Exhibit 10.1
AMENDMENT NO. 1 AND WAIVER
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of February 9, 2005
AMENDMENT NO. 1 AND WAIVER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
among WINN-DIXIE STORES, INC., a
Florida corporation (the “ Winn-Dixie ”),
certain subsidiaries of Winn-Dixie listed on the signature pages
thereto (collectively, the “ Subsidiary Borrowers
”; and, together with Winn-Dixie, each a “
Borrower ” and, collectively, the “
Borrowers ”), the banks, financial institutions and
other institutional lenders parties to the Second Amended and
Restated Credit Agreement referred to below (collectively, the
“ Lenders ”) and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank, “
Wachovia Bank ”), as administrative agent (in such
capacity, the “ Administrative Agent ”) for the
Lenders and WACHOVIA NATIONAL BANK, NATIONAL ASSOCIATION (successor
by merger to Congress Financial Corporation (Florida)), as
collateral monitoring agent for the Lenders (in such capacity, the
“ Collateral Monitoring Agent ”; and together
with the Administrative Agent, referred to as the “
Agents ”).
W I T N E S
S E T H :
WHEREAS, the Borrowers, the Lenders,
GMAC COMMERCIAL FINANCE LLC, as syndication agent for the Lenders
(in such capacity, the “ Syndication Agent ”),
WELLS FARGO FOOTHILL, LLC, GENERAL ELECTRIC CAPITAL CORPORATION and
THE CIT GROUP/BUSINESS CREDIT, INC., as Co-Documentation Agents for
the Lenders (in such capacity, the “ Co-Documentation
Agents ”), the Agents and WACHOVIA CAPITAL MARKETS, LLC
(“ WCM ”), as sole arranger and sole bookrunner
(in such capacity, the “ Arranger ”), have
entered into that certain Second Amended and Restated Credit
Agreement dated as of June 29, 2004 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”; terms defined in the
Credit Agreement are used herein as therein defined);
WHEREAS, Winn-Dixie has requested
that the Lenders waive certain provisions of the Credit Agreement
as set forth below; and
WHEREAS, the Required Lenders have
agreed, subject to the amendment of certain provisions of the
Credit Agreement and to additional terms and conditions hereinafter
set forth, to waive and amend certain provisions of the Credit
Agreement;
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged), the
parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain
Definitions . The following terms (whether or not underscored)
when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms
thereof):
“ Administrative
Agent” is defined in the preamble .
“ Agents ” is
defined in the preamble .
“ Amendment No. 1 and
Waiver ” is defined in the Subpart 3.1.1
.
“ Amendment No.1 and Waiver
Effective Date ” is defined in Subpart 3.1.1
.
“ Borrower ” is
defined in the preamble .
“ Credit Agreement
” is defined in the first recital .
“ Lenders ” is
defined in the preamble .
“ Waiver Period ”
is defined in Subpart 3.1.1 .
SUBPART 1.2. Other
Definitions . Terms for which meanings are provided in the
Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment No. 1 and Waiver
with such meanings.
PART II
WAIVER
SUBPART 1.1. Waiver to the Credit
Agreement . Effective on (and subject to the occurrence of) the
Amendment No. 1 and Waiver Effective Date, the Required Lenders
hereby agree to waive during (and only during) the Waiver Period
the requirement under Section 7.2.4(b) of the Credit Agreement that
the Borrowers maintain the consolidated EBITDA of Winn-Dixie and
its Subsidiaries for the most recently ended trailing thirteen
Fiscal Month period at no less than the amounts set forth in the
table set forth in Section 7.2.4(b) of the Credit
Agreement.
PART III
AMENDMENTS
Effective on (and subject to the
occurrence of) the Amendment No. 1 and Waiver Effective Date, the
Credit Agreement is hereby amended in accordance with this Part.
Except as so amended or otherwise modified by this Amendment No. 1
and Waiver, the Credit Agreement and the Loan Documents shall
continue in full force and effect in accordance with their
terms.
SUBPART 3.1. Amendment to Article
I . Article I of the Credit Agreement is hereby amended in
accordance with Subparts 3.1.1 and Subpart 3.1.2
.
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SUBPART 3.1.1. Section 1.1 of the
Credit Agreement is hereby amended by inserting the following
definitions therein in the appropriate alphabetical
order:
“ Amendment No. 1 and
Waiver ” means the Amendment No. 1 and Waiver to the
Credit Agreement, dated as of February 9, 2005, among the
Borrowers, the Agents and the Lenders party thereto.
“ Financial Advisor
” means a financial advisor to assist in the projections,
financial and operating plans of the Borrowers, and any successor
financial advisors that may be appointed from time to time by the
Borrowers, in each case as shall be acceptable to the
Administrative Agent.
“ Leasehold Mortgages
” is defined in Section 7.1.17 .
“ Leasehold Properties
” means leasehold properties of the Borrowers acceptable to
the Collateral Monitoring Agent, which have an appraised value on a
net orderly liquidation basis (as demonstrated by an appraisal
satisfactory to the Collateral Monitoring Agent from appraisers
satisfactory to the Collateral Monitoring Agent) such that 37.5%
thereof is equal to at least $75 million (or, to the extent less
than $75 million, appropriate Reserves in the Borrowing Base have
been established satisfactory to the Collateral Monitoring
Agent).
“ Leasehold Property
Shortfall ” means, in the event that 37.5% of the
appraised value on a net orderly liquidation basis of the Leasehold
Properties is less than $75 million, $75 million minus 37.5%
of the appraised value on a net orderly liquidation basis of such
Leasehold Properties.
“ Amendment No. 1 and
Waiver Effective Date ” has the meaning set forth in
Subpart 4.1 of the Amendment No. 1 and Waiver.
“ Waiver Period ”
means the period from the Amendment No. 1 and Waiver Effective Date
to and including June 29, 2005.
SUBPART 3.1.2. The definition of
“ Reserves ” shall be amended by (a) deleting
“and/or” after the word “payments” in the
twenty-eighth line thereof, (b) inserting a comma after the word
“payments” in the twenty-eight line thereof and (c)
inserting after clause (i) thereof the following new clause (j) in
the twenty-ninth line thereof:
“and (j) to fully reflect any
Leasehold Property Shortfall.”
SUBPART 3.2. Amendments to
Article 7 . Section 7.1 of the Credit Agreement is hereby
amended in accordance with Subparts 3.2.1. and 3.2.2.
SUBPART 3.2.1. Section 7.1 of the
Credit Agreement is hereby amended by adding the following new
sections therein in the appropriate numerical order:
“ SECTION 7.1.16.
Financial Advisor . By no later than March 1, 2005,
Winn-Dixie shall engage, at it own expense, a Financial Advisor and
such Financial Advisor shall deliver to the Agents and the Lenders
by no later than May 31, 2005 a report describing in reasonable
detail projections, financial and operating plans of the Borrowers
in scope, form and substance satisfactory to the Agents.
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SECTION 7.1.17. Leasehold
Mortgages . By no later than March 31, 2005, the Agents shall
have received duly executed counterparts of mortgages inform and
substance reasonably satisfactory to the Administrative Agent (the
“ Leasehold Mortgages ”) for the Leasehold
Properties for filing in the state in which such properties are
located, dated not later than March 31, 2005, duly executed by the
applicable Obligors, together with:
(a) evidence of the completion (or
satisfactory arrangements for the completion) of all recordings and
filings of the Leasehold Mortgages as may be necessary or, in the
opinion of the Agents, desirable to create a valid, perfected first
(subject to Designated Permitted Liens) priority Lien against the
properties purported to be covered thereby; and
(b) such other consents, approvals,
opinions, or documents as the Agents may request in form and
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