EXHIBIT 4.15
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT dated as of April 4, 1996, to 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 amendments
of and waivers under the Credit Agreement and, subject to the terms and
conditions hereof, the Banks party hereto are willing to agree to such
amendments and waivers;
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
Credit Agreement shall have the meaning assigned to such term in the Credit
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 Credit Agreement shall from and after
the date hereof refer to the Credit Agreement as amended hereby.
SECTION 2. Amendments and Waivers of Sections 4.04(c) and 4.05 of
the Credit Agreement. (a) Section 1.01 of the Credit Agreement is amended by
adding a new definition reading as follows:
"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.
(b) 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.
(c) 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.
(d) The waivers set forth in Sections 2(b) and (c) (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 on
the 30th day after the date on which a judgment on the verdict is entered in
the David's Supermarkets Litigation, provided that such waivers shall
thereafter be effective during any period during which the Borrower has made
effective provision for a stay of enforcement of the judgment in the David's
Supermarket Litigation.
SECTION 3. Waivers of Certain Liens. (a) 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 Supermarket
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 Supermarket
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).
(b) The waivers set forth in Section 3(a) (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 on
the 30th day after the date on which a judgment on the verdict is entered in
the David's Supermarkets Litigation and thereafter shall not apply to any such
Lien even if such Lien first arose during such period, provided that if on or
before the last day of such period the Borrower has made effective provision
for a stay of enforcement of the judgment in the David's Supermarkets
Litigation, such waivers shall thereafter remain in effect during any period
during which stay of enforcement is in effect.
SECTION 4. Borrowings. The Borrower agrees that during the
period from the date hereof to the earlier of (i) the date on which it has
made effective provision for a stay of enforcement of the judgment in the
David's Supermarkets Litigation and (ii) the 30th day after the date on which
a judgment on the verdict is entered in the David's Supermarkets Litigation,
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 other than fees and expenses in connection with this
Amendment and the Waiver dated as of April 1, 1996, and defense and appeal
costs in connection with such 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 in Section 3(c), as certified in
reasonable detail by the Borrower's Chief Financial Officer or Treasurer in a
certificate accompanying such Notice of Borrowing.
SECTION 5. Amendment of Amount of Letter of Credit Commitment.
Section 1.01 of the Credit Agreement is hereby amended by changing the dollar
amount set forth in the definition of "Letter of Credit Commitment" from
"$200,000,000" to "$450,000,000".
SECTION 6. Calculation of Certain Covenants. The Banks hereby
agree that for purposes of calculating compliance with the covenants contained
in Sections 5.07, 5.08 and 5.09 of the Credit Agreement, Consolidated Net
Worth as at any date and Consolidated Net Income for any period shall be
calculated on a pro-forma basis excluding (i) any charges taken for the
Borrower's actual or contingent liability to make payment of the judgment in
the David's Supermarkets Litigation (but not including any amount attributable
to fees and expenses of the Borrower's counsel) and (ii) expenses incurred in
connection with this Amendment or the obtaining or maintaining of a
supersedeas bond with respect to the David's Supermarkets Litigation.
SECTION 7. Amendment to Restricted Payments Covenant. Section
5.14 of the Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION 5.14. Restricted Payments. Neither the Borrower nor any
Subsidiary will declare or make any Restricted Payment except, so long as no
Default has occurred and is continuing, (i) during any fiscal quarter prior to
the second fiscal quarter of 1996, cash dividends in an aggregate amount that,
together with cash dividends declared or made during the three fiscal quarters
immediately preceding the quarter during which such cash dividend is declared
or made, do not exceed the Restricted Payments Cap, (ii) during any fiscal
quarter after the first fiscal quarter of 1996 until the Rating Target Date,
cash dividends on shares of common stock at a rate not in excess of $.08 per
share per fiscal quarter (such rate to be adjusted from time to time to
reflect any stock splits) and (iii) after the Rating Target Date, cash
dividends in an aggregate amount in any fiscal year of the Borrower not
exceeding the higher of the Restricted Payments Cap and an amount equal to 33
1/3% of Consolidated Net Income for the four fiscal quarters most recently
ended minus the amount of any cash dividends declared or made during the three
fiscal quarters immediately preceding the quarter during which such cash
dividend is declared or made. Nothing in this Section shall prohibit the
payment of any dividend or distribution within 45 days after the declaration
thereof if such declaration was not prohibited by this Section.
SECTION 8. Amendment to Capital Expenditure Limitations. Section
5.16 of the Credit Agreement is hereby amended by changing the table found
therein to read in its entirety as follows:
Period Amount
Effective Date through
December 31, 1994 155,000,000
January 1, 1995 through
December 31, 1995 155,000,000
January 1, 1996 through
December 31, 1996 140,000,000
January 1, 1997 through
December 31, 1997 155,000,000
January 1, 1998 through
December 31, 1998 160,000,000
January 1, 1999 through
December 31, 1999 170,000,000
January 1, 2000 through
December 31, 2000 180,000,000
SECTION 9. Amendment to Margin Levels.
