1
WAIVER NO. 1 AND CONSENT
This Waiver No. 1 and Consent (this "WAIVER") waives certain conditions of
that certain Credit Agreement dated as of May 9, 1997 (as amended, modified and
supplemented from time to time, including pursuant to this Waiver, the "CREDIT
AGREEMENT"), among COLORADO PRIME CORPORATION, a Delaware corporation
("BORROWER"), each institution identified as a lender on Annex I thereto (each,
together with its successors and assigns, a "LENDER"), and DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES, ("ADMINISTRATIVE AGENT") acting as the
Agents for itself and the other Lenders, and is entered into as of May 12, 1998
among Borrower, the Administrative Agent and the Lenders executing the
signature pages hereof.
RECITALS
WHEREAS, Colorado Prime Corporation ("BORROWER") entered into a real
property lease dated as of September 18, 1997, as amended as of November 26,
1997 and February 11, 1998, (the "LEASE") with Bi-County Associates L.P. for
the lease of approximately 29,242 square feet of office space in Farmingdale,
New York.
WHEREAS, Xxxxxxxx intends to move its chief executive office to the new
office space in approximately August 1998; and
WHEREAS, Xxxxxxxx has requested that the Lenders consent to the execution
of the Lease and otherwise waive certain conditions of the Credit Agreement in
connection therewith as set forth below;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement, and the provisions
of Section 1.2 of the credit agreement shall apply hereto as if fully set forth
herein.
2. Waiver of Restriction on Lease. Notwithstanding the terms of Sections
7.3(a)(1), 7.3(d), and 9.1(c) of the Credit Agreement to the contrary, the
Required Lenders hereby consent to the execution of the Lease, provided, that
the Lease shall not create any Lien other than a Permitted Lien.
3. Representations. To induce the Administrative Agent and the Lenders to
enter into this Waiver, Borrower hereby represents and warrants as follows:
(a) Representations and Warranties. All representations and warranties
contained in
2
the Credit Agreement and the other Credit Documents are true and correct in all
material respects on and as of the date hereof as if made on the date hereof,
other than representations and warranties that expressly relate solely to an
earlier date;
(b) No Defaults. Except as waived hereby, no Default or Event of Default
has occurred and is continuing as of the date hereof; and
(c) Lease. Attached hereto as Exhibit A is a true, complete and correct
copy of the Lease, as amended as of the date hereof.
4. Counterparts. This Waiver may be executed in any number of counterparts,
each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
2
3
IN WITNESS WHEREOF, the parties hereto have caused this Waiver No. 1 and
Consent to be executed and delivered by their proper and duly authorized
officers as of the date set forth above.
BORROWER:
COLORADO PRIME CORPORATION,
a Delaware corporation
By: [Illegible Signature]
----------------------------------
Title: Vice President/Controller
ADMINISTRATIVE AGENT:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as the
Administrative Agent
By: [Illegible Signature]
----------------------------------
By: [Illegible Signature]
----------------------------------
LENDERS:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: [Illegible Signature]
----------------------------------
By: [Illegible Signature]
----------------------------------
3
4
BANK LEUMI USA, as a Lender
By: ILLEGIBLE SIGNATURE
----------------------------------
By: ILLEGIBLE SIGNATURE
----------------------------------
BANKBOSTON, N.A., as a Lender
By: /s/ Xxxxxxx X.X. Xxxxx
--------------------------------
Xxxxxxx X.X. Xxxxx
Managing Director
By:
--------------------------------
IBJ XXXXXXXX BANK & TRUST COMPANY,
as a Lender
By: ILLEGIBLE SIGNATURE
--------------------------------
By:
--------------------------------
4
5
EXHIBIT A
Lease
5