FIRST AMENDMENT dated as of October 5, 1998 (this "Amendment"), among FLEMING COMPANIES, INC. (the "Borrower"), the LENDERS party hereto, BANCAMERICA SECURITIES, INC., as Syndication Agent, SOCIETE GENERALE, as Documentation Agent, and THE CHASE...
FIRST AMENDMENT dated as of October 5,
1998 (this "Amendment"), among XXXXXXX
COMPANIES, INC. (the "Borrower"), the LENDERS
party hereto, BANCAMERICA SECURITIES, INC., as
Syndication Agent, SOCIETE GENERALE, as
Documentation Agent, and THE CHASE MANHATTAN
BANK, as Administrative Agent.
A. Reference is made to the Credit Agreement dated
as of July 25, 1997 (the "Credit Agreement") among the
Borrower, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent. Capitalized
terms used but not otherwise defined herein have the meanings
assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lenders
amend certain provisions of the Credit Agreement. The Lenders
are willing to do so, subject to the terms and conditions of
this Amendment.
Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 2.11(b). Section
2.11(b) of the Credit Agreement is hereby modified by:
(a) deleting from clause (i) thereof the words "and
is permitted to be prepaid, repurchased or redeemed under
Section 6.03(b)"; and
(b) replacing the period at the end of the first
sentence thereof with the following:
"; provided further, that, notwithstanding the
foregoing proviso, in the event that (1) any Net
Proceeds are received by or on behalf of the
Borrower or any Subsidiary in respect of any Asset
Disposition and (2) the property disposed of in
such Asset Disposition, together with all other
property sold, leased, transferred or disposed of
(other than in the ordinary course of business and
other than as permitted by last sentence of Section
6.02) during the same fiscal year of the Borrower,
contributed more than 20% of EBITDAR for any one of
the immediately preceding three fiscal years of the
Borrower, the Borrower shall prepay Term Borrowings
(or, after the Term Borrowings have been repaid or
prepaid in full, either prepay Revolving Loans or
prepay, repurchase, retire or redeem the 10 5/8%
Senior Notes) in an aggregate amount equal to 100%
of the Net Proceeds of such Asset Disposition."
SECTION 1.02. Amendment to Section 6.02. Section
6.02 of the Credit Agreement is hereby modified by replacing
the reference to "20% of Consolidated Net Income" with a
reference to "30% of EBITDAR".
SECTION 1.03. Amendment to Section 6.03(b).
Section 6.03(b) of the Credit Agreement is hereby modified by
replacing clause (iv) thereof with the following:
"(iv) Indebtedness referred to in clause (A), (B)
or (C) of Section 2.11(b) or Indebtedness of the
character described in clauses (vi), (viii), (ix), (x),
(xi), (xii), (xiii) and (xiv) of Section 6.03(a) that is
not Later Maturing Indebtedness;"
SECTION 2. 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 3. APPLICABLE LAW. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 4. Counterparts. This Amendment may be
executed in any number of counterparts, each of which shall be
an original but all of which, when taken together, shall
constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the date first above written.
XXXXXXX COMPANIES, INC.
by
XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Vice President &
Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
by
XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Managing Director
BANK OF HAWAII,
by
XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF MONTREAL,
by
X.X. XXXXXXX
Name: X.X. Xxxxxxx
Title: Portfolio Manager
BANK OF SCOTLAND,
by
XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Assistant Vice President
BEAR XXXXXXX INVESTMENT
PRODUCTS INC.,
by
XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Authorized Signatory
COMERICA BANK,
by
XXXXXXXX X.
XXXXXXXXX, III
Name: Xxxxxxxx X. Xxxxxxxxx, III
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
by
XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
FIRST HAWAIIAN BANK,
by
XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Manager
THE FUJI BANK, LIMITED,
by
XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Vice President &
Manager
IBJ XXXXXXXX BANK & TRUST
COMPANY,
by
XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Director
BANK ONE, OKLAHOMA, NA,
by
XXXX X. DEMOS
Name: Xxxx X. Demos
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.,
by
XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: Head of Southwest Region
MANUFACTURERS AND TRADERS
TRUST COMPANY,
by
R. XXXXXX XXXXX
Name: R. Xxxxxx Xxxxx
Title: Administrative Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION,
CHICAGO BRANCH,
by
XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Chief Manager
NATEXIS BANQUE BFCE,
by
XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President and
Regional Manager
by
XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
NATIONAL BANK OF CANADA,
by
XXXX XXXXX
Name: Xxxx Xxxxx
Title: Vice President
by
XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK, KENTUCKY,
by
XXXX XXXXXXXXX
Name: Xxxx Xxxxxxxxx
Title: Vice President
PARIBAS,
by
Name:
Title:
THE SANWA BANK LIMITED,
by
Name:
Title:
SENIOR DEBT PORTFOLIO,
by
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY,
by
XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Director
SUMITOMO BANK OF CALIFORNIA,
by
XXXXX XXX
Name: Xxxxx Xxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by
Name:
Title:
THE SUMITOMO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH,
by
XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SUMMIT BANK,
by
XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION,
by
XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
by
XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
XXX XXXXXX CLO I LIMITED,
By: Xxx Xxxxxx American
Capital Management, Inc.
As Collateral Manager
by
XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
