EXECUTION COPY
AMENDMENT AND WAIVER AGREEMENT NO.2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Amendment and Waiver Agreement No.2,
(this "Agreement") dated as of June 19, 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., Delchamps, Inc. ("Delchamps") (each a
"Borrower" and collectively, the "Borrower"), the
Guarantors named therein, the Lenders named therein
and Fleet Capital Corporation, as Agent.
WHEREAS Delchamps desires to sell (the
"Mandeville_Sale") a certain parcel of land located in
Mandeville, Louisiana (the "Mandeville Parcel") as
more fully described in the Purchase Agreement dated
January 29, 1998, attached hereto as Exhibit A (the
"Mandeville Sale Agreement"), among Delchamps, and
Premier Centre, L.L C
WHEREAS Delchamps has entered into a site-
development agreement dated April 24, 1998, attached
hereto as Exhibit B (the "Mandeville Site Development
Agreement"), between Delchamps and Premier Centre,
L.L.C., pursuant to which Delchamps will construct a
supermarket (the "Mandeville Supermarket") on the
Mandeville Parcel.
WHEREAS the Borrowers have requested that
the Agent and the Lenders agree to waive certain
provisions in the Credit Agreement and to consent to
the Borrowers entering into site development
arrangements for the construction of new supermarkets;
WHEREAS the Borrowers have requested that
the Agent and the Lenders agree to amend certain
provisions contained in the Credit Agreement;
WHEREAS the Agent and the Lenders are
willing to consent to the Mandeville Sale, the site
development arrangements and to amend and waive
such provisions of the Credit Agreement on the terms
and conditions contained herein;
Now, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
SECTION 1. CAPTTALIZED 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 Section 7.09 of the Credit
Agreement 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
January 3, 1998 and March 28, 1998 5.50:1.00
The Fiscal Quarter ending
June 20, 1998 6.00:1.00
The Fiscal Quarter ending
September 12, 1998 6.00:1.00
The Fiscal Quarter ending
January 2,1999 5.25:1.00
Each Fiscal Quarter ending
in Fiscal Year 1999 4.40:1.00
Each Fiscal Quarter ending
in Fiscal Year 2000 4.30:1.00
Each Fiscal Quarter ending
in Fiscal Year 2001 3.90:1.00
Each Fiscal Quarter ending
in Fiscal Year 2002 3.60:1.00
Each Fiscal Quarter ending
in Fiscal Year 2003 3.40:1.00
SECTION 2.2 Section 7-10 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
Interest Coverage Ratio. Permit the Interest Coverage
Ratio at the end of each fiscal quarter set forth below to
be less than:
Date of Determination Ratio
The Fiscal Quarters ending
June 2O, 1998 and
September 12, 1998 1.50:1.00
The Fiscal Quarter ending
January 2, 1999 1.65:1.00
Each Fiscal Quarter ending
in Fiscal Year 1999 1.80:1.00
Each Fiscal Quarter ending
in Fiscal Year 2000 1.85:1.00
Each Fiscal Quarter ending
in Fiscal Year 2001 and
thereafter 2.00:1.00
SECTION 3. WAIVER AND CONSENT (MANDEVILLE SALE)
SECTION 3.1. The Agent and the Lenders
hereby consent to the Mandeville Sale as described
above and pursuant to the Mandeville Sale Agreement.
SECTION 3.2. The Agent and the Lenders
hereby waive the requirement of Section 2.09(d}(i) that
the Borrowers make a mandatory prepayment of the
Loans in an amount equal to 100% of the Net Cash
Proceeds from the Mandeville Sale.
SECTION 3.3. The Agent and the Lenders
hereby agree That the provision of Section 2.O7(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 Mandeville Sale.
SECTION 3.4. The Agent and the Lenders
waive Section 7.01 of the Credit
Agreement to permit the Borrowers to grant Premier
Centre, L.L.C. a security interest in
Delchamp's benefits to the Mandeville Site-Development
Agreement, any plans and/or specifications required for
the construction of the Mandeville Supermarket, and all
permits and approvals with regard to the construction of
the Mandeville Supermarket.
SECTION 3.5. The Agent and the Lenders
hereby waive Section 7.02 to the
Credit Agreement as it applies to the Mandeville Site-
Development Agreement.
SECTION 3.6. The Agent and the Lenders
hereby waive Section 7.05 to the Credit Agreement as it
applies to the Mandeville Site-Development Agreement
SECTION 4. CONSENT TO SITE-DEVELOPMENT AGREEMENTS.
