FIRST AMENDMENT
Exhibit 10.4
FIRST
AMENDMENT
THIS
FIRST AMENDMENT dated as of March 19, 2010 (this “Amendment”) amends
the Credit Agreement dated as of October 20, 2006 (the “Credit Agreement”)
among XXXXX, INC., a North Carolina corporation (the “Company”), TAMMING
FOODS LTD. (doing business as Xxxxx Canada), an Ontario corporation (the “Canadian Borrower”
and together with the Company, collectively the “Borrowers”), the
several financial institutions from time to time party thereto (collectively the
“Lenders”;
individually each a “Lender”), XXXXX FARGO
SECURITIES, LLC (formerly known as Wachovia Capital Markets, LLC), as
syndication agent, and BANK OF AMERICA, NATIONAL ASSOCIATION, as letter of
credit issuing lender, as administrative agent for the Lenders, and as Canadian
Agent. Terms defined in the Credit Agreement are, unless otherwise
defined herein or the context otherwise requires, used herein as defined
therein.
WHEREAS,
the Company, the Canadian Borrower, the Lenders and the Agents have entered into
the Credit Agreement; and
WHEREAS,
the parties hereto desire to amend the Credit Agreement in certain respects as
more fully set forth herein;
SECTION
1 Amendments. Subject
to the satisfaction of the conditions precedent set forth in Section 3, the Credit
Agreement shall be amended as follows.
1.1 Amendment of
Definition. Section 1.1 of the Credit Agreement is amended so
that the definition of “EBITDA” reads in its entirety as follows:
EBITDA means, for any
Computation Period, the Company’s consolidated net income from continuing
operations for such period, plus, to the extent
deducted in determining such earnings, Interest Expense, income taxes,
depreciation and amortization, minus, to the extent
included in determining such earnings, any income tax refunds, plus any Acquired
EBITDA and any fees and expenses incurred in connection with any Acquisition,
any costs or charges to the Company and its Subsidiaries as a result of an
increase in value to the pre-acquisition historical amounts of accounts
receivables, inventories or any other current assets (a “write-up”), in each
case to the extent that such write-up is required by GAAP and occurs as a result
of an Acquisition, minus any Disposed
EBITDA.
1.2 Addition of
Definitions. Section 1.1 of the Credit Agreement is further
amended by adding thereto the following definitions in proper alphabetical
sequence:
Acquired EBITDA
means, with respect to any Person or division (or similar business unit)
acquired by the Company in an Acquisition during any Computation Period, the
total of (a) the consolidated net income from continuing operations of such
Person or division (or similar business unit) for the period from the first day
of such Computation Period to the date of such acquisition plus (b) to the
extent deducted in determining such consolidated net income (and without
duplication), interest expense (whether paid or accrued and including imputed
interest expense in respect of capital lease obligations), income taxes,
depreciation and amortization, all calculated on a basis approved by the
Administrative Agent minus (c) to the
extent included in such consolidated net income, any income tax
refunds.
Disposed EBITDA
means, with respect to any Person or division (or similar business unit) sold or
otherwise disposed of by the Company during any Computation Period, the total of
(a) the consolidated net income from continuing operations of such Person or
division (or similar business unit) for the period from the first day of such
Computation Period to the date of such sale or other disposition plus (b) to the
extent deducted in determining such consolidated net income (and without
duplication), interest expense (whether paid or accrued and including imputed
interest expense in respect of capital lease obligations), income taxes,
depreciation and amortization, all calculated on a basis approved by the
Administrative Agent minus (c) to the
extent included in such consolidated net income, any income tax
refunds.
SECTION
2 Warranties. The
Company represents and warrants to each Agent and each Lender (and the Canadian
Borrower represents and warrants with respect to itself to each Agent and each
Lender) that, after giving effect to the effectiveness of this Amendment, (a)
each warranty set forth in Article VI of the Credit Agreement is true and
correct in all material respects, except to the extent that such warranty
specifically refers to an earlier date, and (b) no Event of Default or Unmatured
Event of Default exists.
SECTION
3 Effectiveness of
Amendments.
3.1 Amendments. The
amendments set forth in Section 1 above shall
become effective when the Administrative Agent shall have received all of the
following (provided that the following are received on or before March 19,
2010): (i) counterparts of this Amendment executed by the Company,
the Canadian Borrower, the Required Lenders and the Administrative Agent; (ii)
all documents as shall reasonably demonstrate the corporate power and authority
of the Borrowers to enter into, and the validity with respect to the Borrowers
of, this Amendment and the other Loan Documents and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative Agent; and
(iii) all governmental and third party approvals, if any, necessary or advisable
in connection with the execution, delivery and performance of this Amendment by
the Borrowers.
SECTION
4 Miscellaneous.
4.1 Continuing Effectiveness,
etc. As herein amended, the Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed in all
respects. After the effectiveness of this Amendment, all references
in the Credit Agreement and the other Loan Documents to “Credit Agreement” or
similar terms shall refer to the Credit Agreement as amended
hereby.
4.2 Counterparts. This
Amendment may be executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed to
be an original but all such counterparts shall together constitute one and the
same Amendment. Delivery of a signed signature page hereto by
facsimile or e-mail (in a .pdf or similar file) shall be effective as delivery
of a manually signed counterpart hereof.
4.3 Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO THE
CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF; PROVIDED THAT THE PARTIES HERETO
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
4.4 Successors and
Assigns. This Amendment shall be binding upon the Borrowers,
the Lenders and the Agents and their respective successors and assigns, and
shall inure to the benefit of the Borrowers, the Lenders and the Agents and the
respective successors and assigns of the Lenders and the Agents.
[Signature
Pages Follow]
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1505445
99529018
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XXXXX,
INC.
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By:
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/s/
Xxxx X. Xxxxxxx
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Title:
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Executive
Vice President
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TAMMING
FOODS LTD.
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By:
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/s/
Xxxx X. Xxxxxxx
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Title:
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Executive
Vice President
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1505445
99529018
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S-1
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FIRST
AMENDMENT
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BANK
OF AMERICA, NATIONAL
ASSOCIATION,
as Administrative Agent
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Title:
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Senior
Vice President
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BANK
OF AMERICA, NATIONAL
ASSOCIATION,
as an Issuing Lender and a U.S.
Revolving
Credit Lender
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-2
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FIRST
AMENDMENT
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WACHOVIA
BANK, NATIONAL
ASSOCIATION,
as a Term Lender and U.S.
Revolving
Credit Lender
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By:
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/s/
Xxxxx Santa Xxxx
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Title:
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Director
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1505445
99529018
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S-4
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FIRST
AMENDMENT
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REGIONS
BANK, as a Term Lender and U.S.
Revolving
Credit Lender
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By:
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/s/
Xxxxxxx XxXxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-5
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FIRST
AMENDMENT
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BRANCH
BANKING AND TRUST COMPANY, as a Term Lender and U.S. Revolving Credit
Lender
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By:
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/s/
Xxxxxx X. Xxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-6
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FIRST
AMENDMENT
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JPMORGAN
CHASE BANK, N.A., as a Term Lender and U.S. Revolving Credit
Lender
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-7
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FIRST
AMENDMENT
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SUNTRUST
BANK, as a Term Lender and U.S. Revolving Credit Lender
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By:
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/s/
M. Xxxx Xxxxxxxx
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Title:
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Vice
President
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1505445
99529018
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S-8
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FIRST
AMENDMENT
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BANK
OF AMERICA, NATIONAL ASSOCIATION, acting through its Canada
Branch,
as Canadian Agent and
a
Canadian Lender
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By:
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/s/
Xxxxxx Sales xx Xxxxxxx
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Title:
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Vice
President
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1505445
99529018
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S-9
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FIRST
AMENDMENT
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WACHOVIA
CAPITAL FINANCE CORPORATION (CANADA), as a Canadian
Lender
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By:
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/s/ Xxxxx
Xxxxxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-10
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FIRST
AMENDMENT
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JPMORGAN
CHASE BANK, N.A., as a Canadian Lender
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By:
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/s/ Xxxxxxx
X. Xxxxxxxx
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Title:
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Senior
Vice President
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1505445
99529018
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S-11
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FIRST
AMENDMENT
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