Exhibit 4.9
SECOND AMENDMENT dated as of
December 21, 1999 (this
"Amendment"), to the Credit
Agreement, dated as of July 25,
1997, as amended by the First
Amendment dated as of October 5,
1998 (as so amended and as the same
may be further amended, restated,
modified or supplemented from time
to time, the "Credit Agreement"),
among FLEMING COMPANIES, INC. (the
"Borrower"), the LENDERS from time
to time party thereto (the
"Lenders"), BANCAMERICA SECURITIES,
INC., as Syndication Agent (the
"Syndication Agent"), SOCIETE
GENERALE, as Documentation Agent
(the "Documentation Agent") and THE
CHASE MANHATTAN BANK, as
Administrative Agent for the
Lenders (the "Administrative
Agent").
WHEREAS, the Borrower, the Lenders, the Syndication
Agent, the Documentation Agent and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower has requested that certain
provisions of the Credit Agreement be modified in the manner
provided for in this Amendment, and the undersigned Lenders are
willing to agree to such modifications.
NOW THEREFORE, for and in consideration of the premises
and the mutual covenants herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned parties hereby agree as
follows:
Section 1. Definitions. All capitalized terms which are
defined in the Credit Agreement and not otherwise defined herein
or in the recitals hereof shall have the same meanings herein as
in the Credit Agreement.
Section 2. Amendment of Credit Agreement. The Credit
Agreement is hereby amended by:
(a) Inserting the following sentence at the end of the
definition of "Affiliate":
At all times when the Borrower owns an equity interest
in Netco, Netco and each of its subsidiaries will be
deemed to be Affiliates of the Borrower.
(b) Amending clause (a) of the definition of "Asset Disposition"
to read as follows:
(a) any sale, transfer or other disposition of any
capital stock of any Subsidiary or of Netco to any
Person other than the Borrower or any Wholly Owned
Subsidiary (including, without limitation, through the
merger of any Subsidiary or Netco with or into any
Person other than the Borrower or any Wholly Owned
Subsidiary),
(c) Amending the definition of "Collateral Requirement" to read
as follows:
"Collateral Requirement" means at any date that
(a) the Pledge Agreement creates in favor of the
Collateral Agent, for the benefit of the Lenders, first
priority perfected pledges of and security interests in
all capital stock or other equity interests owned by
the Borrower or any Subsidiary (other than Netco) in
any Subsidiary or in Netco, and (b) the Security
Agreement creates in favor of the Collateral Agent, for
the benefit of the Lenders, first priority perfected
security interests in Inventory and Accounts Receivable
representing at least 95% of the consolidated Inventory
and Accounts Receivable of the Borrower and the
Subsidiaries; provided, that (i) the Borrower and the
Subsidiaries will in no event be required, in order to
satisfy the Collateral Requirement, to subject to the
Lien of the Security Agreement Inventory or Accounts
Receivable of Joint Ventures or of Netco and (ii) the
Borrower will not be required to cause Richmar Foods,
Inc. to pledge the capital stock of Netco Foods, Inc.
unless and until Richmar Foods, Inc. becomes a Wholly
Owned Subsidiary.
(d) Amending the definition of "Designated Subsidiary" to read
as follows:
"Designated Subsidiary" means a Subsidiary that is
neither an Equity Store nor a Business Development
Venture; provided that for purposes of Article VI,
neither Netco nor any subsidiary of Netco shall be
considered a Designated Subsidiary.
(e) Amending the first sentence of the definition of "Guarantee
Requirement" to read as follows:
"Guarantee Requirement" means at any date that (a)
all Wholly Owned Subsidiaries (other than Netco or any
subsidiary of Netco) are Guarantors and (b) the assets
of the Guarantors, together with the assets of the
Borrower, constituted as at the last day of the most
recently ended fiscal quarter of the Borrower at least
95% of the consolidated total assets of the Borrower
and its Subsidiaries (other than Netco or any
subsidiary of Netco); provided, however, that the
Guarantee Requirement shall in no event be met unless
each Subsidiary that guarantees the Subordinated Notes
or any other subordinated Indebtedness of the Borrower
shall be a Guarantor.
(f) Amending the definition of "Subsidiary" to read as follows:
"Subsidiary" means any subsidiary of the Borrower;
provided that for purposes of Article V (other than
Sections 5.01) and Sections 6.03(b), 6.03(c), 6.05 and
6.06(b), neither Netco nor any subsidiary of Netco
shall be considered a Subsidiary of the Borrower.
(g) Inserting in its proper alphabetical order the following new
definitions:
"Netco" means a subsidiary formed or to be formed
by the Borrower to which the Visionet Business will be
transferred.
"Visionet Business" means the ownership and
operation of an interactive internet medium
facilitating open communication among food
manufacturers, food wholesalers and retail grocery
businesses which as of the date of this Amendment is
operated as a division of the Borrower.
(h) Inserting the words "or any Subsidiary" immediately after
the word "Borrower" in Section 5.01(j).
(i) Inserting "(a)" immediately after the heading of Section
6.06 and inserting the following new paragraph at the end of such
Section:
(b) Neither the Borrower nor any Subsidiary shall
make any Investment in or to Netco other than (i) the
contribution to Netco of assets associated with the
Visionet Business, which assets will at the time of
such contribution have a book value of approximately
$3,000,000, and (ii) other Investments the amount or
book value, as applicable, of which does not exceed
$10,000,000 in the aggregate for all such Investments.
