XXXX-XXXXX COMPANY
FIRST AMENDMENT TO CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank PNC Bank, N.A.
Chicago, Illinois Chicago, Illinois
Bank of Montreal
Chicago, Illinois
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 8, 1996 (such Credit
Agreement being hereinafter referred to as the "CREDIT AGREEMENT") and currently
in effect between you and us. Capitalized terms used without definition below
shall have the same meanings herein as they have in the Credit Agreement.
The Borrower hereby applies to you (the "BANKS") to amend the requirements
contained in the Credit Agreement for Subsidiary Guarantee Agreements.
Accordingly, upon satisfaction of the conditions precedent to effectiveness
set forth below, this letter shall serve as an agreement between the Banks and
the Borrower amending the Credit Agreement as hereinafter set forth.
1. ADDITION OF DEFINED TERMS TO SECTION 6.1.
The following definitions shall be, and hereby are, added to Section 6.1 of
the Credit Agreement, as alphabetically appropriate:
"MATERIAL SUBSIDIARY" shall mean (a) each Subsidiary (other than a
Super Food Joint Venture) (i) which has (itself or in any of its
subsidiaries) any ongoing business operations or (ii) which has
(together with its subsidiaries) consolidated total assets with an
aggregate book value as determined in accordance with GAAP of more than
$50,000 as of the close of any quarterly accounting period ending on or
after October 5, 1996, or (iii) which is obligated, or which has a
subsidiary which is obligated, as of any time after the date hereof on
any Debt and (b) each Subsidiary which is a Super Food Joint Venture if
at any time (i) such Super Food Joint Venture (together with its
subsidiaries) has consolidated gross revenues as determined in
accordance with GAAP in excess of $10,000,000 during any four (4)
consecutive quarterly accounting periods ending on or after October 5,
1996, or
(ii) such Super Food Joint Venture (together with its subsidiaries) has
a consolidated tangible net worth (calculated for such Super Food Joint
Venture and its subsidiaries in a manner consistent with determinations
of Tangible Net Worth) in excess of $1,000,000 as of the end of any
quarterly accounting period ending on or after October 5, 1996, or (iii)
such Super Food Joint Venture (together with its subsidiaries) has
outstanding Debt owed to the Borrower or any Subsidiary in excess of
$500,000 in the aggregate as of any time on or after October 5, 1996, or
(iv) the Borrower makes any new Investment in such Super Food Joint
Venture or any of its subsidiaries for the benefit of such Super Food
Joint Venture or subsidiary thereof except in the ordinary course of
business to provide such Super Food Joint Venture or subsidiary thereof
with ordinary and necessary working capital.
"SUPER FOOD JOINT VENTURES" shall mean (i) Xxxxxxx Enterprises, Inc.,
an Ohio corporation, if and so long as such corporation is a Subsidiary
but not a Wholly-Owned Subsidiary and (ii) New Castle Foods, Inc., an
Indiana corporation, if and so long as such corporation is a Subsidiary
but not a Wholly-Owned Subsidiary.
2. AMENDMENT TO SECTION 7.2.
The following sentence shall be added to the end of Section 7.2 of the
Credit Agreement:
Each Material Subsidiary is a Guarantor and has executed a Subsidiary
Guaranty Agreement pursuant to Section 9.1 hereof.
3. ADDITION OF NEW SECTION 8.7.
A new Section 8.7 shall be added to the Credit Agreement to be and to read
as follows:
SECTION 8.7. SUBSIDIARIES OTHER THAN MATERIAL SUBSIDIARIES.
Notwithstanding anything in Section 8 to the contrary, any Subsidiary
which is not a Material Subsidiary shall not be required to execute a
Subsidiary Guaranty Agreement.
4. AMENDMENT TO SECTION 9.1.
The second sentence of Section 9.1 shall be deleted in its entirety and
replaced with the following:
As a condition to establishing or acquiring any Subsidiary, unless
the Required Banks otherwise agree, the Borrower shall deliver an
updated Schedule 7.2 reflect the new Subsidiary. In addition to
the foregoing, as a
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condition to establishing or acquiring a Subsidiary which is a
Material Subsidiary, unless the Required Banks otherwise agree, the
Borrower shall, within thirty (30) days after such establishment or
acquisition, (i) cause such Material Subsidiary to execute a
Subsidiary Guarantee Agreement and (ii) cause such Material
Subsidiary to deliver documentation (including a legal opinion)
similar to that described in Section 8.1(a) through (c) relating to
the authorization for, execution and delivery of, and validity of
such Material Subsidiary's obligations as a Guarantor hereunder and
under the Subsidiary Guarantee Agreement in form and substance
satisfactory to the Required Banks.
5. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject
to the satisfaction of all of the following conditions precedent:
(a) The Borrower and the Banks shall have executed this Amendment.
(b) Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Banks and their counsel.
Upon satisfaction of such conditions precedent, this Amendment shall take effect
as of October 8, 1996.
6. REPRESENTATIONS REAFFIRMED. In order to induce the Banks to execute
and deliver this Agreement, the Borrower hereby represents to the Banks that as
of the date hereof and as of the time that this Amendment becomes effective,
each of the representations and warranties set forth in Section 7 of the Credit
Agreement, after giving effect to the amendments made hereby, are and shall be
true and correct (except that the representations contained in Section 7.4 shall
be deemed to refer to the most recent financial statements of the Borrower
delivered to the Banks).
7. MISCELLANEOUS. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which when so executed shall be an original but all of which shall
constitute one and the same instrument. Except as specifically amended and
modified hereby, all of the terms and conditions of the Credit Agreement
shall stand and remain unchanged and in full force and effect. No reference
to this Amendment need be made in any note, instrument or other document
making reference to the Credit Agreement, any reference to the Credit
Agreement in any such note, instrument or other document to be deemed to be a
reference to the Credit Agreement as amended hereby. The Borrower confirms
its agreement to pay the reasonable fees and disbursements of Messrs. Xxxxxxx
and Xxxxxx, counsel to the Administrative Agent, in connection with the
preparation,
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execution and delivery of this Amendment and the transactions and documents
contemplated hereby. This instrument shall be construed and governed by and
in accordance with the laws of the State of Illinois (without regard to
principles of conflicts of laws).
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Dated as of this ___ day of December, 1996 but effective (as set forth
above) as of October 8, 1996.
XXXX-XXXXX COMPANY
By
Name:
------------------------------
Title:
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Accepted and agreed to as of the date last above written.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Administrative Agent
By
Its Vice President
BANK OF MONTREAL, in its individual
capacity as a Bank and as Syndication
Agent
By
Its
--------------------------------
PNC BANK, NATIONAL ASSOCIATION, in its
individual capacity as a Bank and as
Syndication Agent
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By
Its
--------------------------------
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