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EXHIBIT 10.13
AMENDMENT NO. 2 AND WAIVER
This Amendment No. 2 and Waiver dated as of October 9, 1997 (this "Amendment")
to that certain Credit Agreement dated as of May 9, 1997 (as amended by that
certain Amendment No. 1 dated as of June 17, 1997 and from time to time,
including pursuant to this Amendment, the "Credit Agreement") among Colorado
Prime Corporation, a Delaware corporation, each institution identified as a
Lender on the signature pages hereto, IBJ Xxxxxxxx Bank & Trust Company, as the
Monitoring Agent and the Disbursing Agent, and Dresdner Bank AG, New York and
Grand Cayman Branches, as the Administrative Agent and the Collateral Agent for
itself and the other Lenders. All capitalized terms used herein but not defined
herein shall have the meanings given 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.
RECITALS
WHEREAS, the parties to the Credit Agreement wish to make certain amendments to,
and waive certain breaches of, the Credit Agreement;
AMENDMENT AND WAIVER
1. The Lenders and the Agents hereby waive the breach of the representation and
warranty contained in Section 6.16(b)(3)(ii) of the Credit Agreement caused by
the existence of the one underground storage tank at the Farmingdale, New York
facility. Provided that, on and after October 10, 1997, such underground storage
tank shall be and shall continue to be in compliance with (i) all Environmental
Laws and (ii) all of the terms and provisions of the Credit Agreement with the
exception of Section 6.16(b)(3)(ii), the existence of such underground storage
tank shall not be deemed to be a continuing breach of such provision.
2. The Lenders and the Agents hereby waive the breaches of the negative covenant
contained in Section 8.10 of the Credit Agreement which have occurred on or
prior to the date hereof and disclosed to the Lenders and the Agents
(specifically, that Borrower retained up to $813,633 of excess cash in violation
of Section 8.10). The Lenders and the Agents expressly reserve all of their
rights under the Credit Agreement with respect to any future breaches of Section
8.10 of the Credit Agreement.
3. The Disclosure Schedule is hereby amended by deleting Section 4.7 of the
Disclosure Schedule in its entirety and inserting in its place Exhibit "A"
attached hereto as Section 4.7 of the Disclosure Schedule.
4. The Lenders and the Agents hereby waive the Event of Default caused by
Borrower's failure to comply with Section 9.1(e) of the Credit Agreement.
Provided that all of the terms
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and provisions of Section 9.1(e) are complied with no later than October 31,
1997 (the "Dissolution Default Date"), no Event of Default shall be deemed to
have occurred with respect to Section 9.1(e) from the date hereof until the
Dissolution Default Date. The Lenders and the Agents expressly reserve all of
their rights to declare an Event of Default under the Credit Agreement in the
event that Borrower fails to comply with the terms and provisions of Section
9.1(e) on or prior to the Dissolution Default Date.
5. Except as expressly modified by this Amendment, all of the terms and
provisions of the Credit Agreement remain unmodified and in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 and
Waiver 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:____________________
Title:_________________
THE AGENTS:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as the Administrative Agent and the Collateral Agent
By:___________________
By:___________________
IBJ XXXXXXXX BANK & TRUST COMPANY,
as the Monitoring Agent and the Disbursing Agent
By:____________________
By:____________________
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LENDERS:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By:___________________
By:___________________
BANKBOSTON, N.A.,
as a Lender
By:___________________
By:___________________
BANK LEUMI TRUST COMPANY OF NEW YORK,
as a Lender
By:____________________
By:_____________________
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EXHIBIT "A"
Section 4.7 of the Disclosure Schedule
Borrower may establish an account (the "Consultant Fee Account") in the
name of Parent with any institution that is a Lender as of September 15, 1997,
provided that: (i) the Consultant Fee Account is used solely to pay the sum of
$35,000 per year to the extent legally owed (the "Consultant Fee") to Xxxx
Xxxxxxxxx ("Xx. Xxxxxxxxx") in his capacity as an independent consultant to
Parent pursuant to the written agreement which has been furnished to the
Administrative Agent or another written agreement with terms substantially
similar thereto; (ii) the Consultant Fee Account shall at no time have a balance
of more than $35,000; (iii) there shall be no funds disbursed to the Consultant
Fee Account by Borrower, Parent or any other Credit Party until such time as the
Consultant Fee is due and payable to Xx. Xxxxxxxxx; and (iv) such funds shall be
paid promptly to Xx. Xxxxxxxxx as payment of the Consultant Fee only. The funds
for the Consultant Fee Account shall be made available by either (a) a dividend
from Borrower to Parent, (b) a loan from Borrower to Parent, or (c) any other
mechanism permitted by applicable law and reasonably satisfactory to the
Administrative Agent. Borrower shall furnish to the Administrative Agent
documentation reasonably satisfactory to the Administrative Agent evidencing
each such dividend, loan, or other mechanism, as applicable, promptly after the
execution thereof. If Borrower elects to make a loan to Parent to fund the
Consultant Fee Account, such loan shall be evidenced by a promissory note
reasonably satisfactory to the Collateral Agent, which shall be pledged to the
Collateral Agent pursuant to the terms of the Borrower Pledge Agreement.
