EXHIBIT 10.4
WAIVER AND FIRST AMENDMENT TO FINANCING AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO FINANCING AGREEMENT (this "Waiver and
First Amendment") is dated as of the 30/th/ day of December, 1999 among
GORGES/QUIK-TO-FIX FOODS, INC. (the "Borrower"), THE CIT GROUP/BUSINESS CREDIT,
INC. (the "Agent") and the Lenders parties hereto;
W I T N E S S E T H:
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WHEREAS, the Borrower and The CIT Group/Business Credit, Inc., as the Agent
and as a Lender, executed and delivered that certain Financing Agreement, dated
as of the 5/th/ day of March, 1999 (the "Financing Agreement"); and
WHEREAS, each of Capital Business Credit, a Division of Capital Factors,
Inc., Green Tree Financial Servicing Corporation and IBJ Whitehall Business
Credit Corporation became a Lender under the Financing Agreement pursuant to an
Assignment and Acceptance Agreement between it and The CIT Group/Business
Credit, Inc. dated April 15, 1999;
WHEREAS, Events of Default has occurred under Sections 7.9, 7.12 and 7.13
of the Financing Agreement for the fiscal quarters ending on or about September
30, 1999 and December 31, 1999 (such Events of Default under such Sections for
such fiscal quarters only being the "Existing Defaults"), and the Borrower has
requested and the Agent and the Lenders have agreed to a waiver of the Existing
Defaults and to an amendment of such Sections, subject to the terms and
conditions hereof, including the addition of a new Section 7.18 and an amendment
to Section 10.1(e) relating thereto, and certain other amendments, all as set
forth herein, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged by the parties hereto, the Borrower, the Agent and the Required
Lenders hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
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used herein which is defined in the Financing Agreement shall have the meaning
assigned to such term in the Financing Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Financing Agreement shall from and after the date hereof refer to the Financing
Agreement as amended hereby.
Waiver of Existing Defaults. The Existing Defaults hereby are waived by
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the Agent and the Required Lenders, effective as of the end of the fiscal
quarters ending on or about September 30, 1999, and December 31, 1999, but such
waivers do not constitute
a waiver of any future Event of Default under Sections 7.9, 7.12 or 7.13 as
amended by this First Amendment, or of any other Default or Event of Default.
Amendment to Section 1.1. Section 1.1 of the Financing Agreement hereby is
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amended by deleting the definition of "Availability" and adding the following
definitions of "Availability" and "Collateral Disclosure Certificate":
Availability shall mean at any time the excess of the sum of (i) the
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advance rate amount with respect to Eligible Accounts Receivable as
such amount is calculated pursuant to clause (i) of Section 3.1 of
this Financing Agreement, and (ii) the advance rate amount with
respect to Eligible Finished Goods, Eligible Raw Meat Inventory, and
Eligible Supply Inventory as such amounts are calculated pursuant to
clause (ii) of Section 3.1 of this Financing Agreement over the sum of
(x) the outstanding aggregate amount of all Obligations (other than
the Term Loans) and (y) the Availability Reserve.
Collateral Disclosure Certificate shall mean the Collateral Disclosure
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Certificate dated February 10, 1999 and furnished to the Agent.
Amendment to Section 2.1(k) Section 2.1(k) of the Financing Agreement
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hereby is amended by deleting it in its entirety and substituting the following
therefor:
(k) Additional Documents - The Company shall have executed and
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delivered to the Agent all loan documents necessary to consummate the
lending arrangement contemplated between the Company and the Agent and
the Lenders, including, without limitation, the Term Notes, the Pledge
Agreement, the Trademark Security Agreement, the Collateral Disclosure
Certificate and the Guaranty (all such loan documents, including this
Financing Agreement and all mortgages, deeds to secure debt and deeds
of trust pertaining to the Real Estate, as the same may be amended or
otherwise modified from time to time are herein referred to as the
"Loan Documents"). The terms of all Loan Documents shall be
satisfactory to the Agent and the Lenders in all respects.
Amendment to Section 2.2(b) Section 2.2(b) of the Financing Agreement
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hereby is amended by deleting it in its entirety and substituting the following
therefor:
(b) Representations and Warranties - The representations
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and warranties contained herein and in the Collateral Disclosure
Certificate shall be true and correct in all material respects at the
date of each extension of credit, except to the extent they expressly
relate to an earlier date or, as to matters disclosed in the
Collateral Disclosure Certificate, as otherwise disclosed in writing
to the Agent and the Lenders;
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Amendment to Section 7.9. Section 7.9 of the Financing Agreement hereby is
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amended by deleting it in its entirety and substituting the following therefor:
Section 7.9 Net Worth. The Company shall maintain at the end of
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each of the periods below, a Net Worth of not less than:
Period Net Worth
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Fiscal quarter ending on or about March 31, 2000 39,800,000
Each fiscal quarter ending on or about June 30, 2000 38,500,000
Fiscal quarter ending on or about September 30, 2000 38,000,000
Each fiscal quarter thereafter the sum of the Net
Worth required for the
preceding fiscal
quarter plus $500,000.
2. Amendment to Section 7.12. Section 7.12 of the Financing Agreement
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hereby is amended by deleting it in its entirety and substituting the following
therefor:
Section 7.12 Fixed Charge Coverage Ratio. The Company shall
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maintain at the end of each fiscal period, an Fixed Charge Coverage Ratio of at
least:
Fiscal Period Ending on or about Ratio
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for the fiscal quarter ending on or about on March 31, 2000 and the
immediately preceding two fiscal quarters
0.70 to 1.0
for the fiscal quarter ending on or about on June 30, 2000 and the
immediately preceding three fiscal quarters
0.80 to 1.0
for the fiscal quarter ending on or about September 30, 2000 and the
immediately preceding four fiscal quarters
1.00 to 1.0
for each fiscal quarter thereafter and the immediately preceding
four fiscal quarters 1.10 to 1.0
3. Amendment to Section 7.13. Section 7.13 of the Financing Agreement
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hereby is amended by deleting it in its entirety and substituting the following
therefor:
Section 7.13 Leverage Ratio. The Company shall maintain at the
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end of each fiscal quarter ending on or about the dates set forth
below a Leverage Ratio of not more than:
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Period Ratio
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For each of the fiscal quarters ended on or about
March 31, 2000, June 30, 2000
and September 30, 2000 2.75 to 1.0
for each fiscal quarter thereafter, 2.80 to 1.0
4. New Section 7.18. A new Section 7.18 hereby is added to the Financing
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Agreement, as follows:
Section 7.18 Minimum Availability. The Company shall maintain at
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all times Availability of not less than $1,500,000; provided, however,
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that solely for purposes of calculating. Availability pursuant to this
Section 7.18, Section clause (ii) (y) of Section 3.1 shall be
included, but clause (ii)(x) of Section 3.1 shall be disregarded.
5. Amendment to Section 10.1(d). Section 10.1(d) of the Financing
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Agreement hereby is amended by deleting it in its entirety and substituting the
following therefor:
(d) breach by the Company or the Parent of any warranty,
representations or covenant contained herein (other than those referred to in
sub-paragraphs (e) and (f) below) or in any other written agreement between the
Company or the Parent and the Agent and/or the Lenders (including any of the
other Loan Documents), provided that such breach by the Company or the Parent of
any of the covenants referred in this clause (d) shall not be deemed to be an
Event of Default unless and until such breach shall remain unremedied, as
determined by the Agent in the exercise of its discretion, for a period of
thirty (30) days from the date of such breach; or
6. Amendment to Section 10.1(e). Section 10.1(e) of the Financing
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Agreement hereby is amended by deleting it in its entirety and substituting the
following therefor:
(e) breach by the Company of any covenant contained in any of
Sections 3.3 (other than the third sentence thereof), 3.4, 4.3(C),
6.3, 6.4 (other than the first sentence thereof), 7.1, 7.5, 7.6, 7.9
through 7.13 or 7.16 or 7.18.
7. Amendment to Section 12.1. Section 12.1 of the Financing Agreement
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hereby is amended by adding the following new sentence at the end thereof:
Neither the Agent not any Lender shall be under any obligation to
marshal any assets in favor of any of the Company or the Parent or any
other Person or against or in payment of any or all of the
Obligations.
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8. Amendment to Section 13.4. Section 13.4 of the Financing Agreement
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hereby is amended by adding the following new paragraph (c) at the end thereof:
(c) Promptly after receipt thereof, the Agent shall furnish to
each Lender a copy of any written instructions or directions given to
it pursuant to paragraph (a) or (b) above.
9. Restatement of Representations and Warranties. The Company hereby
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restates and renews each and every representation and warranty heretofore made
by it in the Financing Agreement and the other Loan Documents as fully as if
made on the date hereof (except to the extent they expressly relate to an
earlier date) and with specific reference to this Waiver and First Amendment and
all other loan documents executed and/or delivered in connection herewith.
10. Effect of Amendment. Except as set forth expressly hereinabove, all
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terms of the Financing Agreement and the other Loan Documents shall be and
remain in full force and effect, and shall constitute the legal, valid, binding
and enforceable obligations of the Borrower. The amendments contained herein
shall be deemed to have prospective application only, unless otherwise
specifically stated herein.
11. Reaffirmation; No Novation or Mutual Departure. The Company expressly
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acknowledges and agrees that: (i) there has not been, and this Waiver and First
Amendment does not constitute or establish, a novation with respect to the
Financing Agreement or any of the Loan Documents, or a mutual departure from the
strict terms, provisions and conditions thereof, other (x) than the amendments
and modifications expressly set forth in Sections 3 through 13, inclusive,
hereof and (y) the waiver of the Existing Default pursuant to Section 2 hereof;
and (ii) nothing in this Waiver and First Amendment shall affect or limit the
Agent's and the Lenders' right to demand payment of liabilities owing from the
Company to the Agent and the Lenders under, or to demand strict performance of
the terms, provisions and conditions of, the Financing Agreement and the other
Loan Documents, to exercise any and all rights, powers and remedies under the
Financing Agreement or the other Loan Documents or at law or in equity, or to do
any and all of the foregoing, immediately at anytime after the occurrence of a
Default or an Event of Default which is not an Existing Default, pursuant to the
Financing Agreement or the other Loan Documents.
12. Ratification. The Company hereby restates, ratifies and reaffirms
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each and every term, covenant and condition set forth in the Financing Agreement
and the other Loan Documents effective as of the date hereof.
13. Counterparts. This Waiver and First Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same instrument.
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14. Section References. Section titles and references used in this Waiver
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and First Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
15. No Default. To induce the Agent and the Required Lenders to enter
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into this Waiver and First Amendment and to continue to make advances pursuant
to the Financing Agreement, the Company hereby acknowledges and agrees that, as
of the date hereof, and after giving effect to the terms hereof, there exists
(i) no Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Company arising out of or with
respect to any of the Loans or other obligations of the Company owed to the
Agent and the Lenders under the Financing Agreement.
16. Further Assurances. The Company agrees to take such further actions
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as the Agent shall reasonably request in connection herewith to evidence the
amendments herein contained to the Company.
17. Governing Law. This Waiver and First Amendment shall be governed by
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and construed and interpreted in accordance with, the laws of the State of
Georgia.
18. Conditions Precedent. This Waiver and First Amendment shall become
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effective only upon execution and delivery (i) of this First Amendment by the
Company, the Agent and the Required Lenders, and (ii) of the Consent and
Reaffirmation of Guarantor at the end hereof by the Parent.
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CONSENT AND REAFFIRMATION OF GUARANTORS
The undersigned (i) acknowledges receipt of the foregoing Waiver and First
Amendment to Financing Agreement (the "Waiver and First Amendment"), (ii)
consents to the execution and delivery of the Waiver and First Amendment by the
parties thereto and (iii) reaffirms all of its obligations and covenants under
the Guaranty dated as of March 5, 1999 executed by it, and agrees that none of
such obligations and covenants shall be affected by the execution and delivery
of the Waiver and First Amendment.
GORGES HOLDING CORPORATION, as the Parent
(SEAL)
By: _____________________________________
Title:
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IN WITNESS WHEREOF, the Company, the Agent and the Required Lenders have
caused this Waiver and First Amendment to be duly executed, under seal, by its
duly authorized officer as of the day and year first above written.
GORGES/QUIK-TO-FIX FOODS, INC., as the
Company (SEAL)
________________________________________
By: ____________________________________
Title:
THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent and as a Lender (SEAL)
By: ____________________________________
Title:
CAPITAL BUSINESS CREDIT, INC., A
DIVISION OF CAPITAL FACTORS, INC.,
as a Lender (SEAL)
By: ____________________________________
Title:
GREEN TREE FINANCIAL SERVICING
CORPORATION, as a Lender (SEAL)
By: ____________________________________
Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as a Lender (SEAL)
By: ____________________________________
Title:
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IN WITNESS WHEREOF, the Company, the Agent and the Required Lenders have
caused this Waiver and First Amendment to be duly executed, under seal, by its
duly authorized officer as of the day and year first above written.
GORGES/QUIK-TO-FIX FOODS, INC., as the
Company (SEAL)
________________________________________
By: ____________________________________
Title:
THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent and as a Lender (SEAL)
By: ____________________________________
Title:
CAPITAL BUSINESS CREDIT, INC., A
DIVISION OF CAPITAL FACTORS, INC.,
as a Lender (SEAL)
By: ____________________________________
Title:
GREEN TREE FINANCIAL SERVICING
CORPORATION, as a Lender (SEAL)
By: ____________________________________
Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as a Lender (SEAL)
By: ____________________________________
Title:
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