AMENDMENT NO. 6 TO CREDIT AGREEMENT
AMENDMENT dated as of October 21, 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 requested that certain adjustments be made
in the calculation of its compliance with certain financial covenants under
the Credit Agreement and, subject to the terms and conditions hereof, the
Banks party hereto are willing to agree to such adjustments;
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. 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) up to $20,000,000 of any charges taken
with respect to the "Premium Sales" litigation matters, which are described
under (4) in Item 3 (Legal Proceedings) of the Company's Annual Report on
Form 10-K for fiscal year 1995 plus up to an additional $2,500,000 with
respect to fees and expenses of the Borrower's counsel in connection with
such litigation matters and (ii) up to $50,000,000 of non-cash charges
taken after October 5, 1996 with respect to (A) write-downs of the carrying
value in the Borrower's financial statements of certain retail and
distribution facilities and related assets in connection with the proposed
disposition of such facilities or discontinuance of operations at
such facilities or (B) other consolidation and restructuring of facilities
and operations.
SECTION 3. Representations Correct; No Default. The Borrower
represents and warrants that 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) assuming the giving effect to this Amendment, no Default
has occurred and is continuing.
SECTION 4. 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).
(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 .10% 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 provisions 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 5. 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:
THE FUJI BANK, LIMITED
By
Title:
NATIONSBANK OF TEXAS, N.A.
By
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By
Title:
THE SUMITOMO BANK LIMITED
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,
NEW YORK BRANCH
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:
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 BANK OF TOKYO-MITSUBISHI 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:
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:
BANK HAPOALIM B.M.,
LOS ANGELES BRANCH
By
Title:
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:
BANK AUSTRIA AKTIENGESELLSCHAFT
By
Title:
By
Title:
SENIOR DEBT PORTFOLIO
By
Title: