EXECUTION COUNTERPART
WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
(this "Amendment") dated as of April 8, 1997 by and among
XXXXXXXX FRESH COOKING, INC., a Georgia corporation (the
"Borrower") and SUNTRUST BANK, ATLANTA, as lender (the
"Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to a
certain Credit Agreement dated as of March 6, 1996 (the "Credit
Agreement"; defined terms used herein without definition shall
have the meaning ascribed to such terms in the Credit Agreement);
WHEREAS, the Borrower and the Lender have agreed to (i)
waive compliance with certain financial covenants set forth in
the Credit Agreement, and (ii) amend certain provisions of the
Credit Agreement, all as more particularly set forth below;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
SECTION I. Amendments to Credit Agreement. Subject to
the satisfaction of the conditions precedent set forth in
Section 3 hereof, and effective as of February 28, 1997 (the
"Effective Date"), the Credit Agreement is hereby amended as
follows:
a. Section 1.1 of the Credit Agreement is hereby
amended by deleting the existing definition of "Revolving Loan
Commitment" in its entirety and substituting the following in
lieu thereof:
"Revolving Loan Commitment" shall mean the Lender's
commitment to make advances to the Borrower in an aggregate
amount outstanding not to exceed the amount of $10,000,000,
as the same may be increased or decreased from time to time
as a result of any reduction thereof pursuant to Section
2.03, any assignment thereof pursuant to Section 9.06 or any
amendment thereof pursuant to Section 9.02."
b. Section 1.1 of the Credit Agreement is hereby
amended by adding the following definitions of "Net Proceeds of
Asset Sales" and "Uncommitted Note" in appropriate alphabetical
order:
"Net Proceeds of Asset Sales" shall mean, with respect
to any sale or other disposition of assets, all cash or cash
receivables received by the Borrower or one of its
Subsidiaries as a result of or in connection with such
transaction, net of reasonable sale expenses, fees and
commission incurred and taxes paid or expected to be paid
within the succeeding twelve months in connection
therewith."
"Uncommitted Note" shall mean that certain Uncommitted
Note dated as of April _, 1997, made by the Borrower in
favor of Lender in the amount of $5,000,000 evidencing
advances made by the Lender to the Borrower pursuant thereto
in Lender's sole discretion, which advances are payable upon
demand by Lender, either as originally executed or as
hereafter amended, modified or supplemented."
c. Section 2.01(b) of the Credit Agreement is hereby
amended by deleting such subsection in its entirety and adding
the following subsection (b) in lieu thereof:
"(b) Amount and Terms of Loans. Effective as of
March 19, 1997, each Loan outstanding hereunder shall be
deemed to have been made and shall continue to be
outstanding as a Base Rate Loan and shall be in a principal
amount of not less than $500,000 or a greater integral
multiple of $50,000; provided that no breakage charges shall
be assessed against the Borrower for any conversion of
Eurodollar Loans to Base Rate Loans as of such date.
Notwithstanding any provision of this Agreement to the
contrary, the Borrower shall not be entitled to request any
Overnight Loan or Eurodollar Loan hereunder following March
19, 1997.
d. Section 2.03 is hereby amended by deleting such
Section in its entirety and substituting the following Section
2.03 in lieu thereof:
"Section 2.03. Reduction of Revolving Loan Commitment.
(a) Voluntary Reduction of Revolving Loan Commitment.
Upon at least three (3) Business Days' prior telephonic
notice (promptly confirmed in writing) to the Lender,
Borrower shall have the right, without premium or penalty,
to terminate the unutilized portion of the Revolving Loan
Commitment, in part or in whole, provided that, any partial
termination pursuant to this Section 2.03(a) shall be in an
amount of at least $5,000,000 and in integral multiples of
$1,000,000.
(b) Mandatory Reduction of Revolving Loan Commitment.
Within ten (10) Business Days after the Borrower or any
Subsidiary shall receive the Net Proceeds of Asset Sales of
any asset sale or disposition pursuant to Section
7.03(b)(iv), the Borrower shall simultaneously (i) deliver a
written notice to the Lender of such sale or disposition
together with a calculation of the Net Proceeds of Asset
Sales thereof, and (ii) shall prepay the Loans outstanding
pursuant to the Revolving Loan Commitment in the amount of
such Net Proceeds of Asset Sales. The Revolving Loan
Commitment shall automatically be permanently reduced by the
amount of such Net Proceeds of Asset Sales on the earlier of
(i) the date of delivery of the Borrower's certificate
required by the preceding sentence and (ii) the date which
is ten (10) Business Days after Borrower's receipt of such
Net Proceeds of Asset Sales. Upon reduction of the
Revolving Credit Commitment hereunder, the Lender shall
increase the amount of the Uncommitted Note by the amount of
such reduction; provided that, nothing set forth herein
shall be construed as an obligation of the Lender to make or
continue any advance pursuant to the Uncommitted Note, each
of which advances shall be made in the sole discretion of
the Lender and shall be payable on demand."
e. Section 2.04 is hereby amended by deleting such
section in its entirety and substituting the following in lieu
thereof:
"Section 2.04. Mandatory Pay-Out of Revolving Loans.
Commencing with the last day of the first fiscal quarter of
Borrower's Fiscal Year 1998 and continuing throughout the
remaining term of the Revolving Loan Commitment, on any date
of determination, there shall have been at least ninety (90)
days during the four most recently ended fiscal quarters of
the Borrower when no Loans shall have been outstanding
pursuant to the Revolving Loan Commitment (which days need
not be consecutive but all of which shall coincide with
dates when the amounts outstanding pursuant to the
Uncommitted Note permitted by Section 7.01(i) hereof shall
also have been reduced to $0) .
f. Section 6.08(a) of the Credit Agreement is hereby
amended by deleting such subsection in its entirety and
substituting the following subsection (a) in lieu thereof:
"(a) Fixed Charge Coverage. Maintain at all times
during the periods set forth below, a Fixed Charge Coverage
Ratio greater than the ratio set forth opposite such period
below, measured as of the last day of each fiscal quarter of
the Borrower for the immediately preceding four fiscal
quarters of the Borrower ending on such date:
Period Fixed Charge Coverage Ratio
Fiscal Year End 1996 to but not
including the last day of Third Fiscal
Quarter 1997 1.50:1.0
Last Day of Third Fiscal Quarter 1997
to but not including the last day of
First Fiscal Quarter 1998 1.00:1.0
Last Day of First Fiscal Quarter 1998 and
thereafter 1.75:1.0
Notwithstanding the foregoing: (i) the calculation of the
Fixed Charge Coverage Ratio on June 1, 1996 shall be made
solely with respect to the fiscal quarter ending on such
date, (ii) the calculation of the Fixed Charge Coverage
Ratio on August 31, 1996 shall be made solely with respect
to the two fiscal quarters ending on that date, and
(iii) the calculation of the Fixed Charge Coverage Ratio on
November 30, 1996 shall be calculated solely with respect to
the three fiscal quarters ending on such date."
g. Section 7.01(i) of the Credit Agreement is hereby
amended by deleting such subsection (i) in its entirety and
substituting the following in lieu thereof:
"(i) Unsecured Indebtedness of the Borrower pursuant to
the Uncommitted Note provided that, effective as of the end
of the first Fiscal Quarter of 1998, all of such
Indebtedness shall simultaneously be paid to $0 for a period
of 90 days during each four fiscal quarters of the Borrower
which days shall coincide with the days when the Revolving
Loans are reduced to $0 in accordance with Section 2.04
hereof; and"
h. Section 7.03(b)(iv) of the Credit Agreement is
hereby amended by deleting such clause (iv) in its entirety.
i. Section 7.05 of the Credit Agreement is hereby
amended by deleting the reference to "$25,000,000" in the last
line thereof and substituting the same with a reference to
"$15,000,000".
j. The Credit Agreement is hereby amended by deleting
the reference to the Revolving Loan Commitment on the signature
page of the Lender thereto.
SECTION 2. Waiver. The Borrower has informed the Lender
that the Borrower was not in compliance with Section 6.08(a)
(Fixed Charge Coverage Ratio) of the Credit Agreement for the
period ending on November 30, 1996. Therefore, the Lender hereby
waives any Default or Event of Default caused by any such failure
of the Borrower to comply with such provision of the Credit
Agreement for such fiscal period.
SECTION 3. Conditions of Effectiveness. This Amendment
shall become effective as of the Effective Date on the first day
when each of the following conditions shall have been satisfied:
a. This Amendment shall have been executed by the
Lender and executed and delivered to the Lender by the Borrower.
b. The Borrower shall have executed and delivered to
the Lender the Uncommitted Note.
c. The Borrower shall have delivered to the Bank a
Secretary's Certificate with respect to resolutions and
incumbency evidencing the corporate authority of the officers of
the Borrower executing and delivering this Amendment and the
Uncommitted Note to do so.
