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AMENDMENT NO. 5 AND WAIVER
This Amendment No. 5 and Waiver (this "Amendment") amends certain
provisions and waives certain covenants of that certain Credit Agreement dated
as of May 9, 1997 (as amended, modified and supplemented from time to time, the
"Credit Agreement"), among COLORADO PRIME CORPORATION, a Delaware corporation
("Borrower"), each institution identified as a lender on Annex I thereto (each,
together with its successors and assigns, a "Lender"), and DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES, acting as the Agents for itself and the other
Lenders ("Administrative Agent"), and is entered into as of December , 1998
among Borrower, the Administrative Agent and the Lenders executing the signature
pages hereof.
RECITALS
WHEREAS, Borrower is prohibited pursuant to Section 8.7(b) of the Credit
Agreement from repurchasing its Senior Notes, which currently are trading at a
discount;
WHEREAS, Xxxxxxxx has requested that the Lenders consent in advance to its
repurchase of up to $8,000,000 in fair market value of its Senior Notes to
enable Borrower to have the benefit of such discount; and
WHEREAS, Xxxxxxxx and Xxxxxxx desire to amend certain other provisions of
the Credit Agreement:
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein without definition
shall have the meanings assigned to 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.
2. Waiver: Section 8.7(b). Notwithstanding the terms of Section
8.7(b) of the Credit Agreement to the contrary, Required Lenders hereby
consent to Borrower repurchasing Senior Notes for an aggregate purchase
price not to exceed $8,000,000, provided, that such repurchase or
repurchases be completed on or before January 31, 1999 and that the
purchase price not exceed fifty-five (55%) of the face value of the Senior
Notes purchased.
3. Fee. Each time the Lenders advance Loans to the Borrower for the
repurchase of Senior Notes pursuant to the waiver granted in Section 3
hereof, Borrower shall pay Lenders a fee equal to the principal amount of
such Loans multiplied by 0.025.
4. Amendments. The Credit Agreement is hereby amended by:
(a) amending the definition of "Borrowing Base" in Section 1.1 by:
(i) changing the percentage of Eligible Food-Related Accounts and
Eligible Non-Food Accounts in subsections (a) and (b), respectively,
from eighty percent (80%) to seventy-percent (70%), and (ii) deleting
subsection (c) in its entirety and the words "or inventory" in the fifth
line of the proviso to such definition.
(b) deleting the current version of Exhibit C and replacing it with
the version of Exhibit C attached to this Amendment.
(c) amending Section 1.1 by deleting the definition of "Eligible
Inventory" therefrom.
(d) amending Section 4.7(a) by deleting the second sentence thereof
and replacing it with the following: "Borrower shall deliver to such
Monitoring Agent, if any, and the Disbursing Agent, a Borrowing Base
Certificate at the times required under Section 7.2(a)."
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(e) amending Section 4.7(e) by: (i) deleting in its entirety the
phrase "Upon the occurrence and during the continuance of an Event of
Default" at the beginning of both the first and second sentences and
inserting in lieu thereof the phrase "At any time", and (ii) deleting
the "." at the end of the second sentence and inserting in lieu thereof
the phrase ", such Lockbox to be established within sixty (60) days of
the Administrative Agent's request or such longer period of time as the
Administrative Agent may allow.".
(f) amending Section 7.2(a) by: (i) deleting the word "Monthly"
from the title of the subsection; (ii) deleting in its entirety the
phrase "On or before each date required under Section 4.7(a)" at the
beginning of the subsection; and (iii) inserting in lieu thereof the
phrase "On the first Business Day of each week".
(g) amending Xxxxx XXX, Pricing Grid, by adding 25 basis points
(0.25%) to each number in the columns headed "Revolver Applicable
Margin."
5. Lockboxes: Cash Dominion. The Borrower shall, and shall cause
each other Credit Party to, within sixty (60) days after the date hereof:
(a) enter into one or more Lockbox Agreements with the Disbursing Agent and
establish Lockboxes and Collection Accounts with the Disbursing Agent (to
the extent not already done); and (b) to notify all account debtors of each
Credit Party to remit all payments on the Accounts only through such
Lockboxes. The Administrative Agent hereby directs the Disbursing Agent to
take control of the Collection Accounts of the Credit Parties and to
perform the other functions specified for the Disbursing Agent in Section
4.7(c) of the Credit Agreement.
6. Representations. To induce the Administrative Agent and the
Lenders to enter into this Amendment, Borrower hereby represents and
warrants as follows:
(a) Representations and Warranties. All representations and
warranties contained in the Credit Agreement and the other Credit
Documents are true and correct in all material respects on and as of the
date hereof as if made on the date hereof, other than representations
and warranties that expressly relate solely to an earlier date; and
(b) No Defaults. No Default or Event of Default has occurred and
is continuing as of the date hereof.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which counterparts when executed and delivered shall
be an original, but all of which shall together constitute one and the same
agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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: /s/ XXXXXXX XXXXXX
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Title: VP
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ADMINISTRATIVE AGENT:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as the
Administrative Agent
By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx
Vice President
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Assistant Treasurer
LENDERS:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx
Vice President
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Assistant Treasurer
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BANK LEUMI USA, as a Lender
By: [ILLEGIBLE]
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By: [ILLEGIBLE]
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BANKBOSTON, N.A., as a Lender
By: [ILLEGIBLE]
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By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Managing Director
IBJ XXXXXXXX BANK & TRUST COMPANY,
as a Lender
By: [ILLEGIBLE]
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By:
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