Exhibit 10.1
EXECUTION COPY
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JITNEY-JUNGLE STORES OF AMERICA, INC.
$200,000,000 of
103/8% Senior Subordinated Notes due 2007
Purchase Agreement
September 10, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
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JITNEY-JUNGLE STORES OF AMERICA, INC.
$200,000,000
103/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
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September 10, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Jitney-Jungle Stores of America, Inc., a Mississippi corporation (the
"COMPANY"), proposes to issue and sell to Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") and Credit Suisse First Boston ("FIRST BOSTON"
and, together with DLJ, the "INITIAL PURCHASERS") an aggregate of $200,000,000
in principal amount of its 103/8% Senior Subordinated Notes due 2007 (the
"SENIOR SUBORDINATED NOTES"), subject to the terms and conditions set forth
herein. The Senior Subordinated Notes are to be issued pursuant to the
provisions of an indenture (the "INDENTURE"), to be dated as of the Closing Date
(as defined below), among the Company, the Guarantors (as defined below) and
Marine Midland Bank, as trustee (the "TRUSTEE"). The Senior Subordinated Notes
and the New Senior Subordinated Notes (as defined below) issuable in exchange
therefor are collectively referred to herein as the "NOTES." The Notes will be
guaranteed (the "SUBSIDIARY GUARANTEES") by each of the entities listed on
Schedule A hereto (each, a "GUARANTOR" and collectively the "GUARANTORS").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
Pursuant to the terms of an Agreement and Plan of Merger (the "MERGER
AGREEMENT") entered into on July 8, 1997, Delta Acquisition Corporation ("DAC"),
an Alabama corporation and a wholly-owned subsidiary of the Company, commenced a
tender offer (the "DELCHAMPS TENDER OFFER") to purchase all of the issued and
outstanding shares of common stock and associated preferred share purchase
rights of Delchamps, Inc., an Alabama corporation ("DELCHAMPS"). Following the
Delchamps Tender Offer and subject to certain conditions and other provisions
contained in the Merger Agreement, DAC will be merged with and into Delchamps
(the "DELCHAMPS MERGER" and, together with the Delchamps Tender Offer, the
"DELCHAMPS ACQUISITION"), Delchamps will continue as the surviving corporation
in the Delchamps Merger and will be a wholly-owned subsidiary of the Company.
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The aggregate consideration expected to be paid to current stockholders of
Delchamps in the Delchamps Acquisition will be approximately $218.2 million (the
"DELCHAMPS PURCHASE PRICE"). For purposes of this Agreement, the term
"Consummation" as used with respect to the Delchamps Tender Offer shall refer to
the payment for the shares and preferred share purchase rights of Delchamps
tendered in the Tender Offer.
The Company intends to use the gross proceeds from the sale to the
Initial Purchasers of the Senior Subordinated Notes, together with initial
borrowings under a senior credit facility (the "SENIOR CREDIT FACILITY"), to (i)
pay the Delchamps Purchase Price, (ii) repay certain of Delchamps' outstanding
indebtedness, (iii) make change of control payments to certain Delchamps
executives pursuant to the requirements of existing contractual provisions and
(iv) pay related fees and expenses.
1. OFFERING MEMORANDUM. The Senior Subordinated Notes will be
offered and sold to the Initial Purchasers pursuant to one or more exemptions
from the registration requirements under the Securities Act of 1933, as
amended (the "ACT"). The Company and the Guarantors (other than Delchamps
and Supermarket Cigarette Sales, Inc., a Louisiana corporation ("SCSI")) have
prepared a preliminary offering memorandum, dated August 25, 1997 (the
"PRELIMINARY OFFERING MEMORANDUM"), and a final offering memorandum, dated
September 10, 1997 (the "OFFERING MEMORANDUM"), relating to the Senior
Subordinated Notes and the Subsidiary Guarantees.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Senior Subordinated Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IS OTHERWISE
PERMITTED TO PURCHASE THE NOTES PURSUANT TO THE REQUIREMENTS OF CLAUSE
(2) BELOW, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
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THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Senior Subordinated Notes set forth opposite the name of such Initial
Purchaser on Schedule B hereto at a purchase price equal to 97.25% of the
principal amount thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "EXEMPT RESALES") of
the Senior Subordinated Notes purchased hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely to (i) persons whom the
Initial Purchasers reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Act ("QIBS") and (ii) to persons permitted to
purchase the Senior Subordinated Notes in offshore transactions in reliance upon
Regulation S under the Act (each, a "REGULATION S PURCHASER") (such persons
specified in clauses (i) and (ii) being referred to herein as the "ELIGIBLE
PURCHASERS"). The Initial Purchasers will offer the Senior Subordinated Notes
to Eligible Purchasers initially at a price equal to 100% of the principal
amount thereof. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Senior Subordinated
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be executed on and dated the
Closing Date, in substantially the form of Exhibit
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A hereto, for so long as such Senior Subordinated Notes constitute "Transfer
Restricted Securities" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company and the Guarantors
will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein, (i) a registration
statement under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
to the Company's 103/8% new Senior Subordinated Notes due 2007 (the "NEW SENIOR
SUBORDINATED NOTES"), identical in all material respects to the Senior
Subordinated Notes (except that the New Senior Subordinated Notes shall have
been registered pursuant to such Exchange Offer Registration Statement), to be
offered in exchange for the Senior Subordinated Notes (such offer to exchange
being referred to as the "EXCHANGE OFFER") and the Subsidiary Guarantees thereof
and (ii) a shelf registration statement pursuant to Rule 415 under the Act (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, the "REGISTRATION STATEMENTS") relating to the resale by
certain holders of the Senior Subordinated Notes, and to use its best efforts to
cause such Registration Statements to be declared and remain effective and
usable for the periods specified in the Registration Rights Agreement. This
Agreement, the Indenture, the Notes, the Subsidiary Guarantees and the
Registration Rights Agreement are hereinafter sometimes referred to collectively
as the "OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Senior Subordinated Notes shall be made at the offices of Dechert Price & Rhoads
at 30 Rockefeller Plaza, New York, New York 10112, or such other location as may
be mutually acceptable. Such delivery and payment shall be made at 9:00 a.m.
New York City time, on September 15, 1997 or at such other time as shall be
agreed upon by the Initial Purchasers and the Company. The time and date of
such delivery and payment are herein called the "CLOSING DATE."
(b) One or more of the Senior Subordinated Notes in definitive
global form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Senior Subordinated Notes (collectively, the
"GLOBAL NOTE"), shall be delivered by the Company to the Initial Purchasers (or
as the Initial Purchasers direct) in each case with any transfer taxes thereon
duly paid by the Company against payment by the Initial Purchasers of the
Purchase Price thereof by wire transfer in federal (same day) funds to an
account or accounts designated by the Company or such other manner of payment as
may be designated by the Company and agreed to by the Initial Purchasers. The
Global Note shall be made available to the Initial Purchasers for inspection not
later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. As of the date
hereof, the Company and each of the Guarantors (other than Delchamps and SCSI)
and, as of the Consummation of the Delchamps Tender Offer, Delchamps and SCSI,
hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly after obtaining
knowledge (and, if requested by the Initial Purchasers, confirm such advice in
writing) of (i) the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of any Senior
Subordinated Notes for offering or sale in any jurisdiction designated by the
Initial Purchasers pursuant to Section 5(e) hereof, or the initiation
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of any proceeding by any state securities commission or any other federal or
state regulatory authority for such purpose and (ii) the happening of any event
during the period referred to in Section 5(c) below that makes any statement of
a material fact made in the Offering Memorandum untrue or that requires any
additions to or changes in the Offering Memorandum in order to make the
statements therein not misleading. The Company shall use its best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of any Senior Subordinated Notes under any state securities or Blue
Sky laws and, if at any time any state securities commission or other federal or
state regulatory authority shall issue an order suspending the qualification or
exemption of any Senior Subordinated Notes under any state securities or Blue
Sky laws, the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request. Subject to the Initial Purchasers'
compliance with its representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers or market-making
activities of the Initial Purchasers with respect to Senior Subordinated Notes,
not to make any amendment or supplement to the Offering Memorandum of which the
Initial Purchasers shall not previously have been advised or to which the
Initial Purchasers shall reasonably object within five Business Days after being
so advised and to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Memorandum which may be
necessary or advisable in connection with such Exempt Resales or such
market-making activities. Notwithstanding any other provision of this Agreement
to the contrary, the obligations of the Company which arise under this paragraph
5(c) as a result of market-making activities of the Initial Purchasers with
respect to Senior Subordinated Notes will terminate 30 days after written notice
by the Company to DLJ stating that the Company no longer needs the Initial
Purchasers to act as "market makers" with respect to the Notes.
(d) If, during the period referred to in Section 5(c) above (as
such period may be adjusted pursuant to the last sentence thereof), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel to the Initial Purchasers, it becomes necessary to amend or supplement
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances existing when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, to prepare promptly upon the
Initial Purchasers' reasonable request an appropriate amendment or supplement to
such Offering Memorandum so that the statements therein, as so amended or
supplemented, will not, in the light of the circumstances existing when it is so
delivered, be misleading, or so that such Offering Memorandum will comply with
applicable law, and to furnish to the Initial Purchasers and such other persons
as the Initial Purchasers may designate such number of copies thereof as the
Initial Purchasers may reasonably request.
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(e) Prior to the sale of all Senior Subordinated Notes pursuant
to Exempt Resales as contemplated hereby, to cooperate with the Initial
Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Senior Subordinated Notes for offer and
sale to the Initial Purchasers and pursuant to Exempt Resales under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may
reasonably request and to continue such qualification in effect so long as
required for Exempt Resales and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; PROVIDED, HOWEVER, that neither the Company nor any Guarantor
shall be required in connection therewith to register or qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal year to
the record holders of the Notes a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) During the period of five years after the date of this
Agreement, furnish to the Initial Purchasers as soon as available copies of all
reports or other communications made publicly available by the Company or any of
the Guarantors to their security holders or filed with the Commission or any
national securities exchange on which any class of securities of the Company or
any of the Guarantors is listed and such other publicly available information
concerning the Company and/or its subsidiaries as the Initial Purchasers may
reasonably request.
(h) So long as any of the Senior Subordinated Notes remain
outstanding and during any period in which the Company and the Guarantors are
not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), to make available to any holder of Senior
Subordinated Notes in connection with any sale thereof and any prospective
purchaser of such Senior Subordinated Notes from such holder, the information
("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Senior Subordinated Notes to the Initial Purchasers, and all other fees or
expenses in connection with the preparation, printing, filing and distribution
of the Preliminary
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Offering Memorandum, the Offering Memorandum and all amendments and supplements
to any of the foregoing (including financial statements) specified in Section
5(c) and 5(d) prior to or during the period specified in Section 5(c), including
the mailing and delivering of copies thereof to the Initial Purchasers and
persons designated by it in the quantities specified herein, (ii) all costs and
expenses related to the sale and delivery of the Senior Subordinated Notes to
the Initial Purchasers, including any transfer or other taxes payable thereon,
(iii) all costs of printing or producing this Agreement, the other Operative
Documents and any other agreements or documents in connection with the offering,
purchase, sale or delivery of the Senior Subordinated Notes, (iv) all expenses
in connection with the registration or qualification of the Senior Subordinated
Notes and the Subsidiary Guarantees for offer and sale under the securities or
Blue Sky laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and the reasonable fees and disbursements of counsel
for the Initial Purchasers in connection with such registration or qualification
and memoranda relating thereto), (v) the cost of printing certificates
representing the Senior Subordinated Notes and the Subsidiary Guarantees, (vi)
all expenses and listing fees in connection with the application for quotation
of the Senior Subordinated Notes in the National Association of Securities
Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the
fees and expenses of the Trustee and the Trustee's counsel in connection with
the Indenture, the Notes and the Subsidiary Guarantees, (viii) the costs and
charges of any transfer agent, registrar and/or depositary (including DTC), (ix)
any fees charged by rating agencies for the rating of the Notes, (x) all costs
and expenses of the Exchange Offer and any Registration Statement, as set forth
in the Registration Rights Agreement, and (xi) and all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantors
hereunder for which provision is not otherwise made in this Section. Delchamps
and SCSI shall not be responsible for any of the fees and expenses described in
this paragraph unless and until the Delchamps Tender Offer is Consummated.
(j) To use its best efforts to effect the inclusion of the
Senior Subordinated Notes in PORTAL and to maintain the listing of the Senior
Subordinated Notes on PORTAL for so long as the Senior Subordinated Notes are
outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Company or
any Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially similar to
the Notes and the Subsidiary Guarantees (other than (i) the Notes and the
Subsidiary Guarantees and (ii) commercial paper issued in the ordinary course of
business, it being understood that the Company and the Guarantors will enter
into the Senior Credit Facility on the Closing Date), without the prior written
consent of the Initial Purchasers.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Senior Subordinated Notes to the
Initial Purchasers or pursuant to Exempt Resales in a
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manner that would require the registration of any such sale of the Senior
Subordinated Notes under the Act.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes.
(o) To cause the Exchange Offer to be made on the appropriate
form to permit New Senior Subordinated Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for the
Senior Subordinated Notes and the Subsidiary Guarantees and to comply with all
applicable federal and state securities laws in connection with the Exchange
Offer.
(p) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(q) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy or obtain the waiver of all conditions
precedent to the delivery of the Senior Subordinated Notes and the Subsidiary
Guarantees.
(r) Not to use any form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) in connection
with the offer and sale of the Senior Subordinated Notes pursuant hereto,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
GUARANTORS. As of the date hereof, the Company and each of the Guarantors
(other than Delchamps and SCSI) and, upon Consummation of the Delchamps Tender
Offer, Delchamps and SCSI, represents and warrants to, and agrees with, the
Initial Purchasers as set forth below, it being understood that the
representations and warranties set forth in subparagraphs (d), (e), (h), (i),
(j) and (l) shall not be deemed to have been made in respect of Delchamps or
SCSI until the Consummation of the Delchamps Tender Offer.
(a) The Offering Memorandum does not, and any supplement or
amendment to it will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has been
issued.
(b) Each of the Company and each of its subsidiaries has been,
and immediately after Consummation of the Delchamps Tender Offer will have been,
duly
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incorporated, is, and immediately after Consummation of the Delchamps Tender
Offer will be, validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation and has, and immediately after Consummation
of the Delchamps Tender Offer will have, the corporate power and authority to
carry on its business as described in the Offering Memorandum and to own, lease
and operate its properties as described in the Offering Memorandum, and each is,
and immediately after Consummation of the Delchamps Tender Offer will be, duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect. As used
herein, "MATERIAL ADVERSE EFFECT" shall mean, with respect to any Person, any
effect or group of related or unrelated effects that (i) would be reasonably
expected, individually or in the aggregate, to result in a material adverse
effect on the assets, properties, business, results of operations, condition
(financial or otherwise) or prospects of such Person and its subsidiaries, taken
as a whole or (ii) would materially interfere with or adversely affect (A) the
issuance of the Senior Subordinated Notes or the consummation of this Agreement,
(B) the performance by such Person and each of its subsidiaries of its
respective agreements and obligations under this Agreement or the consummation
of the transactions contemplated thereby or (C) the consummation of the
Delchamps Acquisition.
(c) Immediately following the Consummation of the Delchamps
Tender Offer, the entities listed on Schedule A hereto will be the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by the
Company, directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature (each, a "LIEN") other than as described in the Offering Memorandum.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors and is a valid and binding
agreement of the Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with its terms except as the enforcement hereof may
be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing and except as rights to indemnity and contribution thereunder may be
limited by Federal or state securities laws or principles of public policy.
This Agreement conforms as to legal matters to the description thereof contained
in the Offering Memorandum.
(e) The Indenture has been duly authorized by the Company and
each of the Guarantors and, on the Closing Date, will have been validly executed
and delivered by the Company and each of the Guarantors. When the Indenture has
been duly executed and delivered by the Company and each of the Guarantors, the
Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing and except as rights
to indemnity and contribution thereunder may be limited by Federal or state
securities laws or principles of public policy. The Indenture conforms in all
material
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respects to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA" or"TRUST INDENTURE ACT"), and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(f) The Senior Subordinated Notes have been duly authorized by
the Company for issuance and sale to the Initial Purchasers pursuant to this
Agreement and, on the Closing Date, will have been validly executed and
delivered by the Company. When the Senior Subordinated Notes have been issued,
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of this Agreement, the Senior Subordinated Notes will be entitled to the
benefits of the Indenture and will be the valid and binding obligations of the
Company, enforceable in accordance with their terms except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing and except as rights to indemnity and
contribution thereunder may be limited by Federal or state securities laws or
principles of public policy.
(g) On the Closing Date, the New Senior Subordinated Notes will
have been duly authorized by the Company. When the New Senior Subordinated
Notes are issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the New Senior Subordinated Notes will be
entitled to the benefits of the Indenture and will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing and except as rights
to indemnity and contribution thereunder may be limited by Federal or state
securities laws or principles of public policy.
(h) The Subsidiary Guarantee to be endorsed on the Senior
Subordinated Notes by each Guarantor has been duly authorized by such Guarantor
and, on the Closing Date, will have been duly executed and delivered by each
such Guarantor. When the Senior Subordinated Notes have been issued, executed
and authenticated in accordance with the Indenture and delivered to and paid for
by the Initial Purchasers in accordance with the terms of this Agreement, the
Subsidiary Guarantee of each Guarantor endorsed thereon will be entitled to the
benefits of the Indenture and will be the valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as the enforcement thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing and except as rights to
indemnity and contribution thereunder may be limited by Federal or state
securities laws or principles of public policy.
(i) The Subsidiary Guarantee to be endorsed on the New Senior
Subordinated Notes by each Guarantor has been duly authorized by such Guarantor
and, when issued, will have been duly executed and delivered by each such
Guarantor. When the New Senior Subordinated Notes have been issued, executed
and authenticated in accordance with the
10
terms of the Exchange Offer and the Indenture, the Subsidiary Guarantee of each
Guarantor endorsed thereon will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms, except as the enforcement thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing and except as rights to indemnity and contribution thereunder may be
limited by Federal or state securities laws or principles of public policy.
(j) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date, will have
been duly executed and delivered by the Company and each of the Guarantors.
When the Registration Rights Agreement has been duly executed and delivered, the
Registration Rights Agreement will be the valid and binding agreement of the
Company and each of the Guarantors, enforceable against the Company and each
Guarantor in accordance with its terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing and except as rights to indemnity and contribution thereunder may be
limited by Federal or state securities laws or principles of public policy.
(k) The Merger Agreement has been duly authorized, executed and
delivered by the Company and DAC and is a valid and binding agreement of the
Company and DAC, enforceable against the Company and DAC in accordance with its
terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing and except as rights
to indemnity and contribution thereunder may be limited by Federal or state
securities laws or principles of public policy.
(l) The Senior Credit Facility has been duly authorized by the
Company and the subsidiaries of the Company that are obligors thereunder and, on
the Closing Date, will have been duly executed and delivered by the Company and
each of the subsidiaries of the Company that are obligors thereunder. When the
Senior Credit Facility has been duly executed and delivered, the Senior Credit
Facility will be the valid and binding agreement of the Company and each of the
subsidiaries of the Company that are obligors thereunder, enforceable against
the Company and each subsidiary of the Company that is an obligor thereunder in
accordance with its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing and
except as rights to indemnity and contribution thereunder may be limited by
Federal or state securities laws or principles of public policy.
(m) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), and except for such of the
following as would not have a Material Adverse Effect, neither the Company nor
any of its subsidiaries is, and after
11
consummation of the Delchamps Tender Offer will be, in violation of its
respective charter or by-laws or in default in the performance of any
obligation, agreement or condition contained in any material bond, debenture,
note or any other evidence of material indebtedness or in any other material
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party.
(n) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto) and except for such of the
following as would not have a Material Adverse Effect, the execution, delivery
and performance of the Merger Agreement, this Agreement and the other Operative
Documents by the Company and each of the Guarantors, compliance by the Company
and each of the Guarantors with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not
require any consent (other than the Consent Solicitation (as defined herein)),
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be required
under (1) the Securities Act and state securities or "blue sky" laws and
regulations, (2) the Trust Indenture Act of 1939, as amended, (3) the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (4) applicable Environmental Laws (as defined below), (5) the filings
with and approvals by the Secretary of State of the States of Mississippi and
Alabama, as applicable, of the articles of and certificates of merger, relating
to the Delchamps Acquisition, and (6) state and local law with respect to the
obtaining of new permits or licenses for the sale of tobacco, alcohol and
similar regulated items) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or by-laws of
the Company, the Guarantors or any of their respective subsidiaries or any
agreement, indenture or other instrument to which the Company, the Guarantors or
any of their respective subsidiaries is a party or by which the Company, the
Guarantors or any of their respective subsidiaries or their respective
properties are bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any Guarantor
or any of their respective subsidiaries or their respective properties.
(o) Except as disclosed in the Offering Memorandum or that would
not reasonably be expected to have a Material Adverse Effect, there are, and
immediately after Consummation of the Delchamps Tender Offer there will be, no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any of their respective properties is the
subject, and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated.
(p) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), neither the Company nor any of
its subsidiaries has, and immediately after Consummation of the Delchamps Tender
Offer will have, violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS") or any federal or state law relating to discrimination in
the hiring, promotion or pay of employees or any applicable federal or state
wages and hours laws, or any provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the rules and regulations
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
12
(q) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), or as otherwise disclosed in
the Offering Memorandum, there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(r) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), or as otherwise disclosed in
the Offering Memorandum, each of the Company and its subsidiaries has, and
immediately after Consummation of the Delchamps Tender Offer will have, such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business in the manner
described in the Offering Memorandum, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in the
aggregate, have a Material Adverse Effect. Except as otherwise disclosed in the
Merger Agreement (including, without limitation, Annex B thereto), or as
otherwise disclosed in the Offering Memorandum, each such Authorization is, and
after consummation of the Delchamps Tender Offer will be, valid and in full
force and effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a Material Adverse Effect.
(s) In connection with the Delchamps Acquisition, the Company
has reviewed the effect of Environmental Laws and the disposal of hazardous or
toxic substances or wastes, pollutants or contaminants on (i) the business,
assets, operations and properties of the Company and its subsidiaries and (ii)
the business, assets, operations and properties of the Company and its
subsidiaries immediately following the Delchamps Tender Offer, and identified
and evaluated associated costs and liabilities (including, without limitation,
all material capital and operating expenditures required for clean-up, closure
of properties and compliance with Environmental Laws, all permits, licenses and
approvals, all related constraints on operating activities and all potential
liabilities to third parties). On the basis of such reviews, the Company has
reasonably concluded that such associated costs and liabilities would not,
immediately subsequent to and giving effect to the Delchamps Tender Offer, have
a Material Adverse Effect.
(t) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), the Company and each of its
subsidiaries has, and immediately after Consummation of the Delchamps Tender
Offer will have, good and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for
13
taxes not yet due and payable, to all property and assets described in the
Offering Memorandum as being owned by it, except as described in the Offering
Memorandum or as would not have a Material Adverse Effect. Except as otherwise
disclosed in the Merger Agreement (including, without limitation, Annex B
thereto), all leases to which any of the Company or any of its subsidiaries is,
and immediately after Consummation of the Delchamps Tender Offer will be, a
party are valid and binding and no default has occurred or is continuing
thereunder which would have a Material Adverse Effect, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such leases to
which any of the Company and its subsidiaries is, and immediately after
Consummation of the Delchamps Tender Offer will be, a party as lessee with such
exceptions as do not materially interfere with the use currently made by the
Company or such subsidiary, as the case may be.
