AMENDMENT NO. 2 TO BORROWER SECURITY AGREEMENT
AMENDMENT dated as of June 30, 1995, to the Security
Agreement dated as of July 19, 1994 (as previously amended, the
"Security Agreement") by Fleming Companies, Inc. (with its
successors, the "Pledgor") in favor of Morgan Guaranty Trust
Company of New York, as Collateral Agent.
W I T N E S S E T H:
WHEREAS, the Pledgor desires to amend the Security
Agreement to effect the amendments reflected herein; and
WHEREAS, the Required Banks have authorized and
directed the Collateral Agent to execute and deliver this
Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless
otherwise specifically defined herein, each term used herein that
is defined in the Security Agreement shall have the meaning
assigned to such term in the Security Agreement. Each reference to
"hereof," "hereunder," "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other
similar reference contained in the Security Agreement shall from
and after the date hereof refer to the Security Agreement as
amended hereby.
SECTION 2. Amendment to the Recitals. (a) The
limitation appearing in Paragraph C of the recitals of the Security
Agreement is amended by changing the dollar figure appearing
therein from "$160,000,000" to "$200,000,000."
(b) Paragraph D of the recitals of the Security
Agreement is amended by inserting immediately after the phrase
"Further Letter of Credit Agreements" which appears therein the
phrase "or providing Short-term Bank Debt".
(c) The recitals of the Security Agreement are
further amended by inserting immediately after Paragraph C the
following new Paragraph D, and relettering Paragraphs D, E and F
accordingly:
D. It is contemplated that the Pledgor may incur
Debt owing to one or more of the Banks (in addition to
Loans available under the Credit Agreement), payable on
demand or maturing less than one year after the date of
its incurrence, in an aggregate principal amount
outstanding at any time not exceeding $100,000,000, which
has been designated by the Pledgor in writing to the
holder of such Debt, on or before the date of incurrence
of such Debt, as being entitled to the benefits of this
Security Agreement ("Short-term Bank Debt");
SECTION 3. Amendment of Section 2. (a) The first
paragraph of Section 2 of the Security Agreement is amended by
inserting in clause (i) thereof immediately after the words "any
Further Letter of Credit Agreement", the first time such words
appear in such clause, the phrase ", all obligations of the Pledgor
now existing or hereafter arising constituting Short-term Bank
Debt".
(b) The first paragraph of Section 2 of the
Security Agreement is further amended by inserting in the
parenthetical in clause (i) thereof, immediately after the words
"any Interest Rate Protection Agreement", the phrase ", the
obligations constituting any Short-term Bank Debt".
(c) The second paragraph of Section 2 of the
Security Agreement is amended by adding to the end thereof the
following:
No more than $100,000,000 in aggregate principal
amount of Short-term Bank Debt shall constitute Secured
Obligations and if in any event the Pledgor shall have
incurred Debt of a character constituting Short-term Bank
Debt from one or more of the Banks in a principal amount
outstanding exceeding $100,000,000, the determination of
which of such Debt shall constitute Secured Obligations
shall be made solely upon the basis of the earliest of
such Debt to have been incurred.
(d) The second paragraph of Section 2 of the
Security Agreement is further amended by changing the dollar figure
appearing in the first sentence thereof from "$160,000,000" to
"$200,000,000".
SECTION 4. Amendment of Section 3. Section 3 of
the Security Agreement is amended by inserting the phrase "any
agreement or instrument evidencing Short-term Bank Debt,"
immediately after the phrase "Interest Rate Protection Agreement,"
in both places where such phrase appears in such section.
SECTION 5. Amendment of Section 11. (a)
Subsection (c) of Section 11 of the Security Agreement is amended
by adding the following new sentence at the beginning of such
subsection:
The Pledgor may from time to time, and upon request of
the Collateral Agent from time to time shall, furnish to
the Collateral Agent a certificate signed by a
Responsible Officer which shall identify the name and
address of each Bank, if any, to which any Short-term
Bank Debt is outstanding as of the date of such
certificate, specifying the principal amount of such
Bank's Short-term Bank Debt and the date on which such
Short-term Bank Debt was incurred.
(b) Subsection (c) of Section 11 of the Security
Agreement is further amended by inserting in clause (i) of the
second sentence thereof (as determined after giving effect to the
other amendments herein) immediately after the phrase "Further
Letter of Credit Agreement," the phrase "or constituting Short-term
Bank Debt,".
(c) Subsection (c) of Section 11 of the Security
Agreement is further amended by inserting in clause (i) of the
second sentence thereof (as determined after giving effect to the
other amendments herein) immediately after the phrase "pursuant to
Section 2" the phrase "or most recently pursuant to the first
sentence of this Section 11(c)".
(d) Subsection (c) of Section 11 of the Security
Agreement is further amended by renumbering clause (i) of the
second sentence thereof (as determined after giving effect to the
other amendments herein) as clause (1).
SECTION 6. Amendment of Section 15. Section 15 of
the Security Agreement is amended by inserting immediately after
the phrase "any Interest Rate Protection Agreement" which appears
therein the phrase ", any agreement or instrument evidencing
Short-term Bank Debt".
SECTION 7. Amendment of Section 16. (a) Subsection
(a) of Section 16 of the Security Agreement is amended by inserting
the phrase ", any agreement or instrument evidencing Short-term
Bank Debt" immediately after the phrase "Interest Rate Protection
Agreement" in both places where such phrase appears in such
subsection.
(b) Subsection (b) of Section 16 of the Security
Agreement is amended by inserting immediately after the phrase "any
Interest Rate Protection Agreement," which appears therein the
phrase "any agreement or instrument evidencing Short-term Bank
Debt,".
SECTION 8. Amendment of Section 17. Section 17 of
the Security Agreement is amended by inserting immediately after
the second proviso in the first sentence the following proviso:
; provided further that without the consent of the Banks
to whom a majority of the obligations constituting Short-term
Bank Debt are owed, no such amendment, modification,
supplement, termination or waiver may (i) exclude any
Short-term Bank Debt from the definition of Secured
Obligations or (ii) change the provisions of clause
Second of Section 11 hereof which would adversely affect
the rights of the holders of any Short-term Bank Debt.
SECTION 9. Amendment of Section 22. Section 22 of
the Security Agreement is amended by inserting immediately after
the phrase "Further Letter of Credit Agreement" which appears
therein the phrase ", or the obligee of any Short-term Bank Debt,".
SECTION 10. Amendment of Section 28. Clauses (ii),
(iii) and (v) of Section 28 of the Security Agreement are amended
by inserting the phrase "any agreement or instrument evidencing
Short-term Bank Debt," immediately after the phrase "any Interest
Rate Protection Agreement,", each time such phrase appears in such
clauses.
SECTION 11. Amendment of Section 29. Section 29 of
the Security Agreement is amended by inserting immediately after
the phrase "the Credit Agreement" which appears therein the phrase
", any agreement or instrument evidencing Short-term Bank Debt".
SECTION 12. Counterparts. This Amendment may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 13. Governing 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 respective authorized
officers as of the day and year first above written.
FLEMING COMPANIES, INC.
By _____________________________
John M. Thompson
Vice President and Treasurer
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent
By _____________________________
Name:
Title: