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EXHIBIT 10.1
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT NO. 4, dated as of February 7, 2000, to the Credit Agreement,
dated as of December 31, 1996 (the "CREDIT AGREEMENT"), among (i) XXXXXXXX
BRANDS INTERNATIONAL, INC., a New Jersey corporation (the "BORROWER"), (ii) the
financial institutions which are now, or in accordance with SECTION 12.2 of the
Credit Agreement hereafter become, parties to the Credit Agreement
(collectively, "LENDERS"), (iii) BANKBOSTON, N.A., as Administrative Agent for
the Lenders, and (iv) BANKBOSTON, N.A., ING BANK N.V. and PNC BANK, NATIONAL
Association, as Co-agents for the Lenders.
RECITALS
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The Borrower, the Lenders and the Agents party to this
Amendment No. 4 ("THIS AGREEMENT") have agreed to amend certain of the
provisions contained in the Credit Agreement as set forth herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I -- DEFINITIONS
SECTION 1.1. DEFINITIONS. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
ARTICLE II -- AMENDMENTS
Unless otherwise indicated below, effective on and as of 5:00 p.m.,
February 7, 2000 (the "AMENDMENT Date"), the Credit Agreement is hereby amended
in each of the following respects:
SECTION 2.1. AMENDMENTS TO DEFINED TERMS.
(a) SECTION 1.1. SECTION 1.1 is hereby amended by inserting in
its correct alphabetical sequence the following definitions:
"AMENDMENT DOCUMENTS" means, collectively, (a) Amendment No. 4
to Credit Agreement, dated as of February 7, 2000, by and among the
Borrower, the Agents, and the certain financial institutions party
thereto, and (b) the Collateral Documents.
"XXXXXXXX PROCESSED FOODS" means Xxxxxxxx Processed Foods,
L.L.C., a Delaware limited liability company, and a direct wholly-owned
Subsidiary of Friday.
"COLLATERAL" means, collectively, (a) the Pledged Collateral,
(b) the Security Agreement Collateral, and (c) any and all other
collateral provided by the Borrower or by any of its Subsidiaries to
the Agents, the Issuer and the Lenders from time to time pursuant to
the Collateral Documents and the other Loan Documents.
"COLLATERAL AGENT" means BankBoston, N.A., in its capacity as
collateral agent for the Agents, the Issuer and the Lenders under this
Agreement, the
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Collateral Documents and the other Loan Documents, and any successor to
such collateral agent.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Pledge Agreement, all other Instruments (including the
Agency Account Agreements, as defined in the Security Agreement)
executed and delivered to the Administrative Agent or the Collateral
Agent on the Amendment Date or from time to time thereafter, and all
other Instruments executed and/or delivered from time to time pursuant
to any of the foregoing.
"COMMITMENT AMOUNT CERTIFICATE" means a certificate duly
executed by an Authorized Officer of the Borrower, substantially in the
form of EXHIBIT J attached hereto (with such changes thereto as may be
agreed upon by the Administrative Agent and the Borrower), and
delivered to the Administrative Agent pursuant to SECTION 9.1.1(d).
"FRIDAY" means Friday Holdings, L.L.C., a Delaware limited
liability company and a direct wholly-owned Subsidiary of the Borrower.
"INVESTMENT CAP" means an amount equal to $45,000,000, unless
and until such time as the Borrower has made a mandatory repayment of
principal of Revolving Loans pursuant to SECTION 3.3.3(A) or (B) in an
aggregate principal amount of not less than $10,000,000, at which time
such amount shall be increased to $50,000,000.
"MAXIMUM PERMITTED AMOUNT" is defined in EXHIBIT J hereto.
"NINETY PERCENT MAJORITY LENDERS" means, at the time any
determination thereof is to be made, (a) until all of the Commitments
have terminated, Lenders then having in the aggregate at least 90% of
the aggregate Commitments then in effect, and (b) after all of the
Commitments have terminated, Lenders then holding in the aggregate at
least 90% of the aggregate outstanding principal amount of all of the
Revolving Loans; PROVIDED, HOWEVER, that, for purposes of this
definition, (i) so long as there are four (4) or more Lenders, in no
event shall less than three (3) Lenders constitute the "NINETY PERCENT
MAJORITY LENDERS", and (ii) after all of the Commitments have
terminated, each of the Lenders shall, for purposes only of CLAUSE (b)
of this definition, be deemed to hold from time to time Revolving Loans
in an aggregate principal amount equal to such Lender's applicable
Percentage of all undrawn Letters of Credit from time to time
outstanding.
"PACA" is defined in SECTION 8.13.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
February 7, 2000, by and between the Borrower and the Collateral Agent.
"PLEDGED COLLATERAL" shall mean the Collateral under and as
defined in the Pledge Agreement.
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"SECURITY AGREEMENT" means the Security Agreement, dated as of
February 7, 2000, by and between the Borrower and the Collateral Agent.
