Execution Copy
AMENDMENT AND WAIVER AGREEMENT NO. 7
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT AND WAIVER
AGREEMENT NO. 7 (this "Amendment") dated July 26,
1999 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.("Interstate Jitney-
Jungle"), and Delchamps, Inc. ("Delchamps") (each a
"Borrower" and collectively, the "Borrowers"), the
Guarantors named therein, the Lenders named therein and
Fleet Capital Corporation, as Agent.
WHEREAS, the Borrowers have entered
into a financing arrangement with Angelo, Gordon & Co.,
L.P., for itself and on behalf of certain affiliated funds and
managed accounts (collectively, "AGC") whereby AGC
has agreed to extend to the Borrowers a term loan in the
amount of $50,000,000, secured by a second lien on
certain assets of the Borrowers and the Guarantors (the
"Additional Facility").
WHEREAS, as collateral security for the
Additional Facility the Borrowers and the Guarantors have
granted a second lien (the "Second Lien") on certain of
their property and assets to Silver Oak Capital, L.L.C., as
agent (the "AGC Agent"), for the benefit of AGC, which
lien is junior in all respects to the lien granted to the Agent
for the benefit of the Lenders.
WHEREAS, in connection with the
Additional Facility the Agent, on behalf of the Lenders,
shall execute and deliver that certain Intercreditor
Agreement dated as of July 26, 1999 between the Agent
and the AGC Agent(as amended, modified or supplemented
from time to time, the "Intercreditor Agreement")
substantially in the form of Exhibit A annexed hereto.
WHEREAS, the Borrowers have requested
that the Lenders consent to the Additional Facility and the
Second Lien, and waive certain provisions of the Credit
Agreement relating to the Additional Facility and the
Second Lien as set forth herein.
WHEREAS, the Borrowers have requested
that the Agent and the Lenders amend certain terms and
provisions of the Credit Agreement.
WHEREAS the Lenders are willing to
consent to the Additional Facility and the granting of the
Second Lien and to amend and waive certain provisions of
the Credit Agreement, as more fully described herein, on
the terms and conditions hereof.
NOW, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
1 SECTION CAPITALIZED TERMS
2
Capitalized terms used herein and not
defined shall have the respective meanings assigned to such
terms in the Credit Agreement.
1 SECTION AMENDMENTS TO THE CREDIT AGREEMENT
2
The Credit Agreement shall be, and upon the
fulfillment of all of the conditions set forth in Section 5
hereof is, amended as follows:
1.1 SECTION The preamble of the Credit
Agreement is hereby amended by deleting the amount
"$162,300,000" and substituting the amount
"$150,000,000" therefor.
1.2
1.3 SECTION Schedule 2.01 is hereby
amended in its entirety by substituting Schedule 2.01
attached hereto therefore.
1.4
1.5 SECTION The following definition is
hereby added in its proper alphabetical order to Article I of
the Credit Agreement:
1.6
"Acquisition Integration Costs" shall mean,
an amount equal to $23,758,000, as identified as
"Acquisition integration costs and other special
charges" in the Borrowers' audited financial
statements for the Fiscal Year ended January 2,
1999.
1.1 SECTION The following definition is
hereby added in its proper alphabetical order to Article I of
the Credit Agreement:
1.2
"Alcohol and Gasoline Reserve" shall mean,
at any time, an amount equal to the lesser of (x) the
aggregate value, computed at the lower of cost (on a
FIFO basis) and current market value of the
Borrowers' inventory of gasoline and liquor and
other alcoholic beverages and (y) $2,200,000 (as
such amount may be reduced, by the Agent in its
sole discretion, from time to time as a result of the
sale of either a gas station in connection with the
sale of a supermarket or a liquor store, in each case
owned or leased by the Borrowers).
1.1 SECTION The definition of "Applicable
Margin" as it appears in Article I of the Credit Agreement
is hereby amended in its entirety to read as follows:
1.2
"Applicable Margin" shall mean in the case
of Loans which are Base Rate Loans, one and one-
quarter percent (1.25%), minus the then applicable
Reduction Discount, if any, and (y) in the case of
Loans which are Eurodollar Loans, two and one-
half percent (2.50%), minus the then applicable
Reduction Discount, if any.
1.1 SECTION The definition of "Eligible
Inventory" as it appears in Article I of the Credit
Agreement is hereby amended by deleting the words
"liquor and other alcoholic beverages," and ", gasoline" as
they appear in such definition.
1.2
1.3 SECTION The definition of "Fixed
Charge Coverage Ratio" as it appears in Article I of the
Credit Agreement is hereby amended in its entirety to read
as follows:
1.4
"Fixed Charge Coverage Ratio" shall mean,
for any fiscal period, the ratio of (i) EBITDA of the
Borrowers and their respective subsidiaries for the
four most recent consecutive fiscal quarters ending
on or prior to the date of determination to (ii) the
sum of, without duplication, (A) Interest Expense,
(B) Capital Expenditures (excluding Capital
Expenditures in respect of Reinvestment Assets to
the extent funded with the Net Cash Proceeds of
Asset Sales), (C) cash dividends paid by, or other
distributions, redemptions, repurchases or
retirements of capital stock of, the Borrowers and
their respective subsidiaries, (D) taxes actually paid
by the Borrowers and their respective subsidiaries
in cash (less any tax refunds actually received by
the Borrowers and their respective subsidiaries in
cash) and (E) the aggregate of principal payments
(whether regularly scheduled payments, voluntary
or mandatory prepayments (excluding mandatory
prepayments made by reason of any reduction of the
Total Commitment and/or the Supplemental
Availability or in connection with the sale of a store
owned or leased by the Borrowers) or occurring by
reason of acceleration or otherwise) of all
Indebtedness (including, without limitation,
Capitalized Lease Obligations, Restructuring
Obligations, Indebtedness issued under the Senior
Indenture and under the Senior Subordinated
Indenture) made or scheduled to have been made by
the Borrowers and their respective subsidiaries
(other than principal payments on Loans), for such
four-quarter period, in each case determined on a
Consolidated basis in accordance with generally
accepted accounting principles. Notwithstanding the
foregoing sentence, for the fiscal quarters ending
1/1/00, 3/25/00, 6/17/00 and 9/9/00 Fixed Charge
Coverage Ratio shall be calculated on a building 1,
2, 3 and 4 fiscal quarter basis, respectively; after
9/9/00 Fixed Charge Coverage Ratio shall be
calculated in accordance with the immediately
preceding sentence.
1.1 SECTION The definition of "Reduction
Discount" as it appears in Article I of the Credit Agreement
is hereby amended in its entirety to read as follows:
1.2
"Reduction Discount" shall mean initially
zero and from and after the first day of each fiscal
quarter, commencing with the fiscal quarter ending
January 1, 2000, immediately following the date of
delivery by the Borrowers to the Agent of the
financial statements with respect to the immediately
preceding fiscal quarter (a "Test Period") of the
Borrowers and their respective subsidiaries (the
"Financials") as required under Section 6.05(b)(i) of
this Agreement, together with calculations in form
and substance reasonably satisfactory to the Agent
supporting the calculation of the Leverage Ratio as
at the end of such fiscal quarter and a written
certification from the Financial Officer of Jitney
Jungle to such effect, the Reduction Discount shall
be as specified in clauses (i) through (vi) below,
when, and for so long as, the Leverage Ratio set
forth in such clause has been satisfied as at the end
of the then Test Period:
(i) for purposes of calculating
the Applicable Margin and the Commitment
Fee, the Reduction Discount shall be zero in
the event that, as of the end of the Test
Period, the Leverage Ratio for the four
consecutive fiscal quarters ending on the last
day of such Test Period is greater than or
equal to 6.00; or
(ii) for purposes of calculating
the Applicable Margin, the Reduction
Discount shall be .25 and for purposes of
calculating the Commitment Fee, the
Reduction Discount shall be zero in the
event that, as of the end of the Test Period,
the Leverage Ratio for the four consecutive
fiscal quarters ending on the last day of such
Test Period is greater than or equal to 5.00
but less than 6.00; or
(iii) for purposes of calculating
the Applicable Margin, the Reduction
Discount shall be .50 and for purposes of