(u) The Company and its subsidiaries maintain, and immediately
after Consummation of the Delchamps Tender Offer will maintain, reasonably
adequate insurance.
(v) The accountants, Deloitte & Touche L.L.P. and KPMG Peat
Marwick, L.L.P., that have certified the financial statements and supporting
schedules included in the Offering Memorandum are independent public accountants
with respect to the Company and the Guarantors, as required by the Act and the
Exchange Act. The historical financial statements, together with related
schedules and notes, set forth in the Offering Memorandum comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(w) The historical financial statements of the Company and its
subsidiaries, together with related schedules and notes forming part of the
Offering Memorandum (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated in
the Offering Memorandum at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein and, with respect to interim financial statements, except for the
absence of footnote presentation and normal year-end adjustments; and the other
financial and statistical information and data of the Company and its
subsidiaries set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company. The representations set forth in this clause (w) shall
be deemed to be made with respect to the historical financial statements and
other financial and statistical data of Delchamps and its subsidiaries
immediately upon Consummation of the Delchamps Tender Offer.
(x) In the Company's opinion, the assumptions used in the
preparation of the PRO FORMA financial statements included in the Offering
Memorandum are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein. The other
PRO FORMA financial and statistical information and data included in the
Offering Memorandum are accurately presented and prepared on a basis consistent
with the PRO FORMA financial statements.
(y) The Company is not and, after immediately giving effect to
the offering and sale of the Senior Subordinated Notes and the application of
the net proceeds thereof
14
as described in the Offering Memorandum will not be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
(z) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), or as otherwise disclosed in
the Offering Memorandum, there are no holders of securities of the Company or
any of the Guarantors who, by reason of the execution by the Company and the
Guarantors of the Registration Rights Agreement or the consummation of the
transactions contemplated thereby, have the right to request or demand that the
Company or any of the Guarantors, as the case may be, register under the Act
securities held by them.
(aa) The Company has delivered to the Initial Purchasers true and
correct executed copies of the Merger Agreement, including all schedules and
exhibits thereto, and there have been no amendments, alterations, modifications
or waivers thereto or in the exhibits or schedules thereto, except as have been
delivered to the Initial Purchasers.
(ab) The Company and each of its subsidiaries has complied, and
immediately after Consummation of the Delchamps Tender Offer will have complied,
with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida).
(ac) There are, and immediately after Consummation of the
Delchamps Tender Offer there will be, no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any of the
Company's subsidiaries, except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), or as otherwise disclosed in
the Offering Memorandum.
(ad) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto) or as otherwise set forth in
the Offering Memorandum, there is, and immediately after Consummation of the
Delchamps Tender Offer there will be, (i) no significant unfair labor practice
complaint pending against the Company any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the National
Labor Relations Board or any state or local labor relations board, and no
significant grievance or more significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the Company
or any of its subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company any of its subsidiaries, or, to the best
knowledge of the Company, threatened against it or any of its subsidiaries
except for such actions specified in clause (i) or (ii) above, which, singly or
in the aggregate, would not have a Material Adverse Effect.
(ae) Each of the Company and each of its subsidiaries maintains,
and immediately after Consummation of the Delchamps Acquisition will maintain, a
system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded
15
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(af) Except as otherwise disclosed in the Merger Agreement
(including, without limitation, Annex B thereto), all material tax returns
required to be filed by the Company and its subsidiaries in any jurisdiction
have been, and immediately after Consummation of the Delchamps Tender Offer will
have been, filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or pursuant to
any assessment received by the Company or any of its subsidiaries have been, and
immediately after Consummation of the Delchamps Tender Offer will have been,
paid, other than those being contested in good faith and for which adequate
reserves have been provided.
(ag) The Offering Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(ah) When the Senior Subordinated Notes and the Subsidiary
Guarantees are issued and delivered pursuant to this Agreement, neither the
Senior Subordinated Notes nor the Subsidiary Guarantees will be of the same
class (within the meaning of Rule 144A under the Act) as any security of the
Company or the Guarantors that is listed on a national securities exchange
registered under Section 6 of the Exchange Act or that is quoted in a United
States automated inter-dealer quotation system.
(ai) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, the Guarantors
or any of their respective representatives (other than the Initial Purchasers,
as to whom the Company and the Guarantors make no representation) in connection
with the offer and sale of the Senior Subordinated Notes contemplated hereby,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. No securities of the same
class as the Senior Subordinated Notes have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(aj) Assuming (i) the accuracy of and compliance with the Initial
Purchasers' representations, warranties and agreements set forth in Section 7
hereof and (ii) compliance by the Initial Purchasers with the offering and
transfer procedures and restrictions described elsewhere in this Agreement and
the Offering Memorandum, prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(ak) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("REGULATION S") with respect
to the Senior Subordinated Notes or the Subsidiary Guarantees.
(al) The Company has not, and will not, offer or sell the Senior
Subordinated Notes in reliance on Regulation S except in offshore transactions.
16
(am) The Company has not, and will not, offer or sell the Senior
Subordinated Notes as part of a plan or scheme to evade the registration
provisions of the Act.
(an) The Company, the Guarantors and their respective affiliates
and all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantors make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Senior Subordinated Notes outside the United
States and, in connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(h).
(ao) The Company is a "reporting issuer" as defined in Rule 902
under the Act.
(ap) Assuming (i) the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof and
(ii) compliance by the Initial Purchasers with the offering and transfer
procedures and restrictions described elsewhere in this Agreement and the
Offering Memorandum, no registration under the Act of the Senior Subordinated
Notes or the Subsidiary Guarantees is required for the sale of the Senior
Subordinated Notes and the Subsidiary Guarantees to the Initial Purchasers as
contemplated hereby or for the Exempt Resales.
(aq) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company or any Guarantor that it is considering
imposing) any condition (financial or otherwise) on the Company's or any
Guarantor's retaining any rating assigned as of the date hereof to the Company,
any Guarantor or any securities of the Company or any Guarantor or (ii) has
indicated to the Company or any Guarantor that it is considering (a) the
downgrading, suspension or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company or any
Guarantor.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and the Guarantors and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each of the
Initial Purchasers, severally and not jointly, represents and warrants to the
Company and the Guarantors, and agrees that:
(a) Such Initial Purchaser is either a QIB or an institutional
"accredited investor" (as defined in rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) (an "Accredited Institution"), in either
case, with such knowledge and experience in financial and business matters as is
necessary in order to evaluate the merits and risks of an investment in the
Senior Subordinated Notes.
(b) Such Initial Purchaser (A) is not acquiring the Senior
Subordinated Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the Senior Subordinated Notes in a
transaction that would violate the
17
Act or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the Senior
Subordinated Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Senior Subordinated
Notes pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Senior
Subordinated Notes only from, and will offer to sell the Senior Subordinated
Notes only to, Eligible Purchasers. Each Initial Purchaser further agrees that
it will offer to sell the Senior Subordinated Notes only to, and will solicit
offers to buy the Senior Subordinated Notes only from (A) Eligible Purchasers
that agree that (x) the Senior Subordinated Notes purchased by them may be
resold, pledged or otherwise transferred prior to the expiration of the time
period referred to under Rule 144(k) (taking into account the provisions of Rule
144(d) under the Act, if applicable) under the Act, as in effect on the date of
the transfer of such Senior Subordinated Notes, only (I) to the Company or any
of its subsidiaries, (II) to a person whom the seller reasonably believes is a
QIB purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Institution that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Senior Subordinated
Note and, if such transfer is in respect of an aggregate principal amount of
Senior Subordinated Notes less than $250,000, an opinion of counsel acceptable
to the Company that such transfer is in compliance with the Act, (VI) in
accordance with another exemption from the registration requirements of the Act
(and based upon an opinion of counsel acceptable to the Company) or (VII)
pursuant to an effective registration statement and, in each case, in accordance
with the applicable securities laws of any state of the United States or any
other applicable jurisdiction and (y) they will deliver to each person to whom
such Senior Subordinated Notes or an interest therein is transferred a notice
substantially to the effect of the foregoing.
