AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT dated as of November 14, 1994, 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 desires to amend the Credit Agreement to effect
the amendments reflected herein, and the Banks party hereto are willing to
agree to such amendments;
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 1.01 OF THE CREDIT AGREEMENT. (a)
Section 1.01 of the Credit Agreement is hereby amended by changing the
reference to "Article III" to a reference to "Article IV" where it appears
in the definition of "Borrower's Knowledge".
(b) Section 1.01 of the Credit Agreement is hereby further amended by
restating the definition of "Borrower Special Charges" to read in its
entirety as follows:
"Borrower Special Charges" means the charges to the
Borrower's earnings originally taken in December 1993
relating to (i) the consolidaton 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 and (ii) the extraordinary loss
from the early retirement of debt, as approved by the
board of directors of the Borrower at a meeting on
December 15, 1993."
SECTION 3. AMENDMENT OF SECTION 2.09 OF THE CREDIT AGREEMENT. Clause
(b)(i) of Section 2.09 of the Credit Agreement is hereby amended by inserting
the words "or will be" after the words "to the extent it was" where such
words appear in clause (B) of the last sentence of such clause (b)(i).
SECTION 4. NEW SECTION 6.04. A new Section 6.04 shall be added to the
Credit Agreement as follows:
"Section 6.04 RESTATEMENT OF FINANCIAL STATEMENTS. No
representation or warranty as to, or statement contained
in, any financial statement or other information delivered
by the Borrower pursuant to this Agreement shall be
considered to be or to have been incorrect or misleading
when made (or deemed made) if solely as a result of a
restatement of the Borrower's financial statements to
record some or all of the Borrower Special Charges in a
period subsequent to the fourth quarter of 1993 pursuant
to the request or direction of the Securities and Exchange
Commission or with the approval of the Borrower's independent
public accountants.
SECTION 5. AMENDMENT TO SECTION 5.13 OF THE CREDIT AGREEMENT. Clause
(iii) of Section 5.13(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(iii) Debt incurred by the Borrower after the date hereof
that has a final maturity of at least six months after the
Tranche C Termination Date and of which no more
than $2,000,000 in the aggregate is subject to mandatory repayment
or repurchase at the option of the holders thereof or otherwise
prior to such time; PROVIDED that such Debt may be so subject to
mandatory repayment or repurchase so long as neither the Borrower
nor any Subsidiary has any obligation to repay, repurchase or
otherwise retire an amount of such Debt exceeding $2,000,000 in the
aggregate when any Loans, Letters of Credit Liabilities or
Commitments are outstanding hereunder;"
For the sake of avoidance of doubt, it is hereby confirmed and agreed that
references in clause (iii) of Section 5.13(a) of the Credit Agreement to
mandatory repayment, repurchase or retirement of Debt do not include any
obligation to do so arising solely
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upon the occurrence of a default or event of default with respect to such
Debt.
SECTION 6. AMENDMENTS TO SECURITY DOCUMENTS AND GUARANTEE AGREEMENTS.
Each Bank party hereto hereby unconditionally and irrevocably authorizes and
directs the Collateral Agent to execute and deliver amendments to each
Security Document and Guarantee Agreement substantially in the forms attached
to the Borrower's letter to the Banks dated November 14, 1994.
SECTION 7. 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 as of the date hereof when the Managing
Agent 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 the authorization in Section 6 of
amendments to the Security Documents, the Releasing 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).
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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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
BANKS
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Stephen B. King
--------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Jody B. Schneider
--------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Ashby
--------------------------------
Title: Sr. Manager Loan Operations
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ MAG Corkum
--------------------------------
Title: Authorized Signatory
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CREDIT SUISSE
By /s/ Geoffrey M. Craig
--------------------------------
Title: Member of Sr. Management
By /s/ Kristinn R. Kristinsson
--------------------------------
Title: Associate
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Dr. Hans-Deter Wettlaufer
--------------------------------
Title: Vice President
By /s/ Jean Hannigan
--------------------------------
Title: Associate
THE FUJI BANK, LIMITED
By /s/ David Kelley
--------------------------------
Title: Vice President and
Senior Manager
NATIONSBANK OF TEXAS, N.A.
By /s/ Bianca Hemmen
--------------------------------
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ Richard M. Lewis
--------------------------------
Title: Assistant Vice President
By /s/ Louis P. Laville
--------------------------------
Title: Vice President
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THE SUMITOMO BANK LTD.
HOUSTON AGENCY
By /s/ Tatsuo Ueda
--------------------------------
Title: General Manager
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By /s/ Matthew H. Hildreth
--------------------------------
Title: Vice President
THE TORONTO-DOMINION BANK
By /s/ F.B. Hawley
--------------------------------
Title: Mgr. Credit Administration
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By /s/ Alfred W. Imholz
--------------------------------
Title: First Vice President
By /s/ Jan Buettgen
--------------------------------
Title: First Vice President
FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ William Baird
--------------------------------
Title: Vice President
By /s/ Wendy Purcell
--------------------------------
Title: Assistant Vice President
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WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By /s/ Terry L. Akin
--------------------------------
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Robert Ivosevich
--------------------------------
Title: Senior Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK, B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ J. Scott Taylor
--------------------------------
Title: Vice President
By /s/ W. Jeffrey Vollack
--------------------------------
Title: Vice President
THE SANWA BANK LIMITED,
DALLAS AGENCY
By /s/ Blake Wright
--------------------------------
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS
By /s/ Henry F. Setina
--------------------------------
Title: Vice President
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
By /s/ K. Randy Roper
--------------------------------
Title: Senior Vice President
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CITIBANK N.A.
By /s/ W.P. Stengel
--------------------------------
Title: Vice President
COMMERZBANK AG, NEW YORK AND/OR
GRAND CAYMAN BRANCH
By /s/ Juergen Scmieding
--------------------------------
Title: Vice President
By /s/Juergen Boysen
--------------------------------
Title: Senior Vice President
DAI-ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By /s/ Frank A. Bertelle
--------------------------------
Title: Corporate Credit Officer
THE INDUSTRIAL BANK OF JAPAN, LTD.
By /s/ Takeshi Kawano
--------------------------------
Title: Senior Vice President
and Senior Manager
LTCB TRUST COMPANY
By /s/ John J. Sullivan
--------------------------------
Title: Executive Vice President
THE MITSUBISHI BANK, LIMITED
HOUSTON AGENCY
By /s/ Shoji Honda
--------------------------------
Title: General Manager
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NATIONAL WESTMINSTER BANK Plc
NASSAU BRANCH
By /s/ David L. Smith
--------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK Plc
NEW YORK BRANCH
By /s/ David L. Smith
--------------------------------
Title: Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Blake R. Howells
--------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ Jody B. Schneider
--------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Greg Gaschler
--------------------------------
Title: Vice President
BANCA DI ROMA SpA
By /s/ Oakley W. Cheney, Jr.
--------------------------------
Title: Chief Manager
By /s/ William Fontana
--------------------------------
Title: Vice President
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BANK IV OKLAHOMA, N.A.
By /s/ Paul Anderson
--------------------------------
Title: Vice President
BANK OF HAWAII
By /s/ Joseph T. Donaldson
--------------------------------
Title: Vice President
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By /s/ J. Mearns
--------------------------------
Title: V.P. and Manager
BANQUE PARIBAS
By /s/ Robert G. Shaw
--------------------------------
Title: Vice President
By /s/ Pierre-Jean de Filippis
--------------------------------
Title: General Manager
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ Kenneth C. Couiter
--------------------------------
Title: Assistant Vice President
By /s/ Mark A. Harrington
--------------------------------
Title: Vice President and
Regional Manager
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BAYERISCHE VEREINSBANK AG,
LOS ANGELES AGENCY
By /s/ Jarunee Hanpachern
--------------------------------
Title: Assistant Vice President
By /s/ Sylvia K. Cheng
--------------------------------
Title: Assistant Vice President
BHF-BANK, NEW YORK BRANCH
By /s/ Paul Travers
--------------------------------
Title: Vice President
By /s/ David Fraenkel
--------------------------------
Title: Vice President
DAIWA BANK AND TRUST COMPANY
By
--------------------------------
Title:
By
--------------------------------
Title:
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK
By /s/ John L. Dean
--------------------------------
Title: Senior Vice President
By /s/ Karen A. Brinkman
--------------------------------
Title: Vice President
FIRST HAWAIIAN BANK
By /s/ Robert M. Wheeler III
--------------------------------
Title: Vice President
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FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/ Edwin T. Gray
--------------------------------
Title: Account Officer
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ Roger C. Boucher
--------------------------------
Title: Vice President
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
By /s/ Laura Christofferson
--------------------------------
Title: Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By /s/ Geoffrey R. Fenn
--------------------------------
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Masaaki Yamagishi
--------------------------------
Title: Chief Manager
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By /s/ Shigeru Tsujimoto
--------------------------------
Title: Vice President and Manager
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NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Perry G. Pelos
--------------------------------
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch
By /s/ Lucy Gurnsey
--------------------------------
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, Cayman Islands
Branch
By /s/ Jeffrey Hilsgen
--------------------------------
Title: Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/ Neil T. Chau
--------------------------------
Title: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Jeanette Ganousis
--------------------------------
Title: Vice President
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DRESDNER BANK AG
NEW YORK BRANCH
By /s/ R. Matthew Scherer
--------------------------------
Title: Vice President
By /s/ Robert Conroy
--------------------------------
Title: Vice President
BANK HAPOALIM B.M., Los Angeles Branch
By /s/ David L. Ruggeri
--------------------------------
Title: Vice President
By /s/ Craig M. Ciebiera
--------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By /s/ William J. Bokos
--------------------------------
Title: Attorney-In-Fact
KREDIETBANK N.V.
By /s/ Diane Grimmig
--------------------------------
Title: Vice President
By /s/ Robert Snauffer
--------------------------------
Title: Vice President
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION
By /s/ John C. Billings
--------------------------------
Title: Vice President
THE SUMITOMO BANK OF CALIFORNIA
By /s/ Seishi Jiromaru
--------------------------------
Title: Vice President and
Division Manager
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