AMENDMENT NO. 5
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 5 dated March 26,
1999 to the Amended and Restated Revolving Credit
Agreement dated as of September 15, 1997 (as heretofore
amended, and as may be further amended, restated,
modified or supplemented from time to time, the "Credit
Agreement") among Jitney-Jungle Stores of America, Inc.,
Southern Jitney Jungle Company, XxXxxxx-Xxxxxx Co.,
Inc., Jitney-Jungle Bakery, Inc., Pump and Save, Inc.,
Interstate Jitney Jungle Stores, Inc., and Delchamps, Inc.
(each a "Borrower" and collectively, the "Borrowers"), the
Guarantors named therein, the Lenders named therein and
Fleet Capital Corporation, as Agent.
WHEREAS, the Lenders desire to amend
Schedule 2.01 to the Credit Agreement (as in effect prior to
this Amendment, the "Existing Schedule 2.01", and
thereafter, the "New Schedule 2.01");
WHEREAS, the parties hereto willing to
amend the Existing Schedule 2.01 of the Credit Agreement,
on the terms and conditions hereof.
NOW, THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent hereby agree as
follows:
1 SECTION CAPITALIZED TERMS. Capitalized
terms used herein and not defined shall have the respective
meanings assigned to such terms in the Credit Agreement.
1 SECTION AMENDMENTS TO THE CREDIT
AGREEMENT. The Credit Agreement shall be, and upon
the fulfillment of the conditions set forth in Section 4
hereof is, hereby amended by deleting the Existing
Schedule 2.01 in its entirety and substituting the New
Schedule 2.01 attached hereto therefore.
1 SECTION ADDITIONAL AGREEMENTS
2
2.1 SECTION The Lenders agree that all
accrued and unpaid interest and fees payable to the Lenders
pursuant to the Credit Agreement for the period beginning
on March 4, 1999 and ending on the date hereof shall be
paid to the Lenders in accordance with the Existing
Schedule 2.01 and thereafter in accordance with the New
Schedule 2.01.
1 SECTION CONDITIONS PRECEDENT
2
This Amendment shall become effective on
such date as the following conditions have been satisfied in
full or waived by the Agent in writing:
1.1 SECTION The Agent shall have received
in form and substance satisfactory to the Agent and its
counsel:
1.2
(a) Counterparts of this
Amendment executed by each Borrower, each
Guarantor, each Grantor and each Lender shall have
been delivered to the Agent.
(b) Each Lender shall have
received Notes reflecting their respective
Commitments duly executed by the Borrowers.
(c) Such other approvals,
opinions or documents as the Agent may reasonably
request.
1.1 SECTION All representations and
warranties contained in this Amendment or otherwise made
in writing to the Agent in connection herewith shall be true
and correct in all material respects.
1.2
1.3 SECTION No unwaived Default or Event
of Default has occurred and is continuing.
1.4
1.5 SECTION Xxxx, Scholer, Fierman, Xxxx
& Handler, LLP, counsel to the Agent, shall have received
payment in full for all legal fees charged, and all costs and
expenses incurred, by such counsel in connection with the
transactions contemplated under this Amendment and the
other Loan Documents and instruments in connection
herewith and therewith.
