EXHIBIT 10.1c
WAIVER, CONSENT AND AMENDMENT
Dated as of April 24, 1997
PRELIMINARY STATEMENTS.
(1) Reference is hereby made to the Credit Agreement
dated as of December 11, 1995 among Foodbrands America, Inc., a
Delaware corporation (the "Borrower"), the financial institutions
parties thereto as lenders (the "Lenders"), The Chase Manhattan
Bank, formerly known as Chemical Bank, a New York banking
corporation, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), collateral agent and
issuing lender and Citibank, N.A. as managing agent, as amended
by Amendment No. 1 to the Credit Agreement dated as of May 13,
1996 and Amendment No. 2 dated as of January 31, 1997. The
Credit Agreement as so amended shall be referred to herein as the
"Credit Agreement". Capitalized terms used in this Waiver,
Consent and Amendment and not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement.
(2) The Borrower has notified the Administrative
Agent that IBP, inc., a Delaware corporation ("IBP"), has entered
into an agreement to acquire the outstanding shares of the stock
of the Borrower pursuant to a cash tender offer (the "Tender
Offer") and that, upon its acquisition of at least 50% of the
outstanding shares of the Borrower, IBP intends to merge IBP
Sub, Inc., a Delaware corporation and wholly-owned subsidiary of
IBP, with and into the Borrower, with the Borrower as the
surviving corporation (the "Merger").
(3) The Borrower has requested that the Lenders (i)
waive any event of default that might occur under Article VII of
the Credit Agreement if sufficient shares of the Borrower
are tendered to IBP to constitute a "Change of Control", as such
term is defined in the Credit Agreement, (ii) consent to the
Merger and waive any breach of the negative covenant contained
in Section 7.05 of the Credit Agreement which might occur because
of the Merger and (iii) continue to provide the credit facilities
under the terms of the Credit Agreement to the Borrower for a
specified period of time after the Merger or the Tender Offer.
In consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto
agree, on the terms and subject to the conditions set forth
herein, as follows:
SECTION 1. Waiver.
(a) The Lenders hereby waive the event of default
which will occur pursuant to paragraph (n) of Article VIII of the
Credit Agreement when IBP acquires the shares of stock of the
Borrower tendered pursuant to the Tender Offer.
(b) The Lenders hereby also waive the breach of the
negative covenant contained in Section 7.09(e) of the Credit
Agreement which will occur when the Borrower delivers notice of
its offer to purchase the Subordinated Notes under Section 4.12
of the 2006 Subordinated Note Indenture; provided, however, that
such waiver shall only be effective if all such purchases are
made using funds borrowed in a transaction which qualifies as
Subordinated Note Refinancing Debt under the Credit Agreement.
SECTION 2. Consent. The Lenders hereby consent to the
Merger and waive the breach of the negative covenant contained in
Section 7.05 of the Credit Agreement which will occur as a result
of the Merger.
SECTION 3. Amendment of the Credit Agreement. The
Credit Agreement is amended as follows:
(a) The following definitions are added to the Credit
Agreement:
" "Merger" shall have the meaning assigned to such
term in the Waiver, Consent and Amendment.
"Tender Offer" shall have the meaning assigned to
such term in the Waiver, Consent and Amendment.
"Waiver, Consent and Amendment" shall mean the
Waiver, Consent and Amendment dated as of April 24,
1997 among the Borrower, the Lenders party thereto,
the Administrative Agent and the Subsidiaries party
thereto."
(b) Section 2.13 of the Credit Agreement is amended to
replace the phrase "and paragraph (g)" in paragraph (e) thereof
with "and paragraphs (g) and (i)", to replace the phrase "and
paragraph (d)" in paragraph (g) thereof with ", paragraph (d) and
paragraph (i)" and to add paragraph (i) at the end of Section
2.13 as follows:
" (i) On the earlier of the date that is 120 days
after the Merger and the date that is 165 days after
the consummation of the tender of shares pursuant to
the Tender Offer, (i) the Borrower shall prepay all
Obligations then outstanding under the Credit Agreement
or any other Loan Document, (ii) the Borrower shall
return all outstanding Letters of Credit for
cancellation, and (iii) the Commitments and LC
Commitment shall terminate automatically and without
notice. Notwithstanding any other provision of this
Agreement, no Lender may decline any prepayment
provided for in this clause (i)."
SECTION 4. Conditions of Effectiveness. This
Waiver, Consent and Amendment shall be effective upon the
execution hereof by the Borrower, each Subsidiary Guarantor and
Lenders constituting the Required Lenders and upon the
satisfaction of the following conditions precedent:
(a) Holders of shares of the capital stock of the
Borrower representing not less that 50% of the aggregate
ordinary voting power of such shares shall have tendered
such shares pursuant to the Tender Offer;
(b) The terms of the Tender Offer shall be
substantially identical to those disclosed in the Schedule
14D-1 Tender Offer Statement and Schedule 13D of Foodbrands
America, Inc., IBP Sub, Inc., IBP Foodservice, L.L.C., and
IBP, inc. dated March 25, 1997, including all exhibits
attached thereto and documents incorporated by reference
therein; and
(c) The terms of the Merger shall be substantially
identical to those disclosed in the Agreement and Plan of
Merger by and among Foodbrands America, Inc. and IBP, inc.
and IBP Sub, Inc. dated as of March 25, 1997.
