EXHIBIT 10.29
TWELFTH AMENDATORY AGREEMENT
This TWELFTH AMENDATORY AGREEMENT, dated as of April 10,
1997, is among FARM FRESH, INC., a Virginia corporation (the "Borrower"), the
guarantors parties to the Credit Agreement referred to below (the "Guarantors"),
the lenders parties to the Credit Agreement referred to below (the "Lenders"),
and FLEET BANK, N.A. (as successor to NatWest USA Credit Corp.), as agent (the
"Agent") for the Lenders thereunder.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Guarantors, the Lenders
and the Agent have entered into a Revolving Credit Agreement dated as of
December 10, 1993 (as amended to date, the "Credit Agreement"); the terms
defined therein being used herein as therein defined unless otherwise defined
herein.
(2) The Borrower and the Lenders have, on the
terms and conditions stated below, agreed to amend certain of the terms of the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. Effective
as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, the Credit Agreement is hereby amended
as follows:
(a) The definition of "EBITDA" in Article I of the
Credit Agreement is hereby amended by adding the phrase "(for the fiscal year
ended December 28, 1996, an amount not to exceed $4,000,000)" immediately after
the phrase "and for each fiscal year thereafter, an amount, not to exceed
$2,000,000 in the aggregate for any such fiscal year" in clause (vi) of such
definition.
(b) Section 7.07 of the Credit Agreement is hereby
amended by deleting the table set forth therein and by substituting therefor the
following table:
"Period Maximum Amount
------ --------------
Fiscal Year ending December 28, 1996 $21,000,000
Fiscal Year ending December 27, 1997 $6,000,000
and each Fiscal Year thereafter"
(c) Section 7.11 of the Credit Agreement is hereby
amended by deleting the table set forth therein and by substituting, in lieu
thereof, the following table:
"Date of Determination Amount
--------------------- ------
December 28, 1996 $37,000,000
March 22, 1997 $38,000,000
June 14, 1997 $37,500,000
September 6, 1997 $37,500,000
December 27, 1997 $40,000,000"
SECTION 2. Conditions of Effectiveness. This Amendatory Agreement
shall be operative as of the date hereof but shall become effective when, and
only when, the Agent shall have received (x) counterparts of this Amendatory
Agreement executed by the Borrower, the Guarantors and the Lenders or, as to any
of said Lenders, advice satisfactory to the Agent that such Lender has executed
this Amendatory Agreement and (y) all of the following documents, each document
(unless otherwise indicated) being dated the effective date, in form and
substance satisfactory to the Agent:
(a) a certificate of the Secretary
or an Assistant Secretary of the Borrower and the Guarantor certifying the names
and true signatures of their respective officers authorized to sign this
Amendatory Agreement and the other documents to be delivered hereunder;
(b) a certificate signed by a duly
authorized officer of the Borrower stating that:
(i) the representations and warranties of
the Borrower as set forth in Article IV of the Credit
Agreement and in any documents delivered therewith,
including the Loan Documents, are true and correct on
and as of the date of such certificate as though made on
and as of such date (except insofar as such
representations and warranties relate expressly to an
earlier date or are based on the accuracy of schedules
prepared as of a prior date),
(ii) the representations and warranties
contained in Section 3 hereof are correct on and as of
the date of such certificate as though made on and as of
such date, and
(iii) after giving effect to this Amendatory
Agreement, no Default or Event of Default has occurred
and is continuing.
(c) certified copies of (i) the
resolutions of the Board of Directors of the Borrower and of the Guarantor
approving this Amendatory Agreement and (ii) all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Amendatory Agreement and the matters contemplated hereby; and
(d) a favorable opinion of Xxxxxxx &
Xxxxxxx, counsel for the Borrower and the Guarantor, in a form reasonably
acceptable to the Agent and Lenders.
SECTION 3. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The execution, delivery and
performance by the Borrower and the Guarantor of this Amendatory Agreement and
the Credit Agreement as amended hereby are within the Borrower's and the
Guarantor's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the charter or by-laws, and (ii) any
law or any contractual restriction binding on or affecting the Borrower or the
Guarantor.
(b) No authorization, approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower or the Guarantor of this Amendatory Agreement and the Credit
Agreement as amended hereby.
(c) This Amendatory Agreement and
the Credit Agreement as amended hereby, constitute legal, valid and binding
obligations of the Borrower and the Guarantor enforceable against the Borrower
and the Guarantor in accordance with their respective terms.
(d) There is no pending or
threatened action or proceeding affecting the Borrower, the Guarantor or any of
their respective subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the financial condition or
operations of the Borrower, the Guarantor or any subsidiary thereof or which
purports to affect the legality, validity or enforceability of this Amendatory
Agreement and the Credit Agreement as amended hereby.
(e) The execution, delivery and
performance of this Amendatory Agreement does not conflict with or violate in
any manner the terms of any of the Borrower's Senior Notes (or the related
Senior Indenture) or Subordinated Indebtedness or in any manner affect the
status of the Obligations under the Credit Agreement regarding the subordination
provisions of the Borrower's Subordinated Indebtedness.
SECTION 4. Reference to and Effect on the Loan
Documents.
(a) Upon the effectiveness of this
Amendatory Agreement, on and after the date hereof each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended
above, the Credit Agreement, the Notes and all other Loan Documents are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) The execution, delivery and
effectiveness of this Amendatory Agreement shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Lender
or the Agent under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
SECTION 5. Costs, Expenses and Taxes. The Borrower
agrees to pay on demand all costs and expenses of the Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of this Amendatory Agreement 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 Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities hereunder
and thereunder. The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendatory Agreement and the other
instruments and documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 5. In addition, the Borrower shall pay
any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendatory Agreement and the
other instruments and documents to be delivered hereunder, and agrees to save
the Agent and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omitting to pay such taxes.
SECTION 6. Execution in Counterparts. This Amendatory
Agreement 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 but one and the same agreement.
SECTION 7. Governing Law. This Amendatory Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendatory Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
FARM FRESH, INC.
By /s/ FARM FRESH, INC.
--------------------
Name:
Title:
FF HOLDINGS CORPORATION,
as Guarantor
By /s/ FF HOLDINGS CORPORAION
--------------------------
Name:
Title:
FLEET BANK, N.A., (as successor
to NatWest USA Credit Corp.),
as Lender
By /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FLEET BANK, N.A. (as successor to
NatWest USA Credit Corp.),
as Agent
By /s/ Xxxxxx Maisle
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC., as Lender
By /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
