AMENDMENT NO. 5 TO CREDIT AGREEMENT
This Amendment No. 5 is dated as of May 16, 1997 by and
among Xxxx X. Xxxxxxxxxx & Son, Inc. (the "Borrower"), the
Lenders parties hereto and Bank of America Illinois, as
Agent for the Lenders ("Amendment No. 5").
W I T N E S S E T H;
WHEREAS, the Borrower, the Lenders and the Agent are
parties to that certain Credit Agreement dated as of March
27, 1996, as amended by that certain Amendment No. 1 and
Waiver to Credit Agreement dated as of August 1, 1996, that
certain Amendment No. 2 and Waiver to Credit Agreement dated
as of October 30, 1996, that certain Amendment No. 3 to
Credit Agreement dated as of January 24, 1997 and that
certain Amendment No. 4 to Credit Agreement dated as of
April 25, 1997 (the "Agreement");
WHEREAS, the Borrower wishes to change its fiscal year
for accounting purposes;
WHEREAS, the Borrower and the Lenders desire to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises herein
contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Each capitalized term used herein but not otherwise
defined herein shall have the meaning ascribed to
such term in the Agreement.
2. Amendments to Credit Agreement. Subject to the
terms and conditions set forth in Section 4 of this
Amendment No. 5, the Credit Agreement is hereby
amended as follows:
(a) The definition of "Fiscal Month" in Section 1.1 of
the Credit Agreement is hereby amended in its
entirety to read as follows:
""Fiscal Month" means any five, four or four week fiscal
accounting period of an Obligor within a Fiscal Quarter of
such Obligor."
(b) The definition of "Fiscal Quarter" in Section 1.1 of
the Credit Agreement is hereby amended in its
entirety to read as follows:
""Fiscal Quarter" means any quarterly fiscal accounting
period of an Obligor within a Fiscal Year consisting of five,
four and four weeks respectively."
(c) The definition of "Fiscal Year" in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as
follows:
""Fiscal Year" means any fiscal accounting period
of an Obligor consisting of four quarterly accounting periods
of five, four and four weeks respectively, ending on December
31 of each year for Fiscal Years commencing prior to
January 1, 1997 and on the last Thursday of June for Fiscal
Years commencing after January 1, 1997; references to a Fiscal
Year with a number corresponding to any calendar
year for Fiscal Years commencing after January 1, 1997 (eg.,
the "1997 Fiscal Year") refer to the Fiscal Year ending on
the date which is the last Thursday of June occurring during
such calendar year."
3. The Borrower represents and warrants that, after
giving effect to this Amendment No. 5, no Default or Event
of Default exists and is continuing under the Agreement and
no default exists under the Teachers Note Agreement and the
Prudential Note Agreement.
4. This Amendment No. 5 shall become effective as of
May 16, 1997 upon satisfaction of the following
conditions:
(i) the Borrower, the Agent, Sunshine, Quantz and each
of the Lenders shall have executed and delivered a
counterpart of this Amendment No. 5.
(ii) the Agent shall have received, in sufficient copies
for each Lender, the following in form and substance
satisfactory to the Agent and its counsel:
(A) a board of directors resolution authorizing the
execution and delivery of this Amendment No. 5
(B) a certificate from the Borrower's chief
financial Authorized Officer certifying that on
the date hereof and after giving effect to this
Amendment No. 5 no Default or Event of Default
has occurred and is continuing.
(iii) the Borrower shall have paid the outstanding fees
and out-of-pocket costs and expenses of counsel for
the Agent incurred in connection with the
negotiation, preparation, execution and delivery of
this Amendment No. 5.
5. Except as specifically set forth in this Amendment
No. 5, the Agreement and the other Loan Documents
shall remain unaltered and in full force and effect
and the respective terms, conditions and covenants
thereof are hereby ratified and confirmed in all
respects.
6. Upon the effectiveness of this Amendment No. 5, each
reference in the Agreement to "this Agreement",
"hereof", "herein" or "hereunder" or words of like
import, and all references to the Agreement in any
other Loan Documents shall mean and be a reference
to the Agreement as amended hereby.
7. This Amendment No. 5 may be executed in any 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 taken together shall
constitute one and the same agreement.
8. THIS AMENDMENT NO. 5 SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF ILLINOIS.
(Signature pages follow)
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 5 to Credit Agreement as of the date first
above written.
XXXX X. XXXXXXXXXX & SON, INC.
By /s/ Xxxx X. Xxxxxx
-----------------------
Title: Executive Vice President and
Chief Financial Officer
BANK OF AMERICA ILLINOIS, in its
capacity as Agent
By /s/ Xxx XxXxxxx
-----------------------
Title: Agency Management Services
Senior Agency Officer
BANK OF AMERICA ILLINOIS, in its
capacity as Lender, Issuing Lender
and Issuer
By /s/ Xxxx Xxxxxxx
-----------------------
Title: Vice President
THE NORTHERN TRUST COMPANY, in its
capacity as a Lender
By /s/ Xxxxxx X. Xxxxx
-----------------------
Title: Vice President
NATIONAL CITY BANK, in its capacity
as a Lender
By /s/ Xxxxx Xxxxx
----------------------
Title: Vice President
The undersigned acknowledges receipt of a copy of the
foregoing Amendment No. 5, consents to the terms
thereof, and ratifies and confirms its Guaranty, dated
as of March 27, 1996, in favor of the Lenders, and all
documents, instruments and agreements executed in
connection therewith.
SUNSHINE NUT CO.
By: /s/ Xxxx X. Xxxxxx
----------------------
Title: President
The undersigned acknowledges receipt of a copy of the
foregoing Amendment No. 5, consents to the terms
thereof, and ratifies and confirms its Guaranty, dated
as of January 24, 1997, in favor of the Lenders, and all
documents, instruments and agreements executed in
connection therewith.
QUANTZ ACQUISITION CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: Assistant Secretary
