Exhibit 10.34
WAIVER AND ELEVENTH AMENDATORY AGREEMENT
Dated as of February 21, 1997
This WAIVER AND ELEVENTH AMENDATORY AGREEMENT 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 waive and amend certain of the terms of the
Credit Agreement as hereinafter set forth.
SECTION 1. Waiver. The Borrower has advised the Agent and the
Lenders of the Borrower's non-compliance (the "Non-Compliance") with Section
7.07 of the Credit Agreement (Capital Expenditures), as the result of the
Capital Expenditures of the Borrower and its subsidiaries for the Fiscal Year
ending December, 1996 being $21,000,000, instead of the $18,000,000 Maximum
Amount under the Credit Agreement. Effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in Section 3 hereof,
the Agent and the Lenders each hereby waive any Event of Default arising out of
the Borrower's Non-Compliance with Section 7.07 of the Credit Agreement;
provided, however, that the foregoing waiver shall be limited to the
Non-Compliance with Section 7.07 of the Credit Agreement and shall not apply to
any other non-compliances with the terms of the Credit Agreement or any other
Loan Documents. With respect to the aforementioned Non-Compliance with the
Capital Expenditures covenant for the Fiscal Year ending December, 1996, the
foregoing waiver shall also be effective as of December 28, 1996.
SECTION 2. Amendments to Credit Agreement. Effective as of the
date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement is hereby amended as follows:
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 $ 8,000,000
and each Fiscal Year thereafter"
SECTION 3. Conditions of Effectiveness. This Waiver and 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
Waiver and Amendatory Agreement executed by the Borrower and the Lenders or, as
to any of said Lenders, advice satisfactory to the Agent that such Lender has
executed this Waiver and 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 Waiver and
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 4 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
Waiver and 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
Waiver and Amendatory Agreement and (ii) all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Waiver and Amendatory Agreement and the matters contemplated hereby; and
(d) a favorable opinion of Kaufman & Canoles,
counsel for the Borrower and the Guarantor, in a form reasonably acceptable to
the Agent and Lenders.
SECTION 4. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The execution, delivery and performance
by the Borrower of this Waiver and 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 Waiver and Amendatory Agreement and the
Credit Agreement as amended hereby.
(c) This Waiver and 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 Waiver and Amendatory Agreement
and the Credit Agreement as amended hereby.
(e) The execution, delivery and performance
of this Waiver and 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 5. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Waiver and
Amendment, 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 and 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 Waiver and 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 6. 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 Waiver and 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 Waiver and 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 6. 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 Waiver and 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 7. Execution in Counterparts. This Waiver and
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 8. Governing Law. This Waiver and 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 Waiver
and 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 Corporation
---------------------------
Name:
Title:
FLEET BANK, N.A., (as successor
to NatWest USA Credit Corp.), as Lender
By:/s/ Thomas Maiale
-----------------
Name: Thomas Maiale
Title: Vice President
FLEET BANK, N.A. (as successor to
NatWest USA Credit Corp.), as Agent
By:/s/ Thomas Maiale
-----------------
Name: Thomas Maiale
Title: Vice President
HELLER FINANCIAL, INC., as Lender
By:/s/Salvatore A. Salzillo
------------------------
Name: Salvatore A. Salzillo
Title: Assistant Vice President