Exhibit 10.31
FIFTH AMENDMENT AND WAIVER AGREEMENT
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XXXXXXXXX FOODS VENTURE, L.P., a Texas limited partnership with an address
at 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Borrower"), PNC BANK,
OHIO, NATIONAL ASSOCIATION, a national banking association (the "Agent"), THE
FIFTH THIRD BANK OF WESTERN OHIO, an Ohio state banking corporation (previously
incorrectly identified as a national banking association) with offices located
at 000 Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000, and PNC BANK, OHIO, NATIONAL
ASSOCIATION, a national banking association with offices located at 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (each individually a "Lender" and
collectively "Lenders"), agree as follows, as of May 9, 1996 (the "Effective
Date"):
1. RECITALS.
1.1 The Borrower, the Agent and the Lenders entered into a Credit
Agreement dated June 13, 1994, which was amended by an Amendment to Credit
Agreement dated March 31, 1995, a Second Amendment to Credit Agreement dated
April 20, 1995, a Third Amendment to Credit Agreement dated July 11, 1995 and a
Fourth Amendment to Credit Agreement dated November 7, 1995 (collectively, the
"Credit Agreement"). Capitalized terms used herein shall have the meanings
given such terms in the Credit Agreement.
1.2 The Borrower, the Agent and the Lenders desire to amend the
Credit Agreement.
2. AMENDMENT.
2.1 Section 2.1(c) shall be amended to delete the first sentence
thereof and to insert the following in its place:
"All Revolving Loans outstanding from time to time shall bear
interest per annum, at a rate equal to Prime Rate of Agent in
effect from time to time plus a margin, as set forth below, based
upon the Borrower's Indebtedness to Tangible Net Worth Ratio, as
calculated on a monthly basis as of the first of each month, as
follows:
LEVERAGE RATIO INTEREST RATIO
-------------- --------------
greater than 2:25 to 1:00 1.0% plus the Prime Rate
2:00 to 1:00 but not greater than .75% plus the Prime Rate
2:25 to 1:00
less than 2:00 to 1:00 .50% plus the Prime Rate
Adjustments to the interest rate shall be made by Agent on the first
of each month following receipt by Agent of the Borrower's monthly
financial statements required to be provided by Section 4.11 hereof."
2.2 Section 2.1(e) shall be amended to delete "May 1, 1996" from the
first sentence thereof and to insert "July 1, 1997" in its place.
2.3 Section 4.12 is deleted in its entirety and the following
language inserted in its place:
"4.12. CASH FLOW COVERAGE RATIO. At the end of each fiscal quarter,
the ratio of the Borrower's Cash Flow to Borrower's Current Maturities of Long
Term Debt plus interest expense plus dividends paid shall at all times exceed
1.25:1 (as calculated on a twelve month moving averaging basis, first tested on
December 31, 1994, and thereafter tested monthly on a trailing twelve month
basis)."
2.4 Section 4.13, Current Ratio, is amended to delete the Time
Periods and Minimum Ratios as stated therein and the following is inserted in
their place:
"TIME PERIOD MINIMUM RATIO
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January 1, 1996 through 0.80:1
and including June 30, 1996
July 1, 1996 through and 0.85:1
including September 30, 1996
October 1, 1996 through and 0.90:1
including December 31, 1996
January 1, 1997 through and 1.00:1
including December 31, 1997
January 1, 1998 and thereafter 1.10:1"
2.5 Section 4.14 is hereby deleted in its entirety and the following
inserted in its place:
"4.14 INDEBTEDNESS TO TANGIBLE NET WORTH. At the end of each fiscal month
of Borrower during the following time periods, the ratios of Borrower's
outstanding Indebtedness minus Subordinated Indebtedness to the Borrower's
Tangible Net Worth plus Subordinated Indebtedness minus intangible assets,
all calculated on a consolidated basis, shall not exceed the following:
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TIME PERIOD MAXIMUM RATIO
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January 1, 1996 through and including 2.4:1
December 31, 1996
January 1, 1997 through and including 2.1:1
December 31, 1997
January 1, 1998 and thereafter 1.9:1"
2.6 Section 4.15 is hereby deleted in its entirety and the following
inserted in its place:
"4.15 MINIMUM TANGIBLE NET WORTH. At the end of each fiscal month of
Borrower during the following time periods, Borrower shall maintain a
minimum Tangible Net Worth plus Subordinated Indebtedness of at least
the following amounts:
TIME PERIOD MINIMUM AMOUNT
----------- --------------
January 1, 1996 through and including $5,700,000.00
June 30, 1996
July 1, 1996 through and including $6,000,000.00
December 31, 1996
January 1, 1997 through and including $6,400,000.00
December 31, 1997
January 1, 1998 and thereafter $6,800,000.00"
2.7 Section 4.23 is amended to delete "$900,000.00" from the fifth
line thereof and to insert "$750,000.00" in its place.
3. WAIVERS.
3.1 The Lender waives any defaults under Sections 4.12, 4.13, 4.14
and 4.15 occurring prior to the Effective Date.
3.2 The waivers set forth in Section 3.1 above will relate only to
the specific matters covered by such Sections and in no event will the Lender be
under any obligation to provide additional waivers with regard to those items or
any other provisions of this Credit Agreement or the other Loan Documents.
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4. REPRESENTATIONS AND WARRANTIES. To induce the Lender to enter into
this Amendment to Credit Agreement (this "Amendment"), the Borrower represents
and warrants as follows:
4.1 The representations and warranties of the Borrower contained in
Section 3 of the Credit Agreement are deemed to have been made again on and as
of the date of execution of this Amendment and will apply to this Amendment and
the Amendments to Term and Cognovit Notes (the "Note Amendments") between the
Borrower and the Lenders of even date herewith.
4.2 No Event of Default (as such term is defined in Section 8 of the
Credit Agreement) or event or condition which with the lapse of time or giving
of notice or both would constitute an Event of Default exists on the date
hereof.
4.3 The person executing this Amendment and Note Amendments is a duly
elected and acting officer of the Borrower and is duly authorized by the Board
of Directors of the Borrower to execute and deliver this Amendment and the Note
Amendments on behalf of the Borrower.
5. CONDITIONS. The Agent's and Lenders' consent to this Amendment is
subject to the following conditions.
5.1 The Borrower shall have executed and delivered to the Lenders the
Note Amendments.
5.2 The Lender shall have been furnished copies, certified by the
Secretary or Assistant Secretary of the Borrower, of resolutions of the Board of
Directors of the Borrower authorizing the execution of this Amendment, the
Exhibits hereto and all other documents executed in connection herewith.
5.3 The representations and warranties of the Borrower in Section 4
herein shall be true.
6. CLAIMS AND RELEASE OF CLAIMS BY THE BORROWER AND THE GUARANTORS. The
Borrower and each of the Guarantors represent and warrant that neither the
Borrower nor any of the Guarantors has any claims, counterclaims, setoffs,
actions or causes of actions, damages or liabilities of any kind or nature
whatsoever whether at law or in equity, in contract or in tort, whether now
accrued or hereafter maturing (collectively, "Claims") against the Lender, its
direct or indirect parent corporation or any direct or indirect affiliates of
such parent corporation, or any of the forgeoing's respective directors,
officers, employees, agents, attorneys and legal representatives, or the heirs,
administrators, successors or assigns of any of them (collectively, "Lender
Parties") that directly or indirectly arise out of, are based upon or are in any
manner connected with any Prior Related Event. As an inducement to the Lender
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to enter into this Agreement, the Borrower and each of the Guarantors jointly
and severally, on behalf of themselves, and all of their respective heirs,
administrators, successors and assigns hereby knowingly and voluntarily release
and discharge all Lender Parties from any and all Claims, whether known or
unknown, that directly or indirectly arise out of, are based upon or are in any
manner connected with any Prior Related Event. As used herein, the term "Prior
Related Event" means any transaction, event, circumstance, action, failure to
act, occurrence of any sort or type, whether known or unknown, which occurred,
existed, was taken, permitted or begun at any time prior to the Effective Date
or occurred, existed, was taken, was permitted or begun in accordance with,
pursuant to or by virtue of any of the terms of the Loan Agreement, the Note or
any documents executed in connection with the Loan Agreement or which was
related to or connected in any manner, directly or indirectly to the Loan.
7. GENERAL.
7.1 Except as expressly modified herein, the Credit Agreement, as
amended, is and remains in full force and effect.
7.2 Except as provided for in Section 3 above, nothing contained
herein will be construed as waiving any default or Event of Default under the
Credit Agreement or will affect or impair any right, power or remedy of the
Lender under or with respect to the Loan, the Credit Agreement, as amended, the
Term and Cognovit Notes, as amended or any agreement or instrument guaranteeing,
securing or otherwise relating to any of the Loan.
7.3 This Amendment will be binding upon and inure to the benefit of
the Borrower and the Lenders and their respective successors and assigns.
7.4 All representations, warranties and covenants made by the
Borrower herein will survive the execution and delivery of this Amendment.
7.5 This Amendment will in all respects be governed and construed in
accordance with the laws of the State of Ohio.
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Signed at Versailles, OH as of the Effective Date.
XXXXXXXXX FOODS VENTURE, L.P.
a Texas limited partnership
By: G/W FOODS, INC., general partner,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Print Name: Xxxxxx X. Xxxxxxxxx
Title: President
PNC BANK, OHIO, NATIONAL ASSOCIATION
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE FIFTH THIRD BANK OF WESTERN OHIO
an Ohio state banking corporation
By: /s/ Xxxxxx X. Xxxxx
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Print Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
PNC BANK, OHIO, NATIONAL ASSOCIATION
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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STATE OF OHIO )
)SS:
COUNTY OF DARKE)
The foregoing instrument was acknowledged before me this 9th day of May,
1996 by Xxxxxx X. Xxxxxxxxx, President of G/W Foods, Inc., a Texas corporation,
on behalf of the corporation as general partner of Xxxxxxxxx Foods Venture,
L.P., a Texas limited partnership.
/s/ Xxxxxx X. Xxxxx
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Notary Public Xxxxxx X. Xxxxx
NOTARY PUBLIC, STATE OF OHIO
My Commission Expires May 4, 2000
Recorded in Darke County
STATE OF OHIO )
)SS:
COUNTY OF DARKE)
The foregoing instrument was acknowledged before me this 9th day of May,
1996 by Xxxxxx X. Xxxxx, Senior Vice President of The Fifth Third Bank of
Western Ohio, an Ohio state banking corporation, on behalf of the banking
corporation.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Notary Public Xxxxxx X. Xxxxx
NOTARY PUBLIC, STATE OF OHIO
My Commission Expires May 4, 2000
Recorded in Darke County
STATE OF OHIO )
)SS:
COUNTY OF DARKE)
The foregoing instrument was acknowledged before me this 9th day of May,
1996 by Xxxxxxx Xxxxxx, Vice President of PNC Bank, Ohio, National Association,
a national banking association, on behalf of the association.
/s/ Xxxxxx X. Xxxxx
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Notary Public Xxxxxx X. Xxxxx
NOTARY PUBLIC, STATE OF OHIO
My Commission Expires May 4, 2000
Recorded in Darke County
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STATE OF OHIO )
)SS:
COUNTY OF DARKE)
The foregoing instrument was acknowledged before me this 9th day of May,
1996 by Xxxxxxx Xxxxxx, Vice President of PNC Bank, Ohio, National Association,
a national banking association, on behalf of the association as Agent.
/s/ Xxxxxx X. Xxxxx
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Notary Public Xxxxxx X. Xxxxx
NOTARY PUBLIC, STATE OF OHIO
My Commission Expires May 4, 2000
Recorded in Darke County
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