NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of May 3, 1999, by and between XXXXXXXXX FOODS VENTURE, L. P., a Texas limited
partnership (the "Borrower"), and PNC BANK, NATIONAL ASSOCIATION, a national
banking association, successor by merger to PNC Bank, Ohio, National
Association, as Agent (the "Agent"), for the Lenders under the below-defined
Credit Agreement, THE FIFTH THIRD BANK OF WESTERN OHIO, an Ohio state banking
corporation, and PNC BANK, NATIONAL ASSOCIATION, successor by merger to PNC
Bank, Ohio, National Association, (each individually a "Lender" and
collectively, the "Lenders").
WITNESSETH:
WHERAS, the Borrower, the Agent and the Lenders entered into a Credit
Agreement dated June 13, 1994, which was subsequently amended by an Amendment to
Credit Agreement dated March 31, 1995, a Second Amendment to Credit Agreement
dated April 20, 1995, a Third Amendment to Credit Agreement dated July 11,1995,
a Fourth Amendment to Credit Agreement dated November 7, 1995, a Fifth Amendment
and Waiver Agreement dated May 9, 1996, a Sixth Amendment to Credit Agreement
dated as of June 30, 1997, a Seventh Amendment and Waiver Agreement dated as of
March 26, 1998 and an Eighth Amendment to Credit Agreement dated July 1, 1998
(collectively, the "Credit Agreement")which evidences the Borrower's obligations
for one or more loans or other extensions of credit (the "Obligations"); and
WHEREAS, the Borrower, the Agent and the Lenders desire to amend the
Credit Agreement as provided for below;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Amendments. The Credit Agreement is amended as follows:
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1.1 Section 2.1(a) is amended to delete "(Three Million
Dollars ($3,000,000.00)" from the fourth line thereof and insert "Three Million
Five Hundred Thousand Dollars ($3,500,000.00)" in its place, and to delete
"$3,000,000.00" from the ninth line thereof and insert "3,500,000.00 " in its
place.
1.2 Section 2.8 is amended to delete "$l,000,000.00" from the
fifth line thereof and insert "$1,250,000.00" in its place.
1.3 The following representation and warranty is added to
the Credit Agreement as Section 3.17 thereof:
"3.17. The Borrower has reviewed the areas within its business and
operations which could be adversely affected by, and has developed or
is developing a program to address on a timely basis the risk that
certain computer applications used by the Borrower may be unable to
recognize and perform properly date-sensitive functions involving
dates prior to and after December 31, 1999 (the "Year 2000 Problem").
The Year 2000 Problem will not result, and is not reasonably expected
to result, in any material adverse effect on the business,
properties, assets, financial condition, results of operations or
prospects of the Borrower, or the ability of the Borrower to duly and
punctually pay or Perform its obligations under this Agreement."
2. Any and all references to the Credit Agreement in any other Loan
Documents shall be deemed to refer to such Credit Agreement as amended hereby.
Any initially capitalized terms used in this Amendment without definition shall
have the meanings assigned to those terms in the Credit Agreement.
3. This Amendment is deemed incorporated into each of the Loan
Documents. To the extent that any term or provision of this Amendment is or may
be deemed expressly inconsistent with any term or provision in any Loan
Document, the terms and provisions hereof shall control.
4. The Borrower hereby represents and warrants that (a) all of its
representations and warranties in the Loan Documents are true and correct, (b)
no default or Event of Default exists under any Loan Document, and (c) this
Amendment has been duly authorized, executed and delivered and constitutes its
legal, valid and binding obligation, enforceable in accordance with its terms.
5. The Borrower hereby confirms that any collateral for the
Obligations, including but not limited to liens, security interests, mortgages,
and pledges granted by the Borrower or third patties (if applicable), shall
continue unimpaired and in full force and effect.
6. This Amendment will be binding upon and inure to the benefit of
the Borrower, the agent and the Lenders and their respective successors and
assigns.
7. Except as amended hereby, the terms and provisions of the Loan
Documents remain unchanged and in full force and effect. Except as expressly
provided herein, this Amendment shall not constitute an amendment, waiver,
consent or release with respect to any provision of any Loan Document, a waiver
of any default or Event of Default thereunder, or a waiver or release of any of
the Agent's or the Lenders' rights and remedies (all of which are hereby
reserved). The Borrower expressly ratifies and confirms the confession of
judgment and waiver of jury trial provisions.
Executed as of the date first written above.
XXXXXXXXX FOODS VENTURE, L. P.,
a Texas limited partnership
By: G/W FOODS, INC., general partner,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Print Name: Xxxxxx X. Xxxxxxxxx
Title: President
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PNC BANK, NATIONAL ASSOCIATION, as Agent
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE FIFTH THIRD BANK OF
WESTERN OHIO an Ohio state
banking corporation, as a
Lender
By: /s/ K. Xxxxxxx Xxxxxxx
Print Name: K. Xxxxxxx Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Agent
a national banking association, as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
STATE OF Ohio )
----------------------
) SS:
COUNTY OF Darke )
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The foregoing instrument was acknowledged before me this 23rd day of June,
1999 by Xxxxxx X. Xxxxxxxxx of G/W Foods, Inc. a Texas corporation, on behalf of
the corporation as general partner of Xxxxxxxxx Venture, L.P., a Texas limited
partnership.
/s/ Xxxxxx X. Xxxxx
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Notary Public
May 10, 1999
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CERTIFICATE OF THE SECRETARY
----------------------------
OF
--
G/W FOODS, INC.
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The undersigned, Secretary of G/W FOODS, INC., a Texas corporation (the
"Corporation"), hereby certifies to PNC BANK, NATIONAL ASSOCIATION, a national
banking association, successor by merger to PNC Bank, Ohio, National Association
("the Bank"), as follows:
1. The following Resolution was duly adopted and is a binding resolution of
the corporation:
RESOLVED, that the Corporation, as General Partner of
XXXXXXXXX FOODS VENTURE, L. P., a Texas limited partnership (the
"Partnership"), amend the Revolving Note by and between the Partnership
and the Bank dated June 13, 1994, in the original principal amount of
One Million One Hundred Thousand Dollars ($1,100,000.00), as
subsequently amended by an Amendment to Revolving Note dated March 31,
1995, a Second Amendment to Revolving Note dated July 1, 1995 and a
Third Amendment to Revolving Note dated July 1, 1998 (collectively, the
"Note"), to increase the amount available to the Partnership under the
Note to $1,925,000.00; and
FURTHER RESOLVED, that the Corporation, as General Partner of
the Partnership, amend the Credit Agreement by and between the
Partnership, the Bank and The Fifth Third Bank of Western Ohio, dated
June 13, 1994, as amended, to increase the credit facility available
thereunder;
FURTHER RESOLVED, that the President, any Vice President or
the Treasurer be, and they hereby are, authorized to execute, on behalf
of the Corporation as General Partner of Partnership, any and all
documents to effectuate and secure such amendment including, without
limitation, a Ninth Amendment to Loan Agreement, a Fourth Amendment to
Revolving Note, and other necessary or appropriate documents in
connection herewith.
2. The following is a compete and accurate list of the Officers of the
Corporation as of June 24, 1999.
President Xxxxxx X. Xxxxxxxxx
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Vice President
-------------------
Secretary Xxxxxxx X. Xxxxxxxx
-------------------
Assistant Secretary
-------------------
Chief Executive Officer Xxxxx X. Xxxxxx
-------------------
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Secretary
Xxxxxxx X. Xxxxxxxx
May 10, 1999
CERTIFICATE OF THE SECRETARY
----------------------------
OF
--
G/W FOODS, INC.
---------------
The undersigned, Secretary of G/W FOODS, INC., a Texas corporation (the
"Corporation"), hereby certifies to THE FIFTH THIRD BANK OF WESTERN OHIO, an
Ohio state banking corporation (" the Bank"), as follows:
1. The following Resolution was duly adopted and is a binding resolution of
the Corporation:
RESOLVED, that the Corporation, as General Partner of
XXXXXXXXX FOODS VENTURE, L.P, a Texas limited partnership (the
"Partnership"), amend the Revolving Note by and between the Partnership
and the Bank dated June 13, 1994, in the original principal amount of
Nine Hundred Thousand Dollars ($1,100,000.00), as subsequently amended
by an Amendment to Revolving Note dated March 31, 1995, Second
Amendment to Revolving Note dated July 1, 1995 and a Third Amendment to
Revolving Note dated July 1, 1998 (collectively, the "Note"), to
increase the amount available to the Partnership under the Note to
$1,575,000.00; and
FURTHUR RESOLVED, that the Corporation, as General Partner of
the Partnership, amend the credit Agreement by and between the
Partnership, PNC Bank, National Association, and the Bank dated June
13, 1994, as amended, to increase the credit available thereunder;
FURTHER RESOLVED, that the President, any Vice President or
the Treasurer be, and they hereby are authorized to execute, on behalf
of the Corporation as General Partner of Partnership, any and all
documents to effectuate and secure such amendment including, without
limitation, a Ninth Amendment to Loan Agreement, a Fourth Amendment to
Revolving Note, and other necessary or appropriate documents in
connection herewith.
