EX-4.9 2 f71028a1ex4-9.txt THIRD AMENDMENT TO CREDIT AGREEMENT 1 EXHIBIT 4.9 CONFORMED COPY THIRD AMENDMENT dated as of February 26, 2001 (this "Amendment"), to the Credit Agreement, dated as of July 25, 1997, as amended by the First Amendment dated as of October 5, 1998, and the Second Amendment dated as of December 21, 1999 (as so amended and as the same may be further amended, restated, modified or supplemented from time to time, the "Credit Agreement"), among FLEMING COMPANIES, INC. (the "Borrower"), the LENDERS from time to time party thereto (the "Lenders"), BANCAMERICA SECURITIES, INC., as Syndication Agent (the "Syndication Agent"), SOCIETE GENERALE, as Documentation Agent (the "Documentation Agent") and THE CHASE MANHATTAN BANK, as Administrative Agent for the Lenders (the "Administrative Agent"). WHEREAS, the Borrower, the Lenders, the Syndication Agent, the Documentation Agent and the Administrative Agent are parties to the Credit Agreement; WHEREAS, the Borrower has requested that certain provisions of the Credit Agreement be modified in the manner provided for in this Amendment, and the undersigned Lenders are willing to agree to such modifications. NOW THEREFORE, for and in consideration of the premises and the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby agree as follows: SECTION 1. Definitions. All capitalized terms which are defined in the Credit Agreement and not otherwise defined herein or in the recitals hereof shall have the same meanings herein as in the Credit Agreement. SECTION 2. Amendment of Credit Agreement. The Credit Agreement is hereby amended by: (a) Amending the definition of "Applicable Rate" in Section 1.01 by replacing the table set forth therein with the following: 2 2
Revolving Facility Spread Greater than or Greater than Less than equal to 25% or equal to Term Ratings Commitment 25% but less than 50% Loan (S&P/Moody's) Fee Rate Utilization 50% Utilization Utilization Spread Category 1 BBB+/Baal or higher 0.100% 1.000% 1.025% 1.050% 1.475% Category 2 BBB/Baa2 0.150% 1.125% 1.150% 1.175% 1.600% Category 3 BBB-/Baa3 0.200% 1.250% 1.300% 1.350% 1.775% Category 4 BB+/Ba1 0.300% 1.500% 1.5625% 1.625% 2.125% Category 5 BB/Ba2 0.375% 1.750% 1.875% 2.000% 2.500% Category 6 Less than BB/Ba2 0.500% 2.250% 2.375% 2.500% 3.000%
(b) Deleting the period at the end of the first sentence of Section 2.11(c) and adding a new proviso to the end of such sentence as follows: "; provided further that, in the case of Net Proceeds received by or on behalf of the Borrower or any Subsidiary in respect of any incurrence of Indebtedness under Section 6.03(a)(v), the Borrower may, within 10 Business Days after such Net Proceeds are received, prepay Revolving Loans in an amount up to the aggregate amount of such Net Proceeds (which such amounts may be subsequently reborrowed pursuant to the terms and conditions of this Agreement) and shall use any remaining amount of such Net Proceeds to prepay Term Borrowings as required above." (c) Deleting the word "and" immediately prior to clause (B) of Section 6.03(a)(vii) and adding a new clause (C) as follows: "; and (C) Guarantees by Guarantors of Later Maturing Indebtedness permitted (x) by Section 6.03(a)(iv), so long as the only guarantors thereof are guarantors of the Subordinated Notes (or any refinancing thereof permitted by this Section 6.03(a)), such Guarantees are subordinated to the Obligations on terms not less favorable to the Secured Parties than the subordination provisions in the Guarantees of the Subordinated Notes and the terms of such Guarantees are otherwise no more favorable to the beneficiaries than the Guarantees of the Subordinated Notes and (y) by Section 6.03(a)(v), so long as the only guarantors thereof are guarantors of the 10-5/8% Senior Notes (or any refinancing thereof permitted by this Section 6.03(a)) and the terms of such Guarantees are no more favorable to the beneficiaries than the Guarantees of the 10-5/8% Senior Notes;" 3 (d) Deleting the period at the end of Section 6.08 and adding the following: "; provided, however, that for purposes of calculating the Fixed Charge Coverage Ratio for each of (i) the fiscal year ended December 30, 2000, (ii) the fiscal quarter ending April 21, 2001 and (iii) the fiscal quarter ending July 14, 2001, up to $118,000,000 of cash expenditures relating to strategic initiatives of the Borrower and the Subsidiaries incurred by the Borrower and the Subsidiaries during the fiscal year ended December 30, 2000 shall be excluded from the definition of "EBITDAR"." SECTION 3. Representations and Warranties. The Borrower represents and warrants to the Administrative Agent on behalf of the Lenders as of the date hereof as follows: (a) Before and after giving effect to this Amendment, the representations and warranties set forth in the Credit Agreement are true and correct as of the date hereof. (b) Immediately after giving effect to this Amendment, no Event of Default or Default has occurred and is continuing. (c) The execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate and other action and do not and will not require any registration with, consent or approval of, notice to or action by, any person (including any governmental agency) in order to be effective and enforceable. The Credit Agreement as amended by this Amendment constitutes the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its terms, subject only to the operation of the bankruptcy code and other similar statutes for the benefit of debtors generally and to the application of general equitable principles. SECTION 4. Conditions to Effectiveness. This Amendment shall become effective when the Administrative Agent shall have received counterparts hereof signed by the Borrower, the Required Lenders and, with respect to the amendment set forth in Section 2(b), by Lenders having Term Loans representing more than 50% of the sum of the total outstanding Term Loans at such time (or, in the case of any party as to which an executed counterpart shall not have been received, telegraphic, telex or other written confirmation from such party of the execution of a counterpart hereof by such party); provided that the amendment set forth in Section 2(d) shall be retroactive to December 30, 2000. SECTION 5. Amendment Fees. In consideration of the agreements of the Lenders contained herein, the Borrower agrees to pay to each Lender that returns an executed signature page of this Amendment not later than 5:00 p.m., New York City time, on February 26, 2001, through the Administrative Agent, an amendment fee (an "Amendment Fee") equal to .20% of the aggregate amount, 4 4 without duplication, of such Lender's Revolving Commitments and outstanding Loans as of the effective date of this Amendment; provided, that no Amendment Fees shall be payable hereunder unless this Amendment becomes effective as provided in Section 4 hereof. The Amendment Fees shall be payable in immediately available funds on the next business day following the effective date of this Amendment. Once paid, the Amendment Fees shall not be refundable. SECTION 6. Credit Agreement. Except as specifically stated herein, the Credit Agreement shall continue in full force and effect in accordance with the provisions thereof. As used therein, the terms "Agreement", "herein", "hereunder", "hereto", "hereof" and words of similar import shall, unless the context otherwise requires, refer to the Credit Agreement as modified hereby. SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof. SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 5 5 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized officers, all as of the date and year first above written. FLEMING COMPANIES, INC. by /s/ Alan C. McIntyre ---------------------------- Name: Alan C. McIntyre Title: Vice President and Treasurer THE CHASE MANHATTAN BANK, individually and as Administrative Agent, by /s/ Barry K. Bergman ---------------------------- Name: Barry K. Bergman Title: Vice President GENERAL ELECTRIC CAPITAL CORPORATION, by /s/ W. Jerome McDermott ---------------------------- Name: W. Jerome McDermott Title: Duly Authorized Signatory TEXTRON FINANCIAL CORPORATION, by /s/ Matthew J. Colgan ---------------------------- Name: Matthew J. Colgan Title: Director THE SANWA BANK LIMITED, by /s/ John T. Feeney ---------------------------- Name: John T. Feeney Title: Vice President 6 6 BANK ONE OKLAHOMA NA, formerly: LIBERTY BANK AND TRUST COMPANY OF OKLAHOMA, by /s/ Thomas R. Freas --------------------------------- Name: Thomas R. Freas Title: Authorized Signatory SENIOR DEBT PORTFOLIO By: Boston Management and Research as Investment Advisor, by /s/ Scott H. Page --------------------------------- Name: Scott H. Page Title: Vice President THE MITSUBISHI TRUST AND BANKING CORPORATION, by /s/ Masayuki Mitsuhashi --------------------------------- Name: Masayuki Mitsuhashi Title: Deputy General Manager FORTIS CAPITAL CORP., by /s/ Eugene Oliva --------------------------------- Name: Eugene Oliva Title: Vice President by /s/ John G. Preneta --------------------------------- Name: John G. Preneta Title: Executive Vice President CALIFORNIA BANK & TRUST, by /s/ S. C. Bellicini --------------------------------- Name: S. C. Bellicini Title: Senior Vice President 7 7 BANK OF HAWAII, by /s/ DONNA R. PARKER ----------------------------- Name: Donna R. Parker Title: Vice President GRAYSON & CO. By: Boston Management and Research as Investment Advisor, by /s/ SCOTT H. PAGE ----------------------------- Name: Scott H. Page Title: Vice President OXFORD STRATEGIC INCOME FUND By: Eaton Vance Management as Investment Advisor, by /s/ SCOTT H. PAGE ----------------------------- Name: Scott H. Page Title: Vice President EATON VANCE INSTITUTIONAL SENIOR LOAN FUND By: Eaton Vance Management as Investment Advisor, by /s/ SCOTT H. PAGE ----------------------------- Name: Scott H. Page Title: Vice President EATON VANCE SENIOR INCOME TRUST By: Eaton Vance Management as Investment Advisor, by /s/ SCOTT H. PAGE ----------------------------- Name: Scott H. Page Title: Vice President 8 8 NATIONAL BANK OF CANADA, by /s/ Jeffrey G. Gann --------------------------- Name: Jeffrey G. Gann Title: Assistant Vice President by /s/ Doug Clark --------------------------- Name: Doug Clark Title: Vice President BANK OF SCOTLAND, by /s/ Joseph Fratus --------------------------- Name: Joseph Fratus Title: Vice President TRANSAMERICA BUSINESS CREDIT CORPORATION, by /s/ Stephen K. Goetschius --------------------------- Name: Stephen K. Goetschius Title: Senior Vice President FIRST HAWAIIAN BANK, by /s/ Seth A. Bond --------------------------- Name: Seth A. Bond Title: Asst. Vice President SUMMIT BANK, by /s/ Catherine E. Garrity --------------------------- Name: Catherine E. Garrity Title: Vice President 9 9 NATEXIS BANQUES POPULAIRES, by /s/ Frank H. Madden, Jr. ------------------------------ Name: Frank H. Madden, Jr. Title: Vice President & Group Manager by /s/ Michael Ferris ------------------------------ Name: Michael Ferris Title: Vice President Leveraged Finance CREDIT LYONNAIS NEW YORK BRANCH, by /s/ Attila Koc ------------------------------ Name: Attila Koc Title: Senior Vice President MANUFACTURERS AND TRADERS TRUST COMPANY, by /s/ Christopher Kania ------------------------------ Name: Christopher Kania Title: Vice President BANK OF MONTREAL, by /s/ Michael P. Joyce ------------------------------ Name: Michael P. Joyce Title: Managing Director THE DAI-ICHI KANGYO BANK, LTD., by /s/ Chimie T. Pemba ------------------------------ Name: Chimie T. Pemba Title: Account Officer 10 10 BANK OF AMERICA, N.A., by /s/ Lynn A. Durning ---------------------------- Name: Lynn A. Durning Title: Managing Director IBJ WHITEHALL BANK AND TRUST COMPANY, by /s/ Charles B. Fears ---------------------------- Name: Charles B. Fears Title: Director COMERICA BANK, by /s/ Gerald R. Finney, Jr. ---------------------------- Name: Gerald R. Finney, Jr. Title: Vice President NATIONAL CITY BANK, by /s/ Barry C. Robinson ---------------------------- Name: Barry C. Robinson Title: Senior Vice President VAN KAMPEN PRIME RATE INCOME TRUST By: Van Kampen Investment Advisory Corp. by /s/ Darvin D. Pierce ---------------------------- Name: Darvin D. Pierce Title: Principal 11 11 VAN KAMPEN SENIOR INCOME TRUST By: Van Kampen Investment Advisory Corp. by /s/ Darvin D. Pierce ---------------------------- Name: Darvin D. Pierce Title: Principal VAN KAMPEN CLO I, LIMITED By: Van Kampen Management Inc., as Collateral Manager by /s/ Darvin D. Pierce ---------------------------- Name: Darvin D. Pierce Title: Principal VAN KAMPEN CLO II, LIMITED By: Van Kampen Management Inc., as Collateral Manager by /s/ Darvin D. Pierce ---------------------------- Name: Darvin D. Pierce Title: Principal LONG LANE MASTER TRUST IV, By: Fleet National Bank as Trust Administrator, by /s/ Kevin Keans ---------------------------- Name: Kevin Keans Title: Managing Director FUJI BANK LIMITED by /s/ Nobuoki Koike ---------------------------- Name: Nobuoki Koike Title: Vice President & Senior Team Leader 12 12 SOCIETE GENERALE, by /s/ Jerry Parisi -------------------------------- Name: Jerry Parisi Title: Managing Director BEAR STEARNS INVESTMENT PRODUCTS, by /s/ Greg Hanley -------------------------------- Name: Greg Hanley Title: Senior Managing Director THE SUMITOMO BANK, LIMITED, by /s/ Suresh S. Tata ------------------------------ Name: Suresh S. Tata Title: Senior Vice President BNP PARIBAS, by /s/ Henry F. Setina ------------------------------ Name: Henry F. Setina Title: Vice President by /s/ Jeff Tebeaux ------------------------------ Name: Jeff Tebeaux Title: Associate