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EXHIBIT 10.34
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AND WAIVER
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT AND WAIVER, dated as of April
14, 1999 (the "AMENDMENT") relating to the Credit Agreement referenced below, by
and among FRESH FOODS, INC., a North Carolina corporation (the "COMPANY"), the
subsidiaries of the Company listed on the signature pages hereto (collectively
referred to as the "SUBSIDIARY BORROWERS" or individually referred to as a
"SUBSIDIARY BORROWER") (hereinafter, the Company and the Subsidiary Borrowers
are collectively referred to as the "BORROWERS" or individually referred to as a
"BORROWER"), each of those financial institutions identified as Lenders on the
signature pages hereto (together with each of their successors and assigns,
referred to individually as a "LENDER" and, collectively, as the "LENDERS"), and
FIRST UNION COMMERCIAL CORPORATION ("FUCC"), acting in the manner and to the
extent described in Article XIII of the Credit Agreement (in such capacity, the
"AGENT"). Terms used herein but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $75,000,000 credit facility was extended to the Borrowers
pursuant to the terms of that certain Credit Agreement dated as of June 9, 1998
(as amended, modified or otherwise supplemented, the "CREDIT AGREEMENT") among
the Borrowers, the Lenders and the Agent;
WHEREAS, the Borrowers have requested that the Credit Agreement be
amended as described herein; and
WHEREAS, the Lenders are willing to make such amendments;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
(A) AMENDMENTS.
1. AMENDMENTS TO SECTION 1.1.
(a) Clause (v) of the definition of Permitted
Indebtedness is amended by deleting the second proviso
thereof.
(b) The definition of Permitted Indebtedness is
further amended by renumbering the first clause (viii) as
clause (vii), renumbering the second clause (viii) as clause
(ix), and adding the following new clause (viii):
(viii) unsecured letters of credit in
addition to any Letters of Credit that may be issued
under this Agreement, not to exceed $2,000,000 in the
aggregate at any time; and
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2. AMENDMENT TO SECTION 7.1.
(a) Section 7.1(b) is amended by deleting the words
"forty-five (45)" in the first sentence thereof and inserting
the words "fifty (50)" in their place.
(b) Section 7.1(f) is amended by deleting the words
"forty-five (45)" and inserting the words "fifty (50)" in
their place.
3. WAIVER OF SECTION 9.4. Any violation of Section 9.4
occurring as a result of the change of the Company's principal place of
business from Xxx XXXX Xxxxx, Xxxxxxxxx, XX 00000 to 000 0xx Xxxxxx XX,
Xxxxxxx, XX 00000 is hereby waived.
(B) REPRESENTATIONS AND WARRANTIES.
Each Borrower hereby represents and warrants that (i) the
representations and warranties contained in Article VI of the Credit Agreement
are correct on and as of the date hereof as though made on and as of such date
(except for those representations and warranties which by their terms relate
solely to an earlier date) and after giving effect to the amendments contained
herein, (ii) no Default or Event of Default exists under the Credit Agreement on
and as of the date hereof and after giving effect to the amendments contained
herein, (iii) it has the corporate power and authority to execute and deliver
this Amendment and to perform its obligations hereunder and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of this Amendment and (iv) it has duly executed and delivered this
Amendment, and this Amendment constitutes its legal, valid and binding
obligation enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
the rights of creditors generally or by general principles of equity.
(C) This Amendment shall become effective upon receipt by the Agent of
executed signature pages to this Amendment.
(D) Except as expressly amended or modified by the terms hereof, the
Credit Agreement each other Credit Document shall remain in full force and
effect. This Amendment shall not affect, modify or diminish the obligations of
the Borrowers which have accrued prior to the effectiveness of the provisions
hereof. The waiver contained herein shall be effective only in the specific
instance, for the specific purpose for which given and for the period of time
set forth herein.
(E) The Borrowers agree to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
(F) This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
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(G) This Amendment and the Credit Agreement as amended hereby shall be
governed by and construed and interpreted in accordance with the laws of the
State of North Carolina.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
COMPANY: FRESH FOODS, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
SUBSIDIARY BORROWERS: CLAREMONT RESTAURANT GROUP, LLC
BY: FRESH FOODS, INC.,
its Sole Member
FRESH FOODS RESTAURANT GROUP, LLC
BY: CLAREMONT RESTAURANT
GROUP, LLC, its Sole Member
BY: FRESH FOODS, INC.,
its Sole Member
FRESH FOODS PROPERTIES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
SPICEWOOD, INC.
SUNSHINE WSMP, INC.
FRESH FOODS SALES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
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PIERRE FOODS, LLC
BY: FRESH FOODS, INC.,
its Sole Member
MOM `n' POP'S COUNTRY HAM, LLC
BY: PIERRE FOODS, LLC,
its Sole Member
BY: FRESH FOODS, INC.,
its Sole Member
SAGEBRUSH OF TENNESSEE, L.P.
BY: SAGEBRUSH OF SOUTH
CAROLINA, LLC
General Partner
BY: CLAREMONT
RESTAURANT
GROUP, LLC, its Sole
Member
BY: FRESH FOODS,INC.,
its sole member
SAGEBRUSH OF NORTH CAROLINA, LLC
BY: CLAREMONT RESTAURANT
GROUP, LLC its Sole Member
BY: FRESH FOODS, INC.,
its sole member
SAGEBRUSH OF SOUTH CAROLINA, LLC
BY: CLAREMONT RESTAURANT
GROUP, LLC, its Sole Member
BY: FRESH FOODS, INC.,
its sole member
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PIERRE LEASING, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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AGENT AND LENDERS: FIRST UNION COMMERCIAL CORPORATION,
as Agent and a Lender
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: VP
NATIONSBANK, N.A.,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx Xxxxx
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Name: Xxxxxx Xxxxxxxx Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC.,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Sr. VP
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
