Exhibit 4.6
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT is to the Loan Agreement, as amended by the First
Amendment (as defined below), by and among Fresh Brands, Inc., a Wisconsin
corporation, Fresh Brands Distributing, Inc., a Wisconsin corporation, and
Dick's Supermarkets, Inc., a Wisconsin corporation (collectively, "Co-Borrowers"
and individually, a "Co-Borrower") and M&I Xxxxxxxx & Xxxxxx Bank, a Wisconsin
banking corporation, and U.S. Bank National Association (f/k/a Firstar Bank,
N.A.), a national banking association (collectively, the "Banks" and
individually, a "Bank"), dated June 16, 2001 ("Loan Agreement").
RECITAL
X. Xxxxx and Co-Borrowers desire to amend the Loan Agreement as provided
below.
AGREEMENTS
NOW, THEREFORE, in consideration of the recital and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions and References. Capitalized terms used herein shall have
the meanings set forth in the Loan Agreement unless they are otherwise defined
herein. All references to the Loan Agreement contained herein shall mean the
Loan Agreement as amended by the First Amendment to Loan Agreement, dated as of
June 16, 2001 (the "First Amendment"), and by this Amendment.
2. Amendments. The Loan Agreement is amended as follows:
(a) Section 9. The definition of the term "Capital Lease Obligations"
contained in Subsection (b) of Section 9 of the Loan Agreement is amended
by adding the following sentence to the definition thereof:
"Notwithstanding the preceding sentence, in the event the
property with respect to a capital lease of a Co-Borrower is
subleased by such Co-Borrower to a third-party, the amount
payable under such sublease (as determined in accordance with
GAAP) shall be deducted from the applicable capital lease of the
Co-Borrower for purposes of determining "Capital Lease
Obligations" under this Loan Agreement (in no event shall the
amount of the deduction for the sublease exceed the amount of the
applicable Capital Lease Obligation of the Co-Borrower);
provided, however, if any receivable or other amount due
associated with subleased property shall become overdue by more
than sixty (60) days, the Capital Lease Obligation of a
Co-Borrower shall not be reduced by such sublease."
(b) Section 5. The provision with respect to Paragraph (ii) of
Subsection (a) of Section 5 is deleted in its entirety and is replaced with
the following: "Permit the Fixed Charge Coverage Ratio of Co-Borrowers on a
consolidated basis for the four most recent quarters to be less than 1.2 to
1.0."
(c) Section 5. Section 5 of the Loan Agreement shall be amended by
adding the following language as Subsection (i) thereto:
"Limitations on Capital Expenditures. For all fiscal years after
the current fiscal year, make or commit to make, directly or
indirectly, any expenditure for the purchase or other acquisition
(including, but not limited to, Capital Lease Obligations) of
fixed or capital assets (excluding normal replacements and
maintenance which are properly charged to current operations) if,
after giving effect thereto, the aggregate amount of all such
capital expenditures by Co-Borrowers collectively would exceed
Seventeen Million Dollars ($17,000,000.00) during any fiscal year
of Co-Borrowers."
(d) Schedule 5. Schedule 5 attached to the Loan Agreement is deleted
in its entirety and the amended Schedule 5 (attached hereto) is attached
thereto in its place. The new pricing shall become effective on September
3, 2002.
3. Representations and Warranties. Each Co-Borrower jointly and severally
certifies that the representations and warranties contained in the Loan
Agreement are true and correct as of the date of this Amendment and no
condition, event, or act which would constitute a default under the Loan
Agreement exists and no condition, event, act or omission has occurred which,
with the giving of notice or passage of time, would constitute an Event of
Default under the Loan Agreement.
4. Full Force and Effect. Except as otherwise provided herein, the Loan
Agreement shall remain in full force and effect and each Co-Borrower shall be
bound by all of the covenants therein.
5. Condition. This Amendment shall not be effective until the Banks have
received a certified copy of the resolutions of the Board of Directors of each
Co-Borrower, authorizing the execution and delivery of this Amendment.
6. Expenses. Each Co-Borrower hereby acknowledges its joint and several
obligation to reimburse the Banks for all of their reasonable out-of-pocket
costs and expenses incurred in connection with the preparation and execution of
this Amendment, including, without limitation, the reasonable fees of counsel to
the Banks, as required in Subsection (f) of Section 10 of the Loan Agreement.
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Dated as of this 23rd day of August, 2002.
CO-BORROWERS: BANKS:
FRESH BRANDS, INC. M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ----------------------------------
Xxxxxx X. Xxxx, Xxxxxx X. Xxxxx, Vice President
President & Chief Executive Officer
Attest: /s/
FRESH BRANDS DISTRIBUTING, INC. ------------------------------
By: /s/ Xxxxxx X. Xxxx U.S. BANK NATIONAL ASSOCIATION
-----------------------------------
Xxxxxx X. Xxxx,
President & Chief Executive Officer By: /s/
----------------------------------
DICK'S SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx,
President
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