AMENDMENT NO.3
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO.3 dated October 5,1998 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., Southern Jitney Jungle Company, MaCarty-
Holman Co., Inc., Jitney-Jungle Bakery, Inc., Pump and
Save, Inc., Interstate Jitney Jungle Stores Inc., and
Delchamps. Inc. (each a "Borrower" and collectively,
the "Borrowers"), the Guarantors named therein, the
Lenders named therein and Fleet Capital Corporation, as
Agent.
WHEREAS, as a result of the interruption of
business and the recent damage caused to the assets of
certain Borrowers and Guarantors related to Hurricane
Georges, the Borrowers have requested that the Agent
and the Lenders agree to increase the Total
Commitment and the Supplemental Availability under
the Credit Agreement and amend certain other
provisions contained in the Credit Agreement;
WHEREAS the Lenders are willing to amend
such provisions 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 5 hereof is, amended as follows:
SECTION 2.1 Schedule 2.01(a) attached hereto
is hereby made a part of the Credit Agreement.
SECTION 2.2 The definition of Commitment is
hereby deleted in its entirely and the following is hereby
substituted therefore:
"Commitment" shall mean, with respect to each
Lender, the sum of the
Commitment of such Lender as set forth on Schedules
2.01 and 2.01(a), annexed hereto,
as it maybe adjusted from time to time pursuant to
Section 2.07.
SECTION 2.3 The Percentage of Commitment
column on Schedule 2.01 is hereby deleted in its
entirety.
SECTION 2.4 The definition of Supplemental
Availability is hereby amended by adding the phrase
"plus the aggregate amount of the Commitments set
forth on Schedule 2.01(a), if any" at the end of the
definition.
SECTION 2.5 Section 2.l7(b) is hereby
amended by deleting the parenthetical phrase "(as
determined in accordance with the percentage amounts
set forth in Schedule 2.01 hereto)" and substituting
therefore the phrase "(as determined by dividing the sum
of such Lender's Commitment by the Total
Commitment)".
SECTION 2.6 Section 2.17(c)(i) is hereby
amended by deleting the phrase "as determined in
accordance with the percentage amounts set forth in
Schedule 2.01 hereto" and substituting therefore the
phrase "as determined by dividing the sum of such
Lender's Commitment by the Total Commitment".
SECTION 3 ADDITIONAL COMMITMENTS: REDUCTION OF
COMMITMENTS
SECTION 3.1 The parties hereto agree that any
Lender may, upon written notice to the Agent
substantially in the form of Exhibit A hereto, increase
the portion of its Commitment set forth on Schedule
2.01(a); provided, however, that in no event shall the
aggregate of the Commitments set forth on Schedule
2.01(a) exceed US $25,000,000. Upon receipt of such
notice, the Agent shall notify the Borrowers and the
Lenders of such increase.
SECTION 3.2 The parties hereto agree that the
Commitment of each Lender set forth on Schedule
2.01(a) shall be reduced to US$0 on January 15,1999.
SECTION 3.3 The parties hereto agree that all
Loans, whether made under the Commitments set forth
on Schedule 2.01 or 2.01(a), shall be treated pari passu
and shall be secured by the Collateral pro rata taking all
Loans into account.
SECTION 3.4 Upon the request of any Lender,
the Borrowers hereby agree to execute and deliver a
Note, substantially in the form of Exhibit A to the Credit
Agreement, payable to such Lender in the principal
amount of the Commitment of such Lender set forth on
Schedule 2.01(a) and with a maturity date of January
15, 1999.
SECTION 4 ADDITIONAL AGREEMENTS
SECTION 4.1 Notwithstanding any provision of
Section 2.09(e)(ii) of the Credit Agreement, upon the
receipt by the Agent or any Borrower, any Guarantor or
any of their respective subsidiaries (x) of any net
proceeds of any insurance required to be maintained
pursuant to Section 6.03 of the Credit Agreement (or
otherwise maintained by such Borrower, Guarantor or
subsidiary) on account of any loss, damage or injury to
any asset of any such Borrower, Guarantor or subsidiary
(including, without limitation, any Collateral) caused
directly or indirectly by Hurricane Georges, or (y) or
any net proceeds of any business interruption insurance
required to be maintained pursuant to Section 6.03 of
the Credit Agreement (or otherwise maintained by such
Borrower, Guarantor or subsidiary) related directly or
indirectly to Hurricane Georges. such Borrower, such
Guarantor or such subsidiary shall promptly notify the
Agent of such receipt in writing (or by telephone
promptly confirmed in writing), and not later than the
fifth Business Day following receipt by the Agent or
such Borrower, such Guarantor or such subsidiary of
any such proceeds, there shall become due and payable a
prepayment of the Loans in an amount equal to 100% of
such proceeds. The proceeds of any prepayment made
pursuant to this Section 4.1 shall be applied to the
outstanding Loans in accordance with Section 2.09(f) of
the Credit Agreement: provided, however, if at the time
of such prepayment the outstanding Loans exceed the
aggregate of the Lenders' Commitments on Schedule
2.01, the proceeds of such prepayment shall first be
applied to Loans made under the Lenders'
Commitments on Schedule 2.0l(a), pro rata in
accordance with each Lenders Commitment on
Schedule 2,01(a) until all such Loans have been repaid
in full and any remaining proceeds shall be applied to the
outstanding Loans in accordance with Section 2.09(f) of
the Credit Agreement.
SECTION 4.2 On each date that a prepayment
of principal of the Loans is required pursuant to Section
4.1 hereof, the Commitment of the Lenders set forth on
Schedule 2.01(a) shall be reduced in an amount equal to
such prepayment and each Lender's Commitment on
Schedule 2.0l(a) shall be reduced pro rata based on each
Lenders share of the aggregate of the Commitments set
forth on such schedule.
SECTION 5 CONDITIONS PRECEDENT
This Amendment shall become effective on such date as
the following conditions have been satisfied in full or
waived by the Agent in writing:
SECTION 5.1 The Agent shall have received in
form and substance satisfactory to the Agent and its
counsel:
(a) 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, and that such
resolutions have not been modified, rescinded or
amended and are in full force and effect.
(b) A certificate signed by a Financial Officer
of each Borrower and Guarantor, that (i) the
representations and warranties made in this Amendment
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 both immediately prior to and after giving effect
to the transaction contemplated herein.
(c) Counterparts of this Amendment
executed by each Borrower, each Guarantor, each
Grantor and each Lender shall have been delivered to
the Agent.
(d) Evidence that this Amendment and the
transactions contemplated herein shall not violate or
contravene any credit agreement, indenture or other
agreement to which any Borrower, Guarantor or
Grantor is a party.
(e) An Opinion of Butler, Snow, O'Mara.
Stevens & Cannada, PLLC, addressed to the Agent and
the Lender, as to the authorization, execution and
delivery of this Amendment and the Notes delivered
herewith and the non-contravention of this Amendment
with credit agreement, indenture or other agreement to
which any Borrower, Guarantor or Grantor is a party.
(f) If so requested, each Lender that has
increased its Commitment shall have received Notes
reflecting such increase in Commitment duly executed
by the Borrowers.
(g) Such other approvals, opinions or
documents as the Agent may reasonably request.
SECTION 5.2 All representations and
warranties contained in this Amendment or otherwise
made in writing to the Agent in connection herewith
shall be true and correct in all material respects.
SECTION 5.3 No unwaived Default or Event of
Default has occurred and is continuing.
SECTION 5.4 Kaye, Scholer, Fierrnan, 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 and the other Loan Documents and
instruments in connection herewith and therewith.
SECTION 6 MISCELLANEOUS
SECTION 6.1 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, 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 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 caused the corporate power and
authority to execute, deliver and carry out the terms and
provisions of this Amendment and the Notes and has
taken or caused to take all necessary corporate action
to authorize the execution, delivery and
performance of this Amendment;
(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;
(c) This Amendment, the Notes 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, the Notes 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 6.2 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 6.3 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 6.4 This Amendment 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 6.5 Delivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
SECTION 6.6 This Amendment shall be
governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
SECTION 6.7 The parties hereto shall, at any
time and from time to time following the execution of
this Amendment, 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.
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SCHEDULE 2.01(a)
Commitments
Lender Commitment
Fleet Capital Corporation $8,333,333
60 East 42nd Street
New York, New York 10017
Attention. Mr. Thomas Maiale
Tel #: (212) 885-8826
Fax #: (212) 885-8829
Heller Financial, Inc. $5,833,333
101 Park Avenue
New York, New York 10178
Attention: Mr. Tom Bukowski
Tel #: (212) 880-7169
Fax #: (212) 880-7002
PNC Bank, National Association $2,666,667
2 PNC Plaza 18th Floor
620 Liberty Avenue
Pittsburgh, PA 15222
Attention: Mr. Richard Muse
Tel #: (412) 762-4471
Fax #: (412)762-4069
IBJ Schroder Business Credit Corp. $2,333,333
One State Street
New York, New York 10004
Attention: Mr. Jim Steffy
Tel #: (212) 858-2094
Fax#: (212)858-2151
National Bank of Canada, $2,166,667
a Canadian Chartered Bank
125 West 55th Street
New York, New York 10019
Attention: Mr. Torn Doss
Senior Vice President
Tel #: (212) 632-8560
Fax#: (212) 632-8564
Lender Commitment
Deutsche Financial Services $2,000,000
Corporation
2331 Waukegan Road
Bannuck Bunn. Illinois 60016
Attention: Mr. Charles Arkin
Fax #: (847) 948-1872
National City Dank $1,666,667
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Mr. Joseph D. Robison
Tel #: (216) 575-9254
Fax #: (216) 575-9396
Total Commitment $25,000,000
EXHIBIT A
[DATE]
Fleet Capital Corporation
60 East 42nd Street
New York, NY 10017
Attn: Thomas Maiale
Gentlemen:
Reference is made to that certain Amendment
No.3 dated October ____, 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., Southern Jitney Jungle Company, McCarty-
Holman Co., Inc., Jitney-Jungle Bakery. Inc., Pump and
Save, Inc.. Interstate Jitney Jungle Stores, Inc., and
Delchamps, Inc. (each a "Borrower" and collectively,
the "Borrowers"), the Guarantors named therein, the
Lenders named therein and Fleet Capital Corporation, as
Agent.
Capitalized terms used herein and not defined
shall have the respective meanings assigned to such
terms in the Credit Agreement.
[BANK] hereby agrees to increase its
Commitment as set forth on Schedule 2.01(a) to the
Credit Agreement by [___________________] making
its Commitment [________________].
[BANK]
By ____________________
Name:
Title:
Accepted and agreed this day of
FLEET CAPITAL CORPORATION, as Agent
By _________________________
Name:
Title:
WAIVER AND CONSENT AGREEMENT
WAIVER AND CONSENT AGREEMENT
dated May 8, 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, ("Jutney Jungle"), Southern
Jitney Jungle Company, McCarty-Holman Co., Inc.,
Jitney-Jungle Bakery, Inc., Pump and Save, Inc.,
Interstate Jitney Jungle Stores. Inc., and Delchamps,
Inc., ("Delchamps") (each a "Borrower" and
collectively, the "Borrowers"), the guarantors named
therein, the lenders named therein (the "Lenders") and
Fleet Capital Corporation, as agent for the Lenders (the
"Agent"). Capitalized terms used herein and not defined
shall have the respective meanings assigned to such
terms in the Credit Agreement.
WHEREAS the Jitney-Jungle desires to execute
and deliver to A.I. Credit Corp.
("Credit Corp.") a Premium Finance Agreement and a
Disclosure Statement and Security Agreement, each
dated April 30,1998 (together, the "Agreements");
WHEREAS the Agent and the Lenders are
willing to consent to the execution and delivery of the
Agreements and to 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:
1. Consent. The Agent and the Lenders
hereby consent to the execution by Jitney-Jungle of the
Agreements.
2. Waiver. Pursuant to the terms, and
conditions contained herein, the Agent and the Lenders
hereby agree to the following:
2.1 to waive Section 7.01 of the Credit
Agreement only to the extent necessary to permit Jitney-
Jungle to grant liens in favor or Credit Corp. to secure
payment of amounts due under the Agreements;
2.2 to waive Section 7.03 to the Credit
Agreement only to the extent necessary to permit Jitney-
Jungle to incur, create, assume and permit to exist
Indebtedness to Credit Corp. incurred in connection
with the Agreements up to a maximum amount of
$16,500,000;
2.3 to waive Section 7.18(a) to the Credit
Agreement only to the extent necessary to allow Jitney-
Jungle, directly or indirectly, to prepay, redeem,
purchase, defease or retire in advance of its scheduled
maturity any Indebtedness under certain insurance
policies maintained with Aon Risk Services with respect
to the premiums payable under such policies, as
contemplated by the financing arrangements with Credit
Corp. pursuant to the Agreements.
3. Effective Date. This Agreement shall
become effective upon compliance with the conditions
set fort immediately below:
(a) The Agent shall have received an original
counterpart of this Waiver and Consent, duly executed
and delivered by the Borrowers, the Guarantors and the
Lenders.
(b) No Event or Event of Default shall have
occurred and there shall have been no material adverse
change in the business or financial condition of any of
the Borrowers.
5. Ratification. Except as expressly waived
herein, all terms and conditions of the Loan Agreement
and all other Loan Documents remain in full force and
effect. All collateral security and guarantees in
connection with the Loan Agreement and/or the Loan
Documents are hereby confirmed and ratified in all
respects.
6. Counterparts. This Waiver and Consent
may be executed in counterparts, each of which shall
constitute an original but all of which when taken
together shall constitute one contract, and shall become
effective when copies hereof which, when taken
together, bear the signatures of each of the parties
hereto shall be delivered to the Agent, Delivery of an
executed counterpart of a signature page to this Waiver
and Consent by telecopier shall be effective as delivery
of a manually executed signature page hereto.
7. Governing Law. THIS WAIVER AND CONSENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(OTHER THAN THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
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.
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
ACCEPTED AND AGREED
JITNEY-JUNGLE STORES OF AMERICA, INC.
SOUTHERN JITNEY JUNGLE COMPANY
McCARTY-HOLMAN CO., INC.
JITNEY-JUNGLE BAKERY, INC.,
PUMP AND SAVE, INC.,
INTERSTATE JITNEY JUNGLE STORES, INC.,
DELCHAMPS, INC.,
SUPERMARKET CIGARETTE SALES, INC.,
By: /s/R. Barry Cannada
Name: R. Barry Cannada
Title: Executive Vice President
and General Counsel
WAIVER AND CONSENT AGREEMENT
To
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
WAIVER AND CONSENT AGREEMENT,
dated September 2,1998, 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 Americia, 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
"Borrower" and collectively, the "Borrowers"), the
guarantors named therein, the lenders named therein
(the "Lenders") and Fleet Capital Corporation, as agent
for the Lenders (the "Agent"). Capitalized terms used
herein and not defined shall have the respective
meanings assigned to such terms in the Credit
Agreement.
WHEREAS, Jitney Jungle intends to trade in its
Cessna model 550 aircraft with manufacturer's serial
number 550-0567 and United States nationality and
registration marks N4IBH (the "Airframe") and the
Pratt & Whitney aircraft engines with manufacturer's
serial numbers PCE 711463 and PCE 71462 (together
with the Airframe, the "Existing Plane") and to apply
the proceeds received from such trade-in to the cost of
its acquisition of the Cessna Citation Ultra model 560
aircraft with manufacturer's serial number 560-0430
specified by United States nationality and registration
Number N71JJ (the "New Airframe") and Pratt &
Whitney aircraft engines with manufacturer's serial
numbers PCE -JC0450 (together with the New
Airframe, the ("New Plane");
WHEREAS, Jitney Jungle desires to sell (the
"East Fortification Street Sale") certain subdivision lots
located in Jackson, Mississippi (the "Parcel") as more
fully described in the Agreement of Sale and Purchase,
dated on or about August 31, 1998, attached hereto as
Exhibit A (the "East Fortification Street Agreement"),
among Jitney Jungle and McCarty Holman Company, a
Mississippi limited partnership.
WHEREAS, the Borrowers have requested that
the Agent and the Lenders agree to waive certain
provisions in the Credit Agreement arising from the
trade-in of the Existing Plane, the purchase of the New
Plane and the East Fortification Street Sale;
WHEREAS, the Agent and the Lenders are
willing to consent to such waivers on the terms and
conditions contained herein;
NOW, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
SECTION 1. WAIVER AND CONSENT
(AIRCRAFT), Pursuant to the terms and conditions
contained herein, the Agent and the Lenders hereby
agree to the following:
SECTION 1.1. The Agent and the Lenders
agree to release their lien on the Existing Plane and that
the US$2,400,000 credit to be received by Jitney Jungle
for the trade-in of the Exiting Plane (the "Trade-In
Proceeds") to be applied towards the purchase of the
New Plane pursuant to the Trade-In Quotation
Agreement, dated October 22, 1997 between Citation
Marketing and Jitney Jungle, 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 1.2. The Agent and the Lenders
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 Trade-In Proceeds.