(a) Amendment to Definition of "Rating Level". Section 1.01 of
the Credit Agreement is hereby amended by changing the definition of "Rating
Level" to read in its entirety as follows:
"Rating Level" means, with respect to the Borrower at any
time, the category established as follows:
(a) Rating Level I means that a rating of the Borrower's
senior unsecured long-term debt of BBB+ or higher by S&P or Baa1
or higher by Moody's is currently in effect;
(b) Rating Level II means that a rating of the Borrower's
senior unsecured long-term debt of BBB by S&P or Baa2 by Moody's
is currently in effect;
(c) Rating Level III means that a rating of the Borrower's
senior unsecured long-term debt of BBB- by S&P or Baa3 by Moody's
is currently in effect;
(d) Rating Level IV means that a rating of the Borrower's
senior unsecured long-term debt of BB+ by S&P or Ba1 by Moody's is
currently in effect;
(e) Rating Level V means that a rating of the Borrower's
senior unsecured long-term debt of BB by S&P or Ba2 by Moody's is
currently in effect;
(f) Rating Level VI means that a rating of the Borrower's
senior unsecured long-term debt of BB- by S&P or Ba3 by Moody's is
currently in effect; and
(g) Rating Level VII means that (1) a rating of the
Borrower's senior unsecured long-term debt below BB- by S&P or
below Ba3 by Moody's is currently in effect or (2), subject to the
provisions of Section 1.03, neither S&P nor Moody's has any rating
of such debt currently in effect.
If on any day the conditions for two Rating Levels are met
(each such Rating Level, a "Split Rating" and together, the "Split
Ratings"), then the applicable Rating Level for such day shall be the
Split Rating with the lower number (i.e., based on the higher rating);
provided that (i) if the numbers of the Split Ratings are two or three
numbers apart, the applicable Rating Level shall be the Rating Level one
number lower than the Split Rating with the higher number, (ii) if the
numbers of the Split Ratings are four or five numbers apart, the
applicable Rating Level shall be the Rating Level two numbers below the
Split Rating with the higher number, and (iii) if the numbers of the
Split Ratings are six numbers apart, Rating Level IV shall be deemed to
exist.
(b) Amendment to Base Rate Margin. The table set out in Section
2.05(a) is hereby amended to read in its entirety as follows:
Rating Level Base Rate Margin Additional Margin
I, II, III 0% 0.1250%
IV 0% 0.1875%
V 0% 0.2500%
VI 0.1250% 0.3750%
VII 0.625% 0.3750%
(c) Amendment to CD Margin. The table set out in Section 2.05(b)
is hereby amended to read in its entirety as follows:
Rating Level CD Margin Additional Margin
I 0.3750% 0.1250%
II 0.4500% 0.1250%
III 0.5750% 0.1250%
IV 0.8125% 0.1875%
V 1.1250% 0.2500%
VI 1.2500% 0.3750%
VII 1.7500% 0.3750%
(d) Amendment to Euro-Dollar Margin. The table set out in Section
2.05(c) is amended to read in its entirety as follows:
Euro-Dollar
Rating Level Margin Additional Margin
I 0.2500% 0.1250%
II 0.3250% 0.1250%
III 0.4500% 0.1250%
IV 0.6875% 0.1875%
V 1.0000% 0.2500%
VI 1.1250% 0.3750%
VII 1.6250% 0.3750%
(e) Amendment to Commitment Fee Rate. The table set out in Section
2.07(a)(i) is hereby amended to read in its entirety as follows:
Rating Level Commitment Fee Rate
I 0.0000%
II 0.0250%
III 0.0625%
IV 0.0875%
V, VI or VII 0.1250%
(f) Amendment to Facility Fee Rate. The table set out in Section
2.07(b) is hereby amended to read in its entirety as follows:
Rating Level Facility Fee Rate
I, II or III 0.1250%
IV 0.1875%
V 0.2500%
VI or VII 0.3750%
(g) Amendment to Letter of Credit Fee Rate. The table set out in
Section 2.07(c) is hereby amended to read in its entirety as follows:
Rating Level Letter of Credit Fee Rate
I 0.2500%
II 0.3250%
III 0.4500%
IV 0.6875%
V 1.0000%
VI 1.1250%
VII 1.6250%
(h) For the sake of avoidance of doubt, the parties confirm
that since the Credit Watch Period is no longer relevant, no Margins or Fee
Rates have been specified for it.
SECTION 10. Addition of Morgan Guaranty Trust Company of New York
as Issuing Bank. Section 1.01 of the Credit Agreement is hereby amended by
changing the definition of "Issuing Bank" to read in its entirety as follows:
"Issuing Bank" means NationsBank of Texas, N.A., Societe
Generale, Southwest Agency, or Morgan Guaranty Trust Company of New
York, as issuer of a Letter of Credit.
SECTION 11. 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
the date hereof and (ii) no Default has occurred and is continuing.
SECTION 12. Counterparts; Effectiveness; Etc. (a) 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.
(b) This Amendment 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). When the
amendments contained in Section 9 become effective, interest on Fixed Rate
Loans outstanding on the date of effectiveness shall accrue for each day
during the applicable Interest Period on or after such date with a CD Margin
or Euro-Dollar Margin giving effect to such amendments.
(c) Promptly after this Amendment has become effective, the
Borrower shall pay (i) to the Managing Agent for the account of each Bank in
immediately available funds, an amendment fee in an amount equal to .25% of
the sum (as at the opening of business on the date hereof) of (A) the Tranche
A Commitment of such Bank and (B) the aggregate outstanding principal amount
of the Tranche C Loans of such Bank, and (ii) to the Managing Agent for its
own account in immediately available funds, an agent fee in the amount
previously agreed to between the Borrower and the Managing Agent.
(d) 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 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
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 CHASE MANHATTAN BANK, N.A.
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:
BANK OF IRELAND, CAYMAN ISLANDS BRANCH
By
Title: