AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
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This Amendment No. 1 and Waiver is dated as of August
1, 1996 by and among Xxxx X. Xxxxxxxxxx & Son, Inc. (the
"Borrower"), the Lenders parties hereto and Bank of America
Illinois, as Agent for the Lenders (Amendment No. 1").
W I T N E S S E T H;
WHEREAS, the Borrower, the Lenders and the Agent are
parties to that certain Credit Agreement dated as of March 27,
1996 (the "Agreement"); and
WHEREAS, the Borrower and the Lenders desire to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises
herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Each capitalized term used herein but not otherwise
defined herein shall have the meaning ascribed to such term
in the Agreement.
2. The definition of "Applicable Margin" appearing in
Section 1.1 of the Agreement shall be restated in its entirety
as follows:
"'Applicable Margin' means a rate per annum equal
to 1.35%."
3. The Agent and the Lenders hereby waive compliance
with Section 8.2.4(d) of the Agreement solely for the Fiscal
Quarter ending June 27, 1996.
4. Section 8.2.4(f) of the Agreement shall be amended
by deleting the number "$20,000,000" appearing therein and
substituting in lieu thereof the term "Fixed Asset Advance."
5. Section 8.2.7 of the Agreement shall be restated in
its entirety as follows:
"SECTION 8.2.7. Capital Expenditures, etc. The
Borrower will not, and will not permit any of its Subsidiaries to,
make Capital Expenditures in any Fiscal Year, except (a)
Capital Expenditures incurred before December 31, 1996
related to acquisitions for the Xxxxxx Nut Co. business, (b)
Capital Expenditures incurred during Fiscal Year 1996 not
exceeding $8,200,000 in the aggregate, and (c) Capital
Expenditures in subsequent Fiscal Years that do not exceed
in the aggregate for each such Fiscal Year $10,000,000.
6. Section 8.2.15 of the Agreement shall be restated in
its entirety as follows:
"SECTION 8.2.15. Clean Down. The Borrower shall
not permit at any time the amount of the Borrowing Base to
be less than zero (0), nor shall the Borrower permit the
aggregate amount of Credit Extensions at any time
outstanding under this Agreement (including in such amount,
without duplication, the aggregate Letter of Credit
Outstandings) to exceed the amount shown below as in effect
at the time:
Period Maximum Permitted Amounts
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January 1 through March 31 $60,000,000
of each year
April 1 through May 31 $50,000,000
of each year
June 1 through July 31 $40,000,000
of each year
August 1 through September 30 $40,000,000
of 1996
August 1 through September 30 $25,000,000
of 1997
October 1 through December 31 $50,000,000"
of each year
7. The Borrower represents and warrants that, after
giving effect to this Amendment No.1, no Default or Event of
Default exists and is continuing.
8. This Amendment No. 1 shall become effective as of
August 1, 1996 upon satisfaction of the following conditions.
(i) the Borrower, the Agent, Sunshine Nut Co. and
each of the Lenders shall have executed and delivered
a counterpart of this Amendment.
(ii) the Agent shall have received, in sufficient copies
for each Bank, the following inform an substance
satisfactory to the Agent and its counsel:
(A) an incumbency certificate.
(B) a board of directors resolution authorizing the
execution and delivery of this Amendment No. 1.
(C) a certificate from the Borrower's chief financial
Authorized Officer Certifying that on the date
hereof and after giving effect to this Amendment No. 1 no
Default or Event of Default has occurred and is
continuing.
(D) a written consent hereto from each of the
holders of promissory notes under the Prudential Note
Agreement and the Teachers Note Agreement.
(iii) the Borrower shall have paid the fees and out-of-
pocket costs and expenses of counsel for the Agent
incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment No. 1.
9. Except as specifically set forth in this Amendment
No. 1, the Agreement and the other Loan Documents shall
remain unaltered and in full force and effect and the respective
terms, conditions and covenants thereof are hereby ratified
and confirmed in all respects.
10. Upon the effectiveness of this Amendment No. 1,
each reference in the Agreement to "this Agreement", "hereof",
"herein" or "hereunder" or words of like import, and all
references to the Agreement in any other Loan Documents
shall mean and be a reference to the Agreement as amended
hereby.
11. This Amendment No. 1 may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
12. THIS AMENDMENT NO. 1 SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS.
(Signature pages follow)
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment No. 1 and Waiver to Credit Agreement as of
the date first above written.
XXXX X. XXXXXXXXXX & SON, INC.
By /s/ Xxxx X. Xxxxxx
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Title: Executive Vice President and
Chief Financial Officer
BANK OF AMERICA ILLINOIS,
in its capacity as Agent
By /s/ Xxxxx X. Xxxxxx
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Title: Agency Management Services
Senior Agency Officer
BANK OF AMERICA ILLINOIS, in its Capacity
as a Lender, Issuing Lender and Issuer
By /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
THE NORTHERN TRUST COMPANY, in its Capacity
as a Lender
By /s/ Xxxxxx X. Xxxxx
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Title: Vice President
NATIONAL CITY BANK, in its Capacity
as a Lender
By /s/ Xxxxx Xxxxx
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Title: Vice President