1 SECTION MISCELLANEOUS
2
2.1 SECTION Each of the Borrowers and
each Guarantor reaffirms and restates the representations
and warranties set forth in Article IV of the Credit
Agreement, as amended by this Amendment, and all such
representations and warranties shall be true and correct on
the date hereof with the same force and effect as if made on
such date (except insofar as such representation and
warranties relate expressly to an earlier date). Each of the
Borrowers and each Guarantor represents and warrants
(which representations and warranties shall survive the
execution and delivery hereof) to the Agent that:
(a) It has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Amendment and has taken or
caused to be taken all necessary corporate action to
authorize the execution, delivery and performance
of this Amendment;
(a) No consent of any other person
(including, without limitation, shareholders or
creditors of any Borrower or a Guarantor), and no
action of, or filing with any governmental or public
body or authority is required to authorize, or is
otherwise required in connection with the
execution, delivery and performance of this
Amendment;
(b) This Amendment and the other
instruments and documents contemplated hereby
have been duly executed and delivered by a duly
authorized officer on behalf of such party, and
constitutes a legal, valid and binding obligation of
such party enforceable against such party in
accordance with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors'
rights generally and the exercise of judicial
discretion in accordance with general principles of
equity; and
(a) The execution, delivery and
performance of this Amendment and the other
instruments and documents contemplated hereby
will not violate any law, statute or regulation, or any
order or decree of any court or governmental
instrumentality, or conflict with, or result in the
breach of, or constitute a default under any
contractual obligation of such party.
1.1 SECTION Nothing herein shall be
deemed to be a waiver of any covenant or agreement
contained in the Credit Agreement, and each Borrower and
each Guarantor hereby agrees that all of the covenants and
agreements contained in the Credit Agreement and the
other Loan Documents are hereby ratified and confirmed in
all respects and shall remain in full force and effect in
accordance with their respective terms.
1.2
1.3 SECTION All references to the Credit
Agreement in the Credit Agreement or any other Loan
Document and the other documents and instruments
delivered pursuant to or in connection therewith shall mean
such Agreement as amended hereby and as each may in the
future be amended, restated, supplemented or modified
from time to time.
1.4
1.5 SECTION This Amendment may be
executed by the parties hereto individually or in
combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one
and the same agreement.
1.6
1.7 SECTION Delivery of an executed
counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
1.1 SECTION This Amendment shall be
governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
1.2
1.3 SECTION The parties hereto shall, at any
time and from time to time following the execution of this
Amendment, execute and deliver all such further
instruments and take all such further action as may be
reasonably necessary or appropriate in order to carry out
the provisions of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed by their respective
officers thereunto duly authorized, as to the date first above
written.
JITNEY-JUNGLE STORES OF AMERICA, INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
SOUTHERN JITNEY JUNGLE COMPANY,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
XxXXXXX-XXXXXX CO., INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
JITNEY-JUNGLE BAKERY, INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
PUMP AND SAVE, INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
INTERSTATE JITNEY JUNGLE STORES, INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
DELCHAMPS, INC.,
as Borrower and as Guarantor
By__________________________________
Name:
Title:
JJ CONSTRUCTION CORP.,
as Guarantor
By__________________________________
Name:
Title:
SUPERMARKET CIGARETTE SALES, INC.,
as Guarantor
By__________________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as Agent
By__________________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as Lender
By__________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By__________________________________
Name:
Title:
XXXXXX FINANCIAL INC.,
as Lender
By__________________________________
Name:
Title:
IBJ WHITEHALL BUSINESS CREDIT CORP.,
as Lender
By__________________________________
Name:
Title:
NATIONAL BANK OF CANADA,
a Canadian Chartered Bank, as Lender
By__________________________________
Name:
Title:
NATIONAL CITY BANK,
as Lender
By__________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION,
as Lender
By__________________________________
Name:
Title:
FLEET BANK, N.A.,
as a Letter of Credit Issuer
By__________________________________
Name:
Title:
SCHEDULE 2.01
Commitments
Lender Commitment
Fleet Capital Corporation $50,000,000.00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
Xxxxxx Financial, Inc. $35,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
PNC Bank, National Association $17,600,000.00
0 XXX Xxxxx 00xx Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
IBJ Whitehall Business Credit Corp. $15,400,000.00
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
National Bank of Canada, $14,300,000.00
a Canadian Chartered Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
Deutsche Financial Services $20,000,000.00
Corporation
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Fax #: (000) 000-0000
National City Bank $10,000,000.00
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Tel #: (000) 000-0000
Fax #: (000) 000-0000
Total Commitment $162,300,000.00
