EXHIBIT 4.14
WAIVER
WAIVER (this "Waiver") dated as of April 1, 1996,
under the $2,200,000,000 Credit Agreement dated as of July
19, 1994 (as heretofore amended, the "Credit Agreement")
among FLEMING COMPANIES, INC., the BANKS party thereto, the
AGENTS party thereto and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Managing Agent.
W I T N E S S E T H:
WHEREAS, the Borrower has advised the Banks that
due to the David's Supermarkets Litigation (as defined
below) it needs certain waivers under the Credit Agreement
and, subject to the terms and conditions hereof, the Banks
party hereto are willing to grant certain waivers under the
Credit Agreement, as more fully set forth herein.
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1. Definitions. (a) Unless otherwise
specifically defined herein, each term used herein that is
defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement.
(b) In addition, the following term shall have
the following meaning:
"David's Supermarkets Litigation" means David's
Supermarkets, Inc. v. Fleming Companies, Inc., et al., No.
246-93 (District Court, 18th Judicial District, Johnson
County, Texas), including the verdict or any judgment
entered therein or any payment of such judgment or in
settlement thereof.
SECTION 2. Certain Waivers. (a) The Banks
hereby waive the requirements of clause (c) of Section 3.01
of the Credit Agreement to the limited extent that the
representations and warranties contained in Sections 4.04(c)
and 4.05 of the Credit Agreement are not true solely on
account of the David's Supermarkets Litigation, and any
representation and warranty deemed made by the Borrower on
or after the date hereof pursuant to Section 3.01 of the
Credit Agreement shall be deemed qualified to such extent.
(b) The Banks hereby waive any Default that may
have occurred as a result of the Borrower at any time prior
to the date hereof having made or been deemed to have made
the representations and warranties set forth in Sections
4.04(c) and 4.05 of the Credit Agreement without
qualification by reference to the David's Supermarkets
Litigation.
(c) The Banks hereby waive (i) any Default under
any Operative Agreement that may occur as a result of any
Lien existing in favor of the plaintiff in the David's
Supermarkets Litigation (A) in the nature of a garnishment
against Receivables from Texas customers of the Borrower or
any of its Subsidiaries or (B) arising by virtue of the
filing of an abstract of a judgment in the David's
Supermarkets Litigation and (ii) the requirements of clause
(c) of Section 3.01 of the Credit Agreement to the limited
extent that any representation and warranty of the Borrower
or a Subsidiary in the other Operative Agreements is not
true solely on account of the existence of such Liens, and
any representation and warranty deemed made by the Borrower
on or after the date hereof pursuant to Section 3.01 of the
Credit Agreement shall be deemed qualified to the extent set
forth in clauses (i) and (ii).
(d) The foregoing waivers (including the
references to any representation and warranty made on or
after the date hereof being deemed qualified) shall be
effective solely during the period ending 5:00 P.M. (New
York City time) on April 10, 1996 and, in the case of clause
(c), thereafter shall not apply to any such Lien even if
such Lien first arose during such period.
SECTION 3. Borrowings. The Borrower agrees that
during the period from the date hereof until 5:30 P.M. (New
York City time) on April 10, 1996, it will not give any
Notice of Borrowing for Tranche A Loans in an amount in
excess of its actual cash needs in the ordinary course of
business (net of other sources of funds available or
expected to be available to it, including previous
Borrowings, but not including any need in respect of the
David's Supermarkets Litigation) during the three-day period
beginning with the related date of Borrowing, determined
consistent with the Borrower's historical cash management
practices and in light of any failure or projected failure
of the Borrower to receive payment from Texas customers on
account of Liens of the character described Section 2(c), as
certified in reasonable detail by the Borrower's Chief
Financial Officer or Treasurer in a certificate accompanying
such Notice of Borrowing, provided that the maximum amount
of Borrowings that the Borrower may make the subject of a
Notice of Borrowing while this Waiver is in effect may not
exceed $60,000,000.
SECTION 4. Representations Correct; No Default.
The Borrower represents and warrants that, except as
expressly waived hereby, on and as of the date hereof (i)
the representations and warranties contained in the Credit
Agreement and each other Operative Agreement are true as
though made on and as of the date hereof and (ii) no Default
has occurred and is continuing.
SECTION 5. Counterparts; Effectiveness. (a)
This Waiver 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.
(b) This Waiver shall become effective as of the
date hereof when the Managing Agent shall have received duly
executed counterparts hereof signed by the Borrower and the
Required Banks (or, in the case of any Bank as to which an
executed counterpart shall not have been received, the
Managing Agent shall have received telegraphic, telex or
other written confirmation from such party of execution of a
counterpart hereof by such Bank).
(c) Except as expressly set forth herein, the
waivers contained herein shall not constitute a waiver or
amendment of any term or condition of the Credit Agreement
or any other Operative Agreement, and all such terms and
conditions shall remain in full force and effect and are
hereby ratified and confirmed in all respects.
SECTION 4. Governing Law. THIS WAIVER 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 Waiver to be duly executed by their respective
authorized officers as of the day and year first above
written.
FLEMING COMPANIES, INC.
By
Title:
BANKS
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Title:
THE BANK OF NOVA SCOTIA
By
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By
Title:
CREDIT SUISSE
By
Title:
By
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By
Title:
By
Title:
THE FUJI BANK, LIMITED
By
Title:
NATIONSBANK OF TEXAS, N.A.
By
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By
Title:
THE SUMITOMO BANK LTD.
HOUSTON AGENCY
By
Title:
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By
Title:
THE TORONTO-DOMINION BANK
By
Title:
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By
Title:
By
Title:
FIRST INTERSTATE BANK OF CALIFORNIA
By
Title:
By
Title:
WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By
Title:
By
Title:
THE SANWA BANK LIMITED,
DALLAS AGENCY
By
Title:
BANQUE NATIONALE DE PARIS
By
Title:
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
By
Title:
CITIBANK N.A.
By
Title:
DAI-ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By
Title:
LTCB TRUST COMPANY
By
Title:
THE MITSUBISHI BANK, LIMITED
HOUSTON AGENCY
By
Title:
NATIONAL WESTMINSTER BANK Plc
NASSAU BRANCH
By
Title:
NATIONAL WESTMINSTER BANK Plc
NEW YORK BRANCH
By
Title:
UNITED STATES NATIONAL BANK
OF OREGON
By
Title:
BANK OF AMERICA ILLINOIS
By
Title:
PNC BANK, NATIONAL ASSOCIATION
By
Title:
BANK OF HAWAII
By
Title:
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By
Title:
BANQUE PARIBAS
By
Title:
By
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
Title:
By
Title:
BAYERISCHE VEREINSBANK AG,
LOS ANGELES AGENCY
By
Title:
By
Title:
BHF-BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By
Title:
By
Title:
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK
By
Title:
By
Title:
FIRST HAWAIIAN BANK
By
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By
Title:
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
By
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY
By
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By
Title:
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch
By
Title:
By
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, Cayman Islands
Branch
By
Title:
By
Title:
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
BANK HAPOALIM B.M.,
LOS ANGELES BRANCH
By
Title:
By
Title:
THE BANK OF IRELAND
By
Title:
KREDIETBANK N.V.
By
Title:
By
Title:
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION
By
Title:
THE SUMITOMO BANK OF CALIFORNIA
By
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD. NEW YORK BRANCH
By
Title: