quarter, 100% of the unused portion thereof may be carried over
to and expended in the succeeding fiscal quarters in addition to
the amounts that are otherwise permitted to be expended in such
succeeding fiscal quarters."
3. Section 6.05 of the Credit Agreement is hereby amended by
(x) deleting the designation "(a)" appearing in the first line
thereof, (y) deleting subsection (b) thereof in its entirety and (z)
restating the portion of the table appearing therein that begins with
the line "October 31, 1998" to read in its entirety (together with the
sentence appearing below) as follows:
"Period Ending EBITDA
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October 31, 1998 $ 8,000,000
November 28, 1998 9,800,000
December 26, 1998 12,000,000
January 30, 1999 13,800,000
February 27, 1999 15,900,000
March 27, 1999 18,000,000
May 1, 1999 20,600,000
May 29, 1999 22,500,000
June 26, 1999 24,300,000
July 31, 1999 26,600,000
August 28, 1999 28,200,000
September 25, 1999 29,900,000
October 30, 1999 32,000,000
November 27, 1999 34,600,000
December 25, 1999 37,200,000
January 29, 2000 40,400,000
In addition, the Borrower shall not permit EBITDA for any of the
above periods ending on or after October 31, 1998 to be
negative."
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4. 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.
5. 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.
6. 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.
7. 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.
8. 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/Treasurer
GUARANTORS:
PWS HOLDING CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
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FOOD MAX OF MISSISSIPPI, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
A.F. STORES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
BR AIR, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
FOOD MAX OF GEORGIA, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
FOOD MAX OF TENNESSEE, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
FOODMAX, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
LAKESHORE FOODS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Secretary
BRUNO'S FOOD STORES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
GEORGIA SALES COMPANY
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
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SSS ENTERPRISES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President/Treasurer
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/ Xxxxxxxxxxx Xxxx
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Title: Assistant Vice President
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ Xxxxx Xxxxxxx
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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/ X. Xxxxxxx
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Title: Senior Vice President
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THE TRAVELERS INSURANCE COMPANY
By: /s/ X.X. Xxxxxxxx
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Title: Second Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxxxxx X. Xxxxx
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Title: Assistant Vice President
By: /s/ Xxxx Xxxxx
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Title: 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
By: /s/ Xxxxx Xxxxx
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Title: First Vice President
IBJ XXXXXXXX BUSINESS CREDIT CORPORATION
By: /s/ Wing X. Xxxxx
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Title: Vice President
LASALLE BUSINESS CREDIT, INC.
By:
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Title:
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XXXXXXX NATIONAL LIFE
INSURANCE COMPANY
BY: PPM FINANCE, INC.,
Attorney-in-Fact
By: /s/ Xxxxx Xxxxxxx
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Title: Vice President
DIME COMMERCIAL CORP.
By: /s/ Xxxxxx Xxxx
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Title: Vice President
RABOBANK NEDERLAND, NEW YORK BRANCH
By:
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Title:
By:
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Title:
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