EXHIBIT 10
XXX XXXXXXXX XXXXXXXXX, JR. AND XXXXXXX XXXXX XXXXXXXXX,
NOT INDIVIDUALLY BUT SOLELY AS CO-EXECUTORS OF THE ESTATE OF
XXX XXXXXXXX XXXXXXXXX, DECEASED
FOURTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER
Xxxxxx Trust and Savings Bank
Chicago, Illinois
The Lenders from time to time parties hereto
SunTrust Bank (formerly known as
SunTrust Bank, Atlanta)
Atlanta, Georgia
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
March 21, 2000, as amended (the "Credit Agreement"), among the undersigned, XXX
XXXXXXXX XXXXXXXXX, JR. AND XXXXXXX XXXXX XXXXXXXXX, not individually but
solely as co-executors of the estate of Xxx Xxxxxxxx Xxxxxxxxx, Deceased (the
"Borrower"), you (the "Banks") and Xxxxxx Trust and Savings Bank, as agent for
the Banks (the "Agent"). All defined terms used herein shall have the same
meaning as in the Credit Agreement unless otherwise defined herein.
The Borrower has requested that the Banks amend the Credit Agreement
to increase the aggregate number of shares of common stock of Xxxxxxxxx Farms,
Inc. permitted for distribution from 700,000 to 807,000 and to waive certain
requirements of Section 7.10 of the Credit Agreement and to amend certain other
provisions of the Credit Agreement, and the Banks are willing to do so in the
manner and on the terms and conditions set forth herein.
1. AMENDMENTS.
Upon satisfaction of all of the conditions precedent set forth in
Section 3 hereof, the Credit Agreement shall be amended as follows:
1.1. The second to last sentence of the first paragraph of Section
7.10 of the Credit Agreement shall be amended by deleting the number "700,000"
and replacing it with the number "807,000".
2. WAIVER.
2.1. The first paragraph of Section 7.10 of the Credit Agreement
permitted the Borrower to distribute shares of the common stock of Xxxxxxxxx
Farms, Inc. upon the terms and conditions
contained therein. One of the conditions is that after giving effect to a
proposed distribution, the Borrower's Net Worth is not less than $2,500,000
(the "Net Worth Requirement"). The Borrower wishes to distribute up to 400,000
shares of the common stock of Xxxxxxxxx Farms, Inc. during calendar year 2003
and has requested that the Banks waive the Net Worth Requirement. Upon
satisfaction of the conditions precedent set forth in Section 3 hereof, the
Banks hereby waive the Net Worth Requirement to the extent necessary to permit
the Borrower to distribute up to 400,000 shares of the common stock of
Xxxxxxxxx Farms, Inc. during calendar year 2003, provided that all other terms
and conditions specified in Section 7.10 of the Credit Agreement are satisfied
at the time of such distribution.
2.2. The waivers contained in Section 2.1 of this Amendment is
limited to matters set forth in that Section, and the Borrower agrees that it
remains obligated to comply with the terms of the Credit Agreement and the
other Loan Documents, and that the Banks shall not be obligated in the future
to waive any provision of the Credit Agreement or the other Loan Documents as a
result of having provided the waiver contained herein.
3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
3.1. The Borrower, the Agent and each of the Banks shall have
executed this Amendment.
3.2. The Borrower shall have delivered to the Agent an order from
the Chancery Court of the Second Judicial District of Xxxxx County, Mississippi
authorizing the distribution of up to 400,000 shares of the common stock of
Xxxxxxxxx Farms, Inc. during the calendar year 2003.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Each of the representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct.
4.2. The Borrower is in full compliance with all of the terms and
conditions of the Credit Agreement and, after giving effect to this Amendment,
no Event of Default or Potential Default has occurred and is continuing
thereunder or shall result after giving effect to this Amendment.
5. MISCELLANEOUS.
5.1. Reference to this specific Amendment need not be made in any
note, document, letter, certificate, the Credit Agreement itself, the Notes, or
any communication issued or made pursuant to or with respect to the Credit
Agreement or the Notes, any reference to the Credit Agreement being sufficient
to refer to the Credit Agreement as amended hereby.
5.2. This Amendment may be executed in any number of counterparts,
and by the different parties on different counterparts, all of which taken
together shall constitute one and the
-2-
same agreement. Any of the parties hereto may execute this Amendment by signing
any such counterpart and each of such counterparts shall for all purposes be
deemed to be an original. This Amendment shall be governed by the internal laws
of the State of Illinois. Upon acceptance hereof by the Agent and the Banks in
the manner hereinafter set forth, this Amendment shall be a contract between us
for the purposes hereinabove set forth.
Dated as of November 7, 2003.
/s/ Xxx X. Xxxxxxxxx, Xx.
---------------------------------------
XXX XXXXXXXX XXXXXXXXX, JR., AS CO-
EXECUTOR OF THE ESTATE OF XXX XXXXXXXX
XXXXXXXXX, DECEASED, AND NOT IN HIS
INDIVIDUAL CAPACITY
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
XXXXXXX XXXXX XXXXXXXXX, AS CO-EXECUTOR
OF THE ESTATE OF XXX XXXXXXXX
XXXXXXXXX, DECEASED, AND NOT IN HIS
INDIVIDUAL CAPACITY
Accepted and agreed to as of the day and year last above written.
XXXXXX TRUST AND SAVINGS BANK
individually and as Agent
By /s/ Xxxxxx Fammini
------------------------------------
Its Vice President
SUNTRUST BANK
By /s/Xxxx Xxxxxx
------------------------------------
Its Director
-3-