(e) None of such Initial Purchasers nor any of its affiliates or
any person acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Senior Subordinated Notes or the Subsidiary Guarantees.
(f) The Senior Subordinated Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S have been and will
be offered and sold only in offshore transactions.
18
(g) The sale of the Senior Subordinated Notes offered and sold
by such Initial Purchaser pursuant hereto in reliance on Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Senior Subordinated Notes in the United
States or to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Act (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the later of
the commencement of the offering of the Senior Subordinated Notes pursuant
hereto and the Closing Date, other than in accordance with Regulation S of the
Act or another exemption from the registration requirements of the Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it will not
cause any advertisement with respect to the Senior Subordinated Notes (including
any "tombstone" advertisement) to be published in any newspaper or periodical or
posted in any public place and will not issue any circular relating to the
Senior Subordinated Notes, except such advertisements as are permitted by and
include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Senior Subordinated Notes by it to any distributor,
dealer or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903(c)(2) under the Act,
it will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to substantially
the following effect:
"The Senior Subordinated Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the Offering and the Closing Date, except
in either case in accordance with Regulation S under the Securities
Act (or Rule 144A or to Accredited Institutions in transactions that
are exempt from the registration requirements of the Securities Act),
and in connection with any subsequent sale by you of the Senior
Subordinated Notes covered hereby in reliance on Regulation S during
the period referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you must
deliver a notice to substantially the foregoing effect. Terms used
above have the meanings assigned to them in Regulation S."
(j) Such Initial Purchaser further represents and agrees that
(1) it has not offered or sold and will not offer or sell any Senior
Subordinated Notes to persons in the United Kingdom prior to the expiration of
the period of six months from the issue date of the Senior Subordinated Notes,
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Senior Subordinated Notes in,
from or otherwise involving the United Kingdom and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received
19
by it in connection with the issuance of the Senior Subordinated Notes to a
person who is of a kind described in Article 11(3) of the Financial Services Act
of 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom the document may otherwise lawfully be issued or passed on.
(k) Such Initial Purchaser agrees that it will not offer, sell
or deliver any of the Senior Subordinated Notes in any jurisdiction outside the
United States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Senior Subordinated
Notes in such jurisdictions. Such Initial Purchaser understands that no action
has been taken to permit a public offering in any jurisdiction outside the
United States where action would be required for such purpose.
The Initial Purchasers acknowledge that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and the Initial Purchasers hereby
consent to such reliance.
8. INDEMNIFICATION.
(a) As of the date hereof, the Company and each of the
Guarantors (other than Delchamps and SCSI) and, as of the Consummation of the
Delchamps Tender Offer, Delchamps and SCSI, agrees, jointly and severally, to
indemnify and hold harmless each Initial Purchaser, its directors, its officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses reasonably incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Memorandum (or any amendment or supplement thereto), the
Preliminary Offering Memorandum or any Rule 144A Information provided by the
Company or any Guarantor to any holder or prospective purchaser of Senior
Subordinated Notes pursuant to Section 5(h) or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are (i) caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to an Initial Purchaser furnished in writing to the Company
by such Initial Purchaser (and not with respect to the information provided by
any other Initial Purchaser) or (ii) caused by any untrue statement or omission,
or any alleged untrue statement or omission, made in the Preliminary Offering
Memorandum, but eliminated or remedied in the Offering Memorandum, if (A) the
Company shall have previously furnished copies thereof to the Initial Purchasers
in accordance with this agreement, (B) a copy of the Offering Memorandum was not
sent or given to such person at or prior to the written confirmation of such
sale, (C) the Offering Memorandum would have completely corrected such untrue
statement or omission and (D) such allegations are upheld by a final judgement.
(b) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, and their respective
directors and
20
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Company or any Guarantor, to
the same extent as the foregoing indemnity from the Company and the Guarantors
to each Initial Purchaser but only with reference to information relating to an
Initial Purchaser furnished in writing to the Company by such Initial Purchaser
(and not with respect to the information provided by any other Initial
Purchaser) expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum or any amendment or supplement thereto.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Donaldson, Lufkin & Jenrette Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall not be liable for any settlement of any such action
or proceeding effected without its prior written consent (not to be unreasonably
withheld) and if settled with its written consent or if there is a final
judgment for the plaintiff, the indemnifying party agrees to indemnify and hold
harmless the indemnified party to the extent provided herein. Notwithstanding
the immediately preceding sentence, if in any case where the fees and expenses
of counsel are at the expense of the indemnifying party and an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its written
consent if (i) such settlement is entered into more than thirty business days
after the receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall have failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement (unless the reasonableness of such fees and expenses of counsel is
being contested in good faith). No indemnifying party shall,
21
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to herein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Senior Subordinated Notes or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company
and the Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Senior Subordinated Notes (before deducting expenses) received
by the Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Senior Subordinated
Notes, in each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantors, on the one
hand, or the Initial Purchasers, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Guarantors, and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total price of the Senior Subordinated
Notes sold by them to investors in Exempt Resales exceeds the amount of any
damages which the Initial Purchasers have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such
22
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Senior Subordinated Notes purchased by each of the Initial
Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations
of the Initial Purchasers to purchase the Senior Subordinated Notes under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and
the Guarantors contained in this Agreement and all the representations and
warranties of the Company contained in the Merger Agreement shall be true and
correct on the Closing Date with the same force and effect as if made on and as
of the Closing Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall notice have been
given of any potential or intended change, in the outlook for any rating of the
Company or any Guarantor by any such rating organization and (iii) no such
rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which the Notes
were marketed.
(c) Since the respective dates as of which information is given
in the Offering Memorandum, other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii) there
shall not have been any material adverse change or any development involving a
prospective material adverse change in the capital stock or in the long-term
debt of the Company and its subsidiaries, taken as a whole, and (iii) neither
the Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Senior Subordinated Notes on the terms and in the manner contemplated in the
Offering Memorandum.
(d) The Initial Purchasers shall have received on the Closing
Date a certificate dated the Closing Date, signed by the President and the Chief
Financial Officer of the Company, confirming the matters set forth in Sections
9(a), 9(b) and 9(c).
23
(e) The Initial Purchasers shall have received on the Closing
Date an opinion (satisfactory to you and counsel for the Initial Purchasers),
dated the Closing Date, of Dechert Price & Rhoads, counsel for the Company and
the Guarantors, to the effect that:
(i) When the Senior Subordinated Notes are duly
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase
Agreement, the Senior Subordinated Notes will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
terms;
(ii) When the Senior Subordinated Notes are duly
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase
Agreement, the Subsidiary Guarantees endorsed thereon will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Guarantors, enforceable in accordance
with their terms;
(iii) When the Indenture is duly executed and delivered
by the Company and each Guarantor, the Indenture will be a valid
and binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance
with its terms;
(iv) When the Registration Rights Agreement is duly
executed and delivered by the Company and each Guarantor, the
Registration Rights Agreement will be a valid and binding
agreement of the Company and each Guarantor, enforceable against
the Company and each Guarantor in accordance with its terms;
(v) To our knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
their respective properties is subject which, if determined
adversely to the Company or any such subsidiary, would be
reasonably expected, individually or in the aggregate, to result
in a Material Adverse Effect;
(vi) The Company is not an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended;
(vii) Except as contemplated by the Registration Rights
Agreement, to our knowledge there are no holders of securities of
the Company or any of the Guarantors who, by reason of the
execution by the Company and the Guarantors of the Registration
Rights Agreement or the consummation by the Company and the
Guarantors of the transactions contemplated thereby, have the
right to request or demand that the Company or any of the
Guarantors, as the case may be, register under the Act securities
held by them; and
24
(viii) Assuming (i) the accuracy of, and compliance with,
the representations, warranties and agreements of the Company
and the Guarantors set forth in Sections 5(h), 5(m) and 5(r) and
6(ah), (ai), (ak), (al), (am), (an) and (ao) of the Purchase
Agreement, (ii) the accuracy of, and compliance with, the
representations, warranties and agreements of the Initial
Purchasers set forth in Section 7 of the Purchase Agreement,
(iii) compliance by the Initial Purchasers with the offering and
transfer procedures and restrictions described elsewhere in the
Purchase Agreement and the Offering Memorandum and (iv) the
accuracy of, and compliance with, the representations, warranties
and agreements made in accordance with the Purchase Agreement,
the Offering Memorandum and the Indenture by Eligible Purchasers
to whom the Initial Purchasers initially resell Senior
Subordinated Notes in Exempt Resales, it is not necessary in
connection with the offer, sale and delivery of the Senior
Subordinated Notes to the Initial Purchasers in the manner
contemplated by the Purchase Agreement or in connection with
Exempt Resales to register the Senior Subordinated Notes under
the Act or to qualify the Indenture under the TIA.