SECTION 4. Representations and Warranties of Borrower.
Borrower, without limiting the representations and warranties
provided in the Credit Agreement, represents and warrants to the
Lender as follows:
a. The execution, delivery and performance by
Borrower of this Amendment are within Borrower's corporate
powers, have been duly authorized by all necessary corporate
action (including any necessary shareholder action) and do not
and will not (a) violate any provision of any law, rule or
regulation, any judgment, order or ruling of any court or
governmental agency, the articles of incorporation or by-laws of
Borrower or any indenture, agreement or other instrument to which
the Borrower is a party or by which the Borrower or any of its
properties is bound or (b) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a
default under any such indenture, agreement or other instrument.
b. This Amendment constitutes the legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms.
c. No Default or Event of Default has occurred and is
continuing as of the Effective Date.
SECTION 5. Survival. Each of the foregoing representations
and warranties and each of the representations and warranties
made in the Credit Agreement shall be made at and as of the
Effective Date. Each of the foregoing representations and
warranties shall constitute a representation and warranty of
Borrower under the Credit Agreement, and it shall be an Event of
Default if any such representation and warranty shall prove to
have been incorrect or false in any material respect at the time
when made. Each of the representations and warranties made under
the Credit Agreement (including those made herein) shall survive
and not be waived by the execution and delivery of this Amendment
or any investigation by the Lender.
SECTION 6. No Waiver, Etc. Borrower hereby agrees that
except as expressly set forth in Section 2 above, nothing herein
shall constitute a waiver by the Lender of any Default or Event
of Default, whether known or unknown, which may exist under the
Credit Agreement. Borrower hereby further agrees that no action,
inaction or agreement by the Lender, including without
limitation, any indulgence, waiver, consent or agreement altering
the provisions of the Credit Agreement which may have occurred
with respect to the non-payment of any obligation during the
terms of the Credit Agreement or any portion thereof, or any
other matter relating to the Credit Agreement, shall require or
imply any future indulgence, waiver, or agreement by the Lender.
In addition, Borrower acknowledges and agrees that it has no
knowledge of any defenses, counterclaims, offsets or objections
in its favor against the Lender with regard to any of the
obligations due under the terms of the Credit Agreement as of the
date of this Amendment.
SECTION 7. Affirmation of Covenants. Borrower hereby
affirms and restates as of the date hereof all covenants set
forth in the Credit Agreement, as amended hereby, and such
covenants are incorporated by reference herein as if set forth
herein directly.
SECTION 8. Ratification of Credit Agreement. Except as
expressly amended herein, all terms, covenants and conditions of
the Credit Agreement and the other Loan Documents shall remain in
full force and effect, and the parties hereto do expressly ratify
and confirm the Credit Agreement as amended herein. All future
references to the Credit Agreement shall be deemed to refer to
the Credit Agreement as amended hereby.
SECTION 9. Binding Nature. This Amendment shall be binding
upon and inure to the benefit of the parties hereto, their
respective heirs, successors, successors-in-titles, and assigns.
SECTION 10. Costs and Expenses. The Borrower agrees to pay
on demand all reasonable costs and expenses of the Lender in
connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Lender with respect
thereto and with respect to advising the Lender as to its rights
and responsibilities hereunder and thereunder.
SECTION 11. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of the
State of Georgia.
SECTION 12. Entire Understanding. This Amendment sets
forth the entire understanding of the parties with respect to the
matters set forth herein, and shall supersede any prior negotia
tions or agreements, whether written or oral, with respect
thereto.
SECTION 13. Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in
separate counterparts and may be delivered by telecopier. Each
counterpart so executed and delivered shall be deemed an original
and all of which taken together shall constitute but one and the
same instrument.
[SIGNATURES SET FORTH ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment through their authorized officers as of the date
first above written.
XXXXXXXX FRESH COOKING, INC.
By: /s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title: Senior Vice President, Finance
[CORPORATE SEAL]
Attest: /s/ Xxxxxxxx X. Block
Name: Xxxxxxxx X. Block
Title: Secretary
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ F. M. Deover
Name: F. M. Deover
Title:
Group Vice President
DEMAND NOTE
April 8, 1997
XXXXXXXX FRESH COOKING, INC., a Georgia corporation (the
"Company"), promises to pay to the order of SUNTRUST BANK,
ATLANTA (the "Bank") ON DEMAND the principal sum of FIVE MILLION
DOLLARS ($5,000,000) or so much thereof as may be from time to
time disbursed hereunder, plus interest on the unpaid principal
balance as hereinafter provided.
Principal may be disbursed hereunder in the sole discretion
of the Bank in one or more disbursements (hereinafter an
"Advance" and collectively the "Advances"), which in the
aggregate shall at no time exceed the principal amount of this
Note. The interest period of any Advance shall not exceed 90
days. On the last day of any applicable interest period with
respect to each Advance, the Company may request a renewal of
such Advance; provided, that the Bank shall have no obligation or
commitment to renew such Advance, notwithstanding that the Bank
may have previously renewed such Advance or any other Advance.
Interest shall accrue at the Quoted Rate and shall be due
and payable on the last day of each interest period and ON DEMAND
for final payment. Should the Company fail for any reason to pay
this Note in full on the date of any demand, the Company further
promises to pay interest on the unpaid amount from such date
until the date of final payment at a default rate equal to the
Bank's Prime Rate plus 4% per annum. Should legal action or an
attorney at law be utilized to collect any amount due hereunder,
the Company further promises to pay all costs of collection,
including 15% of such unpaid amount as attorneys' fees. All
amounts due hereunder may be paid at any office of Bank.
"Prime Rate" shall mean that rate of interest designated by
the Bank from time to time as its Prime Rate, which may not be
its lowest rate of interest. "Quoted Rate" shall mean the per
annum rate of interest quoted by the Bank in its discretion to
the Company on the day of any requested advance.
The amount of interest accruing and payable hereunder shall
be calculated on the basis of a 360-day year for the actual
number of days elapsed.
As security for the payment of this and any other liability
of the Company to the Bank, direct or contingent, irrespective of
the nature of such liability or the time it arises, the Company
hereby grants a security interest to the Bank in all property of
the Company in or coming into the possession, control or custody
of the Bank, or in which the Bank has or hereafter acquires a
lien, security interest, or other right. Upon default, the Bank
may, without notice, immediately take possession of and then sell
or otherwise dispose of the collateral, signing any necessary
documents as the Company's attorney-in-fact, and apply the
proceeds against any liability of the Company to the Bank. Upon
demand, the Company will furnish such additional collateral, and
execute any appropriate documents related thereto, deemed
necessary by the Bank for its security. The Company further
authorizes the Bank, without notice, to set-off any deposit or
account and apply any indebtedness due or to become due from the
Bank to the Company in satisfaction of any liability described in
this paragraph, whether or not matured. The Bank may, without
notice, transfer or register any property constituting security
for this note into its or its nominee name with or without any
indication of its security interest therein.
This Note shall immediately become due and payable, without
notice or demand, upon the filing of any petition or the
commencement of any proceeding by or against the Company for
relief under bankruptcy or insolvency laws, or any law relating
to the relief of debtors, readjustment or indebtedness, debtor
reorganization, or composition or extension of debt.
The failure or forbearance of the of the Bank to exercise
any right hereunder, or otherwise granted by law or another
agreement, shall not affect or release the liability of the
Company, and shall not constitute a waiver of such right unless
so stated by the Bank in writing. The Bank may enforce its
rights against the Company or any property securing this Note
without enforcing its rights against any guarantor or other
obligor, property, or indebtedness due or to become due to any
such guarantor or obligor. The Company agrees that the Bank
shall have no responsibility for the collection or protection of
any property securing the Note, and expressly consents that the
Bank may from time to time, without notice, extend the time for
payment of this Note, or any part thereof, waive its rights with
respect to any property or indebtedness, and release any
guarantor or other obligor from liability, without releasing the
Company from any liability to the Bank. THIS NOTE SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF GEORGIA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
COMPANY WAIVES ITS RIGHT TO A JURY TRIAL. TIME IS OF THE
ESSENCE. PRESENTMENT, NOTICE OF DISHONOR, NOTICE OF DEMAND AND
PROTEST ARE HEREBY WAIVED BY THE COMPANY.
Executed under hand and seal on the date set forth
above.
XXXXXXXX FRESH COOKING, INC.
By: /s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
Senior Vice President - Finance
Attested By: /s/ Xxxxxxxx X. Block
XXXXXXXX X. BLOCK
Secretary