The Agent and the Lenders hereby consent to
the execution by the Borrowers of site-development
agreements for the construction of supermarkets (in
each case a "Store"), in each case substantially in the
form of either Exhibit C or Exhibit D attached hereto
(each a "Site-Development Agreement") with one or
more developers (each such developer with respect to a
Store is is herein called a "Developer"); provided,
however that the aggregate construction costs
(including, but not limited to, supplies, labor, change
orders, administrative costs, architectural costs,
financing costs. Insurance costs and any other direct or
indirect costs) incurred in the construction of a Store
pursuant to a Site-Development Agreement shall not
exceed $3,500,000. Upon the execution of a Site-
Development Agreement the Borrowers shall promptly
deliver, or cause to be promptly delivered to the Agent a
copy of such Site-Development Agreement and any
other agreement executed in connection therewith.
SECTION 5. WAIVERS REGARDING SITE DEVELOPMENT AGREEMENT
SECTION 5.1. The Agent and the Lenders
hereby waive Section 7.01 of the
Credit Agreement to permit the Borrowers to grant a
Developer, pursuant to a Site-Development Agreement,
a security interest in the Borrower's benefits to such
Site-Development Agreement, any plans and/or
specifications required for the construction of the Store
covered by the Site Development Agreement, and all
permits and approvals with regard to the construction of
such Store.
SECTION 5.2. The Agent and the Lenders
hereby waive Section 7.02 to the Credit Agreement as it
applies to any Site-Development Agreement.
SECTION 5.3. The Agent and the Lenders
hereby waive Section 7.05 to the Credit Agreement as it
applies to any Site-Development Agreement.
SECTION 5.4. The Agent and the Lenders
hereby agree that any proceeds received from the sale of
either real Property or a Store to a Developer pursuant
to a Site-Development Agreement shall not be subject to
the provisions of Section 2.09(d)(i) of the Credit
Agreement with respect to the application of proceeds
of an Asset Sale.
SECTION 5.3. The Agent and the Lenders
hereby agree that the provision of Section 2.O7(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 received by the Borrowers from the
sale of real property or a Store pursuant to a Site-
Development Agreement.
SECTION 6. CONDITIONS PRECEDENT
This 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;
SECTION 6.1.1 Copies of the Mandeville Sale
Agreement and the form of Site-Development
Agreements.
SECTION 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 Agreement, and that
such resolutions have not been modified, rescinded or
amended and are in full force and effect.
SECTION 6.1.3 A certificate signed by a
Financial Officer of each
Borrower and Guarantor, that (i) the representations
and warranties made in this
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.
SECTION 6.1.4 Counterparts of this
Amendment executed by each Borrower, each
Guarantor and the Required Lenders shall have been
delivered to the Agent.
SECTION 6.1.5 Such other approvals, opinions
or documents as the Agent may reasonably request.
SECTION 6.2 All representations and
warranties contained in this Agreement or otherwise
made in writing to the Agent in connection herewith
shall be true and correct in all material respects.
SECTION 6.3 No unwaived Default or Event of
Default has occurred and is continuing.
SECTION 6.4 Messrs. Kaye, Scholer, Fiermnan,
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 Agreement and
the other Loan Documents and instruments in
connection herewith and therewith..
SECTION 7. TERMINATION. The waiver and
consent contained herein as it relates to the Site-
Development Agreements shall be Immediately
revocable by the Agent upon notice to the Borrowers;
provided, however any such termination shall not apply
to any Site-Development Agreement that has been
previously executed and delivered to the Agent.
SECTION 3. MISCELLANEOUS
SECTION 8.1 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 Agreement, and all such
representations and warranties shall be true and correct
on the date hereof with the same force and effect as if
made on such date (except insofar as such
representation and warranties relate 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 Agreement and has taken or caused to
be taken all necessary corporate action to authorize the
execution, delivery and performance of this 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 Agreement;
(c) This 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 or, delivery and
performance of this 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 8.2 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 all 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 8.3 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 8.4 This 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 8.5 Delivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
SECTION 8.6 This Agreement shall be
governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
SECTION 8.7 The parties hereto shall, at any
time and from time to time following the execution of
this 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 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 date 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
PNC BANK, NATIONAL ASSOCIATES, as Lender
By: /s/ Richard F. Muse, Jr.
Name: Richard F. Muse, Jr.
Title: 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
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/ Pamela D. Petrick
Name: Pamela D. Petrick
Title: Vice President
FLEET BANK, N.A., as a Letter of
Credit Issuer
By: /s/ Thomas Maiale
Name: Thomas Maiale
Title: Vice President