EXHIBIT 4.4
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of January 17, 1994, to the $200,000,000 Credit
Agreement dated as of October 21, 1993 (the "Credit Agreement") among FLEMING
COMPANIES, INC., the BANKS party thereto and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
W I T N E S S E T H:
WHEREAS, the entities named above are parties to the Credit
Agreement;
WHEREAS, the parties hereto desire to amend the Credit Agreement to
effect the amendment reflected herein;
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. AMENDMENT OF SECTION 5.09 OF THE CREDIT AGREEMENT.
Section 5.09 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"As of the last day of each fiscal quarter of the Borrower, the
ratio of Net Earnings Available for Fixed Charges to Consolidated
Fixed Charges, in each case for the four fiscal quarters ending on
such day, shall not be less than 1.6 to 1; PROVIDED that Net Earnings
Available For Fixed Charges for any period shall be calculated on a
pro forma basis excluding any charge of up to $101,300,000 for the
Borrower Special Charges.
"Borrower Special Charges" means the charges to the Borrower's
earnings in December 1993 relating to the consolidation of certain of
the Borrower's facilities and operations, as approved by the board of
directors of the Borrower at a meeting on January 17, 1994."
SECTION 3. COUNTERPARTS; EFFECTIVENESS. 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.
This Amendment shall become effective when the 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
received, the Agent shall have received telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such party)
and, once so effective, Section 2 hereof shall be given effect retroactively to
December 25, 1993.
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SECTION 4. 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 /s/ John M. Thompson
-------------------------------
Name:John M. Thompson
Title: Vice President and
Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Michael C. Mauer
------------------------------
Name: Michael C. Mauer
Title: Vice President
J.P. MORGAN DELAWARE
By /s/ D.J. Morris
------------------------------
Name: David J. Morris
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Jody B. Schneider
------------------------------
Name: Jody B. Schneider
Title: Vice President
By /s/ C.L. Turner, III
------------------------------
Name: C.L. Turner, III
Title: Vice President
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
By /s/ K. Randy Roper
------------------------------
Name: K. Randy Roper
Title: Senior Vice President
CREDIT SUISSE
By /s/ Jan Kofol
------------------------------
Name: Jan Kofol
Title: Member of Senior
Management
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By /s/ Harry R. Olsen
------------------------------
Name: Harry R. Olsen
Title: Member of Senior
Management
TEXAS COMMERCE BANK, NATIONAL
ASSOCIATION
By /s/ John P. Dean
------------------------------
Name: John P. Dean
Title: Senior Vice President
CIBC, INC.
By /s/ J.D. Westland
------------------------------
Name: J.D. Westland
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ Bianca Hemmen
------------------------------
Name: Bianca Hemmen
Title: Vice President
By /s/ Steven A. Deily
------------------------------
Name: Steven A. Deily
Title: Senior Vice President
SWISS BANK CORPORATION
By /s/ Thad D. Rasche
------------------------------
Name: Thad D. Rasche
Title: Director
Merchant Banking
By /s/ W.A. McDonnell
------------------------------
Name: William A. McConnell
Title: Associate Director
Merchant Banking
UNION BANK OF SWITZERLAND
By /s/ A. Imholz
------------------------------
Name: Alfred W. Imholz
Title: First Vice President
By /s/ Jan Buettgen
------------------------------
Name: Jan Buettgen
Title: Assistant Vice President
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THE BANK OF NOVA SCOTIA
By /s/ A.S. Norsworthy
------------------------------
Name: A.S. Norsworthy
Title: Assistant Agent
THE TORONTO-DOMINION BANK
By /s/ F.B. Hawley
------------------------------
Name: F.B. Hawley
Title: Mgr. Cr. Amin.
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Terry Katon
------------------------------
Name: Terry Katon
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Sharon A. Huebner
------------------------------
Name: Sharon A. Huebner
Title: Vice President
KREDIETBANK, N.V.
By /s/ Patricia A. McCann
------------------------------
Name: Patricia A. McCann
Title: Vice President
By /s/ Robert Snauffer
------------------------------
Name: Robert Snauffer
Title: Vice President
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By /s/ Henry F. Setina
------------------------------
Name: Henry F. Setina
Title: Vice President
FIRST INTERSTATE BANK OF
CALIFORNIA
By /s/ William J. Baird
------------------------------
Name: William J. Baird
Title: Vice President
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
By /s/ George Couloubaritsis
------------------------------
Name: George Couloubaritsis
Title: Vice President
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THE FUGI BANK, LIMITED
By /s/ David Kelley
------------------------------
Name: David Kelley
Title: Vice President and
Senior Manager
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
By /s/ Laura Christofferson
-------------------------------
Name: Laura Christofferson
Title: Vice President
THE MITSUBISHI BANK, LTD.,
HOUSTON AGENCY
By /s/ Shoji Honda
------------------------------
Name: Shoji Honda
Title: General Manager
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
By /s/ S.K. Hunter
------------------------------
Name: S.K. Hunter
Title: Senior Vice President
By /s/ Stephanie Hoevermann
-------------------------------
Name: Stephanie Hoevermann
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Tamara R. O'Connor
------------------------------
Name: Tamara R. O'Connor
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ Richard M. Lewis
----------------------------
Name: Richard M. Lewis
Title: Assistant Vice President
By /s/ Christopher Speitz
------------------------------
Name: Christopher Speitz
Title: Vice President
BANK IV KANSAS, N.A.
By /s/ Mike Wegeng
------------------------------
Name: Mike Wegeng
Title: Vice President
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FIRST NATIONAL BANK OF OMAHA
By /s/ R.W. Tritsel
------------------------------
Name: R.W. Tritsel
Title: Vice President
THE SANWA BANK LIMITED,
DALLAS AGENCY
By /s/ Masao Yano
------------------------------
Name: Masao Yano
Title: Vice President
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