calculating the Commitment Fee, the
Reduction Discount shall be .075 in the
event that, as of the end of the Test Period,
the Leverage Ratio for the four consecutive
fiscal quarters ending on the last day of such
Test Period is greater than or equal to 4.25
but less than 5.00; or
(iv) for purposes of calculating
the Applicable Margin, the Reduction
Discount shall be .75 and for purposes of
calculating the Commitment Fee, the
Reduction Discount shall be .125 in the
event that, as of the end of the Test Period,
the Leverage Ratio for the four consecutive
fiscal quarters ending on the last day of such
Test Period is greater than or equal to 3.75
but less than 4.25; or
(v) for purposes of calculating
the Applicable Margin, the Reduction
Discount shall be 1.00 and for purposes of
calculating the Commitment Fee, the
Reduction Discount shall be .25 in the event
that, as of the end of the Test Period, the
Leverage Ratio for the four consecutive
fiscal quarters ending on the last day of such
Test Period is greater than or equal to 3.25
but less than 3.75; or
(vi) for purposes of calculating
the Applicable Margin, the Reduction
Discount shall be 1.25 and for purposes of
calculating the Commitment Fee, the
Reduction Discount shall be .25 in the event
that, as of the end of the Test Period the
Leverage Ratio for the four consecutive
fiscal quarters ending on the last day of such
Test Period is less than 3.25;
provided, that the entire Reduction Discount, if any,
at any time in effect shall be reduced to zero at all
times on and after the occurrence and during the
continuance of an Event of Default; and provided,
further, that in the event that the Leverage Ratio on
the last day of any Test Period (the "New Test
Period") is less than or greater than the ratio then in
effect for the previous Test Period pursuant to
clause (ii), (iii), (iv), (v) or (vi) above, the
Reduction Discount specified in clause (ii), (iii),
(iv), (v) or (vi) above shall be discontinued and the
Reduction Discount shall be the Reduction Discount
applicable to the Leverage Ratio for such New Test
Period effective as of the first day of the fiscal
quarter immediately following the date of delivery
by the Borrowers to the Agent of such Financials.
1.1 SECTION The following sentence is
hereby added at the end of the definition of "EBITDA" as it
appears in Article I of the Credit Agreement:
1.2
"For purposes of calculating EBITDA solely
for the Fiscal Year ending January 2, 1999 and the
fiscal quarters ending March 27, 1999, June 19,
1999 and September 11, 1999 Acquisition
Integration Costs shall not be deducted in
computing Net Income as otherwise required by
generally accepted accounting principles."
1.1 SECTION Section 2.01(a) of the Credit
Agreement is hereby amended by adding the phrase
"minus, (4) the Alcohol and Gasoline Reserve"
immediately after the phrase "minus (3) reserves
established pursuant to Section 2.01(c) below at such time"
as it appears in such Section.
1.2
1.3 SECTION Section 2.07(b)(i) of the Credit
Agreement is hereby amended in its entirety to read as
follows:
1.4
The Supplemental Availability shall be
permanently reduced on each of the dates set forth
below by the amount set forth below opposite such
date (such reduced amount being the Supplemental
Availability in effect for the next succeeding
calendar quarter):
Supplemental Availability
Reduction Date Amount
September 30, 1999 $1,750,000
January 2, 2000 $1,750,000
March 26, 2000 $1,750,000
June 18, 2000 $1,750,000
September 10, 2000 $2,000,000
December 31, 2000 $2,000,000
March 25, 2001 $2,000,000
June 17, 2001 $2,000,000
September 9, 2001 $2,250,000
December 30, 2001 $2,250,000
March 24, 2002 $2,250,000
June 16, 2002 $2,250,000
September 8, 2002 $2,750,000
December 29, 2002 $2,750,000
March 23, 2003 $2,750,000
June 15, 2003 $2,750,000
September 7, 2003 $6,500,000
January 4, 2004 $6,500,000
1.1 SECTION Clause (ii) of Section 6.05(b)
of the Credit Agreement is hereby amended by deleting the
number "25" and substituting the number "30" therefor.
1.2
1.3 SECTION Section 7.07 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
1.4
SECTION 7.07. Capital
Expenditures and Other Obligations. Permit the
aggregate amount of payments made, without
duplication, for Capital Expenditures, Capitalized
Lease Obligations and Indebtedness secured by
Liens permitted under Section 7.01(e) and/or
Section 7.01(k) hereof (excluding Capital
Expenditures in respect of Reinvestment Assets to
the extent funded with the Net Cash Proceeds of
Asset Sales), at the end of each fiscal period set
forth below to be greater than:
Date of Determination Amount
The fiscal quarter ending March 27, 1999 $17,000,000
The two fiscal quarter period ending
June 19,1999 $38,000,000
The three fiscal quarter period ending
September 11, 1999 $57,000,000
The Fiscal Year ending January 1, 2000 $75,000,000
The fiscal quarter ending March 25, 2000 $16,500,000
The two fiscal quarter period ending
June 17, 2000 $33,000,000
The three fiscal quarter period ending
September 9, 2000 $47,000,000
The Fiscal Year ending December 30, 2000 $62,000,000
Each fiscal quarter thereafter, for the four
most recent consecutive fiscal quarters of
the Borrowers and their respective
Consolidated subsidiaries 50% of EBITDA for such period
1.1 SECTION Section 7.09 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
1.2
SECTION 7.09. 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 quarter ending March 27, 1999 5.90:1.00
The fiscal quarter ending June 19, 1999 6.20:1.00
The fiscal quarter ending September 11, 1999 7.20:1.00
The fiscal quarter ending January 1, 2000 7.80:1.00
The fiscal quarter ending March 26, 2000 7.80:1.00
The fiscal quarter ending June 18, 2000 7.30:1.00
The fiscal quarter ending September 10, 2000 7.30:1.00
The fiscal quarter ending December 31, 2000 7.30:1.00
Each fiscal quarter ending
in Fiscal Year 2001 and thereafter 7.30:1.00
1.1 SECTION Section 7.10 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
1.2
SECTION 7.10. 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 quarter ending March 27, 1999 1.70:1:00
The fiscal quarter ending June 19, 1999 1.50:1.00
The fiscal quarter ending September 11, 1999 1.35:1.00
The fiscal quarter ending January 1, 2000 1.20:1.00
Each fiscal quarter ending in Fiscal Year 2000
and thereafter 1.20:1.00
1.1 SECTION Section 7.11 is hereby
amended in its entirety to read as follows:
SECTION 7.11. 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, however, beginning
with the end of the fiscal quarter starting
immediately after the consummation of the sale of
any supermarket owned or leased by any of the
Borrowers or the opening or acquisition of any
supermarket by any of the Borrowers, the amount
of EBITDA appearing opposite such fiscal quarter
below and for each fiscal quarter thereafter, shall in
the case of a sale of a supermarket be reduced, or in
the case of the opening or acquisition of a
supermarket, increased, by an amount equal to the
EBITDA for such supermarket, on a dollar for
dollar basis, as set forth in financial projections (and
in the case of a sale of a supermarket, the historical
EBITDA of such supermarket) to be provided by
the Borrowers to the Agent, all in a manner
acceptable to the Agent in its sole discretion:
Date of Determination Amount
The fiscal quarter ending September 11, 1999 $95,000,000
The fiscal quarter ending January 1, 2000 $88,000,000
The fiscal quarter ending March 26, 2000 $90,000,000
The fiscal quarter ending June 18, 2000 $95,000,000
The fiscal quarter ending September 10, 2000 $96,000,000
The fiscal quarter ending December 31, 2000 $93,000,000
Each fiscal quarter ending in Fiscal Year 2001 and
thereafter $93,000,000
1 SECTION ADDITIONAL AGREEMENTS
2
2.1 SECTION (a) The Borrowers, the
Guarantors and the Lenders hereby agree that
notwithstanding any other provision contained in the Credit
Agreement, immediately upon the receipt by the Borrowers
of Cash Proceeds from the sale of any supermarket owned
or leased by any of the Borrowers (i) 100% of the Net Cash
Proceeds (including Net Cash Proceeds received from the
sale of inventory in connection with the sale of such
supermarket) of any such Asset Sale shall be applied to
repay Loans in accordance with Section 2.09(f) of the
Credit Agreement, (ii) the Total Commitment shall be
permanently reduced by an amount equal to 50% of the
aggregate of the cash proceeds and value of non-cash
proceeds (including proceeds received from the sale of
inventory in connection with the sale of such supermarket)
from any such Asset Sale (with any non-cash proceeds
being valued for purposes of this clause (ii) at the value
therefor set forth in a fairness opinion from an investment
bank acceptable to the Agent, which opinion shall be
delivered to the Agent at the time of such Asset Sale) and
(iii) Supplemental Availability shall immediately be
reduced by an amount equal to 12.5% of the aggregate of
the cash proceeds and value of non-cash proceeds
(excluding any proceeds received from the sale of
inventory in connection with the sale of such supermarket)
from any such Asset Sale (with any non-cash proceeds
being valued for purposes of this clause (iii) at the value
therefor set forth in a fairness opinion from an investment
bank acceptable to the Agent, which opinion shall be
delivered to the Agent at the time of such Asset Sale).
Nothing contained in this paragraph 3.1(a) shall constitute a
consent by any Lender to any sale of a supermarket.
(b) Notwithstanding any other provision
contained in the Credit Agreement, the Lenders hereby
consent to the sale of any supermarket owned or leased by
any of the Borrowers (including any inventory related to
such supermarket) provided that (i) the purchase price and
terms for such sale represents the fair market value of the
supermarket so sold and the Borrowers cause a fairness
opinion (from an investment bank acceptable to the Agent)
to the same effect to be delivered to the Agent prior to such
sale, (ii) the entire purchase price for such sale is payable in
cash upon the consummation of such sale and (iii) both
before and after giving effect to such sale no Default or
Event of Default has occurred and is continuing under the
Credit Agreement.
(c) Paragraphs (a) and (b) of this Section
3.1 shall not apply to the sale of any supermarket owned or
leased by any of the Borrowers if such sale would cause the
aggregate proceeds (whether in cash or in other property)
received by the Borrowers in connection with the sale of
supermarkets owned or leased by any of the Borrowers
from the date hereof through the Facility Termination Date
to exceed $75,000,000. For purposes of this paragraph (c)
the amount of any non-cash proceeds received by the
Borrowers in connection with the sale of any supermarket
owned or leased by any of the Borrowers shall be
determined by a fairness opinion from an investment bank
acceptable to the Agent, which opinion shall be delivered to
the Agent at the time of any such Asset Sale.
1.1 SECTION Without limiting Section 3.03
of the Credit Agreement, the Borrowers and the Guarantors
agree that in the event the AGC Agent shall deliver to the
Agent a notice pursuant to Section 2(e)(iv) of the
Intercreditor Agreement with respect to any real property,
the Borrowers and the Guarantors shall cause to be
executed and delivered to the Agent by the relevant
Borrower or Guarantor and recorded in the appropriate land
records with all relevant recording or similar taxes therefor
paid in full a Mortgage (in form and substance satisfactory
to the Agent) with respect to such real property (such
recordation to be completed no later than 25 days after such
notice is given by the AGC Agent to the Agent, with the
failure to timely comply with this sentence constituting an
Event of Default).
1.2
1.3 SECTION The Borrowers hereby agree to
deliver, or cause to be delivered, to the Agent any report
delivered by Policano & Manzo (or any successor or
replacement thereof), as accounting specialist to the
Borrowers, to the AGC Agent, the Borrowers or any other
Person upon such delivery.
1 SECTION WAIVER
2
Upon the fulfillment of all of the conditions
set forth in Section 5 herein the following waivers shall
become effective:
1.1 SECTION For purposes of Section 7.08
of the Credit Agreement, the Agent and the Lenders hereby
waive the requirement that the average daily Undrawn
Availability for the fiscal months ending June 19, 1999 and
July 17, 1999 remain above $15,000,000.
1.2
1.3 SECTION The Agent and the Lenders
hereby waive compliance with Sections 7.01 and 7.03 of
the Credit Agreement solely as they pertain to the
Additional Facility and the Second Lien.
1 SECTION CONDITIONS PRECEDENT
2
This Amendment and the agreements and
waivers contained in Sections 3 and 4 herein shall become
effective on such date as the following conditions have
been satisfied in full or waived by the Agent in writing:
1.1 SECTION The Agent shall have received
in form and substance satisfactory to the Agent and its
counsel:
1.2
(a) Evidence that the Additional
Facility and all documents in connection therewith
have been executed 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
transactions 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 Lenders, as to the non-
contravention of the Additional Facility and the
Second Lien with the Credit Agreement, any other
credit agreement, indenture or other agreement to
which any Borrower, Guarantor or Grantor is a
party.
(f) A fully executed copy of the
Intercreditor Agreement, dated the date hereof
between the Agent and AGC Agent on terms and
conditions satisfactory to the Agent in its sole
discretion.
(g) The Agent shall have
received, for the benefit of the Lenders, an
amendment fee of $608,625.
(h) Such other approvals,
opinions or documents as the Agent may reasonably
request.
1.1 SECTION 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.
1.2
1.3 SECTION No unwaived Default or Event
of Default has occurred and is continuing.
1.4
1.5 SECTION 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 and the
other Loan Documents and instruments in connection
herewith and therewith.
1 SECTION CONTINUATION OF ADDITIONAL FACILITY
2
2.1 SECTION The Borrowers and the
Guarantors hereby agree that they shall not terminate or
reduce the Additional Facility before the earlier to occur of
(x) the Termination Date and (y) July 26, 2004, and that
failure to comply with this provision shall constitute an
Event of Default.
1 SECTION INTERCREDITOR AGREEMENT
2
2.1 SECTION The Lenders hereby authorize
the Agent to execute and deliver the Intercreditor
Agreement.
1 SECTION MISCELLANEOUS
2
2.1 SECTION 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 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 Amendment and has taken or
caused to be taken all necessary corporate action to
authorize the execution, delivery and performance
of this Amendment;
(a) 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;
(a) This Amendment 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
(a) The execution, delivery and
performance of this Amendment 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.
1.1 SECTION Except as expressly set forth
herein 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.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION 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.
1.6
1.7 SECTION Delivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
1.1 SECTION This Amendment shall be
governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
1.2
1.3 SECTION 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have
caused this Amendment 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________________________________
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY,
as Borrower and as Guarantor
By________________________________
Name:
Title:
McCARTY- HOLMAN CO., INC.,
as Borrower and as Guarantor
By_________________________________
Name:
Title:
JITNEY-JUNGLE BAKERY, INC.,
as Borrower and as Guarantor
By_________________________________
Name:
Title:
PUMP AND SAVE, INC.,
as Borrower and as Guarantor
By_________________________________
Name:
Title:
INTERSTATE JITNEY JUNGLE STORES, INC.,
as Borrower and as Guarantor
By_________________________________
Name:
Title:
DELCHAMPS, INC.,
as Borrower and as Guarantor
By_________________________________
Name:
Title:
JJ CONSTRUCTION CORP.,
as Guarantor
By_________________________________
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.,
as Guarantor
By_________________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as Agent
By_________________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as Lender
By_________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By_________________________________
Name:
Title:
HELLER FINANCIAL INC.,
as Lender
By_________________________________
Name:
Title:
IBJ WHITEHALL BUSINESS CREDIT CORP.,
as Lender
By_________________________________
Name:
Title:
NATIONAL BANK OF CANADA,
a Canadian Chartered Bank,
as Lender
By_________________________________
Name:
Title:
NATIONAL CITY BANK,
as Lender
By_________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Lender
By__________________________________
Name:
Title:
FLEET BANK, N.A.,
as a Letter of Credit Issuer
By__________________________________
Name:
Title:
Exhibit A
SCHEDULE 2.01
Commitments
Lender Commitment
Fleet Capital Corporation $46,210,720.90
60 East 42nd Street
New York, New York 10017
Attention: Mr. Thomas Maiale
Tel #: (212) 885-8826
Fax #: (212) 885-8808
Heller Financial, Inc. $32,347,504.62
150 East 42nd Street, 7th Floor
New York, New York 10017
Attention: Mr. Tom Bukowski
Tel #: (212) 880-7169
Fax #: (212) 880-7002
PNC Bank, National Association $16,266,173.75
2 PNC Plaza 18th Floor
620 Liberty Avenue
Pittsburgh, PA 15222
Attention: Mr. Richard Muse
Tel #: (412) 762-4471
Fax #: (412) 768-4369
IBJ Whitehall Business Credit Corp. $14,232,902.03
One State Street
New York, New York 10004
Attention: Mr. Andrew Sepe
Tel #: (212) 858-2497
Fax #: (212) 858-2151
National Bank of Canada, $13,216,266.17
a Canadian Chartered Bank
165 Madison Avenue, Suite 1610
Memphis, Tennessee 38103
Attention: Mr. Jim Norvell
Tel #: (901) 578-3303
Fax #: (901) 525-2914
Deutsche Financial Services $18,484,288.35
Corporation
3225 Cumberland Boulevard Suite 700
Atlanta, GA 30339
Attention: Mr. Stephan Metts
Tel #: (770) 541-5719
Fax #: (770) 933-8571
National City Bank $9,242,144.18
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Mr. Joseph D. Robison
Tel #: (216) 575-9254
Fax #: (216) 222-0003
Total Commitment $150,000,000