EXHIBIT 4.18
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FLEMING COMPANIES, INC.,
ISSUER
AND
THE SUBSIDIARY GUARANTORS NAMED HEREIN
AND
MANUFACTURERS AND TRADERS TRUST COMPANY,
TRUSTEE
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SUPPLEMENTAL INDENTURE
Dated as of September 20, 2001
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Supplemental to the Indenture
dated as of July 25, 1997
with respect to the 10 5/8% Senior Subordinated Notes due 2007
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Supplemental Indenture (this "Supplemental Indenture"), dated as of
September 20, 2001 among Fleming Companies, Inc. (or its permitted successor),
an Oklahoma corporation (the "Company"), each of the Subsidiary Guarantors under
the indenture referred to below, and Manufacturers and Traders Trust Company, as
trustee under the indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company and the Subsidiary Guarantors have executed and
delivered to the Trustee an indenture dated as of July 25, 1997, as amended or
supplemented prior to the date hereof (the "Indenture"), pursuant to which the
Company has issued $250 million principal amount of 10 5/8 % Senior Subordinated
Notes due 2007 (the "Notes");
WHEREAS, the Holders of not less than a majority of the principal
amount of the outstanding Notes have consented to the amendments to the
Indenture set forth herein and described in the Consent Solicitation Statement
dated September 5, 2001;
WHEREAS, the board of directors of each of the Company and the
Subsidiary Guarantors has duly authorized the execution and delivery of this
Supplemental Indenture; and
WHEREAS, the amendments effected by this Supplemental Indenture will
not become operative unless and until the conditions set forth in Section 3 are
satisfied.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, each Subsidiary Guarantor and the Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
SECTION 2. AMENDMENTS.
(a) The definition of "Consolidated Fixed Charge Coverage
Ratio" in Section 101 of the Indenture is replaced in its entirety with the
following:
"`Consolidated Fixed Charge Coverage Ratio' of the Company
means, for any period, the ratio of (a) Consolidated Net Income, plus,
without duplication, Consolidated Interest Expense, Consolidated Income
Tax Expense, Consolidated Non-Cash Charges and Excluded Non-Cash
Charges (less the amount of all cash payments made by the Company or
any of its Restricted Subsidiaries during such period to the extent
such payments related to Excluded Non-Cash Charges that were added back
in determining the sum contemplated by this clause (a) for such period
or any prior period, provided that this parenthetical shall not apply
with respect to each fiscal quarter in the four quarter period ended
July 14, 2001) deducted in computing Consolidated Net Income, in each
case, for such period, of the Company and its Restricted Subsidiaries
on a Consolidated basis, all determined in accordance with GAAP to (b)
Consolidated Interest Expense for such period; provided that (i) in
making such computation, the Consolidated Interest Expense attributable
to interest on any Indebtedness computed on a pro forma basis and (A)
bearing a floating interest rate shall be computed as if the rate in
effect on the date of computation had been the applicable rate for the
entire period and (B) which was not outstanding during the period for
which the computation is being made but which bears, at the option of
the Company, a fixed or floating rate of interest, shall be computed by
applying, at the option of the Company, either the fixed or floating
rate and (ii) in making such computation, Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be
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computed based upon the average daily balance of such Indebtedness
during the applicable period."
(b) Clauses (i), (ii) and (xv) of the definition of "Permitted
Indebtedness" in Section 101 of the Indenture are replaced in their entirety
with the following:
"(i) Indebtedness of the Company and guarantees of the
Subsidiary Guarantors under the New Credit Agreement in an aggregate
principal amount at any one time outstanding not to exceed the greater
of (x) $950.5 million (after giving pro forma effect to the use of
proceeds of the Offering) less mandatory repayments actually made in
respect of any term Indebtedness thereunder after the consummation of
the issuance of the New Notes (other than amounts refinanced as
permitted under the definition of the New Credit Agreement) or (y) the
Borrowing Base Amount less mandatory repayments (other than amounts
refinanced as permitted under the definition of the New Credit
Agreement) actually made in respect of any term Indebtedness
thereunder;"
"(ii) Indebtedness of the Company under uncommitted bank lines
of credit; provided, however, that the aggregate principal amount of
Indebtedness incurred pursuant to clauses (i), (ii) and (xv) of this
definition of "Permitted Indebtedness" does not exceed the greater of
(x) $950.5 million (after giving pro forma effect to the use of
proceeds of the Offering) less mandatory repayments actually made in
respect of any term Indebtedness under the New Credit Agreement after
the consummation of the issuance of the New Notes (other than amounts
refinanced as permitted under clause (xviii) hereof) or (y) the
Borrowing Base Amount less mandatory repayments actually made in
respect of any term Indebtedness under the New Credit Agreement (other
than amounts refinanced as permitted under clause (xviii) hereof);"
"(xv) Indebtedness of the Company evidenced by commercial
paper issued by the Company; provided, however, that the aggregate
principal amount of Indebtedness incurred pursuant to clauses (i), (ii)
and (xv) of this definition of "Permitted Indebtedness" does not exceed
the greater of (x) $950.5 million (after giving pro forma effect to the
use of proceeds of the Offering) less mandatory repayments actually
made in respect of any term Indebtedness under the New Credit Agreement
after the consummation of the issuance of the New Notes (other than
amounts refinanced as permitted under clause (xviii) hereof) or (y) the
Borrowing Base Amount less mandatory repayments actually made in
respect of any term Indebtedness under the New Credit Agreement (other
than amounts refinanced as permitted under clause (xviii) hereof);"
(c) The following definition shall be inserted in alphabetical
order in Section 101 of the Indenture:
"'New Notes' means the new senior subordinated notes to be
issued after September 20, 2001 by the Company."
SECTION 3. EFFECTIVENESS. The amendments effected by this Supplemental
Indenture shall take effect on the date that each of the following conditions
shall have been satisfied or waived:
(a) each of the parties hereto shall have executed and
delivered this Supplemental Indenture; and
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(b) the Company has received (i) written consent to
substantially similar amendments to the Indenture dated as of July 25, 1997 (the
"Other Indenture") from the holders of at least a majority in principal amount
of the $250 million principal amount of 10 1/2% Senior Subordinated Notes due
2004 issued and outstanding under the Other Indenture and (ii) the Company has
issued and sold the New Notes.
SECTION 4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 5. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 7. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Subsidiary Guarantors and the
Company.
SECTION 8. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
expressly set forth herein, the terms of the Indenture shall continue in full
force and effect in accordance with the provisions thereof. As used herein, the
terms "Indenture," "herein," "hereunder," and words of similar import, shall,
unless the context otherwise requires, refer to the Indenture, as supplemented
hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed of the date first above written.
FLEMING COMPANIES, INC.
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Senior Vice President,
General Counsel & Secretary
ABCO FOOD GROUP, INC.,
as Subsidiary Guarantor
By: /s/ Louis F. Moore
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Name: Louis F. Moore
Title: Secretary
ABCO MARKETS, INC., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
ABCO REALTY CORP., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
AG, L.L.C., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
AMERICAN LOGISTICS GROUP, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
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BAKER'S FOOD GROUP, INC.,
as Subsidiary Guarantor
By: /s/ Louis F. Moore
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Name: Louis F. Moore
Title: Secretary
DUNIGAN FUELS, INC., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FAVAR CONCEPTS, LTD., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FLEMING FOODS MANAGEMENT CO., L.L.C.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FLEMING FOODS OF TEXAS, L.P.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FLEMING INTERNATIONAL LTD.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
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FLEMING SUPERMARKETS OF FLORIDA, INC.
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FLEMING TRANSPORTATION SERVICE, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FLEMING WHOLESALE, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
FUELSERV, INC., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
GATEWAY INSURANCE AGENCY, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
LAS, INC., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
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PIGGLY WIGGLY COMPANY,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
PROGRESSIVE REALTY, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
RAINBOW FOOD GROUP, INC.,
as Subsidiary Guarantor
By: /s/ Louis F. Moore
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Name: Louis F. Moore
Title: Secretary
RETAIL INVESTMENTS, INC.,
as Subsidiary Guarantor
By: /s/ Louis F. Moore
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Name: Louis F. Moore
Title: Secretary
RETAIL SUPERMARKETS, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
RFS MARKETING SERVICES, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
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RICHMAR FOODS, INC., as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
SCRIVNER TRANSPORTATION, INC.,
as Subsidiary Guarantor
By: /s/ Carlos M. Hernandez
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Name: Carlos M. Hernandez
Title: Secretary
MANUFACTURERS AND TRADERS
TRUST COMPANY, as Trustee
By: /s/ Russell T. Whitley
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Authorized Signatory
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