SECTION 5. Representations and Warranties. The
Borrower represents and warrants to each of the Lenders, the
Administrative Agent, the Collateral Agent and the Issuing
Lender that:
(a) This Waiver, Consent and Amendment has been duly
authorized by all necessary corporate action, and duly
executed and delivered by the Borrower and constitutes its
legal, valid and binding obligation, enforceable in
accordance with its terms except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws
affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(b) Before and after giving effect to this Waiver,
Consent and Amendment, the representations and warranties
set forth in Article IV of the Credit Agreement are true and
correct in all material respects with the same effect as if
made on the date hereof, except to the extent such
representations and warranties expressly relate to an
earlier date.
(c) Before and after giving effect to this Waiver,
Consent and Amendment, no Event of Default or Default has
occurred and is continuing.
SECTION 6. Credit Agreement. Except as specifically
set forth herein, this Waiver, Consent and Amendment shall not
constitute a consent to any departure from, or waiver of, any of
the terms and provisions of the Credit Agreement or any other
Loan Document. Except as specifically amended hereby, the Credit
Agreement shall continue in full force and effect in accordance
with the provisions thereof as in existence on the date hereof.
After the date hereof, any reference to the Credit Agreement
shall mean the Credit Agreement as amended hereby.
SECTION 7. Counterparts. This Waiver, Consent and
Amendment may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken
together shall constitute but one agreement.
SECTION 8. Reaffirmation. By executing this Consent
in the space provided below, each Subsidiary Guarantor reaffirms
its obligations under the Guarantee Agreement, the Security
Agreement and each other Loan Document to which it is a party,
all of which agreements remain in full force and effect.
SECTION 9. Applicable Law. THIS WAIVER, CONSENT AND
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Expenses. The Borrower agrees to
reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Waiver, Consent
and Amendment, including the reasonable fees, charges and
disbursements of Sidley & Austin, counsel for the Administrative
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Waiver, Consent and Amendment to be duly executed by their
respective authorized officers as of the day and year first
written above.
FOODBRANDS AMERICA, INC.,
By: /s/ Xxxxxx X. Xxxxx
______________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
individually, as
Administrative Agent, as
Collateral Agent and as
Xxxxxxx Xxxxxx,
By: /s/ Xxxxxxx X. Xxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
CITIBANK, N.A., individually
and as Managing Agent,
By: /s/ Xxxxxxx X. Xxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
CREDIT LYONNAIS, CAYMAN
ISLANDS BRANCH,
By:
__________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH,
By:
________________________
Name:
Title:
FIRST BANK NATIONAL
ASSOCIATION,
By: /s/ Xxxxxxx X. Xxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxx
Title: Commercial
Banking Officer
THE FIRST NATIONAL BANK OF
BOSTON,
By: /s/ Xxxxxxxx X. Xxxxxx
___________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.,
By: /s/ Xxxxxxxxx X. Xxxxxx
___________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH,
By: /s/ Xxxxxxxx Xxxxxx
________________________
Name: Xxxxxxxx Xxxxxx
Title: General Manager
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
By: /s/ Xxxxxxxx Xxxxx xx Xxxx
___________________________
Name: Xxxxxxxx Xxxxx xx Xxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.,
By: /s/ Xxxxxx Xxxxxx
_______________________
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR,
By: /s/ X. Xxxxx Xxxxxx
_________________________
Name: X. Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
_________________________
Name: Xxxxxxx X. Xxxxx
Title: VP-Group Manager
LIBERTY BANK AND TRUST
COMPANY OF OKLAHOMA CITY,
N.A.,
By: /s/ Xxxx X. Demos
________________________
Name: Xxxx X. Xxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES,
By: /s/ Xxxxxxx X. Xxxxxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
_________________________
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice
President
BANQUE PARIBAS,
By: /s/ Xxxxxxx X. Xxxxx
_________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx, Xx.
__________________________
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
By: /s/ Xxxxxxx X. Xxxxxxx
___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior V.P. &
Director
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.
By: Chancellor LGT Senior
Secured Management, Inc., as
Portfolio Advisor
By:
__________________________
Name:
Title:
AERIES FINANCE, LTD.,
By: /s/ Xxxxxx Xxx Xxxxxxx
___________________________
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
CAPTIVA FINANCE LTD.,
By: /s/ Xxxxxx Xxxxxxx
_______________________
Name: Xxxxxx Xxxxxxx
Title: Director
XXXXXX XXXXXXX SENIOR
FUNDING, INC.,
By: /s/ Xxxxxxxxxxx Xxxxxxx
___________________________
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED TO:
XXX. XXXXXXXXXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
CONTINENTAL DELI FOODS, INC.
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
SPECIALTY BRANDS, INC.
By: /s/ Xxxxxx X. Xxxxx
_______________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
FBAI INVESTMENTS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX PACKING CO., INC.
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
NATIONAL SERVICE CENTER, INC.
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX FOOD SERVICE COMPANY, L.L.C.
By: Continental Deli Foods, Inc., as Member
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
KPR HOLDINGS, L.P.
By: Xxx. Xxxxxxxxxxx & Sons, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxxx
________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
