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EXHIBIT 10.14
AMENDMENT NO. 3 AND CONSENT
This Amendment No. 3 and Consent (this "Amendment") amends that
certain Credit Agreement dated as of May 9, 1997 (as amended, modified and
supplemented from time to time, including pursuant to this Amendment, the
"Credit Agreement"), among COLORADO PRIME CORPORATION, a Delaware corporation
("Borrower"), each institution identified as a lender on Annex I thereto (each,
together with its successors and assigns, a "Lender"), and DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES, acting as the Agents for itself and the other
Lenders, and is entered into as of December 11, 1997 among Borrower, the
Administrative Agent and the Lenders executing the signature pages hereof.
RECITALS
WHEREAS, Colorado Prime Holdings, Inc. ("Parent") recently
considered acquiring American Frozen Foods, Inc. (the "Proposed Acquisition")
for the benefit of, among others, Borrower, and Parent incurred approximately
$425,000 in AFF Due Diligence Costs (as defined below) in connection with its
due diligence for the Proposed Acquisition;
WHEREAS, Xxxxxx has determined not to go forward with the Proposed
Acquisition; and
WHEREAS, Xxxxxxxx has requested that the Lenders consent to the
making of a cash dividend by Borrower to Parent to enable Parent to pay the AFF
Due Diligence Costs and otherwise amend the Credit Agreement as set forth below;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement, and the
provisions of Section 1.2 of the Credit Agreement shall apply hereto as if
fully set forth herein.
2. Additional Definition. The following definition is hereby added to Section
1.1 of the Credit Agreement and inserted therein in alphabetical order
with the definitions therein:
"AFF Due Diligence Costs" means the amount, not in excess of
$425,000, incurred and paid by Parent to Persons which are not Affiliates
of Parent for professional fees and related out-of-pocket costs and
expenses in connection with its due diligence for its proposed acquisition
of American Frozen Foods, Inc.
3. Definitional Changes. The following changes shall be made to the
applicable definitions of Section 1.1 of the Credit Agreement:
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(a) The definition of "Consolidated EBITDA" is hereby amended to read in
its entirety as follows:
"Consolidated EBITDA" for a period means (without duplication)
(a) Consolidated Net Income plus (b) all Consolidated Interest
Expense, cash dividends on preferred stock paid during such period
to the extent permitted hereunder, income tax expense, depreciation
and amortization (including amortization of any goodwill or other
intangibles), in each case to the extent subtracted in calculating
Consolidated Net Income, minus (c) any non-cash items which have
been added in calculating Consolidated Net Income, plus (d) any
other non-cash charges, including charges for accrued dividends on
Preferred Stock, which have been subtracted in calculating
Consolidated Net Income, and plus (e) through the Fiscal Quarter
ending on September 30, 1998, the amount, if any, of AFF Due
Diligence Costs incurred and paid by Parent which has been
subtracted in calculating Consolidated Net Income, in each case of
Parent and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
(b) The definition of "Consolidated Net Worth" is hereby amended to read
in its entirety as follows:
"Consolidated Net Worth" means, as of any date, the aggregate
amount of equity contributions to Borrower made on or after the
Closing Date plus retained earnings of Borrower since the Closing
Date (plus, without duplication, the amount of any cash dividends
made and permitted hereunder to be made by Borrower to Parent to pay
AFF Due Diligence Costs incurred and paid by Parent, which has been
subtracted in calculating retained earnings of Borrower) and minus
net losses of Borrower since the Closing Date, in each case on a
consolidated basis and as determined in accordance with GAAP.
4. Consent to Dividend. Notwithstanding the terms of Section 8.7(a) of the
Credit Agreement to the contrary, the Required Lenders hereby consent to
the making, within thirty (30) days of the effective date of this
Amendment, of a one-time cash dividend by Borrower to Parent in the amount
of the AFF Due Diligence Costs, provided, that Parent uses such cash to
pay all of such AFF Due Diligence Costs within such thirty (30) day
period.
5. Representations. To induce the Administrative Agent and the Lenders to
enter into this Amendment, Borrower hereby represents and warrants as
follows:
(a) Representations and Warranties. All representations and warranties
contained in the Credit Agreement and the other Credit Documents are
true and correct in all material respects on and as of the date
hereof as if made on the date hereof, other than representations and
warranties that expressly relate solely to an earlier date; and
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(b) No Defaults. No Default or Event of Default has occurred which has
not been waived.
6. Effectiveness of this Amendment. This Amendment shall become effective on
the date when the Administrative Agent, Xxxxxxxx and the Required Lenders
shall have signed a counterpart hereof and shall have delivered (including
by way of facsimile transmission) the same to the Administrative Agent at
its office for notices as set forth in Annex I to the Credit Agreement.
This Amendment may be executed in any number of counterparts, each of
which counterparts when executed and delivered shall be an original, but
all of which shall together constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 3 and Consent to be executed and delivered by their proper and duly
authorized officers as of the date set forth above.
BORROWER:
COLORADO PRIME CORPORATION,
a Delaware corporation
By: _______________________________
Title: ______________________________
ADMINISTRATIVE AGENT:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as the
Administrative Agent
By: _______________________________
By: _______________________________
LENDERS:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: _______________________________
By: _______________________________
BANK LEUMI TRUST COMPANY OF NEW
YORK, as a Lender
By: _______________________________
By: _______________________________
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BANKBOSTON, N.A., as a Lender
By: _______________________________
By: _______________________________
IBJ XXXXXXXX BANK & TRUST COMPANY,
as a Lender
By: _______________________________
By: _______________________________
