-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, HcdsWZH5Zfr63ZF6nc5z7Y0cWw63SH/xTSPtET4qs7t5Z63Hu+c6W7s3g7O9vI21 FMBMwhvEAHDCGKv669PVkg== 0000912057-94-004282.txt : 19941223 0000912057-94-004282.hdr.sgml : 19941223 ACCESSION NUMBER: 0000912057-94-004282 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19941221 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19941222 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GRAND UNION CO /DE/ CENTRAL INDEX KEY: 0000316236 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 251518276 STATE OF INCORPORATION: DE FISCAL YEAR END: 0325 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-48282-01 FILM NUMBER: 94565937 BUSINESS ADDRESS: STREET 1: 201 WILLOWBROOK BLVD CITY: WAYNE STATE: NJ ZIP: 07470-0966 BUSINESS PHONE: 2018906000 MAIL ADDRESS: STREET 1: 201 WILLOWBROOK BLVD CITY: WAYNE STATE: NJ ZIP: 07470 FORMER COMPANY: FORMER CONFORMED NAME: SUCCESSOR TO GRAND UNION CO/VA/ DATE OF NAME CHANGE: 19600201 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) December 21, 1994 ----------------- THE GRAND UNION COMPANY - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) Delaware 33-59438 22-1518276 - -------------------------------------------------------------------------------- (State of Other Jurisdiction (Commission (I.R.S. Employer of Incorporation) File Number) Identification No. 201 Willowbrook Boulevard, Wayne, New Jersey 07470-0966 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code (201) 890-6000 -------------- - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) Item 5. OTHER EVENTS On December 21, 1994, The Grand Union Company issued the press release attached hereto as Exhibit A. Item 7. FINANCIAL STATEMENTS AND EXHIBITS (a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED (b) PRO FORMA FINANCIAL INFORMATION (c) EXHIBITS 10.8H Limited Waiver and Agreement, dated as of December 6, 1994, among Grand Union Holdings Corporation ("Holdings"), Grand Union Capital Corporation ("Capital"), The Grand Union Company ("Grand Union"), the lending institutions party to the Credit Agreement, dated as of July 14, 1992, among Grand Union, Capital, Holdings, the lending institutions party thereto, Bankers Trust Company ("Bankers Trust"), as Agent, and Midlantic National Bank, as Co-Agent, filed as Exhibit No. 10.8 to the Registration Statement on Form S-1 of Capital and Holdings (Registration No. 33-50496), and Bankers Trust, as agent. -2- EXHIBIT A "WAYNE, N.J., Dec. 21, 1994 - The Grand Union Company announced today that its lending banks have entered into a Limited Waiver and Agreement which waives any event of default which might exist under the Company's Bank Credit Agreement should the Company fail to make payments of interest due on January 15, 1995, in respect of the Senior and Senior Subordinated Notes of the Company. This agreement also waives compliance with certain covenants in the Bank Credit Agreement, thereby permitting the Company to continue to make borrowings in ordinary course under its revolving line of credit through February 14, 1995. "As we had expected, our bank lenders have demonstrated support for our restructuring process," stated Gary D. Hirsch, Chairman of the Board. "In addition to the action by our bank lenders, and the earlier support shown by our vendors, the informal committees of bondholders of the Company which have been formed have expressed similar support of the restructuring process and our valuable trade relationships." Mr. Hirsch noted that the continued effectiveness of the banks' waiver is conditioned on there being no materially negative change in the trade terms being extended to the Company by its vendors. "Grand Union had previously announced that it intended to propose a restructuring plan to its security holders by January 15, 1995. In today's announcement of its lending banks' actions, the Company noted that it does not expect to make the interest payments due in January on certain of the Company's outstanding notes. "Mr. Hirsch added "The Company believes that it has identified and reacted to its financial situation in a responsible manner designed to preserve value for our security holders. The actions taken thus far by our vendors and lending banks reflect support for the approach taken by the Company. We intend to continue to carry the restructuring through to completion on a basis which preserves and justifies the support which we have thus far received." "Grand Union currently operates 241 retail food stores in six Northeastern states." -3- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. THE GRAND UNION COMPANY ----------------------- (Registrant) Date: December 22, 1994 /s/ Kenneth R. Baum ----------------- ------------------------------- Kenneth R. Baum Senior Vice President, Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer) -4- EX-10.8H 2 EXHIBIT 10.8H [CONFORMED COPY] LIMITED WAIVER AND AGREEMENT LIMITED WAIVER AND AGREEMENT ("Agreement"), dated as of December 6, 1994, among Grand Union Holdings Corporation (formerly known as GND Holdings Corporation) ("Holdings"), Grand Union Capital Corporation ("GU Capital"), The Grand Union Company (the "Company"; and together with Holdings, GU Capital and each Person referred to in clause (ii) of Section 5(b) hereof, the members of the "GU Group"), the lending institutions party to the Credit Agreement referred to below (the "Banks") and Bankers Trust Company, as agent (in such capacity, the "Agent"). All capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement referred to below. RECITALS WHEREAS, each member of the GU Group, the Banks, the Agent and Midlantic Bank, N.A., as co-agent (the "Co-Agent"), are parties to a Credit Agreement, dated as of July 14, 1992, as amended on seven occasions the most recent of which was as of September 15, 1994 (as so amended, the "Credit Agree- ment"); and WHEREAS, each member of the GU Group has requested that the Banks con- sent to a limited waiver of certain of the provisions of the Credit Agreement specified herein, and the Required Banks have consented to provide such limited waiver on the terms set forth herein. LIMITED WAIVER AND AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. LIMITED WAIVER. The Banks hereby waive through the Limited Waiver Termination Date (as defined below): (a) Each Event of Default, if any, arising under Section 9.03 of the Credit Agreement as a result of the failure of Holdings to comply with the provisions of Section 8.09 of the Credit Agreement requiring that EBITDA for the four consecutive fiscal quarters (taken as one ac- counting period) ending on January 7, 1995 not be less than $187,500,000; (b) Each Event of Default, if any, arising under Section 9.03 of the Credit Agreement as a result of the failure of Holdings to comply with the provisions of Section 8.11 of the Credit Agreement requiring that the ratio of EBITDA to Total Cash Interest Expense for the four con- secutive fiscal quarters (taken as one accounting period) ending on January 7, 1995 not be less than 1.25:1; (c) Each Event of Default, if any, arising under Section 9.04 of the Cred- it Agreement solely as a result of Holdings' or any of its Subsidiar- ies', as the case may be, default in the payment of interest due on January 15, 1995 with respect to (i) the Company's 11-1/4% Senior Notes due July 15, 2000 issued pursuant to the Indenture, dated as of July 22, 1992, among the Company, as issuer, Holdings and GU Capital as guarantors, and First Trust National Association, as trustee, (ii) the Company's 12-1/4% Senior Subordinated Notes due July 15, 2002 issued pursuant to the Indenture, dated as of July 22, 1992, among the Company, as issuer, Holdings and GU Capital, as guarantors, and United States Trust Company of New York, as trustee, and (iii) the Company's 12-1/4% Senior Subordinated Notes due July 15, 2002, Series A issued pursuant to the Indenture, dated as of October 18, 1993, among the Company, as issuer, GU Capital, as guarantor, and United States Trust Company of New York, as trustee; and (d) The effect, if any, of the matters specifically disclosed in the Company's press release issued on November 29, 1994 on Section 6.11(c) of the Credit Agreement attached hereto as Exhibit A, 2 but excluding any future events arising from or contemplated by such disclosed matters. The matters described in subsections (a) through (d) of this Section 1 are collectively referred to herein as the "Waived Events"). As used herein, the term "Limited Waiver Termination Date" shall mean, notwithstanding anything to the contrary contained herein, the earliest of (a) February 14, 1995, (b) the date, if any, on which a Default (including, without limitation, the filing of any case or petition relating to bankruptcy, insolvency or any similar proceeding in any federal or state court) or an Event of Default under any of the Credit Documents or any document referred to therein (other than a Waived Event subject to a then effective limited waiver pursuant to this Section 1) shall have occurred, (c) the date, if any, on which any one or more members of the GU Group shall fail to comply with any of their agree- ments or undertakings under this Agreement or it is determined that any repre- sentation, warranty or statement made by any one or more members of the GU Group herein or in any document delivered pursuant hereto shall prove to be untrue on the date as of which made or deemed made, (d) the date, if any, on which any creditor of (or representative thereof) or claimant against any one or more mem- bers of the GU Group (including, without limitation, the creditors referred to in Section 1(c) hereof) shall accelerate (or attempt to accelerate) any indebt- edness or other obligations of any one or more members of the GU Group or shall commence any proceedings, or take any action, to move or foreclose against any asset or assets of any one or more members of the GU Group or any of their respective Subsidiaries and (e) the date, if any, on which the level of, or the terms under which, usual and ordinary course trade credit provided by vendors to any one or more members of the GU Group or any of their respective Subsidiaries, if any, is materially reduced, or become materially less favorable, as deter- mined by the Agent and the Required Banks. 2. BUSINESS PLAN. In consideration for the limited waiver granted by the Banks pursuant to Section 1 of the Agreement, each member of the GU Group agrees to deliver to the Agent a formal business plan for Holdings and its Sub- sidiaries as soon as practicable and in any event on or prior to January 17, 1995. The business plan 3 shall include such financial, operational and other information as may be necessary under the present and anticipated future circumstances of each member of the GU Group to demonstrate the feasibility of each member of the GU Group's continued business enterprise, including both restructuring and recapitalization plans. 3. EFFECT OF LIMITED WAIVER. (a) Upon the occurrence of the Limited Waiver Termination Date, the limited waivers contained in Section 1 hereof shall terminate in their entirety and all rights available to the Agent and the Banks prior to the effectiveness of this Agreement shall be reinstated in full as if this Agreement were never entered into. Each member of the GU Group hereby acknowledges that, upon the occurrence of the Limited Waiver Termination Date, the Agent and the Banks shall be entitled to exercise all rights and remedies available to them under the Credit Agreement, the other Credit Documents and/or applicable law, including, without limitation, those applicable to the Waived Events. (b) Each member of the GU Group further acknowledges the Agent's and the Banks' ability to exercise any and all rights and remedies available to them under the Credit Agreement, the other Credit Documents and/or applicable law with respect to the Waived Events, in each case, upon the occurrence or continu- ance of any Default or Event of Default, other than the Waived Events. Each member of the GU Group further acknowledges and agrees that the limited waivers contained in Section 1 hereof shall not be construed as a waiver of compliance with any term or condition contained in the Credit Agreement or the other Credit Documents, nor as an agreement to forbear with respect to any such term or condition, other than as expressly set forth in Section 1 hereof. (c) Without limitation of any of the foregoing, each member of the GU Group acknowledges and agrees that neither BTCo nor the Banks shall have any obligation to make advances or Loans and the Letter of Credit Issuer shall have no obligation to issue Letters of Credit after the Limited Waiver Termination Date, regardless of the compliance of any member of the GU Group with the terms and conditions contained in this Agreement, unless on the Limited Waiver Termination Date no Default or Event of 4 Default exists and each member of the GU Group is otherwise in compliance with all of the Credit Documents (unless waived at any time in accordance with the Credit Documents). 4. COOPERATION. Each member of the GU Group agrees that it will cooperate, on a reasonable basis, with the Agent and its collective agents, consultants, appraisers and attorneys in connection with both the financing arrangement extended pursuant to the Credit Agreement and the business plan to be submitted as provided herein. In connection with its obligation to cooperate, each member of the GU Group shall use its best efforts to furnish the parties described in the previous sentence with such relevant information as they may request. The provisions of this Section are in addition to and shall not operate to modify or waive any right or obligation under the Credit Agreement or the other Credit Documents. 5. MISCELLANEOUS. (a) In order to induce the Agent and the Banks to enter into this Agreement, each member of the GU Group hereby represents and warrants that (i) no Default or Event of Default exists on the date hereof, both before and after giving effect to this Agreement, and (ii) all of the representations and warran- ties contained in the Credit Documents are true and correct in all material respects on the date hereof after giving effect to this Agreement with the same effect as though such representations and warranties had been made on and as of the date hereof (it being understood that any representation or warranty made as of a specific date shall be true and correct in all material respects as of such specific date). (b) This Agreement may be executed in one or more counterparts, and any party to this Agreement may execute and deliver this Agreement by executing and delivering any of such counterparts, each of which when executed and deliv- ered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. This Agreement shall become effec- tive as of December 6, 1994, on the date that (i) each member of the GU Group and the Required Banks shall have signed a copy hereof and shall have delivered (in- 5 cluding by way of telecopier) the same to the Agent at its Notice Office, (ii) each Person which has obligated itself or its assets in respect of the obligations of any member of the GU Group under or in respect of the Credit Agreement shall have consented in writing hereto pursuant to documentation in form and substance satisfactory to the Agent and (iii) the Banks shall have re- ceived a favorable opinion with respect to the enforceability of this Agreement of Donovan Leisure Newton & Irvine as to each member of the GU Group, in form and substance satisfactory to the Agent. (c) Each member of the GU Group agrees to pay on demand all costs and expenses of the Agent, the Co-Agent and the Banks in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other documents delivered hereunder, including, without limitation, the fees and out-of-pocket expenses of counsel, financial advisors and other profes- sionals for the Agent, the Co-Agent and the Banks and the out-of-pocket expenses of the Agent, the Co-Agent and the Banks. (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. (e) This Agreement is limited as specified and shall not constitute a waiver (except to the extent specified in Section 1 hereof) or a modification of any provision of the Credit Agreement or any other Credit Document. (f) No failure or delay on the part of any party hereto to exercise any right, power or privilege hereunder or under any instrument executed pursuant hereto shall operate as a waiver nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. (g) The obligations of each member of the GU Group pursuant to Sec- tion 4 and Section 5(c) hereof and the acknowledgements and agreements of each of them set forth in Section 3 hereof shall survive the occurrence of the Limit- ed Waiver Termination Date. 6 (h) Section, titles, captions and headings used herein are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof. (i) From and after the date on which this Agreement shall become effective in accordance with the terms hereof, all references in the Credit Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement after giving effect to this Agreement. The Credit Agreement and the other Credit Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (j) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK OBLIGATIONS LAW). 7 IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written. Address: GRAND UNION HOLDINGS 26 Meadow Road CORPORATION Riverside, CT 06878 Telephone: (203) 637-8245 By: /s/ Gary D. Hirsch Facsimile: (203) 637-0511 ------------------- Title: Chairman 52 Center Street GRAND UNION CAPITAL Westport, CT 06880 CORPORATION Telephone: (203) 222-1368 Facsimile: (203) 221-0379 By: /s/ Gary D. Hirsch ------------------- Title: Chairman 201 Willowbrook Boulevard THE GRAND UNION COMPANY Wayne, NJ 07470-6799 Attn: Kenneth Baum Telephone: (201) 890-6000 Facsimile: (201) 890-6540 By: /s/ Gary D. Hirsch ------------------- Title: Chairman 280 Park Avenue BANKERS TRUST COMPANY, New York, NY 10017 Individually and as Attention: Mary Kay Coyle Agent Telephone: (212) 250-9094 Facsimile: (212) 250-7200 By: /s/ Mary Kay Coyle -------------------- Title: Vice President 499 Thornall Street MIDLANTIC BANK, N.A. Edison, NJ 08818 Attn: Corporate Banking 9th Floor Edward M. Tessalone, Vice President Telephone: (908) 321-8188 By: /s/ Edward Tessalone Facsimile: (908) 321-2144 -------------------- Title: Vice President 8 c/o Dean Witter Intercapital PRIME INCOME TRUST 2 World Trade Center 72nd Floor New York, NY 10048 Attn: Rafael Scolari By: /s/ Rafael Scolari Louis Pistecchia --------------------- Telephone: (212) 392-5686 Title: Investment Manager (212) 392-5845 Facsimile: (212) 392-5345 520 Madison Avenue COMPAGNIE FINANCIERE DE CIC 37th Floor ET DE L'UNION EUROPEENNE New York, NY 10022 Attn: Sean Mounier Telephone: (212) 715-4413 By: /s/ Marcus Edward Facsimile: (212) 715-4535 --------------------- Title: Vice President By: /s/ Dora DeBlasi Hyduk ---------------------- Title: Vice President 550 Broad Street FIRST FIDELITY BANK, N.A. 5th Floor NEW JERSEY Newark, NJ 07102 Attn: Robert Strunk Telephone: (201) 565-6663 Facsimile: (201) 565-6681 By: --------------------- Title: 1 South Wacker Drive SANWA BUSINESS CREDIT Suite 2800 CORPORATION Chicago, IL 60606 Attn: Greg Cooper Barbara Horton By: /s/ Lawrence J. Placek Telephone: (312) 853-1401 ---------------------- Facsimile: (312) 782-6035 Title: Vice President 470 Park Avenue South BANK POLSKA KASA OPIEKI, SA New York, NY 10016 Attn: William Shea Telephone: (212) 251-1203 By: /s/ William A. Shea Facsimile: (212) 213-2971 ---------------------- Title: Vice President 9 Merrill Lynch Asset Management SENIOR HIGH INCOME 800 Scudder Mill Road, Area 2C PORTFOLIO, INC. Plainsboro, NJ 08536 Attn: John Fraser Telephone: (609) 282-2055 Facsimile: (609) 282-2756 By: /s/ John W. Fraser ----------------------- Title: Authorized Signatory Merrill Lynch Asset Management MERRILL LYNCH SENIOR FLOATING 800 Scudder Mill Road, Area 2C RATE FUND, INC. Plainsboro, NJ 08536 Attn: John Fraser Telephone: (609) 282-2055 Facsimile: (609) 282-2756 By: /s/ John W. Fraser ---------------------- Title: Authorized Signatory Merrill Lynch Asset Management MERRILL LYNCH PRIME RATE 800 Scudder Mill Road, Area 2C PORTFOLIO Plainsboro, NJ 08536 (d/b/a Merrill Lynch Senior Attn: John Fraser Floating Rate Portfolio) Telephone: (609) 282-2055 By: Merrill Lynch Asset Facsimile: (609) 282-2756 Management, L.P., as Investment Advisor By: /s/ John W. Fraser ---------------------- Title: Authorized Signatory One Parkview Plaza VAN KAMPEN MERRITT PRIME Oak Brook Terrace, IL 60181 RATE INCOME TRUST Attn: Jeffrey Maillet Telephone: (708) 684-6438 Facsimile: (708) 684-6740 (708) 684-6741 By: /s/ Jeffrey W. Maillet ---------------------- Title: Vice President and Portfolio Manager 10 -----END PRIVACY-ENHANCED MESSAGE-----