AMENDMENT AND WAIVER AGREEMENT No.1
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT AGREEMENT NO. I dated
April 10, 1998, to the Amended and Restated Revolving
Credit Agreement dated as of September 15, 1997 (as
heretofore amended, and as may be further amended,
restated, modified or supplemented from time to time,
the "Credit Agreement") among Jitney-Jungle Stores of
America, Inc. ("Jitney Jungle"), Southern Jitney Jungle
Company, McCarty-Holman Co., Inc., Jitney-Jungle
Bakery, Inc., Pump and Save, Inc., Interstate Jitney
Jungle Stores, Inc., Delta Acquisition Corporation and
Delchamps, Inc. ("Delchamps") (each a "Borrowers"),
the Guarantors named therein, the Lenders named
therein and Fleet Capital Corporation, as Agent.
WHEREAS the Borrowers requested that the
Agent and the Lenders agree to amend certain
provisions contained in the Credit Agreement;
WHEREAS the Lenders are willing to amend
such provisions on the terms and conditions hereof;
WHEREAS Delchamps and Jitney Jungle have
entered into an Agreement for
Purchase and Sale of Retail Grocery Stores dated as of
January 26, 1998 attached hereto as Exhibit A (as
amended from time to time, the "Bruno's Sale
Agreement"), with Bruno's, Inc., an Alabama
corporation ("Bruno's"), whereby Jitney Jungle and
Delchamps have agreed to sell four Delchamps stores
(Delchamps store numbers 10, 11, 18 and 35) to
Bruno's (the "Bruno's Sale") for the purchase price
described in the Bruno's Sale Agreement (the "Bruno's
Purchase Price");
WHEREAS Delchamps desires to sell a certain
parcel of land located in Gulfport, Mississippi (the
"Gulfport Sale") as more fully described in the Contract
of Purchase and Sale dated March 27, 1997, attached
hereto as Exhibit B, among Delchamps, and John M.
Mladinich.
WHEREAS Jitney Jungle intends to form a
wholly-owned subsidiary named JJ Construction Corp.,
a Mississippi corporation ("JJ Construction") and
requests that the Agent and the Lenders consent to the
formation of JJ Construction;
WHEREAS the Borrowers have requested that
the Lenders waive certain provisions of the Credit
Agreement as to the Bruno's Sale, the Gulfport Sale
and the formation of JJ Construction;
WHEREAS the Lenders are willing to waive
certain provisions of the Credit Agreement on the terms
and conditions hereof;
NOW, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
SECTION 1 CAPITALIZED TERMS.
Capitalized terms used herein and not defined shall have
the respective meanings assigned to such terms in the
Credit Agreement.
SECTION 2 AMENDMENTS TO THE
CREDIT AGREEMENT. The Credit Agreement shall
be, and upon the fulfillment of the conditions set forth
in Section 6 hereof is, amended as follows:
SECTION 2.1 SCHEDULE II is deleted in its
entirety and SCHEDULE II attached hereto shall be
substituted therefor.
SECTION 2.2 The phrase "fiscal quarter ending
January 10,1998" contained in the definition of Initial
Adjustment Date is deleted and the phrase "fiscal
quarter ending March 28, 1998" shall be substituted
therefor.
SECTION 2.3 The phrase "Fiscal Year ending
on or about May 2, 1998" contained in Section 2.07
(b)(ii)(B) is deleted and the phrase "Fiscal Year ending
on or about January 3, 1998" shall be substituted
therefor.
SECTION 2.4 The phrase "Saturday nearest to
April 30 of each year" in Section 6.09 is deleted and the
phrase "Saturday nearest to December 31 of each year"
shall be substituted therefor.
SECTION 2.5 The phrase "Indebtedness to A.I.
Credit Corp. incurred in connection with a Premium
Finance Agreement, Disclosure Statement and Security
Agreement dated as of May 29, 1997 in a maximum
amount of $16,000,000" in Section 7.03 (xii) is deleted
and the phrase 'Indebtedness to A.I. Credit Corp.
incurred in connection with a Premium Finance
Agreement, Disclosure Statement and Security
Agreement dated as of May 29, 1997, as amended, in a
maximum amount of $28,000,000" shall be substituted
therefor.
SECTION 2.6 Section 7.09 is hereby amended
in its entirety to read as follows:
Leverage Ratio Permit the Leverage Ratio at the end of
each fiscal quarter set forth below to be greater than:
Date of Determination Ratio
The Fiscal Quarters ending 5.50:1.00
January 3, 1998, March 28, 1998,
June 20, 1998 and September 12, 1998
The Fiscal Quarter ending 5.00:1.00
January 2, 1999
Each Fiscal Quarter ending 4.40:1.00
in Fiscal Year 1999
Each Fiscal Quarter ending 4.30:1.00
in Fiscal Year 2000
Each Fiscal Quarter ending 3.90:1.00
in Fiscal Year 2001
Each Fiscal Quarter ending 3.60:1.00
in Fiscal Year 2002
Each Fiscal Quarter ending 3.40:1.00
in Fiscal Year 2003
SECTION 2.7 Section 7.10 shall be amended by
adding the phrases "The Fiscal Quarter ending January
3, 1998" and "1.65:1.00" immediately below the Date of
Determination and the Ratio column headings,
respectively.
SECTION 2.8 Section 7.11 hereby amended in
its entirety to read as follows:
EBITDA Permit EBITDA at the end of each fiscal
quarter for the four most recent consecutive fiscal
quarters ending on or prior to the date of determination
to be less than the following amounts; provided, that for
the fiscal quarters ending January 3, 1998, March 28,
1998 and June 20, 1998, EBITDA shall be calculated,
with respect to Jitney Jungle and its subsidiaries (other
than Delchamps and its subsidiaries), for the number of
fiscal quarters that shall have elapsed since May 3,1997
and with respect to Delchamps and its subsidiaries, for
the period commencing June 29, 1997 though the date
of determination:
Date of Determination Amount
Fiscal Quarter ending $54,000,000
January 3, 1998
Fiscal Quarter ending $70,000,000
March 28, 1998
Fiscal Quarter ending $76,800,000
June 20, 1998
Fiscal Quarter ending $77,600,000
September 12, 1998
Fiscal Quarter ending $96,800,000
January 2, 1999
Each Fiscal Quarter ending $112,000,000
in Fiscal Year 1999
Each Fiscal Quarter ending $114,000,000
in Fiscal Year 2000
Each Fiscal Quarter ending $124,000,000
in Fiscal Year 2001
Each Fiscal Quarter ending $135,000,000
in Fiscal Year 2002
Each Fiscal Quarter ending $148,000,000
in Fiscal Year 2003
SECTION 3. WAIVER AND CONSENT (BRUNO'S SALE)
SECTION 3.1. The Agent and the Lenders
hereby consent to the Bruno's Sale as described above
and pursuant to the Bruno's Sale Agreement; provided,
however, that all Net Cash Proceeds from the Bruno's
Sale shall be applied to the prepayment of the Loans
pursuant to Section 2.09(d)(i) of the Credit Agreement.
SECTION 3.2. The Agent and the Lenders
hereby agree that the provision of Section 2.07(b)(ii) of
the Credit Agreement with respect to the mandatory
permanent reduction of the Total Commitment and
Supplemental Availability shall not be applicable to the
Net Cash Proceeds of the Bruno's Purchase Price used
for the prepayment of the Loans pursuant to Section 3.1
above.
SECTION 3.3. The Agent and the Lenders
acknowledge that Delchamps and Jitney Jungle have
made a Reinvestment Election pursuant to Section
2.o9(d)(i) of the Credit Agreement with regard to the
Net Cash Proceeds from the Bruno's Sale.
SECTION 3.4. The Agent and the Lenders
agree that any Net Cash Proceeds
from the Bruno's Sale reinvested in Reinvestment
Assets shall not be applied toward (x) the $1,000,000
per fiscal year limit or (y) the $5,000,000 limit from the
Initial Closing Date until the Final Maturity Date on
such reinvestment as provided in Section 2.09(d)(i) of
the Credit Agreement.
SECTION 4. WAIVER AND CONSENT (GULFPORT SALE)
SECTION 4.1. The Agent and the Lenders
hereby consent to the Gulfport Sale as described above
and pursuant to the Gulfport Sale Agreement; provided,
however, that all Net Cash Proceeds from the Gulfport
Sale shall be applied to the prepayment of the Loans
pursuant to Section 2.09(d}(i) of the Credit Agreement.
SECTION 4.2. The Agent and the Lenders
hereby agree that the provision of Section 2.07(b)(ii) of
the Credit Agreement with respect to the mandatory
permanent reduction of the Total Commitment and
Supplemental Availability shall not be applicable to the
Net Cash Proceeds of the Gulfport Sale used for the
prepayment of the Loans pursuant to Section 4.1 above.
SECTION 4.3. The Agent and the Lenders
acknowledge that Delchamps and Jitney Jungle have
made a Reinvestment Election pursuant to Section
2.09(d)(i) of the Credit Agreement with regard to the
Net Cash Proceeds from the Gulfport Sale.
SECTION 4.4. The Agent and the Lenders
agree that any Net Cash Proceeds
from the Gulfport Sale reinvested in Reinvestment
Assets shall not be applied toward (x) the $1,000,000
per fiscal year limit or (y) the $5,000,000 limit from the
Initial Closing Date until the Final Maturity Date on
such reinvestment as provided in Section 2.09(d)(i) of
the Credit Agreement.
SECTION 5. FORMATION OF JJ CONSTRUCTION.
SECTION 5.1. The Agent and the Lenders
hereby consent to the formation of JJ Construction in
accordance with Section 7.22 of the Credit Agreement
JJ Construction shall exist solely for the purpose of
constructing new supermarkets and related facilities to
be owned and operated by the Borrowers. JJ
Construction shall engage in no other activity including,
but not limited to, the operation of any supermarket or
the acquisition of any inventory.
SECTION 5.2. By executing and delivering this
Amendment Agreement No.1, JJ Construction hereby
becomes a Guarantor under the Credit Agreement and a
Grantor under the Security Agreement and agrees to be
bound by, and to comply with the provisions of each of
the Credit Agreement and the Security Agreement in the
same manner as if JJ Construction were an original
signatory thereto as a Guarantor and a Grantor,
respectively.
SECTION 5.3. Jitney Jungle hereby agrees to
pledge its stock in JJ Construction to the Agent
pursuant to the terms and conditions of the Pledge
Agreement and promptly to deliver or cause to be
delivered to the Agent the stock certificates evidencing
its ownership of JJ Construction, together with stock
powers, undated and executed in blank, in form and
substance satisfactory to the Agent The parties hereto
hereby further agree to amend Schedule I to the Pledge
Agreement by deleting it in its entirety and substituting
Schedule I attached hereto therefor.
SECTION 6. CONDITIONS PRECEDENT
This Amendment Agreement shall become
effective on such date as the following conditions have
been satisfied in full or waived by the Agent in writing:
SECTION 6.1 The Agent shall have received in
form and substance satisfactory to the Agent and its
counsel Agreement.
6.1.1 Copies of the Bruno's Sale Agreement
and the Gulfport Sale Agreement.
6.1.2 A certificate signed by the Secretary of
each Borrower, Grantor and Guarantor, dated the date
hereof, Certifying that attached thereto is a true and
complete copy of resolutions adopted by such person's
Board of Directors authorizing the execution, delivery
and performance of this Amendment Agreement, and
that such resolutions have not been modified, rescinded
or amended and are in full force and effect.
6.1.3 Each of (a) a copy of the certificate or
articles of incorporation, as amended to date, of JJ
Construction, certified as of a recent date by the
Secretary of State of the State of Mississippi, and a
certificate as to the good standing of JJ Construction
from such Secretary of the State, dated as of a recent date;
(b) a certificate of the Secretary of JJ Construction,
dated the date hereof and certifying (I) that attached
thereto is a true and complete copy of the By-laws of JJ
Construction as in effect on the date of such certificate
and at all times since a date prior to the date of the
resolution described in item (ii) below, (ii) that attached
thereto is a true and complete copy of a resolution
adopted by the Board of Directors of JJ Construction
authorizing the execution, delivery and performance of
this Amendment Agreement, the Credit Agreement, the
Security Documents the Notes, the other Loan
Documents and the Credit Events thereunder, as
applicable, and that such resolution has not been
modified rescinded or amended and is in full force and
effect, (iii) that JJ Construction's certificate or articles of
incorporation has not been amended since the date of
the last amendment thereto shown on the certificate of
good standing furnished pursuant to (a) above, and (iv)
as to the incumbency and specimen signature of each of
JJ Construction's officers executing this Amendment
Agreement or any other Loan Documents delivered in
connection herewith or therewith, as applicable and (c) a
certificate of another of JJ Construction's officers as to
incumbency and signature of its Secretary.
6.1.4 Each document (including, without
limitation, each Uniform Commercial Code financing
statement) required by law or required by the Agent to
be filed, registered or recorded in order to create in
favor of the Agent for the benefit of the Secured Parties
a first priority perfected security interest in the
Collateral shall have been properly filed, registered or
recorded in each jurisdiction in which the filing,
registration or recordation thereof is so required or
requested. The Agent shall have received evidence
satisfactory to it, of each such filing, registration or
recordation.
6.1.5 A certificate signed by a Financial Officer
of each Borrower and Guarantor, that (i) the representations
and warranties made in this Amendment
Agreement are true and correct, both immediately prior
to and after giving effect to the transactions
contemplated herein, and (ii) there exists no unwaived
Default or Event of Default.
6.1.6 Counterparts of this Amendment executed
by each Borrower, each Guarantor, each Grantor and
the Required Lenders shall have been delivered to the
Agent.
6.1.7 Such other approvals, opinions or
documents as the Agent may reasonably request.
SECTION 6.2 All representations and
warranties contained in this Amendment Agreement or
otherwise made in writing to the Agent in connection
herewith shall be true and correct in all mated respects.
SECTION 6.3 No unwaived Default or Event of
Default has occurred and is continuing.
SECTION 6.4 Messrs. Kaye, Scholer, Fierman,
Hays & Handler, LLP, counsel to the Agent, shall have
received payment in full for all legal fees charged, and
all costs and expenses incurred, by such counsel in
connection with the transactions contemplated under
this Amendment Agreement and the other Loan
Documents and instruments in connection herewith and
therewith.
SECTION 7. MISCELLANEOUS
SECTION 7.1 Each of the Borrowers and each
Guarantor reaffirms and restates the representations and
warranties set forth in Article IV of the Credit
Agreement, as amended by this Amendment Agreement
and all such representations and warranties shall be true
and correct on the date hereof with the same force and
effect as it made on such date (except insofar as such
representation and warranties relate to expressly to an
earlier date). Each of the Borrowers and each Guarantor
represents and warrants (which representations and
warranties shall survive the execution and delivery
hereof) to the Agent that:
(a) It has the corporate power and authority
to execute, deliver and carry out the terms and
provisions of this Amendment Agreement and has taken
or caused to be taken all necessary corporate action to
authorize the execution, delivery and performance of
this Amendment Agreement;
(b) No consent of any other person
(including, without limitation, shareholders or creditors
of any Borrower or a Guarantor), and no action of, or
filing with any governmental or public body or authority
is required to authorize, or is otherwise required in
connection with the execution, delivery and performance
of this Amendment Agreement;
(c) This Amendment Agreement and the
other instruments and documents contemplated hereby
have been duly executed and delivered by a duly
authorized officer on behalf of such party, and
constitutes a legal, valid and binding obligation of such
party enforceable against such party in accordance with its
terms, subject to bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting the
enforcement of creditors' rights generally and the
exercise of judicial discretion in accordance with general
principles of equity; and
(d) The execution, delivery and performance
of this Amendment Agreement and the other
instruments and documents contemplated hereby will
not violate any law, statute or regulation, or any order
or decree of any court or governmental instrumentality,
or conflict with, or result in the breach of, or constitute
a default under any contractual obligation of such party.
SECTION 7.2 Except as herein expressly
amended nothing herein shall be deemed to be a waiver
of any covenant or agreement contained in the Credit
Agreement, and each Borrower and each Guarantor
hereby agrees that air of the covenants and agreements
contained in the Credit Agreement and the other Loan
Documents are hereby ratified and confirmed in all
respects and shall remain in full force and effect in
accordance with their respective terms.
SECTION 7.3 All references to the Credit
Agreement in the Credit Agreement or any other Loan
Document and the other documents and instruments
delivered pursuant to or in connection therewith shall
mean such Agreement as amended hereby and as each
may in the future be amended, restated, supplemented or
modified from time to time.
SECTION 7.4 This Amendment Agreement may
be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one
and the same agreement.
SECTION 7.5 De1ivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
SECTION 7.6 This Amendment Agreement shall
be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
SECTION 7.7 The parties hereto shall, at any
time and from time to time following the execution of
this Amendment Agreement, execute and deliver all
such further instruments and take all such further action
as may be reasonably necessary or appropriate in order
to carry out the provisions of this Amendment
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties
have caused this Amendment Agreement to be
executed by their respective officers thereunto duly
authorized, as to the dare first above written.
JITNEY-JUNGLE STORES OF AMERICA, INC.,
as Borrower and as Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
SOUTHERN JITNEY JUNGLE COMPANY,
as Borrower and Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
McCARTY-HOLMAN CO., INC.,
as Borrower and Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
JITNEY-JUNGLE BAKERY, INC.,
as Borrower and Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
PUMP AND SAVE, INC.,
as Borrower and as Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
INTERSTATE JITNEY JUNGLE STORES, INC.,
as Borrower and Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
DELCHAMPS, INC.,
as Borrower and Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
JJ CONSTRUCTION CORP.
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
SUPERMARKET CIGARETTE SALES, INC.,
as Guarantor
By: /s/ R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
General Counsel
FLEET CAPITAL CORPORATION, as Agent
By: /s/ Thomas Maiale
Name: Thomas Maiale
Title: Vice President
FLEET CAPITAL CORPORATION, as Lender
By: /s/ Thomas Maiale
Name: Thomas Maiale
Title: Vice President
BTM CAPITAL CORPORATION, as Lender
By: /s/ William R. Zork, Jr.
Name: William R. Zork, Jr.
Title: Executive Vice President
HELLER FINANCIAL INC., as Lender
By: /s/ Stephen M. Metivier
Name: Stephen M. Metivier
Title: Assistant Vice President
IBJ SCHRODER BUSINESS CREDIT CORP.,
as Lender
By: /s/ James M. Steffy
Name: James M. Steffy
Title: Vice President
NATIONAL BANK OF CANADA, a Canadian
Chartered Bank, as Lender
By: /s/ J. Michael Smith
Name: J. Michael Smith
Title: Vice President
By: /s/ Grothan R. Frosh
Name: Grothan R. Frosh
Title: Vice President
NATIONAL CITYBANK, as Lender
By: /s/ Joseph D. Robinson
Name: Joseph D. Robinson
Title: Vice President
DEUTSCHE FINANCIAL SERVICES HOLDING
CORPORATION, as Lender
By: /s/ Mark Tauber
Name: Mark Tauber
Title: Executive Vice President
FLEET BANK, N.A., as a Letter of
Credit Issuer
By: /s/ Thomas Maiale
Name: Thomas Maiale
Title: Vice President