2. The following is a compete and accurate list of the Officers of the
Corporation as of June 24, 1999.
President Xxxxxx X. Xxxxxxxxx
-------------------
Vice President
-------------------
Secretary Xxxxxxx X. Xxxxxxxx
-------------------
Assistant Secretary
-------------------
Chief Executive Officer Xxxxx X. Xxxxxx
-------------------
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Secretary
Xxxxxxx X. Xxxxxxxx
May 10, 1999
G/W FOODS, INC.
DIRECTORS' ACTION BY
UNANIMOUS CONSENT IN LIEU OF MEETING
------------------------------------
Pursuant to Article 9.106B of the Texas Business Corporation Act, the
undersigned, being all of the Directors of G/W Foods, Inc., a Texas corporation
(the "Corporation"), do hereby vote for, consent to, adopt and authorize the
following resolutions with respect to PNC Bank, National Association (the
"Bank"):
RESOLVED, that the Corporation, as General Partner of
XXXXXXXXX FOODS VENTURE, L. P., a Texas limited partnership (the
"Partnership"), amend the Revolving Note by and between the Partnership
and the Bank dated June 13, 1994, in the original principal amount of
One Million One Hundred Thousand Dollars ($1,100,000.00), as
subsequently amended by an Amendment to Revolving Note dated March 31,
1995, a Second Amendment to Revolving Note dated July 1, 1995 and a
Third Amendment to Revolving Note dated July 1, 1998 (collectively, the
"Note"), to increase the amount available to the Partnership under the
Note to $1,925,000.00;
FURTHER RESOLVED, that the Corporation, as General Partner of
the Partnership, amend the Credit Agreement by and between the
Partnership, the Bank and The Fifth Third Bank of Western Ohio, dated
June 13, 1994, as amended, to increase the credit facility available
thereunder; and
FURTHER RESOLVED, that the President, any Vice President or the
Treasurer be, and they hereby are, authorized to execute, on behalf of
the Corporation as General Partner of Partnership, any and all documents
to effectuate and secure such amendment including, without limitation, a
Ninth Amendment to Loan Agreement, a Fourth Amendment to Revolving Note,
and other necessary or appropriate documents in connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 24th day of June, 1999.
--------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
G/W FOODS, INC.
DIRECTORS' ACTION BY
UNANIMOUS CONSENT IN LIEU OF MEETING
------------------------------------
Pursuant to Article 9.1OB of the Texas Business Corporation Act, the
Undersigned, being all of the Directors of G/W Foods, Inc., a Texas corporation
(the "Corporation"), do hereby vote for, consent to, adopt and authorize the
following resolutions with respect to The Fifth Third Bank of Western Ohio (the
"Bank"):
RESOLVED, that the Corporation, as General Partner of
XXXXXXXXX FOODS VENTURE, L. P., a Texas limited partnership (the
"Partnership"), amend the Revolving Note by and between the Partnership
and the Bank dated June 13, 1994, in the original principal amount of
Nine Hundred Thousand ($l,100,000.00), as subsequently amended by an
Amendment to Revolving Note dated March 31, 1995, a Second Amendment to
Revolving Note dated July 1, 1995 and a Third Amendment to Revolving
Note dated July 1, 1999 (collectively, the "Note"), to increase the
amount available to the Partnership under the Note to $1,575,000.00;
FURTHER RESOLVED, that the Corporation, as General Partner of
the Partnership, amend the Credit Agreement by and between the
Partnership, PNC Bank, National Association, and the Bank dated June
13, 1994, as amended, to increase the credit facility available
thereunder; and
FURTHER RESOLVED, that the President, any Vice President or
the Treasurer be, and they hereby are, authorized to execute, on behalf
of the Corporation as General Partner of Partnership, any and all
documents to effectuate and secure such amendment including, without
limitation, a Ninth Amendment to Loan Agreement, a Fourth Amendment to
Revolving Note, and other necessary or appropriate documents in
connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the 24th
day of June, 1999.
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Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx