Execution Copy
AMENDMENT NO. 6
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 6 dated April __,
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 Borrowers have made
certain accounting adjustments for the fiscal quarters ended
March 28, 1998, June 20, 1998 and September 12, 1998
and have requested that the Required Lenders amend the
Credit Agreement as set forth herein;
WHEREAS, the parties hereto are willing to
amend Credit Agreement, on the terms and conditions
hereof.
NOW, THEREFORE, the Borrowers, the
Guarantors, the Required 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 3
hereof is, hereby amended by adding the following as a
new Section 7.24.:
SECTION 7.24. Special Accounting
Adjustment. For the purposes of calculating the
Interest Coverage Ratio and the Leverage Ratio, in
each case, solely for the fiscal quarters ended March
28, 1998, June 20, 1998 and September 12, 1998
the Borrowers may increase EBITDA by
$5,300,000.
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 the Required Lenders
shall have been delivered to the Agent.
(b) 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;
(a) This Amendment and the other
instruments and documents contemplated hereby
have been duly executed and delivered by a duly
authorized officer on behalf of such party, and
constitutes a legal, valid and binding obligation of
such party enforceable against such party in
accordance with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors'
rights generally and the exercise of judicial
discretion in accordance with general principles of
equity; and
(a) The execution, delivery and
performance of this Amendment and the other
instruments and documents contemplated hereby
will not violate any law, statute or regulation, or any
order or decree of any court or governmental
instrumentality, or conflict with, or result in the
breach of, or constitute a default under any
contractual obligation of such party.
1.1 SECTION 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 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:
