EXHIBIT 10.1
SECOND AMENDMENT TO FINANCING AGREEMENT
THIS SECOND AMENDMENT TO FINANCING AGREEMENT (this "Second Amendment") is
dated as of the 27th day of April, 2000 among GORGES/QUIK-TO-FIX FOODS, INC.
(the "Borrower"), THE CIT GROUP/BUSINESS CREDIT, INC. (the "Agent") and the
Lenders parties hereto;
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower and The CIT Group/Business Credit, Inc., as the Agent
and as a Lender, executed and delivered that certain Financing Agreement, dated
as of the 5th day of March, 1999, as amended by that certain Waiver and First
Amendment to Financing Agreement dated as of December 30, 2000 ( as so amended,
the "Financing Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Lenders amend
the Financing Agreement to include certain cash collateral deposited with the
Agent for the benefit of the Lenders in the calculation of "Availability" as
such term is defined in the Financing Agreement, to amend certain financial
covenants, and make certain other amendments;
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged by the parties hereto, the Borrower, the Agent and the Required
Lenders hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
-----------
used herein which is defined in the Financing Agreement shall have the meaning
assigned to such term in the Financing Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Financing Agreement shall from and after the date hereof refer to the Financing
Agreement as amended hereby.
2. Amendment to Section 1.1. Section 1.1 of the Financing Agreement
------------------------
hereby is amended by deleting the definitions of "Availability", "Permitted
Encumbrances", and "Permitted Indebtedness", and adding the following
definitions of "Availability", "Permitted Encumbrances", "Permitted
Indebtedness", and "Cash Collateral":
Availability shall mean at any time the excess of the sum of (i)
------------
the advance rate amount with respect to Eligible Accounts Receivable
as such amount is calculated pursuant to clause (i) of Section 3.1 of
this Financing Agreement, (ii) the advance rate amount with respect to
Eligible Finished Goods, Eligible Raw Meat Inventory, and Eligible
Supply Inventory as such amounts are calculated pursuant to clause
(ii) of Section 3.1 of this Financing Agreement, and (iii) the
Cash Collateral, over the sum of (x) the outstanding aggregate amount
of all Obligations (other than the Term Loans) and (y) the
Availability Reserve.
Cash Collateral shall mean at any time the sum of all monies
---------------
deposited by or for the benefit of the Company with the Agent and in
which the Agent holds a security interest for the ratably benefit of
the Lenders to secure the prompt payment in full of all loans and
advances made to the Company from time to time by the Lenders, as well
as to secure the payment in full of the other Obligations.
Permitted Encumbrances shall mean: (i) liens expressly permitted,
----------------------
or consented to, by the Agent in writing; (ii) Purchase Money Liens;
(iii) Customarily Permitted Liens; (iv) liens granted the Agent for
the ratable benefit of the Lenders by the Company; (v) liens of
judgment creditors provided such liens do not exceed, in the
aggregate, at any time, $200,000 (other than liens bonded or insured
to the reasonable satisfaction of the Agent; (vi) liens for taxes not
yet due and payable or which are being diligently contested in good
faith by the Company by appropriate proceedings and which liens are
not (x) senior to the liens of the Agent or (y) for taxes due the
United States of America; and (vii) liens subordinate in priority to
the liens of the Agent that have been approved by the Required
Lenders.
Permitted Indebtedness shall mean: (i) current indebtedness
----------------------
maturing in less than one year and incurred in the ordinary course of
business for raw materials, supplies, equipment, services, taxes or
labor; (ii) the indebtedness secured by the Purchase Money Liens;
(iii) indebtedness under Capital Leases permitted by Section 7.11,
(iv) Subordinated Debt; (v) indebtedness arising under the Letters of
Credit and this Financing Agreement; (vi) deferred taxes and other
expenses incurred in the ordinary course of business; (vii) other
indebtedness existing on the date of execution of this Financing
Agreement and listed on Exhibit E hereto and made a part hereof; and
(viii) indebtedness, the terms and conditions of which have been
approved by the Required Lenders.
3. Amendment to Section 3.1. Section 3.1 of the Financing Agreement
------------------------
hereby is amended by deleting it in its entirety and substituting the following
therefor:
Section 3.1 Loans and Advances. Each of the Lenders agrees, subject
-------------------------------
to the terms and conditions of this Financing Agreement from time to time, and
within (x) the Availability and (y) the Line of Credit, to make loans and
advances to the Company on a revolving basis (i.e. subject to the limitations
set forth herein the Company may borrow, repay and re-borrow Revolving Loans and
refinance existing LIBOR Loans with Refunding Loans). Such Loans and advances
shall be in amounts up to: (i) eighty five percent (85%) of the outstanding
Eligible Accounts Receivable of the Company, and (ii) the lesser of (x)
$10,000,000 or (y) the aggregate value (without duplication) of (A) 65% Eligible
Finished Goods and Eligible Raw Meat Inventory and (B) the lesser of $1,000,000
or 40% of Eligible Supply Inventory, each as determined at the lower of cost or
market on a first-in first-out basis. Should the Lenders for any reason honor
requests for advances in excess of the limitations set forth herein, such
advances shall be considered "overadvances" and shall be made only with the
written consent of
2
each of the Lenders. No single advance or overadvance hereunder may be
outstanding more than thirty-six (36) months from the date of such advance. The
Company promises to pay to the order of each Lender all of the outstanding
Revolving Loans, with interest thereon, as provided herein, and if not sooner,
on the Termination Date along with all other Obligations as the same become due
from time to time. Revolving Loans may be advanced as Base Rate Loans and/or
LIBOR Loans. At the direction of the Agent, the Lenders shall automatically and
without request of the Company make Revolving Loan advances to pay principal and
interest payments on the Term Loans, as and when they become due, and such
advances shall be made as Base Rate Loans.
4. Amendment to Section 7.9. Section 7.9 of the Financing Agreement
------------------------
hereby is amended by deleting it in its entirety and substituting the following
therefor:
Section 7.9 Net Worth. The Company shall maintain at the end of each
---------------------
of the periods below, a Net Worth of not less than:
Period Net Worth
------ ---------
Fiscal quarter ending on or about December 31, 1999 40,000,000
Fiscal quarter ending on or about March 31, 2000 37,500,000
The fiscal quarters ending on or about June 30, 2000 34,000,000
and September 30, 2000
Each fiscal quarter thereafter, the sum of the Net Worth required
for the proceeding fiscal quarter, plus $500,000
5. Amendment to Section 7.12. Section 7.12 of the Financing Agreement
-------------------------
hereby is amended by deleting it in its entirety and substituting the
following thereof:
Section 7.12 Fixed Charge Coverage Ratio. The company shall maintain
----------------------------------------
at the end of each fiscal period, an Fixed Charge Coverage Ratio of at least:
Fiscal Period Ratio
------------- -----
Fiscal quarters ending on or about on December 31, 0.60 to 1.0
1999
Fiscal quarter ending on or about on March 31,
2000, and the immediately preceeding fiscal quarter 0.60 to 1.0
Fiscal quarter ending on or about June 30,
2000, and the two immediately preceeding fiscal quarters 0.40 to 1.0
3
Fiscal quarter ending on or about on September 30,
2000, and the three immediately preceeding fiscal quarters 0.65 to 1.0
Fiscal quarter ending on or about on December 31,
2000, and the four immediately preceeding fiscal quarters 0.90 to 1.0
Each fiscal quarter thereafter, and the four immediately
preceeding fiscal quarters 1.10 to 1.0
6. Amendment to Section 7.13. Section 7.13 of the Financing Agreement
-------------------------
hereby is amended by deleting it in its entirety and substituting the following
therefor:
Section 7.13 Leverage Ratio. The Company shall maintain at the end of
---------------------------
each fiscal quarter ending on or about the dates set forth below a Leverage
Ratio of not more than:
Period Ratio
------ -----
Fiscal quarter ended on or about December 31, 2.75 to 1.0
1999
Fiscal quarter ended on or about
March 31, 2000 3.00 to 1.0
Fiscal quarter ended on or about
June 30, 2000 3.40 to 1.0
Fiscal quarter ended on or about
September 30, 2000
3.80 to 1.0
Fiscal quarters ended on or about
December 31, 2000 and March 31, 2001 3.50 to 1.0
Fiscal quarter ended on or about
June 30, 2001 3.00 to 1.0
Fiscal quarters ended on or about
September 30, 2001 and December 31, 2001 2.75 to 1.0
Each fiscal quarter thereafter 2.50 to 1.0
7. Amendment to Section 7.16. Section 7.16 of the Financing Agreement
---------------------------
is hereby is amended by deleting it in its entirety and substituting the
following therefor:
Section 7.16 Subordinated Debt. The Company shall not make any
-------------------------------
election to have Section 8.02 (pertaining to legal defeasance) or 8.03
(pertaining to covenant defeasance) of the Subordinated Notes Indenture
applicable to any of the Senior Notes, or make any payments to the defeasance
trust pursuant to Section 8.04 of the Subordinated Notes Indenture. The
4
Company shall not make any payment (principal or interest) with respect to or in
connection with (i) the Senior Notes, in contravention of the subordination
provisions contained herein and (ii) with respect to other Subordinated Debt
(including the Bridge Note), unless no Default or Event of Default is in
existence and both (a) the Company would have $1,000,000 of Availability after
the making of any such payment due on June 1, 2000, and $2,500,000 of
Availability after the making of any such payment due on any date thereafter,
and (b) for any such payment due on or after June 1, 2001, the Company's Fixed
Charge Coverage Ratio for the two fiscal quarters immediately preceeding such
payment exceeds 1.25 to 1.0.
8. Amendment to Section 7.18. Section 7.18 of the Financing Agreement
--------------------------
is hereby is amended by deleting it in its entirety and substituting the
following therefor:
Section 7.18 Minimum Availability. The Company shall maintain at the
-----------------------------------
end of each fiscal quarter ending after March 31, 2000, Availability of not less
than $1,000,000.
9. New Section 7.19. The Financing Agreement is hereby amended by adding
----------------
thereto a new Section 7.19 as follows:
Section 7.19 Minimum Monthly EBITDA. The Company shall have, as of the
-----------------------------------
end of each month ending on or after April 30, 2000, EBITDA for such month
and the two immediately preceeding months not less than that set forth
below:
Three Month Period Ending Minimum EBITDA
------------------------- --------------
April 30, 2000 $ 740,000
May 31, 2000 600,000
June 30, 2000 600,000
July 31, 2000 875,000
August 31, 2000 1,500,000
The last day of each month thereafter 1,500,000
10. Effect of Amendment. Except as set forth expressly hereinabove, all
-------------------
terms of the Financing Agreement and the other Loan Documents shall be and
remain in full force and effect, and shall constitute the legal, valid, binding
and enforceable obligations of the Company. The amendments contained herein
shall be deemed to have prospective application only, unless otherwise
specifically stated herein.
11. Reaffirmation; No Novation or Mutual Departure. The Company expressly
----------------------------------------------
acknowledges and agrees that: (i) there has not been, and this Second Amendment
does not constitute or establish, a novation with respect to the Financing
Agreement or any of the Loan Documents, or a mutual departure from the strict
terms, provisions and conditions thereof, other than the amendments and
modifications expressly set forth in Section 1 hereof ; and (ii) nothing in this
Second Amendment shall affect or limit the Agent's and the Lenders' right to
demand
5
payment of liabilities owing from the Company to the Agent and the Lenders
under, or to demand strict performance of the terms, provisions and conditions
of, the Financing Agreement and the other Loan Documents, to exercise any and
all rights, powers and remedies under the Financing Agreement or the other Loan
Documents or at law or in equity, or to do any and all of the foregoing,
immediately at any time after the occurrence of a Default or an Event of Default
which is not an Existing Default, pursuant to the Financing Agreement or the
other Loan Documents.
12. Ratification. The Company hereby restates, ratifies and reaffirms
------------
each and every term, covenant and condition set forth in the Financing Agreement
and the other Loan Documents effective as of the date hereof.
13. Counterparts. This Second Amendment 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 counterparts, taken together, shall constitute but one and the same
instrument.
14. Section References. Section titles and references used in this Second
------------------
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
15. No Right of Offset, etc.. To induce the Agent and the Required
------------------------
Lenders to enter into this Second Amendment and to continue to make advances
pursuant to the Financing Agreement, the Company hereby acknowledges and agrees
that, as of the date hereof, and after giving effect to the terms hereof, there
exists no right of offset, defense, counterclaim, claim or objection in favor of
the Company arising out of or with respect to any of the Loans or other
obligations of the Company owed to the Agent and the Lenders under the Financing
Agreement.
16. Further Assurances. The Company agrees to take such further actions
------------------
as the Agent shall reasonably request in connection herewith to evidence the
amendments herein contained to the Company.
17. Governing Law. This Second Amendment shall be governed by and
-------------
construed and interpreted in accordance with, the laws of the State of Georgia.
18. Conditions Precedent. This Second Amendment shall become effective
--------------------
only upon execution and delivery (i) of this Second Amendment by the Company,
the Agent and the Required Lenders, and (ii) of the Consent and Reaffirmation of
Guarantor at the end hereof by the Parent.
6
IN WITNESS WHEREOF, the Company, the Agent and the Required Lenders
have caused this Second Amendment to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
GORGES/QUIK-TO-FIX FOODS, INC., as the
Company (SEAL)
_______________________________________
By: ___________________________________
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Agent and as a Lender (SEAL)
By: ___________________________________
Title:
CAPITAL BUSINESS CREDIT, INC., A
DIVISION OF CAPITAL FACTORS, INC.,
as a Lender (SEAL)
By:
____________________________________
Title:
CONSECO FINANCE SERVICING
CORPORATION, f/k/a/ Green Tree Financial
Servicing Corporation, as a Lender (SEAL)
By:
____________________________________
Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as a Lender (SEAL)
By: ________________________________
Title:
7
CONSENT AND REAFFIRMATION OF GUARANTOR
The undersigned (i) acknowledges receipt of the foregoing Second Amendment
to Financing Agreement (the "Second Amendment"), (ii) consents to the execution
and delivery of the Second Amendment by the parties thereto and (iii) reaffirms
all of its obligations and covenants under the Guaranty dated as of March 5,
1999 executed by it, and agrees that none of such obligations and covenants
shall be affected by the execution and delivery of the Second Amendment.
GORGES HOLDING CORPORATION, as the
Parent (SEAL)
By: _____________________________
Title:
8
