AMENDMENT AND CONSENT
AMENDMENT AND CONSENT dated as of July 18, 1996 (this
"Amendment"), among TWS FUNDING, INC., a Delaware corporation (the "Borrower"),
FLAGSTAR CORPORATION, a Delaware corporation ("Flagstar"), and each financial
institution executing this Amendment as a "Lender" (each, a "Lender").
PRELIMINARY STATEMENTS:
1. The Borrower, Flagstar and the Lender Parties, the
Co-Administrative Agents and the Funding Agent referred to therein have entered
into a Second Amended and Restated Credit Agreement dated as of April 10, 1996
(the "Credit Agreement"; the terms defined therein being used herein as therein
defined unless otherwise defined herein).
2. Flagstar proposes to sell TWS 300 Corp. and its Subsidiary,
Portiontrol Foods, Inc. (and the business operations thereof), pursuant to two
transactions, the principal terms of which are described on the attached
Schedule A (the "Sale Transactions").
3. The Borrower and Flagstar have requested that the Lenders
(a) agree to the aggregate price of the Sale Transactions and that the terms and
conditions of the Sale Transactions are reasonable and customary and (b) amend
certain provisions of the Credit Agreement and the Security Agreement as herein
provided.
4. The Lenders have expressed their willingness to grant the
Borrower's and Flagstar's request as set forth above on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1. Consent Concerning the Sale Transaction. The
Lenders hereby agree that the conditions set forth in Section 5.02(e)(viii)(B)
of the Credit Agreement shall be satisfied if the Sale Transactions are
consummated upon substantially the terms described in the attached Schedule A.
SECTION 2. Amendments to the Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4 hereof, hereby amended as
follows:
(a) Section 5.02(b)(i) is amended by adding to the end thereof
a new clause (F) to read as follows:
"(F) Debt owed to the Funding Agent in respect of any
daylight overdraft facility or in connection with any
automated clearing house transfers of funds;"
(b) Section 5.02(n) is amended by deleting the section
reference "Section 2.05" contained therein and substituting therefor
the section reference "Section 2.04 or 2.05".
(c) Section 5.03(r) is amended by deleting the word "five"
contained therein and substituting therefor the word "ninety".
(d) Section 5.04(a) is amended by inserting after the word
"outstanding" contained therein the phrase "as of the close of
business".
(e) Section 5.04(b) is amended by inserting after the word
"outstanding" contained therein the phrase "as of the close of
business".
SECTION 3. Amendments to the Security Agreement. The Security
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4 hereof, hereby amended as
follows:
(a) Preliminary Statement (9) is amended by deleting therefrom
the phrase ", has opened an investment account with Chase Securities,
Inc. at its office at 270 Park Avenue, 6th Floor, New York, New York
10017, Account No. 196215" contained therein.
(b) Section 2 is amended by inserting after the words "Loan
Documents" contained in the first sentence thereof the following: "and
under any documents in respect of Debt permitted by Section
5.02(b)(i)(F) of the Credit Agreement".
(c) Section 4 is amended by deleting therefrom the name and
punctuation ", Chase Securities Inc." contained therein.
(d) Section 8(a) is amended by inserting after the words "Loan
Documents" contained therein the following: "and under any documents
in respect of Debt permitted by Section 5.02(b)(i)(F) of the Credit
Agreement".
(e) Section 13(b) thereof is amended by inserting the phrase
"except as permitted by Section 5.02(o) of the Credit Agreement,"
immediately after the words "No Grantor shall".
SECTION 4. Conditions of Effectiveness. This Amendment shall
become effective when, and only when (a) the Funding Agent shall have received
counterparts of this Amendment executed by the Borrower, Flagstar and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the
Funding Agent that such Lenders have executed this Amendment, (b) the Funding
Agent shall have received the Consent attached hereto, signed by each Guarantor
and Grantor (as such term is defined in the Security Agreement) and (c) the
Funding Agent shall have received a certificate, dated the date of receipt
thereof by the Funding Agent, in form and substance satisfactory to the Funding
Agent, signed by a duly authorized officer of Flagstar, to the effect that (i)
the representations and warranties set forth in Section 5 hereof are correct on
and as of the date of such certificate as though made on and as of such date and
(ii) no event has occurred and is continuing that constitutes a Default.
SECTION 5. Representations and Warranties. Flagstar represents
and warrants as follows:
(a) The execution, delivery and performance by each Loan Party
of this Amendment and the Credit Agreement and the Security Agreement,
each as amended hereby, and the consummation of the transactions
contemplated hereby and thereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action on
the part of such Loan Party, and do not (i) contravene such Loan
Party's charter or by-laws, (ii) violate any law (including, without
limitation, the Securities Exchange Act of 1934, as amended), rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System, as in effect from time to
time), order, writ, judgment, injunction, decree, determination or
award applicable to any Loan Party, (iii) conflict with or result in
the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) result in or require
the creation or imposition of any Lien (other than Liens created by or
permitted under the Loan Documents) upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries except, as to
(ii) and (iii) above, as would not, and would not be reasonably likely
to, have a Material Adverse Effect.
(b) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery,
recordation, filing or performance by any Loan Party of this Amendment,
the Credit Agreement, as amended hereby, or the Security Agreement, as
amended hereby, except those authorizations, approvals, actions,
notices and filings which have been duly obtained, take, given, or made
and are in full force and effect.
(c) This Amendment and the Consent have been duly executed and
delivered by each Loan Party party thereto. The Credit Agreement and
the Security Agreement, each as amended hereby, are the legal, valid
and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors'
rights generally and subject to general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
SECTION 6. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness hereof, on and after the date hereof each reference in
the Credit Agreement or the Security Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement or the
Security Agreement, as the case may be, and each reference in the other Loan
Documents to the Credit Agreement or the Security Agreement, "thereunder",
"thereof" or words of like import referring to the Credit Agreement or the
Security Agreement, as the case may be, shall mean and be a reference to the
Credit Agreement or the Security Agreement, respectively, as amended hereby.
(b) Except as specifically amended above, each of the Credit
Agreement and the Security Agreement is and shall continue to be in full force
and effect and is hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or Co-Administrative Agent or the
Funding Agent under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
SECTION 7. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 8. Execution in Counterparts. This Amendment 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. Delivery of an executed counterpart of a signature
page to this Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Consent to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
Borrowers
TWS FUNDING, INC.
By:
--------------------------------------
Title: Vice President and Treasurer
FLAGSTAR CORPORATION
By:
---------------------------------------
Title: Vice President and Treasurer
Lenders
----------------------------------------
[Print or type name of institution]
By:
---------------------------------------
Title: