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EXHIBIT 10.47
FIFTH AMENDMENT TO CREDIT AGREEMENT
AND CONSENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT, dated as of
December 30, 1999 (the "AMENDMENT") relating to the Credit Agreement referenced
below, is 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 Merged
Borrowers, the Company and the Subsidiary Borrowers (as such terms are defined
below) 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 Merged Borrowers, the Company, the Subsidiary Borrowers and certain
former subsidiaries of the Company, 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 furnish such consent and
acknowledgment and 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 AND CONSENT.
1. Schedules 1.1F, 6.1, 6.7, 6.8, 6.9, 6.14, 6.17, 6.19, 6.28,
6.31, and 9.10, to the Credit Agreement, Schedules 3(a), 3(b) and 3(c),
to the Security Agreement and Schedules 1(b) and 2(a) to the Pledge
Agreement are hereby amended and replaced in their entirety with the
Schedules attached hereto as Exhibit A.
2. The text of Section 9.12 of the Credit Agreement is hereby
deleted in its entirety and replaces with the word "[Reserved]".
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3. Notwithstanding the provisions of Section 7.3 and Section
9.4 of the Credit Agreement to the contrary, the Lenders hereby consent
to the merger of Pierre Foods, LLC and Pierre Leasing, LLC
(collectively, the "MERGED BORROWERS") with and into the Company, with
the Company as the surviving corporation (the "December 1999
Reorganization"), subject to the satisfaction of all conditions
precedent contained in Section C hereof.
4. In connection with the December 1999 Reorganization, the
Merged Borrowers have ceased to exist as separate legal entities as a
result of merger into the Company. Accordingly, on the effective date
of this Amendment, following the December 1999 Reorganization, the
Borrowers under the Credit Agreement shall be the Company and the
remaining Subsidiary Borrower (referred to herein as the
"POST-REORGANIZATION BORROWERS" or the "BORROWERS"). The Lenders hereby
acknowledge and agree that the Merged Borrowers shall, as of the date
hereof, cease to be Borrowers under the Credit Agreement.
(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 and the amended and restated Schedules to the Credit Documents attached
hereto as EXHIBIT A, (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) CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon satisfaction of the following conditions precedent:
1. CORPORATE DOCUMENTS. Receipt by the Agent of copies of
resolutions of the Board of Directors of each relevant Borrower
approving and implementing the December 1999 Reorganization and the
transactions contemplated thereby and of each Borrower approving and
authorizing execution and delivery of this Amendment, certified by a
secretary or assistant secretary of such Borrower to be true and
correct and in force and effect as of the date hereof.
2. PERSONAL PROPERTY COLLATERAL. Receipt by the Agent of the
following:
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(a) New and/or amended UCC-1 financing statements for
the Borrowers, as appropriate and necessary to perfect or
continue the perfection of the Agent's security interest in
the Collateral.
(b) Such patent/trademark/copyright filings as
requested by the Agent in order to perfect the Agent's
security interest in the Collateral following the December
1999 Reorganization, including, without limitation, filings to
effect name changes and transfers of intellectual property
with the U.S. Patent and Trademark Office and new notices of
grants of security interests in favor of the Agent to reflect
such changes and transfers.
3. REAL PROPERTY COLLATERAL. Receipt by the Agent of the
following:
(a) In regard to all Eligible Real Properties owned
by the Borrowers which have been or are to be affected by the
December 1999 Reorganization, the Company shall comply with,
and furnish to the Agent the items listed in, Section 7 of
Schedule 1.1(b) to the Credit Agreement (other than new
Mortgage Instruments), including but not limited to
(i) copies of filed merger documents for the
Mortgaged Properties set forth on Exhibit B hereto;
(ii) copies of executed deeds for the
Mortgaged Properties set forth on Exhibit B hereto,
as necessary;
(iii) delivery of title commitments without
survey exceptions for all Mortgaged Properties, as
necessary;
(iv) delivery of all title exceptions
relating thereto all Mortgaged Properties, as
necessary; and
(v) insurance certificates relating to all
Mortgaged Properties set forth on Exhibit B hereto,
as necessary.
4. OPINIONS OF COUNSEL. Receipt by the Agent of an opinion, or
opinions (which shall cover, among other things, authority, legality,
validity, binding effect, enforceability of this Amendment and
attachment and perfection of liens), satisfactory to the Agent,
addressed to the Agent and the Lenders and dated the date hereof, from
legal counsel to the Borrowers.
(D) Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) shall remain in full force
and effect.
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(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.
(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/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer
SUBSIDIARY BORROWERS: FRESH FOODS PROPERTIES, LLC
By: FRESH FOODS, INC.,
its Sole Member
PIERRE FOODS, LLC
By: FRESH FOODS, INC.,
its Sole Member
PIERRE LEASING, LLC
By: FRESH FOODS, INC.,
its Sole Member
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer
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AGENT AND LENDERS: FIRST UNION COMMERCIAL CORPORATION,
as Agent and a Lender
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: SVP
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NATIONSBANK, N.A.,
as a Lender
By: /s/ Xxxxx X. X'Xxxxxx
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Name: Xxxxx X. X'Xxxxxx
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Title: Senior Vice President
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NATIONAL CITY COMMERCIAL
FINANCE, INC.,
as a Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
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Title: First VP
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(SCHEDULES AND EXHIBITS OMITTED)