The opinion of Dechert Price & Rhoads described in Section 9(e) above
shall be rendered to the Initial Purchasers at the request of the Company and
the Guarantors and shall so state therein.
The Initial Purchasers shall have received on the Closing Date a
letter (satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers) dated the Closing Date, from Dechert Price & Rhoads, counsel for the
Company and the Guarantors, to the effect that such counsel has no reason to
believe that, as of the date of the Offering Memorandum or as of the Closing
Date, the Offering Memorandum, as amended or supplemented, if applicable (except
for the financial statements and the notes related thereto and other financial,
statistical and accounting data included therein, as to which such counsel need
not express any belief) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In writing such letter with respect to the matters covered by this
paragraph, Dechert Price & Rhoads may state that their belief is based upon
their participation in the preparation of the Offering Memorandum and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification except as specified.
Additionally, the Initial Purchasers shall have received on the
Closing a letter (satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers) dated the Closing Date, from Dechert Price & Rhoads, counsel
for the Company and the Guarantors, to the effect that the Initial Purchasers
may rely on the opinions of Dechert Price & Rhoads rendered pursuant to the
Senior Credit Facility.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers), dated the Closing Date, of Butler, Snow, O'Mara, Stevens &
Cannada, PLLC, counsel to the Company and the Guarantors (other than Delchamps,
SCSI, Interstate Jitney-Jungle Stores, Inc. ("Interstate") and DAC),
substantially to the effect that:
25
(i) each of the Company and each of the Guarantors
(other than Delchamps, SCSI, Interstate and DAC) is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Mississippi and has the corporate power and
authority to carry on its business as it is currently being
conducted as described in the Offering Memorandum and to own,
lease and operate its properties as described in the Offering
Memorandum;
(ii) to such counsel's knowledge, and based solely on
certificates to such effect examined by such counsel as issued by
the Secretary of State for each of the states identified in
writing to such counsel as jurisdictions where the failure by the
Company and the Guarantors (other than Delchamps, SCSI,
Interstate and DAC) to be qualified to do business as a foreign
corporation would have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole (as set forth on a
schedule to this opinion), each of the Company and the Guarantors
(other than Delchamps, SCSI, Interstate and DAC) is duly
qualified and in good standing as a foreign corporation
authorized to do business in each such jurisdiction;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid, non-assessable;
(iv) all of the outstanding shares of capital stock of
each of the Guarantors (other than Delchamps, SCSI, Interstate
and DAC) have been duly authorized and validly issued and are
fully paid and non-assessable;
(v) the Senior Subordinated Notes have been duly
authorized by the Company;
(vi) the Subsidiary Guarantees have been duly
authorized by the Guarantors (other than Delchamps, SCSI,
Interstate and DAC);
(vii) the Indenture has been duly authorized, executed
and delivered by the Company and the Guarantors (other than
Delchamps, SCSI, Interstate and DAC);
(viii) this Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors (other than
Delchamps, SCSI, Interstate and DAC);
(ix) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors (other than Delchamps, SCSI, Interstate and DAC);
(x) the New Senior Subordinated Notes have been duly
authorized by the Company;
26
(xi) the Subsidiary Guarantees to be endorsed on the
New Senior Subordinated Notes have been duly authorized by the
Guarantors (other than Delchamps, SCSI, Interstate and DAC);
(xii) the Merger Agreement has been duly authorized,
executed and delivered by the Company;
(xiii) the Senior Credit Facility has been duly
authorized, executed and delivered by the Company and the
Guarantors (other than Delchamps, SCSI, Interstate and DAC);
(xiv) to such counsel's knowledge, neither the Company
nor any of the Guarantors (other than Delchamps, SCSI, Interstate
and DAC) is in violation of its respective articles of
incorporation or by-laws or in default in the performance of any
agreement, indenture or other instrument to which the Company or
any Guarantor (other than Delchamps, SCSI, Interstate and DAC) is
a party or by which any of their respective properties are bound
that would result in any Material Adverse Effect on the conduct
of the business of the Company and its subsidiaries, taken as a
whole; and
(xv) the execution, delivery and performance of the
Merger Agreement, this Agreement and the other Operative
Documents by the Company and each of the Guarantors (other than
Delchamps, SCSI, Interstate and DAC) will not (A) require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body, except as specifically referenced in Section 3.4 of the
Merger Agreement and the related Disclosure Schedule attached
thereto and except for such consents, approvals, authorizations
or orders under (1) the Securities Act and state securities or
"blue sky" laws and regulations, (2) the Trust Indenture Act of
1939, as amended, (3) the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), (4)
applicable Environmental Laws (as defined below), (5) the filings
with and approvals by the Secretary of State of the State of
Alabama of the articles of and certificates of merger, relating
to the Delchamps Acquisition, and (6) state and local law with
respect to the obtaining of new permits or licenses for the sale
of tobacco, alcohol, pharmaceuticals, lottery tickets, food
services and health and similar regulated items, (B) conflict
with the articles of incorporation or by-laws of the Company or
any of the Guarantors (other than Delchamps, SCSI, Interstate and
DAC), (C) to such counsel's knowledge, conflict with or
constitute a breach of the terms or provisions of, or a default
under, any material agreement, indenture or other instrument to
which the Company or any of the Guarantors (other than Delchamps,
SCSI, Interstate and DAC) is a party or by which any of their
respective properties are bound, except as would not have a
Material Adverse Effect on the Company and its subsidiaries,
taken as a whole, (D) to such counsel's knowledge, result in a
material violation or conflict with any laws or administrative
regulations or rulings that are
27
applicable to the Company or any Guarantor (other than Delchamps,
SCSI, Interstate and DAC) or to their respective properties, or
(E) result in a material violation of any court decrees which
have been identified by certificate of the Company to such
counsel as specifically applicable to the Company or any of the
Guarantors (other than Delchamps, SCSI, Interstate and DAC) or to
their respective properties which would have a Material Adverse
Effect on the Company and its subsidiaries, taken as a whole;
except that the opinions set forth in the within clauses (A) and
(D) are based on only those statutes, rules or regulations which,
in the opinion of such counsel, are customarily applicable to
securities underwriting and merger transactions; and except that
the opinions set forth in this paragraph 9(f)(xv) will not
include any opinion as to the enforceability of the Merger
Agreement, this Agreement or the other Operative Documents.