Investments in Netco that are permitted by this
paragraph will not be prohibited by any other covenant
contained in Section 6.05 or elsewhere in this
Agreement.
(j) Inserting the following new sentence at the end of Article
VI:
For purposes of computing the ratios referred to in
Sections 6.08 and 6.09, (a) the net income of Netco
shall be included in Consolidated Net Income to the
extent (and only to the extent) that it is dividended
to and received by the Borrower or a Designated
Subsidiary in cash and (b) except as provided in the
preceding clause (a), the assets, liabilities, cash
flows and results of operations of Netco shall be
excluded.
Section 3. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent on behalf of
the Lenders as of the date hereof as follows:
(a) Before and after giving effect to this Amendment, the
representations and warranties set forth in the Credit Agreement
are true and correct as of the date hereof.
(b) Immediately before and after giving effect to this
Amendment, no Event of Default or Default has occurred and is
continuing.
(c) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action
by, any person (including any governmental agency) in order to be
effective and enforceable. The Credit Agreement as amended by
this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance
with its terms, subject only to the operation of the bankruptcy
code and other similar statutes for the benefit of debtors
generally and to the application of general equitable principles.
Section 4. Conditions to Effectiveness. This Amendment
shall become effective when the Administrative Agent shall have
received counterparts hereof signed by each of the parties hereto
(or, in the case of any party as to which an executed counterpart
shall not have been received, telegraphic, telex or other written
confirmation from such party of the execution of a counterpart
hereof by such party).
Section 5. Credit Agreement. Except as specifically
stated herein, the Credit Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used
therein, the terms "Agreement", "herein", "hereunder", "hereto",
"hereof" and words of similar import shall, unless the context
otherwise requires, refer to the Credit Agreement as modified
hereby.
Section 6. Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
Section 7. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers,
all as of the date and year first above written.
FLEMING COMPANIES, INC.
KEVIN TWOMEY
Name: Kevin Twomey
Title: Vice President &
Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
BARRY K. BERGMAN
Name: Barry K. Bergman
Title: Vice President
BANK OF AMERICA, N.A.,
LYNN DURNING
Name: Lynn Durning
Title: Principal
BANK OF HAWAII,
DANIEL J. FALSTAD
Name: Daniel J. Falstad
Title: Vice President
BANK OF MONTREAL,
RJ MCCLOVEY
Name: RJ McClovey
Title: Director
BANK OF SCOTLAND,
ANNIE GLYNN
Name: Annie Glynn
Title: Senior Vice
President
BEAR STEARNS INVESTMENT PRODUCTS
INC.,
GREGORY HANLEY
Name: Gregory Hanley
Title: Vice President
COMERICA BANK,
MARK B. GROVER
Name: Mark B. Grover
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
ROBERT IVOSEVICH
Name: Robert Ivosevich
Title: Senior Vice
President
THE DAI-ICHI KANGYO BANK, LTD.,
PARESH R. SHAH
Name: Paresh R. Shah
Title: Assistant Vice President
FIRST HAWAIIAN BANK,
Name:
Title:
THE FUJI BANK, LIMITED,
TEIJI TERAMOTO
Name: Teiji Teramoto
Title: Vice President &
Manager
IBJ WHITEHALL BANK & TRUST COMPANY,
CHARLES B. FEARS
Name: Charles B. Fears
Title: Director
BANK ONE, OKLAHOMA, NA,
MARK C. DEMOS
Name: Mark C. Demos
Title: Senior Vice
President
MANUFACTURERS AND TRADERS TRUST
COMPANY,
CHRISTOPHER KANIA
Name: Christopher Kania
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
NOBUO TOMINAGA
Name: Nobuo Tominaga
Title: Chief Manager
NATEXIS BANQUE-BFCE,
MARK A. HARRINGTON
Name: Mark A. Harrington
Title: Senior Vice
President and
Regional Manager
PAUL H. DIOURI
Name: Paul H. Diouri
Title: Assistant
Treasurer
NATIONAL BANK OF CANADA,
RANDALL K. WILHOT
Name: Randall K. Wilhot
Title: Vice President
BILL HANDLEY
Name: Bill Handley
Title: Vice President
NATIONAL CITY BANK, KENTUCKY,
TODD ETHINGTON
Name: Todd Ethington
Title: Vice President
PARIBAS,
LARRY ROBINSON
Name: Larry Robinson
Title: Vice President
THE SANWA BANK LIMITED,
Name:
Title:
SENIOR DEBT PORTFOLIO,
Name:
Title:
SOCIETE GENERALE,
J. BLAINE SHAUM
Name: J. Blaine Shaum
Title: Managing Director
Director
THE SUMITOMO BANK, LIMITED,
SURESH S. TATA
Name: Suresh S. Tata
Title: Senior Vice President
SUMMIT BANK,
CATHERINE E. GARRITY
Name: Catherine E. Garrity
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION,
PERRY VAVOULES
Name: Perry Vavoules
Title: Senior Vice
President
VAN KAMPEN CLO I LIMITED,
by Van Kampen American
Capital Management, Inc.
As Collateral Manager
DARVIN D. PIERCE
Name: Darvin D. Pierce
Title: Vice President
GE CAPITAL CORPORATION,
W. JEROME MCDERMOTT
Name: W. Jerome McDermott
Title: Vice President
MEESPIERSON CAPITAL CORP.,
Name:
Title:
PAM CAPITAL FUNDING, L.P.,
Name:
Title:
CALIFORNIA BANK & TRUST,
Name:
Title: