Exhibit 10.22
WAIVER AND SIXTH AMENDMENT
TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
WAIVER AND SIXTH AMENDMENT dated as of April 4, 1997 (this
"Amendment") to the AMENDED AND RESTATED CREDIT AGREEMENT dated as of June
15, 1995 (as modified 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 and the Fifth Amendment thereto dated as
of March 7, 1997, the "Credit Agreement"), each among THE GRAND UNION
COMPANY, a Delaware corporation (the "Borrower"), the institutions from time
to time party thereto as lenders (the "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 EBITDA and interest
expense covenants in the Credit Agreement for the period of four consecutive
fiscal quarters of the Borrower ending in March 1997 be waived; and
WHEREAS, subject to and upon the terms and conditions hereinafter
set forth, the Banks party hereto are agreeable to the foregoing;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Waiver. The undersigned Banks hereby waive compliance by
the Borrower with Sections 8.9 and 8.11 of the Credit Agreement solely with
respect to the period of four consecutive fiscal quarters of the Borrower
ending in March 1997.
Section 2. Amendment. The Credit Agreement is hereby amended by
inserting the following after Section 8.16 thereof as a new Section 8.17:
"8.17 Additional Financial Covenants. The Borrower will not
permit:
(a) EBITDA for the 13 consecutive fiscal periods of the
Borrower (as set forth on Schedule XII hereto) ending on May 24, 1997 (taken
as one accounting period) to be less than $130,000,000; or
(b) the ratio of EBITDA to Total Cash Interest Expense for the
13 consecutive fiscal periods of the Borrower (as set forth on Schedule XII
hereto) ending on May 24, 1997 (taken as one accounting period) to be less
than 1.22:1."
Section 3. Representations and Warranties.
The Borrower hereby represents and warrants to the Agent and each Bank
that:
(a) after giving effect 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 after giving effect to this Amendment, except to
the extent such representations and warranties expressly relate to a
different specific date.
Section 4. Effectiveness. This Amendment shall become
effective, as of March 30, 1997, when the Agent shall have executed and
delivered a counterpart of this Amendment and received duly executed
counterparts of this 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" or the "Required Class
Creditors", as the case may be.
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 hereby, (i) the terms,
provisions 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
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and confirmed in all respects.
(b) No modification made to the Credit Agreement pursuant to
this Amendment shall relieve the Borrower from complying with any other term
or provision of the Credit Agreement as modified hereby.
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
LAWS OF THE STATE OF NEW YORK.
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The foregoing Waiver and Sixth 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: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
of each of the above listed
entities
IN WITNESS WHEREOF, the parties hereto have
caused their respective duly authorized officers to
execute and deliver this Waiver and Sixth Amendment to
the Amended and Restated Credit Agreement as of the date
first above written.
THE GRAND UNION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
BANKERS TRUST COMPANY,
Individually and as Agent
By: /s/ Xxxx Xxx Xxxxx
------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/
-----------------------
Name:
Title:
BANK POLSKA KASA OPIEKI, SA
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
Senior Lending Officer
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx X'Xxxxx
-----------------
Name: Xxxxx X'Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxxx
-------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
FLEET CAPITAL CORPORATION
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: AVP
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD, LLC
By: Protective Asset Management,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx CPA, CFA
Title: President
Protective Asset Management, L.L.C.
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------
Name: Xxxxx X. Page
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Xxxxxxxx X. Xxxx
------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