(g) The Initial Purchasers shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers), dated the Closing Date, of Maynard, Cooper & Gale, P.C.,
counsel to Interstate and DAC, substantially to the effect that:
(i) each of Interstate and DAC is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Alabama and has the corporate power and
authority to carry on its business as described in the Offering
Memorandum and to own, lease and operate its properties as
described in the Offering Memorandum;
(ii) this Agreement, the Indenture, the Registration
Rights Agreement and the Senior Credit Facility have each been
duly authorized, executed and delivered by Interstate and DAC,
and the DAC Senior Note Guaranty, the DAC Supplemental Indenture
and the Merger Agreement have been duly authorized, executed and
delivered by DAC;
(iii) the Subsidiary Guarantees have been duly
authorized by Interstate and DAC;
(iv) all of the outstanding shares of capital stock of
DAC have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights; and
(v) the execution and delivery by Interstate of the
Operative Documents, and by DAC of the Operative Documents and
the Merger Agreement, does not and, if Interstate or DAC, as the
case may be, were to perform on the date hereof its obligations
under the Operative Documents, such performance would not, (i)
conflict with the Articles of Incorporation or Bylaws of
Interstate or DAC, as the case may be, or (ii) to such counsel's
actual knowledge with independent investigation, (A) require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
of the State of Alabama (except as for such consents, approvals,
28
authorizations or orders required under state securities or "blue
sky" laws and regulations, and, with respect to performance only,
required for the normal ordinary conduct of the business of
Interstate or DAC, as the case may be, such as permits or
licenses for the sale of tobacco, alcohol, pharmaceuticals, food
and food services, health permits, environmental permits and
zoning approvals), or (B) violate or conflict with any laws or
administrative regulations or rulings of the State of Alabama
that are applicable to Interstate or DAC, as the case may be;
except that the opinions set forth pursuant to this paragraph
9(g)(v) will not include any opinion as to the enforceability of
the Operative Documents.
(h) The Initial Purchasers shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers), dated the Closing Date, of Hand Arendall, L.L.C., counsel
to Delchamps, substantially to the effect that:
(i) Delchamps is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Alabama and has the corporate power and authority to carry on
its business as currently conducted;
(ii) Delchamps is duly qualified and in good standing
as a foreign corporation authorized to do business in each of the
states of Florida, Louisiana and Mississippi;
(iii) the Subsidiary Guarantee of Delchamps has been
duly authorized by Delchamps;
(iv) the Indenture has been duly authorized, executed
and delivered by Delchamps;
(v) this Agreement has been duly authorized, executed
and delivered by Delchamps;
(vi) the Registration Rights Agreement has been duly
authorized, executed and delivered by Delchamps;
(vii) the Subsidiary Guarantees to be endorsed on the
New Senior Subordinated Notes have been duly authorized by
Delchamps;
(viii) the Senior Credit Facility has been duly
authorized, executed and delivered by Delchamps;
(ix) the Supplemental Indenture dated September 15,
1997 between Delchamps and Marine Midland Bank has been duly
authorized by Delchamps;
(x) the Senior Guarantee dated as of September 15,
1997 has been duly authorized by Delchamps;
29
(xi) to such counsel's knowledge (and without
expressing an opinion with respect to the effect of the Merger
Agreement contemplated by the Operative Documents), Delchamps is
not in violation of its Articles of Incorporation or Bylaws and,
based solely on the Officer's Certificate, Delchamps is not in
default in the performance of any obligation, agreement or
condition contained in any material bond, debenture, note or any
other evidence of material indebtedness or in any other material
agreement, indenture or instrument (A) material to the conduct of
the business of Delchamps and its subsidiaries, taken as a whole,
(B) material to the conduct of the business of Delchamps and its
subsidiaries, taken as a whole, immediately following the
Delchamps Acquisition, (C) by which Delchamps', or any of its
subsidiaries' property is bound or (D) by which any of
Delchamps', or any of its subsidiaries' property will be bound
following the Delchamps Acquisition; and
(xii) the execution, delivery and performance of the
Operative Documents by Delchamps, compliance by Delchamps with
all provisions thereof (except that such counsel expresses no
opinion with respect to the Merger contemplated thereby) and the
consummation of the transactions contemplated thereby will not
require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other
governmental body of the State of Alabama (except as such may be
required under state securities or "blue sky" laws and
regulations) and will not conflict with or constitute a breach of
the terms or provisions of, or a default under, the Articles of
Incorporation or Bylaws of Delchamps or, based solely on the
Officer's Certificate, of any material agreement, indenture or
other instrument to which Delchamps is a party or by which
Delchamps or its properties are bound, or violate or conflict
with any laws or administrative rulings or court decrees
applicable to Delchamps or its properties, which violations or
conflicts would reasonably be expected to have a Material Adverse
Effect. The opinions in this paragraph 9(h)(xii) are subject to
the fact that such counsel have done no independent research of
Alabama law with regard to the legal opinions in this opinion and
same are based solely on such counsel's knowledge of Alabama law
and without further research or inquiry.
With respect to all opinions of such counsel expressed pursuant
to paragraphs 9(e), (f), (g) and (h), such opinions are to be based upon the
assumption that no actions, events, occurrences or circumstances by, affecting
or concerning any of the Company or Guarantors occurred or existed prior to the
effective time of the Delchamps Tender Offer which would cause any inaccuracy
in, conflict with, or contravention of, in whole or in part, any of the opinions
expressed.
With respect to the opinions of counsel expressed pursuant to
paragraphs 9(e), (f), (g) and (h) as "within the knowledge of such counsel,"
such opinions are to be interpreted as conveying that, during the participation
of such counsel in the preparation, negotiation, execution and performance of
the Merger Agreement, in connection with such
30
counsel's representation of the Company and the Guarantors, but without making
any independent investigation or verification, no information has come to the
attention of the attorneys of such firm that have had substantive involvement in
the preparation, negotiation, execution and performance of the Merger Agreement
to give any such attorney conscious awareness and actual knowledge of any facts
or law contrary to the statements and opinions so expressed. To the extent the
knowledge of such counsel is qualified by "after reasonable inquiry," such
inquiry is limited to the appropriate officers and records of the Company and
the Guarantors.
In rendering the opinions set forth in paragraphs 9(f)(xv),
9(g)(xiii) and 9(h)(xiii), such counsel may state that the opinions, with your
permission, assume that all courts of competent jurisdiction would enforce all
agreements, indentures or other instruments as written but for all purposes
would apply the internal laws of the State of Mississippi or Alabama, as
applicable, without giving effect to any choice of law provisions contained
therein or any choice of law principles which would result in application of the
internal laws of any other state.
(i) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Latham & Watkins, counsel for the
Initial Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
(j) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from (i) Deloitte & Touche L.L.P., independent public
accountants for the Company and (ii) KPMG Peat Marwick L.L.P., independent
public accountants for Delchamps, in each case containing the information and
statements of the type ordinarily included in accountants' "comfort letters" to
the Initial Purchasers with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(k) The Senior Subordinated Notes shall have been approved by
the NASD for trading and duly listed in PORTAL.
(l) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company, the Guarantors and the Trustee (provided, that with respect to
Delchamps and SCSI, such counterpart may be delivered subject to the
Consummation of the Delchamps Tender Offer).
(m) The Company and the Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors
(provided, that with respect to Delchamps and SCSI, such counterpart may be
delivered subject to the Consummation of the Delchamps Tender Offer).
(n) The Company and the Guarantors shall have executed this
Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company and the Guarantors (provided, that with
respect to Delchamps and SCSI, such counterpart may be delivered subject to the
Consummation of the Delchamps Tender Offer).
(o) The Company and the subsidiaries of the Company that are
obligors thereunder shall have entered into the Senior Credit Facility (the form
and substance of
31
which shall be reasonably acceptable to the Initial Purchasers) and the Initial
Purchasers shall have received counterpart, conformed as executed, thereof and
of all other documents and agreements entered into in connection therewith
(provided, that with respect to Delchamps and SCSI, such counterparts may be
delivered subject to the Consummation of the Delchamps Tender Offer).
(p) The Initial Purchasers shall have received a copy of the
Merger Agreement, with all schedules, exhibits and amendments thereto, certified
by an executive officer of the Company as a true, correct and complete copy as
of the date hereof.
(q) Each condition to the closing contemplated by the Senior
Credit Facility (other than the issuance and sale of the Senior Subordinated
Notes and Subsidiary Guarantees pursuant hereto) shall have been satisfied or
waived. There shall exist at and as of the Closing Date (after giving effect to
the transactions contemplated by this Agreement and the Merger Agreement) no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Senior Credit
Facility. On the Closing Date, the closing under the Senior Credit Facility
shall have been consummated on terms that conform in all material respects to
the description thereof in the Offering Memorandum and the Initial Purchasers
shall have received evidence satisfactory to the Initial Purchasers of the
consummation thereof.
(r) Each condition to the closing of the Delchamps Tender Offer
contemplated by the Merger Agreement (other than the issuance and sale of the
Senior Subordinated Notes and the Subsidiary Guarantees pursuant hereto and the
closing under the Senior Credit Facility) shall have been satisfied or waived.
There shall exist at and as of the Closing Date (after giving effect to the
transactions contemplated by this Agreement and the Senior Credit Facility) no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Merger Agreement.
On the Closing Date, the Delchamps Tender Offer shall have been consummated on
terms that conform in all material respects to the description thereof in the
Offering Memorandum and the Initial Purchasers shall have received evidence
satisfactory to the Initial Purchasers of the consummation thereof.
(s) The Company shall have received the consent of the holders of
at least a majority in principal amount of the outstanding 12% Senior Notes due
2006 of the Company (the "Senior Notes"), excluding any Senior Notes owned by
the Company, any Guarantor or any affiliate of the Company or any Guarantor, to
approve certain amendments to the indenture, dated March 5, 1996 among the
Company, the guarantors named therein and Marine Midland Bank, as trustee,
governing the Senior Notes (the "Consent Solicitation").
(t) Latham & Watkins shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably require
for the purpose of enabling them to review or pass upon the matters referred to
in this Section 9 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations, warranties
or conditions herein contained.
(u) Prior to the Closing Date, the Company shall have furnished
to the Initial Purchasers such further information, certificates and documents
as the Initial Purchasers may reasonably request.
32
(v) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date.
10. CONDITIONS OF THE COMPANY'S AND THE GUARANTORS' OBLIGATIONS. The
obligations of the Company and the Guarantors to sell the Senior Subordinated
Notes and issue the Subsidiary Guarantees under this Agreement are subject to
the satisfaction to each of the following conditions:
(a) Each condition to the closing of the Delchamps Tender Offer
contemplated by the Merger Agreement (other than the issuance and sale of the
Senior Subordinated Notes and Subsidiary Guarantees pursuant hereto and the
closing of the Senior Credit Facility) shall have been satisfied or waived.
There shall exist at and as of the Closing Date (after giving effect to the
transactions contemplated by this Agreement and the Senior Credit Facility) no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Merger Agreement.
On the Closing Date, the Delchamps Tender Offer shall have been consummated on
terms that conform in all material respects to the description thereof in the
Offering Memorandum and the Company shall have received evidence satisfactory to
the Company of the consummation thereof.
(b) The Consent Solicitation shall have been consummated.
(c) The Initial Purchasers shall have delivered payment to the
Company for the Senior Subordinated Notes pursuant to Section 4 of this
Agreement.
(d) All of the representations and warranties of the Initial
Purchasers shall be true and correct in all material respects at and as of the
Closing Date and the Initial Purchasers shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Initial Purchasers at or
prior to the Closing Date.
(e) No injunction, restraining order, action, statute, rule or
regulation of any Governmental Authority shall have been issued as of the
Closing Date that would prevent or interfere with the issuance of the Senior
Subordinated Notes hereunder or subject the Company to any material penalty if
the Senior Subordinated Notes were to be issued and sold hereunder.
11. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto other than Delchamps and SCSI.
This Agreement may be terminated at any time prior to the Closing Date
by the Initial Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Senior Subordinated Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock
33
Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market or limitation
on prices for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of the
Company or any Guarantor on any exchange or in the over-the-counter market, (iv)
the enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date either of the Initial Purchasers shall fail or
refuse to purchase the Senior Subordinated Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Senior
Subordinated Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Senior Subordinated
Notes to be purchased on such date by all Initial Purchasers, each
non-defaulting Initial Purchaser shall be obligated severally, in the proportion
which the principal amount of the Senior Subordinated Notes set forth opposite
its name in Schedule B bears to the aggregate principal amount of the Senior
Subordinated Notes which all the non-defaulting Initial Purchasers, as the case
may be, have agreed to purchase, or in such other proportion as you may specify,
to purchase the Senior Subordinated Notes which such defaulting Initial
Purchaser or Initial Purchasers, as the case may be, agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the aggregate
principal amount of the Senior Subordinated Notes which any Initial Purchaser
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 11 by an amount in excess of one-ninth of such principal amount of
the Senior Subordinated Notes without the written consent of such Initial
Purchaser. If on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase the Senior Subordinated Notes and the aggregate
principal amount of the Senior Subordinated Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Senior Subordinated Notes to be purchased by all Initial Purchasers and
arrangements satisfactory to the Initial Purchasers and the Company for purchase
of such the Senior Subordinated Notes are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
12. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to 1770 Ellis Avenue, Suite 200, Jackson, Mississippi 39204 and (ii)
if to the Initial Purchasers, Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
34
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Guarantors and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Senior Subordinated Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Initial
Purchasers, the officers or directors of the Initial Purchasers, any person
controlling the Initial Purchasers, the Company, any Guarantor, the officers or
directors of the Company or any Guarantor, or any person controlling the Company
or any Guarantor, (ii) acceptance of the Senior Subordinated Notes and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Initial Purchasers
because of any failure or refusal on the part of the Company or the Guarantors
to comply with the terms or to fulfill any of the conditions of this Agreement,
the Company and the Guarantors, jointly and severally, agree to reimburse the
Initial Purchasers for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them (provided that Delchamps
and SCSI shall not be responsible for any of the fees and expenses described in
this paragraph unless and until the Delchamps Tender Offer is Consummated).
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Company and each Guarantor also agree, jointly and severally, to reimburse
each Initial Purchaser and its officers, directors and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under this Section 12).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Guarantors,
the Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantors and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Senior Subordinated Notes from the Initial
Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
35
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers as of the date
first above written.
Very truly yours,
JITNEY-JUNGLE STORES OF AMERICA, INC.
By:
-----------------------------------
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY
By:
-----------------------------------
Name:
Title:
MCCARTY-HOLMAN CO., INC.
By:
-----------------------------------
Name:
Title:
INTERSTATE JITNEY-JUNGLE STORES, INC.
By:
-----------------------------------
Name:
Title:
PUMP AND SAVE, INC.
By:
-----------------------------------
Name:
Title:
DELTA ACQUISITION CORPORATION
By:
-----------------------------------
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written
by Donaldson, Lufkin & Jenrette
Securities Corporation on behalf
of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: ----------------------------------
Name:
Title:
The foregoing Purchase Agreement
is hereby agreed to and accepted
as of the Consummation of the Delchamps Tender Offer by
Delchamps, Inc. and Supermarket Cigarette
Sales, Inc., each a Guarantor, it
being understood that the provisions
thereof applicable to and binding
upon the Guarantors shall be applicable
to and binding upon Delchamps, Inc. and
Supermarket Cigarette Sales, Inc.
as of and effective immediately upon
Consummation of the Delchamps Tender Offer.
DELCHAMPS, INC.
By: ----------------------------------
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.
By: ----------------------------------
Name:
Title:
SCHEDULE A
GUARANTORS
Southern Jitney Jungle Company
McCarty-Holman Co., Inc.
Interstate Jitney-Jungle Stores, Inc.
Pump and Save, Inc.
Delta Acquisition Corporation
Delchamps, Inc. (simultaneously upon Consummation of the Delchamps Tender Offer)
Supermarket Cigarette Sales, Inc. (simultaneously upon Consummation of the
Delchamps Tender Offer)
S-1
SCHEDULE B
Principal Amount
Initial Purchaser of Notes
----------------- ------------
Donaldson, Lufkin & Jenrette
Securities Corporation.................................... $140,000,000
Credit Suisse First Boston.................................... $ 60,000,000
Total..................................................... $200,000,000
============
S-2
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
A-1