AMENDMENT TO LOAN DOCUMENTS
AND CONSENT
THIS AMENDMENT TO LOAN DOCUMENTS AND CONSENT (the "Agreement") is made
and entered into as of the 6th day of June, 1997, between HARRY'S XXXXXX'X
MARKET, INC., a Georgia corporation ("Borrower"), PROGRESSIVE FOOD CONCEPTS,
INC., (f/k/a HFMI ACQUISITION CORPORATION), a Delaware corporation ("Subordinate
Lender"), and CREDITANSTALT BANKVEREIN, an Austrian banking corporation, in its
capacity as the lender (the "Lender") and agent (the "Agent") under the Credit
Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, Borrower, Lender and Agent are parties to that certain
Amended and Restated Credit Agreement, dated as of December 30, 1994, as amended
(as amended, modified, restated or supplemented from time to time, the "Credit
Agreement"); and
WHEREAS, Borrower and Subordinate Lender are parties to that certain
Secured Loan Agreement dated as of January 31, 1997 (the "Original Subordinate
Loan Agreement"); and
WHEREAS, Agent and Subordinate Lender are parties to that certain
Intercreditor Agreement dated as of January 31, 1997 (as amended, modified,
restated or supplemented from time to time, the "Intercreditor Agreement"); and
WHEREAS, Borrower and Subordinate Lender desire to amend and restate
the Original Subordinate Loan Agreement to, among other things, establish a
special development credit facility; and
WHEREAS, in connection with their desire to amend and restate the
Original Subordinate Loan Agreement, Borrower and Subordinate Lender have
entered into that certain Amended and Restated Secured Loan Agreement, dated of
even date herewith (the "New Subordinate Loan Agreement"), the effectiveness of
which is conditioned upon the execution and delivery of this Agreement by all
parties hereto; and
WHEREAS, such amendment and restatement requires Lender's consent
under the Credit Agreement and certain amendments to the Credit Agreement and
Intercreditor Agreement; and
WHEREAS, Lender is willing to grant such consent, and Agent and Lender
are willing to amend the Credit Agreement and Intercreditor Agreement, subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. All capitalized terms used herein and not otherwise expressly
defined herein shall have the respective meanings given to such terms in the
Credit Agreement.
2. Borrower and Subordinate Lender each hereby represent and
warrant to Agent and Lender that attached hereto as Exhibit A is a true, correct
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and complete copy of the New Subordinate Credit Agreement.
3. Borrower, Lender and Agent hereby agree that the Credit
Agreement is amended by deleting the definition of "Newco Loan Agreement" in
Section 1.1 and replacing it with the following:
"Newco Loan Agreement" shall mean the Amended and
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Restated Secured Loan Agreement, dated as of June 6, 1997,
between Newco and the Company, as amended, modified or
supplemented from time to time.
4. In accordance with Section 8.7 of the Credit Agreement, Lender
hereby consents to the amendment and restatement of the Original Subordinate
Credit Agreement on the terms set forth in the New Subordinate Credit Agreement
attached hereto as Exhibit A.
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5. Agent and Subordinate Lender hereby agree that the
Intercreditor Agreement is amended by deleting the third "WHEREAS" clause on
page one thereof and replacing it with the following:
WHEREAS, Subordinate Lender has agreed to extend certain
financial accommodations to Borrower pursuant to an Amended
and Restated Secured Loan Agreement dated as of June 6, 1997
between Subordinate Lender and Borrower (the "Subordinate Loan
Agreement"), and has secured the payment of all indebtedness,
obligations and liabilities of the Borrower to the Subordinate
Lender arising out of the Subordinated Loan Documents (as
hereinafter defined), whether now existing or hereafter
arising, direct or indirect, absolute or contingent, joint
and/or several, arising by operation of law or otherwise
(herein collectively called the "Subordinated Debt") by
receiving from Borrower and its Subsidiaries (other than RPI)
a security interest in substantially all of their respective
personal property pursuant to the Subordinate Loan Agreement;
and
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6. Agent and Subordinate Lender hereby agree that the
Intercreditor Agreement is amended by deleting Section 4 thereof and replacing
it with the following:
4. Permitted Transactions. Notwithstanding anything to the
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contrary set forth herein:
(a) Borrower may make, and Subordinate Lender may accept,
the regularly scheduled payments of interest provided for in the
Subordinated Loan Agreement and payments of principal with respect to
the Special Development Loan (as defined in the Subordinated Loan
Agreement), without giving effect to any amendment or modification
thereof which would have the effect of increasing any such payment or
accelerating the maturity thereof; provided, however, that:
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(i) No payment may be made by Borrower on account
of the interest on the Subordinated Debt or the principal on the
Special Development Loan (A) upon the maturity of any Senior
Indebtedness of Borrower by lapse of time, acceleration (unless
waived) or otherwise, unless and until all principal of, premium, if
any, and interest on such Senior Indebtedness are first paid in full
(or such payment is duly provided for), or (B) in the event of default
in the payment of any principal of, premium, if any, or interest on
any Senior Indebtedness of Borrower when it becomes due and payable,
whether at maturity or at a date fixed for prepayment or by
declaration or otherwise (a "Payment Default"), unless and until such
Payment Default has been cured or waived or otherwise has ceased to
exist.
