FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AGREEMENT AND AMENDMENT TO LOAN DOCUMENTS
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT AND
AMENDMENT TO LOAN DOCUMENTS (the "Amendment") is made and entered into to
be effective as of the 7th day of April, 1995 by and among TCBY
ENTERPRISES, INC. (herein referred to with its successors and assigns as
the "Borrower"), AMERICANA FOODS LIMITED PARTNERSHIP (herein referred to
with its successors and assigns as the "Guarantor") and Bank One, Texas,
N.A., a national banking association (herein referred to with its
successors and assigns as the "Lender").
RECITALS:
A. Borrower and Lender executed that certain Second Amended and Restated
Loan Agreement, dated as of April 7, 1995 (the "Loan Agreement") pursuant
to which the Lender has made and may hereafter make loans to the Borrower,
as evidenced by that certain Term Note executed by Borrower and dated June
11, 1993, payable to the order of Lender in the original principal amount
of $14,609,776.64 ("Term Note #1"), that certain Term Note executed by
Borrower and dated November 28, 1994, payable to the order of Lender in the
original principal amount of $7,500,000.00 (Term Note #2") and by that
certain Re volving Credit Note dated April 7, 1995 executed by Borrower and
payable to the order of the Lender in the maximum principal amount of
$5,000,000.00 (the "Revolving Credit Note"). Except as otherwise expressly
provided herein, all capitalized terms used herein shall have the same
meanings assigned to such terms in the Loan Agreement.
B. The Borrower has asked the Lender to replace the profitability covenant
set forth in Section 5.8 of the Loan Agreement and to increase the Fixed
Charge Coverage ratio from 1.0 to 1.0 to 1.5 to 1.0. The Lender is willing
to agree to the Borrower's requests upon the terms and conditions outlined
herein and subject to the Borrower's and the Guarantor's agreements with
the terms and provisions hereof and of each and every other instrument and
agreement executed in connection herewith.
AGREEMENTS
In consideration of the premises, which are made a part hereof, and the
mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby amend the Loan Agreement and Loan
Documents as follows:
SECTION I
AMENDMENTS TO THE LOAN AGREEMENT
The Loan Agreement is hereby amended in the following respects:
1.1 Amendment to Section 5.8. The Loan Agreement shall be and is hereby
amended to delete Section 5.8 in its entirety and to substitute the
following Section 5.8 in lieu thereof:
"5.8. Profitability Covenant. On a consolidated basis with the
Subsidiaries, Borrower will at all times maintain Net Income greater than
$0.00."
1.2 Amendment to Section 5.9. The Loan Agreement shall be and is hereby
amended to increase the required Fixed Charge Coverage ratio from "1.0 to
1.0" to "1.5 to 1.0."
SECTION II
AMENDMENT TO LOAN DOCUMENTS
2.1 Reference to the Loan Agreement. Each of the Loan Documents is hereby
amended so that any reference in any Loan Document to the Loan Agreement or
to any other Loan Document shall mean a reference to the Loan Agreement or
such other Loan Document as amended hereby.
SECTION III
MISCELLANEOUS
3.1 Authority. The Borrower and Guarantor hereby represent and warrant
that the execution, delivery and performance of this Amendment, all
instruments, agreements and other documents executed in connection herewith
and all other instruments, agreements and documents executed in connection
with the Loan Agreement have been duly authorized by all necessary action
of each of the Borrower and Guarantor and do not and will not: (a) violate
any provisions or any agreement, law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect to
which Borrower or Guarantor is a party or to which it or any of its assets
may be subject; (b) result in, or require the creation or imposition of any
Lien (other than a Permitted Lien) upon or with respect to any asset now
owned by Borrower or Guarantor or any collateral; or (c) result in a breach
of or constitute a default by Borrower or Guarantor (and neither the
Borrower nor the Guarantor is in default) under any indenture, loan or
credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its assets are bound or affected. Borrower
and Guarantor further warrant and represent that no approval,
authorization, order, license, permit, franchise or consent of or
registration, declaration, qualification or filing with any governmental
authority is required in connection with the execution, delivery or
performance by Borrower or Guarantor of this Amendment or any other Loan
Document. Such instruments and agreements constitute the legal, valid and
binding
obligations of the Borrower and Guarantor, enforceable against Borrower and
Guarantor in accordance with their respective terms, subject only to the
applicable debtor relief laws.
3.2 Ratification. Borrower and Guarantor hereby ratify and confirm the
Loan Agreement and Loan Documents, as amended hereby, in all respects, and
acknowledge and agree that all of the terms, provisions and covenants
thereof, as amended hereby
do and shall remain and continue in full force and effect, enforceable
against the Borrower and Guarantor and their assets in accordance with
their terms.
3.3 Further Assurances. The Borrower and Guarantor covenant and agree
from time to time to promptly execute, assign, endorse, and deliver to
Lender all documents, instruments, notices, agreements, assignments,
pledges, statements, and writings, and to do all other acts and things as
the Lender may reasonably request in order to more fully evidence and/or to
carry out more fully the intent and purpose of the Loan Agreement and other
Loan Documents.
3.4 Multiple Counterparts. Multiple counterparts of this Amendment may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
3.5 Representations and Warranties. The Borrower and Guarantor hereby
represent and warrant that all representations and warranties contained in
the Loan Agreement and other Loan Documents are and continue to be true and
correct in all material respects, as if made on the date hereof, and
nothing is omitted therefrom that would cause the same to be misleading in
any material respect.
3.6 Applicable Laws. THIS AMENDMENT SHALL BE CONSTRUED, INTERPRETED AND
ENFORCEABLE UNDER AND PURSUANT TO THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE LAWS OF THE UNITED STATES.
3.7 No Oral Agreements. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the Borrowers and the Lender have caused this Amendment
to be executed effective as of the date specified above.
BORROWER:
TCBY ENTERPRISES, INC.
By: /s/ Xxxx Law
Printed Name: Xxxx Law
Title: Senior Vice President,
CFO, Treasurer
GUARANTOR
AMERICANA FOODS LIMITED
PARTNERSHIP
By: Americana Foods General
Partner, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
Printed Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
LENDER:
BANK ONE, TEXAS, N.A.
By: /s/ Xxxx X. Xxxxxx
Printed Name: Xxxx X. Xxxxxx
Title: Vice President