SECTION 1.3. The Agent and the Lenders
agree to waive Section 7.01 of the Credit Agreement as
it applies to the lien on the New Plane created under
each of the Loan and Aircraft Security Agreement
between Jitney Jungle and Fleet Capital Corporation
(the "Aircraft Loan Agreement") and the promissory
note, executed by Jitney Jungle and payable to Fleet
Capital Corporation (in such capacity, the "Aircraft
Lender"), in connection therewith (the "Aircraft Note");
provided, however that if the Agent has not received the
proceeds from the Aircraft Loan by September 30,
1998, the waiver contained in this Section 1,3 shall,
cease to be effective until such time that the Agent has
received such proceeds.
SECTION 1.4. The Agent and the Lenders
agree to waive Section 7.03 of the
Credit Agreement as it applies to each of the Aircraft
Loan Agreement and the Aircraft
Note; provided, however, that Jitney Jungle hereby
agrees to deliver all proceeds from
the Aircraft Loan to the Agent.
SECTION 2. WAIVER AND CONSENT
(EAST FORTIFICATION STREET SALE)
SECTION 2.1. The Agent and the Lenders
hereby agree to release their lien on the Parcel and
consent to the East Fortification Street Sales described
above and pursuant to the East Fortification Street Sale
Agreement; provided, however, that the Net Cash
Proceeds received by Jitney Jungle in connection with
the East Fortification Street Sale shall be used to prepay
the Loans pursuant to Section 2.09(d)(i) of the Credit
Agreement.
SECTION 2.2. 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 received by Jitney Jungle in
connection with the East
Fortification Street Sale.
SECTION 3 EFFECTIVE DATE. This
Agreement shall become effective upon compliance with
the conditions set forth immediately below:
SECTION 3.1. The Agent shall have received
an original counterpart of this Waiver and Consent, duly
executed and delivered by the Borrowers, the
Guarantors and the Lenders.
SECTION 3.2. The Agent shall have received
a copy of the executed East Fortification Street Sale
Agreement.
SECTION 3.3. No Default or Event of Default
shall have occurred and be continuing and there shall
have been no material adverse change in the business or
financial condition of any of the Borrowers.
SECTION 3.4. All representations and
warranties contained in this Waiver and Consent or
otherwise made in writing to the Agent in connection
herewith shall be true and correct in all material
respects.
SECTION 3.5. 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 transaction contemplated
under this Waiver and Consent and the other Loan
Documents and instruments in connection herewith and
therewith.
SECTION 4. MISCELLANEOUS
SECTION 4.1. Each of the Borrowers and
each Guarantor reaffirms and restates the
representations and warranties set forth in Article IV of
the Credit 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:
SECTION 4.2. 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 Waiver and Consent;
SECTION 4.3. This Waiver and Consent 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
SECTION 4.4. The execution, delivery and
performance of this Waiver and Consent 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
the default under any contractual obligation of such party.
SECTION 5. RATIFICATION. Except as
expressly waived herein, all terms and conditions of the
Credit Agreement and all other Loan Documents remain
in full force and effect. All collateral security and
guarantees in connection with the Credit Agreement
and/or the Loan Documents are hereby confirmed and
ratified in all respects.
SECTION 6. COUNTERPARTS. This Waiver
and Consent may be executed in counterparts, each of
which shall constitute an original but all of which when
taken together shall constitute one contract, and shall
become effective when copies hereof which, when taken
together, bear the signatures of each of the parties
hereto shall be delivered to the Agent. Delivery of an
executed counterpart of a signature page to this Waiver
and Consent by telecopier shall be effective as delivery
of a manually executed signature page hereto.
SECTION 7. GOVERNING LAW. THIS WAIVER AND CONSENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERRPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (OTHER
THAN THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
[REMAINDER OF THIS 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 E. Joyce
Name: Thomas E. Joyce
Title: Vice President
FLEET CAPITAL CORPORATION, as Lender
By: /s/ Thomas E. Joyce
Name: Thomas E. Joyce
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/ Thomas W. Bukowski
Name: Thomas W. Bukowski
Title: Senior 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/ Ed Simpson
Name: Ed Simpson
Title: Vice President
By: /s/ Bill Fay
Name: Bill Fay
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 E. Joyce
Name: Thomas E. Joyce
Title: Senior Vice President