"SECURITY AGREEMENT COLLATERAL" has the meaning specified in
the Security Agreement.
"SECURITY INSTRUMENT" means any security agreement, chattel
mortgage, assignment, pledge agreement, financing or other similar
statement or notice, continuation statement, other agreement or
Instrument, or any amendment or supplement to any thereof, creating,
governing or providing for, evidencing or perfecting any security
interest or Lien.
"SUPER-MAJORITY LENDERS" means, at the time any determination
thereof is to be made, (a) until all of the Commitments have
terminated, Lenders then having in the aggregate at least 66.67% of the
aggregate Commitments then in effect, and (b) after all of the
Commitments have terminated, Lenders then holding in the aggregate at
least 66.67% of the aggregate outstanding principal amount of all of
the Revolving Loans; PROVIDED, HOWEVER, that, for purposes of this
definition, (i) so long as there are four (4) or more Lenders, in no
event shall less than three (3) Lenders constitute the "SUPER-MAJORITY
LENDERS", and (ii) after all of the Commitments have terminated, each
of the Lenders shall, for purposes only of CLAUSE (b) of this
definition, be deemed to hold from time to time Revolving Loans in an
aggregate principal amount equal to such Lender's applicable Percentage
of all undrawn Letters of Credit from time to time outstanding.
(b) SECTION 1.1. SECTION 1.1 is hereby further amended by
deleting the definitions of the following terms: "Level I Status", "Level II
Status", "Level III Status", "Level IV Status", "Level V Status", and "Status".
(c) SECTION 1.1. The definition of "Alternate Base Rate
Margin" appearing in SECTION 1.1 of the Credit Agreement is hereby amended by
restating such definition in its entirety as follows:
"ALTERNATE BASE RATE MARGIN" means, for any Base Rate Tranche
at any date, the rate of 1.25% per annum.
(d) SECTION 1.1. The definition of "Applicable Commitment Fee
Rate" appearing in SECTION 1.1 of the Credit Agreement is hereby amended by
restating such definition in its entirety as follows:
"APPLICABLE COMMITMENT FEE RATE" means, at any date, (i) if
the Unused Commitment Amount is less than or equal to 50% of the
Commitment Amount, the rate of .50% per annum, and (ii) if the Unused
Commitment Amount is greater than 50% of the Commitment Amount, the
rate of .75% per annum.
(e) SECTION 1.1. The definition of "Change of Control
Triggering Event" appearing in SECTION 1.1 of the Credit Agreement is hereby
amended by deleting the word
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"or", immediately preceding clause (f) thereof, and inserting immediately
following such clause (f), the new clauses (g) and (h) as follows:
"(g) the Borrower shall cease to directly own and control, both legally
and beneficially, with full power to vote, one hundred percent (100%)
of the membership interests in Friday; or (h) Friday shall cease to
directly own and control, both legally and beneficially, with full
power to vote, one hundred percent (100%) of the membership interests
in Xxxxxxxx Processed Foods."
(f) SECTION 1.1. The definitions of "Consolidated EBITDA",
"Consolidated Net Interest Expense" and "Consolidated Operating Income"
appearing in SECTION 1.1 of the Credit Agreement are each hereby amended by
inserting immediately following the phrase "any fiscal year or fiscal quarter",
the phrase "or fiscal quarters" in the first sentence of each such definition.
(g) SECTION 1.1. The definition of "Eurodollar Rate Margin"
appearing in SECTION 1.1 of the Credit Agreement is hereby amended by restating
such definition in its entirety as follows:
"EURODOLLAR RATE MARGIN" means, for any Eurodollar Tranche at
any date, the rate of 2.75% per annum.
(h) SECTION 1.1. The definition of "Leverage Ratio" appearing
in SECTION 1.1 of the Credit Agreement is hereby amended by inserting the
following PROVISO at the end of such definition, immediately following the word
"date":
"; PROVIDED, HOWEVER, that for the sole purpose of calculating
and reporting the Leverage Ratio pursuant to SECTION 9.2.3(a) at the
end of any fiscal quarter, Total Senior Debt and Total Capitalization
shall each be reduced by the amount of cash shown on the balance sheet
of the Borrower as at the end of such fiscal quarter solely to the
extent such cash (a) represents the proceeds of Indebtedness for
Borrowed Money which is permitted by SECTION 9.2.1, and (b) has been
raised to repay other Indebtedness of the Borrower or its Subsidiaries
and is being held in reserve for such purpose."
(i) SECTION 1.1. The definition of "Loan Documents" appearing
in SECTION 1.1 of the Credit Agreement is hereby amended by restating such
definition in its entirety as follows:
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Agents' Fee Letter, each Assignment and Acceptance
Agreement, each Intercompany Subordination Agreement, the Collateral
Documents and each other Instrument executed and delivered pursuant to
or in connection with any thereof.
(j) SECTION 1.1. The definition of "Reference Period"
appearing in SECTION 1.1 of the Credit Agreement is hereby amended by restating
such definition in its entirety as follows:
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"REFERENCE PERIOD" means each period of four (4) consecutive
fiscal quarters of the Borrower; PROVIDED, that solely for the purpose
of calculating and reporting the Interest Coverage Ratio pursuant to
SECTION 9.2.3(b), Reference Period shall mean each of the periods set
forth therein.
Anything herein to the contrary notwithstanding, the amendments set forth in
SECTION 2.1(f), (h) and (j) above shall be effective as of December 30, 1999.
SECTION 2.2. AMENDMENTS TO COMMITMENTS.
(a) SECTION 2.2. SECTION 2.2 is amended by deleting the Dollar
amount "$125,000,000" appearing in such SECTION 2.2, and by inserting in place
thereof the following phrase: "(a) for the period prior to February 7, 2000,
$125,000,000, and (b) from and after February 7, 2000, $110,000,000."
SECTION 2.3. AMENDMENTS TO REVOLVING LOANS AND NOTES.
(a) SECTION 3.3. SECTION 3.3 is amended by inserting the
following new SECTION 3.3.3 immediately after the existing SECTION 3.3.2:
"SECTION 3.3.3. MANDATORY REPAYMENTS. (a) If at any time any
payment (whether upon prepayment, repurchase or redemption) is made in
cash or cash equivalents to or for the account of the Borrower (i) in
satisfaction of all or any part of the principal of the intercompany
debt owing to the Borrower, as evidenced by that certain Loan
Agreement, by and between Xxxxxxxx Brands South Pacific Ltd. and the
Borrower, dated as of June 24, 1998 (as the same may be amended,
extended, restated or otherwise modified from time to time), or (ii) in
satisfaction of all or any part of the principal of, or on account of
the redemption, repurchase or acquisition of, any debt or equity
Investment exchanged therefor, there shall immediately become due and
payable the principal amount of Revolving Loans equal to the lesser of
(A) the amount of such payment, or (B) the aggregate principal amount
of Revolving Loans then outstanding.
(b) If at any time any payments are made in cash or cash
equivalents to or for the account of the Borrower as proceeds or
otherwise in connection with a Sale of any Subsidiary permitted under
SECTION 9.2.5(e), where the Net Disposition Proceeds of such Sale equal
or exceed the sum of $10,000,000, there shall immediately become due
and payable the principal amount of Revolving Loans equal to the lesser
of (i) the Net Disposition Proceeds of such Sale, or (ii) the aggregate
principal amount of Revolving Loans then outstanding.
(c) Any such payments made to or for the account of the
Borrower as set forth in PARAGRAPH (a) or (b) above, in excess of the
then aggregate outstanding principal amount of all Revolving Loans, may
be applied by the Borrower to the repurchase of public debt pursuant to
SECTION 9.2.10 or may be otherwise used by the Borrower in accordance
with this Agreement.
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(d) If at any time the sum of the aggregate principal of all
Revolving Loans outstanding and the aggregate Letter of Credit
Outstandings shall exceed the Maximum Permitted Amount, then, unless
the Super-Majority Lenders shall otherwise consent in writing, there
shall immediately become due and payable the principal amount of
Revolving Loans equal to the amount of such excess.
(e) Any prepayments pursuant to SECTION 3.3.3(a), (b) or (d)
made on any day other than the end of an Interest Period for any
Eurodollar Tranche shall be applied: first, to any Base Rate Tranche
then outstanding; and, then, to the Eurodollar Tranche with the
shortest Interest Period remaining and then, successively, to
Eurodollar Tranches with, in each case, the then next shortest Interest
Period; provided that, so long as no Event of Default shall then be
continuing, the Administrative Agent shall, upon the request of the
Borrower, apply any such prepayments to Eurodollar Tranches only on the
last day of each of the respective Interest Periods relating thereto,
and, until such application of any such prepayments, the Administrative
Agent shall hold the amount thereof as cash Collateral for the
Obligations upon the terms contained in the Collateral Documents.
(f) Each prepayment of Revolving Loans made pursuant to this
SECTION 3.3.3 shall be without premium or penalty, except as may be
required by SECTION 4.8. Prepayments hereunder shall not automatically
reduce the Commitment Amount, and any amounts repaid hereunder may be
reborrowed from time to time, in accordance with SECTION 3.1 hereof."
SECTION 2.4. AMENDMENTS TO CONDITIONS TO CREDIT EXTENSIONS.
(a) SECTION 7.2. SECTION 7.2 is amended by inserting the
following new SECTION 7.2.5 immediately after the existing SECTION 7.2.4:
"SECTION 7.2.5. SUPER-MAJORITY LENDERS CONSENT REQUIREMENT.
If, immediately after giving effect to the proposed Credit Extension,
the SUM of (a) the aggregate principal of all Revolving Loans
outstanding, PLUS (b) the aggregate Letter of Credit Outstandings,
would exceed:
(i) $106,500,000, at any time prior to the date of
the delivery of the Commitment Amount Certificate pursuant to SECTION
9.1.1(d) hereof; or
(ii) the Maximum Permitted Amount, at any time from
and after the date of the delivery of the Commitment Amount
Certificate;
then the Borrower shall have received the prior written consent of the
Super-Majority Lenders for such Credit Extension.
SECTION 2.5. AMENDMENTS TO WARRANTIES, ETC.
(a) SECTION 8.13. SECTION 8.13 is amended by restating such
SECTION 8.13 in its entirety as follows:
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"SECTION 8.13. COMPLIANCE WITH APPLICABLE LAWS. Each of the
Borrower and its Material Subsidiaries is in substantial compliance
with all Applicable Laws, including, without limitation, the Perishable
Agricultural Commodities Act (7 USCS Sections 499a et seq.)("PACA"),
except to the extent that any failure so to be in compliance has not
had and will not be reasonably likely to have a Materially Adverse
Effect. The Borrower has no knowledge of any claims outstanding, or of
any events that with the passage of time are likely to result in
claims, against the Borrower or its Subsidiaries under PACA."
SECTION 2.6. AMENDMENTS TO CERTAIN AFFIRMATIVE COVENANTS.
(a) SECTION 9.1.1 is amended by deleting the word "and"
appearing at the end of paragraph (c) thereof, renumbering existing paragraph
(d) as paragraph (e), and inserting the following text immediately following
paragraph (c):
"(d) promptly when the information required to complete such
certificate becomes available, and in any event by April 1, 2000, the
Commitment Amount Certificate; and"
SECTION 2.7. AMENDMENTS TO CERTAIN NEGATIVE COVENANTS.
(a) SECTION 9.2.2(e). SECTION 9.2.2(e) is amended by deleting
the Dollar amount "$250,000,000" appearing in such SECTION 9.2.2(e), and by
inserting in place thereof the Dollar amount "$225,000,000" effective as of
December 30, 1999.
(b) SECTION 9.2.3(a). PARAGRAPH (a) of SECTION 9.2.3 is
amended by restating such SECTION 9.2.3(a) in its entirety effective as of
December 30, 1999, as follows:
"(a) LEVERAGE RATIO: Permit the Leverage Ratio to be greater
than the ratio of 0.475:1.000 at the end of any fiscal quarter ending
on or after December 30, 1999."
(c) SECTION 9.2.3(b). PARAGRAPH (b) of SECTION 9.2.3 is
amended by restating such SECTION 9.2.3(b) in its entirety effective as of
December 30, 1999, as follows:
"(b) INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio for any Reference Period set forth below, as measured at the end
of such Reference Period, to be less than the amount set forth opposite
such Reference Period in the table below:
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Reference Period Fiscal Quarters in Minimum Ratio
Reference Period
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01/01/00-03/31/00 1 2.35:1.00
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01/01/00-06/30/00 2 2.35:1.00
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01/01/00-09/30/00 3 1.85:1.00
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01/01/00-12/31/00 4 1.75:1.00
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(d) SECTION 9.2.4. SECTION 9.2.4 is amended by restating such
SECTION 9.2.4 in its entirety effective as of December 30, 1999, as follows:
"SECTION 9.2.4. RESTRICTED PAYMENTS. Make or extend or enter
into any agreement to make any Restricted Payments, EXCEPT:
(a) the making by any Subsidiary of the Borrower (i)
to the Borrower or to any other Subsidiary of the Borrower of
any Restricted Payments of the kind described in CLAUSE (c) of
the definition "RESTRICTED PAYMENTS", and (ii) of any
Restricted Payments of the kind described in CLAUSE (b) of the
definition "RESTRICTED PAYMENTS"; PROVIDED, HOWEVER, that no
such Restricted Payments of the kind described in CLAUSE (b)
of the definition "RESTRICTED PAYMENTS" shall in any event be
permitted unless any such Restricted Payments on any shares of
a particular class of Capital Stock of a corporation shall be
made on or with respect to all of the issued and outstanding
shares of such class of Capital Stock of such corporation on a
PRO RATA basis, at the same time and on the same terms;
(b) the declaration of cash dividends on the Capital
Stock of the Borrower, in an aggregate amount not to exceed
$30,300,000 in fiscal year 2000, by the Borrower and the
payment of such cash dividends within sixty (60) days after
the declaration thereof; PROVIDED THAT at the time of the
declaration of such cash dividends, each of the Special
Covenant Conditions shall be satisfied, it being expressly
understood and agreed that the Borrower shall in any event be
permitted to pay cash dividends within sixty (60) days after
the declaration thereof if at the time of the declaration of
such cash dividends, each of the Special Covenant Conditions
(determined after giving PRO FORMA effect to the payment of
such cash dividends) shall be satisfied;
(c) the making by the Borrower of any Restricted
Payments of the kind described in CLAUSE (b) of the definition
"RESTRICTED PAYMENTS", solely in connection with and as
required by the Borrower's employee benefit plans or the
Borrower's dividend reinvestment plan;
(d) the making by the Borrower of any Restricted
Payments of the kind described in CLAUSE (d) of the definition
"RESTRICTED PAYMENTS"; PROVIDED, HOWEVER, that no such
Restricted Payments by the Borrower that would otherwise be
permitted by this CLAUSE (d) shall in any event be permitted
unless each of the Special Covenant Conditions shall be
satisfied both at the time of the making of such Restricted
Payments by the Borrower and also after giving effect thereto;
and
(e) Restricted Payments, not otherwise permitted by
any of the other CLAUSES of this SECTION 9.2.4, by the
Borrower to any of its Affiliates, in each case only if (i) at
the time of the making by the Borrower of any such Restricted
Payments, and after giving effect thereto, each of the
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Special Covenant Conditions shall be satisfied, and (ii) such
Restricted Payments shall not otherwise be prohibited by
SECTION 9.2.8.
The Borrower shall not, and shall not cause or permit any of its
Subsidiaries to, create or permit to exist any contractual restrictions
on the making of Restricted Payments by Subsidiaries of the Borrower to
the Borrower or to any other Subsidiaries of the Borrower which
materially impair or which will be reasonably likely to materially
impair the ability of the Borrower to perform any of its payment
Obligations under this Agreement or the Notes."
(e) SECTION 9.2.5. SECTION 9.2.5 is amended by inserting as a
new full non-indented paragraph immediately following the last subparagraph
thereof the following proviso:
"; PROVIDED, HOWEVER, that notwithstanding anything in this Agreement
to the contrary, the Borrower shall not engage in any Sale of all or
any part of, or otherwise transfer or dilute, its ownership interest in
Friday, and shall not cause or permit Friday to engage in any Sale of
all or any part of, or to otherwise transfer or dilute, its ownership
interest in Xxxxxxxx Processed Foods."
(f) SECTION 9.2.6(b). SECTION 9.2.6(b) is amended by deleting
the Dollar amount "$50,000,000" appearing in SUB-CLAUSE (i) of such SECTION
9.2.6(b), and by inserting in place thereof the following phrase "the Investment
Cap".
(g) SECTION 9.2.7. SECTION 9.2.7 is amended by inserting the
letter "(a)" prior to the first sentence thereof, deleting the date "January 1,
2002" and inserting the date "January 1, 2000" in place thereof in the first
sentence of such SECTION 9.2.7(a), and inserting new paragraph (b) at the end of
such SECTION 9.2.7 as follows:
"(b) Cause or permit the Consolidated Capital Expenditures of
the Borrower and its Subsidiaries for the calendar years ending
December 31, 2000 and December 31, 2001, to exceed $75,000,000 per
calendar year; PROVIDED, HOWEVER, that for the purposes of the
foregoing calculations, there shall be excluded the aggregate amount of
all capital expenditures made by the Borrower or any of its
Subsidiaries (i) with Capital Stock of the Borrower, or (ii) with the
net cash proceeds (A) from the issue or Sale of Capital Stock of the
Borrower, (B) from Sales and from Sale and Leaseback Transactions that
are not Permitted Dispositions but are otherwise permitted under
SECTION 9.2.5."
(h) SECTION 9.2.10. SECTION 9.2 is amended by inserting the
following new SECTION 9.2.10 immediately after the existing SECTION 9.2.9:
"Section 9.2.10. RESTRICTIONS ON REPURCHASING PUBLIC DEBT.
Neither Borrower nor its Subsidiaries shall make any payment or other
distribution on account of the redemption, repurchase, defeasance or
other acquisition for value of any of the Borrower's public debt,
whether senior or subordinated, except to the extent of (i) the
proceeds from a $50,000,000 term loan incurred by Xxxxxxxx
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Processed Foods, (ii) the proceeds from any unsecured public debt
issues of the Borrower, which would otherwise qualify as Indebtedness
for Borrowed Money permitted by SECTION 9.2.1, or (iii) any excess
payments available for such purpose pursuant to SECTION 3.3.3(C)
hereof."
SECTION 2.8. AMENDMENTS TO EVENTS OF DEFAULT.
(a) SECTION 10.1.8. SECTION 10.1.8 is amended by restating
such SECTION 10.1.8 in its entirety as follows:
"SECTION 10.1.8. IMPAIRMENT OF LOAN DOCUMENT, ETC. (i) Any
Loan Document shall (except in accordance with its terms), in whole or
in part, terminate, cease to be effective, or cease to be the legally
valid, binding and enforceable obligation of the Borrower or shall
cease to create valid and perfected security interests in and Liens
(subject only to Permitted Liens) upon the Collateral purported to be
covered by the Collateral Documents; or (ii) the Borrower shall,
directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability of any of the Collateral
Documents."
SECTION 2.9. AMENDMENT TO THE AGENTS.
(a) SECTION 11.4. Section 11.4 is amended by restating such SECTION
11.4 in its entirety as follows:
"SECTION 11.4. LOAN DOCUMENTS, ETC.
(a) Each of the Lenders and the other Agents hereby further
authorizes the Administrative Agent, on behalf of and for the benefit
of Lenders and the other Agents, to be the agent for and representative
of the Lenders and the other Agents with respect to the Collateral and
the Collateral Documents, and to enter into any other Loan Documents
and to take all action contemplated thereby.
(b) Anything herein express or implied to the contrary
notwithstanding, without any notice to or consent, approval or
authorization from any of the Lenders or the Agents, the Administrative
Agent may from time to time execute any Instruments necessary to (i)
release any Liens encumbering any item of Collateral that is (in each
such case) the subject of a Sale permitted by the Loan Documents or to
which Required Lenders (or such other Lenders as may be required to
give such consent under SECTION 13.1) have otherwise consented, or (ii)
release any guarantor from any guaranty if and to the extent that such
release is otherwise permitted by the terms of the Loan Documents.
(c) Anything contained in any of the Loan Documents to be
contrary notwithstanding, the Administrative Agent, each of the Lenders
and the other Agents hereby agree that (i) none of the Lenders shall
have any rights individually to realize upon any of the Collateral or
to enforce any guaranty provided by any Loan Document, it being
understood and agreed that all
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powers, rights and remedies with respect to the Collateral and any
guaranty may be exercised solely by the Administrative Agent for the
benefit of the Lenders and the Agents in accordance with the terms of
the Loan Documents and (ii) in the event of a foreclosure by the
Administrative Agent on any of the Collateral pursuant to a public or
private Sale, the Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such Sale, and the
Administrative Agent, as agent for and representative of the Lenders
(but not any Lender or Lenders in its or their respective individual
capacities, unless the Required Lenders shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such Sale, to use and apply any of the
Obligations as a credit on account of the purchase price payable by the
Administrative Agent for any Collateral at such Sale."
SECTION 2.10. AMENDMENT TO MISCELLANEOUS.
(a) SECTION 13.1(b). PARAGRAPH (b) of SECTION 13.1 is amended by
restating such SECTION 13.1(b) in its entirety, as follows:
"(b) (i) which would modify SECTION 7.2.5 or this SECTION
13.1, change the definition of "REQUIRED LENDERS" or "COMMITMENT
TERMINATION EVENT" or "COMMITMENT TERMINATION DATE" or "SUPER-MAJORITY
LENDERS" or "NINETY PERCENT MAJORITY LENDERS", release the Guaranty, or
increase the aggregate amount of all of the Commitments, shall be
effective unless consented to by all of the Lenders, and (ii) which
would release all or substantially all of the Collateral, shall be
effective unless consented to by the Ninety Percent Majority Lenders;"
SECTION 2.11. AMENDMENTS TO EXHIBITS.
(a) EXHIBIT D -- COMPLIANCE CERTIFICATE. EXHIBIT D to the
Credit Agreement is amended by replacing the existing EXHIBIT D in its entirety
with new EXHIBIT D, a copy of which is attached to this Amendment.
(b) EXHIBIT J -- COMMITMENT AMOUNT CERTIFICATE. The Exhibits
to the Credit Agreement are amended by inserting immediately following the
existing EXHIBIT I a new EXHIBIT J, a copy of which is attached to this
Amendment.
SECTION 2.12. AMENDMENTS TO SCHEDULES.
(a) SCHEDULE I -- AGENTS AND LENDERS. SCHEDULE I to the Credit
Agreement is amended by replacing the existing SCHEDULE I in its entirety with
new SCHEDULE I, a copy of which is attached to this Amendment.
ARTICLE III -- REPRESENTATIONS, WARRANTIES AND COVENANT
The Borrower represents and warrants to and covenants with each Agent
and Lender as follows:
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SECTION 3.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the
representations and warranties made by or on behalf of the Borrower to the
Agents and the Lenders in the Loan Documents was true and correct in all
material respects when made and is true and correct in all material respects on
and as of the date hereof, except, in each case, (a) as affected by the
consummation of the transactions contemplated by the Loan Documents (including
this Agreement), (b) to the extent that any such representation or warranty
relates by its express terms solely to a prior date, and (c) in the case of the
representations set forth in SECTION 8.6 regarding litigation, to the extent
that the information contained in SECTION 8.6 of the DISCLOSURE SCHEDULE has
been updated since the Effective Date by written materials provided by the
Borrower to the Administrative Agent and the Lenders.
SECTION 3.2. CORPORATE AUTHORITY, ETC. The execution and delivery by
the Borrower of each Amendment Document entered into by the Borrower on or prior
to the date hereof, and the performance by the Borrower of its agreements and
obligations under each such Amendment Document, have been duly and properly
authorized by all necessary corporate or other action on the part of the
Borrower, and do not and will not conflict with, result in any violation of, or
constitute any default under (a) any provision of any Governing Document of the
Borrower, (b) any Contractual Obligation of the Borrower, including without
limitation any indenture pursuant to which the Borrower has incurred
Indebtedness, or (c) any Applicable Law.
SECTION 3.3. VALIDITY, ETC. Each Amendment Document entered into by the
Borrower on or prior to the date hereof has been duly executed and delivered by
the Borrower and constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws at the time in effect affecting the
enforceability of the rights of creditors generally and to general equitable
principles. The Borrower hereby ratifies and confirms all of the Obligations and
all terms and conditions of the Credit Agreement in all respects, including,
without limitation, the obligations of the Borrower as Guarantor of the
Subsidiary Reimbursement Obligations, pursuant to ARTICLE VI of the Credit
Agreement.
SECTION 3.4. NO DEFAULTS. Immediately after giving effect to this
Agreement, no Defaults or Events of Default are or will be continuing under the
Credit Agreement.
SECTION 3.5. AMENDMENT FEE. In consideration of the execution and
delivery of this Agreement by the Administrative Agent and the Required Lenders,
the Borrower hereby promises to pay to the Administrative Agent on or prior to
the third Business Day after the date hereof, for the account of each of the
Lenders (each, a "CONSENTING LENDER") that (a) has sent confirmation of its
approval of this Amendment on or prior to January 13, 2000, AND (b) (i) executes
and delivers this Agreement and (ii) delivers and releases to the Administrative
Agent or its special counsel, by the second Business Day after the date hereof,
an execution copy of this Agreement signed by such Lender (or a facsimile copy
thereof), an amendment fee ("AMENDMENT FEE") equal to 1/8th of 1% (.00125) of
the Commitment of each such Consenting Lender in effect as of January 31, 2000.
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ARTICLE IV -- PROVISIONS OF GENERAL APPLICATION
SECTION 4.1. EFFECTIVENESS. This Agreement shall become effective upon
the satisfaction of each of the following conditions; PROVIDED, HOWEVER, that
upon satisfaction of all of such conditions, this Agreement shall be effective
as of 5:00 p.m. on the Amendment Date, regardless of the date on which such
conditions are satisfied:
(a) PLEDGE AGREEMENT. The Administrative Agent shall have
received counterparts of the Pledge Agreement, dated as of the Amendment Date,
duly executed and delivered by the Borrower and the Collateral Agent, together
with:
(i) all certificates and other Instruments
representing Pledged Collateral then to be pledged thereunder;
(ii) with respect to Pledged Collateral, if any,
consisting of book-entry shares, evidence that all actions described in the
Pledge Agreement which are necessary to create and perfect the security
interests and Liens therein pursuant to the Pledge Agreement in accordance with
Article 8 of the Uniform Commercial Code have been taken;
(iii) with respect to the Pledged Collateral,
executed copies of financing statements (Form UCC-1) in appropriate form for
filing under the Uniform Commercial Code of each jurisdiction as may be
necessary to perfect the security interests in limited liability company
interests or other Pledged Collateral purported to be created by the Pledge
Agreement; and
(iv) evidence that all such other actions have been
taken as may be necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests and Liens purported to be created by
the Pledge Agreement (including evidence that Friday has duly recorded the
security interests and Liens created by the Pledge Agreement in its limited
liability company books).
(b) SECURITY AGREEMENT; UCC FILINGS; ETC. The Administrative
Agent shall have received counterparts of the Security Agreement, dated as of
the Amendment Date, duly executed and delivered by the Borrower and the
Collateral Agent, together with:
(i) executed copies of financing statements (Form
UCC-1) in appropriate form for filing under the Uniform Commercial Code of each
jurisdiction as may be necessary to perfect the security interests and Liens
purported to be created by the Security Agreement;
(ii) certified copies of requests for information or
copies (Form UCC-11), or equivalent reports, each of recent date, listing all
effective financing statements that name the Collateral Agent as debtor and that
are filed in the jurisdictions referred to in CLAUSE (a), together with copies
of such financing statements (none of which shall cover the Collateral, EXCEPT
(A) those with respect to which appropriate termination statements executed by
the secured party thereunder
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have been delivered to the Administrative Agent, and (B) to the extent
evidencing Liens permitted by the Loan Documents); and
(iii) evidence that all other action necessary or, in
the reasonable opinion of the Collateral Agent, desirable to perfect and protect
the security interests and Liens purported to be created by the Pledge Agreement
and the Security Agreement have been properly taken by the Borrower.