(ii) Upon (A) the happening of an event of default
(other than a Payment Default) that permits, or would permit with (w)
the passage or time, (x) the giving of notice, (y) the making of any
payment of the Subordinated Debt then required to be made, or (z) any
combination thereof (collectively, a "Non-Payment Default"), the Agent
immediately to accelerate its maturity and (B) written notice of such
Non-Payment Default given to Borrower and the Subordinate Lender by
the Agent (a "Payment Notice"), then, unless and until such Non-
Payment Default has been cured or waived or otherwise has ceased to
exist, no payment by set-off or otherwise may be made by or on behalf
of Borrower on account of the interest on the Subordinated Debt or the
principal on the Special Development Loan. Notwithstanding the
foregoing, unless (1) the Senior Indebtedness has been declared due
and payable in its entirety within 179 days after the Payment Notice
is delivered as set forth above (the "Payment Blockage Period"), and
(2) such declaration has not been rescinded or waived, at the end of
the Payment Blockage Period, Borrower shall be required to pay all
sums not paid to the Subordinate Lender during the Payment Blockage
Period due to the foregoing prohibitions which were scheduled to be
payable
(b) The aggregate principal amount of Subordinated Debt
may be reduced as a result of Subordinate Lender contributing such
Subordinated Debt
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to the capital of Borrower in payment of the purchase price for shares
of Series B Preferred Stock (as such term is defined in the Senior
Credit Agreement) issued to Subordinate Lender as contemplated by
Section 3.9 of the Subordinate Loan Agreement.
7. Borrower hereby restates, ratifies, and reaffirms each and
every term, condition, representation and warranty heretofore made by it or in
connection with the execution and delivery of the Credit Agreement, as amended
hereby, and the other loan documents executed and/or delivered in connection
therewith (the "Loan Documents"), as fully as though such representations and
warranties had been made on the date hereof and with specific reference to this
Agreement (except to the extent any such representation or warranty relates
solely to a prior date).
8. Subordinate Lender hereby restates, ratifies, and reaffirms
each and every term, condition, representation and warranty heretofore made by
it under or in connection with the execution and delivery of the Intercreditor
Agreement, as amended hereby, as fully as though such representations and
warranties had been made on the date hereof and with specific reference to this
Agreement (except to the extent any such representation or warranty relates
solely to a prior date).
9. Except as expressly amended hereby, the Credit Agreement and
Intercreditor Agreement shall be and remain in full force and effect.
10. Borrower agrees to pay on demand all costs and expenses of
Agent and Lender in connection with the preparation, execution, delivery and
enforcement of this Agreement and any other transactions contemplated hereby,
including, without limitation, the reasonable fees and out-of-pocket expenses of
legal counsel to Agent and Lender.
11. To induce Agent and Lender to enter into this Agreement,
Borrower hereby (i) represents and warrants that, as of the date hereof and
after giving effect to the terms hereof, there exists no Event of Default (or
any event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default) under the Credit Agreement or any of the
Loan Documents, and (ii) acknowledges and agrees that no right of offset,
defense, counterclaim claim or objection exists in favor of Borrower against
Agent or Lender arising out of or with respect to any of the indebtedness
evidenced by the Credit Agreement.
12. Borrower and Subordinate Lender agree to take such further
action as Lender shall reasonably request in connection herewith to evidence the
amendments herein contained to the Credit Agreement and Intercreditor Agreement.
13. This 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
counterparts, taken together, shall constitute but one and the same instrument.
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14. This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal, all as of the date first above written.
BORROWER:
HARRY'S XXXXXX'X MARKET, INC.
By: _______________________________
Name: ________________________
Title: ________________________
Attest: ___________________________
Name: ________________________
Title: ________________________
[CORPORATE SEAL]
SUBORDINATE LENDER:
PROGRESSIVE FOOD CONCEPTS, INC.
By: _______________________________
Name: ________________________
Title: ________________________
Attest: ___________________________
Name: ________________________
Title: ________________________
[CORPORATE SEAL]
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LENDER:
CREDITANSTALT-BANKVEREIN
By: _______________________________
Name: ________________________
Title: ________________________
And: _______________________________
Name: ________________________
Title: ________________________
AGENT:
CREDITANSTALT-BANKVEREIN
By: _______________________________
Name: ________________________
Title: ________________________
And: _______________________________
Name: ________________________
Title: ________________________
Acknowledged and Agreed:
MARTHASVILLE TRADING COMPANY
By: _______________________________
Name: ________________________
Title: ________________________
KARALEA, INC.
By: _______________________________
Name: ________________________
Title: ________________________
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