(c) THIS AGREEMENT. The Administrative Agent shall have
received counterparts of this Agreement, dated as of the Amendment Date, duly
executed and delivered by the Borrower and the Required Lenders.
(d) OPINION. The Administrative Agent shall have received
favorable opinions addressed to the Agents and Lenders in form and substance
satisfactory to the Administrative Agent from in-house counsel to the Borrower
and its Subsidiaries with respect to New York law and certain matters of New
Jersey corporate and Delaware limited liability company law.
(e) AMENDMENT FEE AND OTHER EXPENSES. The Administrative Agent
shall have received from the Borrower (i) payment of the Amendment Fee for the
account of each Consenting Lender, and (ii) payment in full of all of the
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including reasonable counsel fees and disbursements) incurred in connection
with the Amendment Documents for which invoices have been submitted on or prior
to the Amendment Date.
(f) RESOLUTIONS, ETC. The Administrative Agent shall have
received:
(x) from the Borrower, a certificate, dated as of the
Amendment Date, of its secretary or any assistant secretary as to:
(i) resolutions of its board of directors
then in full force and effect authorizing the execution, delivery and
performance by the Borrower, of this Agreement and each of the other Amendment
Documents;
(ii) the incumbency and signatures of the
responsible officers of the Borrower authorized to act with respect to the
Borrower, this Agreement and each of the other Amendment Documents (upon which
certificate each of the Agents and the Lenders may conclusively rely until the
Administrative Agent shall have received a further certificate of the Borrower
canceling or amending such prior certificate, which further certificate shall be
reasonably satisfactory to the Administrative Agent);
(iii) each Governing Document of the
Borrower and Friday; and
(iv) each shareholder agreement, stock
subscription agreement, voting agreement, voting trust agreement, securities
purchase agreement and other similar agreement to which the Borrower or Friday
is a party; and
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(y) such other similar documents (certified as of the
Closing Date) as the Administrative Agent may reasonably request with respect to
any matter relevant to this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
Each of such documents shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
(g) CERTIFICATES OF GOOD STANDING, ETC. The Administrative
Agent shall have received (a) the Governing Documents and other organizational
documents of the Borrower, Friday and Xxxxxxxx Processed Foods as in effect on
the Amendment Date, certified as of a recent date by the Secretary of State (or
other similar applicable Governmental Authority) of the jurisdiction of
incorporation or organization of such entity, and (b) a good standing
certificate as of a recent date (i) for the Borrower, Friday and Xxxxxxxx
Processed Foods from the Secretary of State of the jurisdiction of incorporation
or organization of such entity, and (ii) for the Borrower and Friday from the
Secretary of State in each State or other jurisdiction where the failure of such
entity to be qualified to do business as a foreign corporation or other entity
could reasonably be expected to have a Materially Adverse Effect.
(h) MISCELLANEOUS CERTIFICATES, INFORMATION. The
Administrative Agent shall have received such other certificates or information
(certified as of the Amendment Date) as the Administrative Agent may reasonably
request with respect to any matter relevant to this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.
SECTION 4.2. MISCELLANEOUS. Except as otherwise expressly provided by
this Agreement, all of the terms, conditions and provisions of the Credit
Agreement and each of the other Loan Documents shall remain unaltered, and such
Loan Documents are in full force and effect. This Agreement and each of the
other Amendment Documents is a Loan Document for all purposes of the Credit
Agreement. This Agreement and the rights and obligations hereunder of each of
the parties hereto shall in all respects be construed in accordance with and
governed by the internal laws of the State of New York, without regard to
conflict of laws principles except for Section 5-1401 of the General Obligations
Law of the State of New York. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, but all
of such counterparts shall together constitute but one and the same agreement.
In making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart hereof signed by each of the parties
hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 4
to be executed by their respective authorized officers as of the date first
above written.
THE BORROWER:
XXXXXXXX BRANDS INTERNATIONAL, INC.
By: /s/
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and Treasurer
THE AGENTS AND LENDERS:
BANKBOSTON, N.A., AS ADMINISTRATIVE AGENT,
AS ONE OF THE CO-AGENTS, AND AS ONE OF THE
LENDERS
By: /s/
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
ING BANK N.V., AS ONE OF THE CO-AGENTS AND
AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: X.X. Xxxxx
Title: Senior Relationship Manager
By: /s/
-------------------------------------
Name: H.W.L. Xxxxxxxxx
Title: Senior Relationship Manager
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PNC BANK, NATIONAL ASSOCIATION, AS ONE OF
THE CO-AGENTS AND AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, AS ONE OF THE
LENDERS
By: /s/
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW
YORK BRANCH, AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Hans Chr. Kjelsrud
Title: Senior Vice President
By: /s/
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Manager
FIRSTAR BANK, N.A., AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SUNTRUST BANK, N.A., AS ONE OF THE LENDERS
By:
-------------------------------------
Name:
Title: