AMENDMENT NO. 7 TO CREDIT AGREEMENT
This Amendment No. 7 is dated as of March 26, 1998 by
and among ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & Son, Inc. (the "Borrower"),
the Lenders parties hereto and Bank of America National
Trust and Savings Association, as successor by merger to
Bank of America Illinois, as Agent for the Lenders
("Amendment No. 7").
W I T N E S S E T H;
WHEREAS, the Borrower, the Lenders and the Agent are
parties to that certain Credit Agreement dated as of March
27, 1996, as amended by that certain Amendment No. 1 and
Waiver to Credit Agreement dated as of August 1, 1996, that
certain Amendment No. 2 and Waiver to Credit Agreement
dated as of October 30, 1996, that certain Amendment No. 3
to Credit Agreement dated as of January 24, 1997, that
certain Amendment No. 4 to Credit Agreement dated as of
April 25, 1997, that certain Amendment No. 5 dated as of
May 16, 1997 and that certain Amendment No. 6 dated as of
July 25, 1997 (the "Agreement");
WHEREAS, the Borrower has requested that the Lenders
extend the Commitment Termination Date;
WHEREAS, the Borrower and the Lenders desire to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises
herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Each capitalized term used herein but not
otherwise defined herein shall have the meaning ascribed to
such term in the Agreement.
2. Amendments to Credit Agreement. Subject to the
terms and conditions set forth in Section 6 of this
Amendment No. 7, the Agreement is hereby amended as
follows:
(a) The definition of "Applicable Margin" in Section
1.1 of the Agreement is amended and restated in its
entirety to read as follows:
""Applicable Margin" means at any date, the
applicable percentage amount set forth in the
following table opposite the applicable ratio of
Senior Funded Indebtedness to EBITDA on a trailing
four quarter basis as shown in the Compliance
Certificate most recently delivered to the Agent:
RATIO OF SENIOR FUNDED APPLICABLE
INDEBTEDNESS TO EBITDA MARGIN
More than 3.5 2.00%
Less than or equal to 3.5 but
more than or equal to 2.75 1.75%
Less than 2.75 but more
than or equal to 2.0 1.50%
Less than 2.0 1.25%
provided, however, that the Applicable Margin shall be
deemed to be 2.00% on or after March 26, 1998;
provided further that, if the Borrower shall have
failed to deliver to the Agent by the date required
hereunder its Compliance Certificate pursuant to
Section 8.1.1 (c), then until such delivery, the
Applicable Margin shall be deemed to be 2.0%. Each
change in the Applicable Margin shall take effect on
the first day of the month immediately succeeding the
month in which such Compliance Certificate is received
by the Agent. Notwithstanding the foregoing, no
reduction in the Applicable Margin shall be effected
if a Default shall have occurred and be continuing on
the date when such change would otherwise occur."
(b) The definition of "Commitment Termination Date"
in Section 1.1 of the Agreement is amended by deleting the
reference therein to "March 27, 1998" and replacing such
reference with a reference to "April 30, 1998."
(c) Section 2.8.1 of the Agreement is amended and
restated in its entirety to read as follows:
"SECTION 2.8.1 Nonuse Fee. The Borrower agrees
to pay the Agent for the account of each Lender, for
the period (including any portion thereof when its
Commitment is suspended by reason of the Borrower's
inability to satisfy any condition of Article VI)
commencing on the Effective Date and continuing
through the final Commitment Termination Date, a
Nonuse Fee ("Nonuse Fee") at the Nonuse Fee Rate on
such Lender's Percentage of the average daily unused
portion of the applicable amount specified in Section
8.2.15. Such Nonuse Fee shall be payable by the
Borrower in arrears on each Quarterly Payment Date,
commencing with the first such day following the
Effective Date, and on the Commitment Termination
Date. The "Nonuse Fee Rate" means at any date, the
applicable percentage amount set forth in the
following table opposite the applicable ratio of
Senior Debt to EBITDA on a trailing four quarter basis
as shown in the Compliance Certificate most recently
delivered to the Agent:
RATION OF SENIOR FUNDED
INDEBTEDNESS TO EBITDA NONUSE FEE RATE
More than or equal to 2.75 0.375%
Less than 2.75 0.25%
provided, however, that the Nonuse Fee Rate shall be
deemed to be 0.375% on and after March 26, 1998;
provided further that, if the Borrower shall have
failed to deliver to the Agent by the date required
hereunder its Compliance Certificate pursuant to
Section 8.1.1(c), then until such delivery, the Nonuse
Fee Rate shall be deemed to be 0.375%. Each change in
the Nonuse Fee Rate shall take effect on the first day
of the month immediately succeeding the month in which
such Compliance Certificate is received by the Agent.
Notwithstanding the foregoing, no reduction in the
Nonuse Fee Rate shall be effected if a Default shall
have occurred and be continuing on the date when such
change would otherwise occur."
(d) Schedule E to the Agreement is amended by
appending as Attachment 6 thereto the text contained in
Schedule I hereto.
3. AMENDMENTS TO NOTES. Subject to the terms and
conditions set forth in Section 6 of this Amendment No. 7,
each of the Notes is hereby amended by deleting the
reference therein to "March 27, 1998" and replacing such
reference with a reference to "April 30, 1998."
4. The Borrower agrees that it shall pay to Agent and
amendment fee in the amount of Ten Thousand Dollars
($10,000) on April 1, 1998, which fee is fully earned and
nonrefundable; provided, however that payment of such fee
shall be waived in the event that the Obligations are
repaid in full and the Commitment is terminated on or
before March 31, 1998.
5. The Borrower represents and warrants that, after
giving effect to this Amendment No. 7, no Default or Event
of Default exists and is continuing under the Agreement and
no default exists under the Teachers Note Agreement and the
Prudential Note Agreement.
6. This Amendment No. 7 shall become effective as of
March 26, 1998 upon satisfaction of the following
conditions:
(i) the Borrower, the Agent, Sunshine, Quantz and
each of the Lenders shall have executed and
delivered a counterpart of this Amendment No. 7.
(ii) the Agent shall have received, in sufficient
copies for each Lender, the following in form
and substance satisfactory to the Agent and its
counsel:
(A) a board of directors resolution
authorizing the execution and delivery of this
Amendment No. 7.
(B) a certificate from the Borrower's chief
financial Authorized Officer certifying that on
the date hereof and after giving effect to this
Amendment No. 7 no Default or Event of Default
has occurred and is continuing.
(iii) the Borrower shall have paid the outstanding
fees and out-of-pocket costs and expenses of
counsel for the Agent incurred in connection
with the negotiation, preparation, execution
and delivery of this Amendment No. 7.
7. Except as specifically set forth in this
Amendment No. 7, the Agreement and the other Loan Documents
shall remain unaltered and in full force and effect and the
respective terms, conditions and covenants thereof are
hereby ratified and confirmed in all aspects.
8. Upon the effectiveness of this Amendment No. 7,
each reference in the Agreement to "this Agreement",
"hereof", "herein" or "hereunder" or words of like import,
and all references to the Agreement in any other Loan
Documents shall mean and be a reference to the Agreement as
amended hereby.
9. This Amendment No. 7 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 one and the same agreement.
10. THIS AMENDMENT NO. 7 SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF ILLINOIS.
(Signature pages follow)
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment No. 7 to Credit Agreement as of the date
first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & SON, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President and
Chief Financial Officer
----------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as successor
by merger to Bank of America
Illinois, in its capacity as Agent
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Agency Management Services
Senior Agency Officer
--------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as successor
by merger to Bank of America
Illinois, in its capacity as a
Lender, Issuing Lender and Issuer
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
---------------------
THE NORTHERN TRUST COMPANY, in its
capacity as a Lender
By /s/ ▇▇▇▇▇▇ Toll
---------------------------------
Title: Second Vice President
---------------------
NATIONAL CITY BANK, in its capacity
as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
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The undersigned acknowledges
receipt of a copy of the
foregoing Amendment No. 7,
consents to the terms thereof,
and ratifies and confirms its
Guaranty, dated as of March
27, 1996, in favor of the
Lenders, and all documents,
instruments and agreements
executed in connection therewith.
SUNSHINE NUT Co.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Secretary
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The undersigned acknowledges
receipt of a copy of the foregoing
Amendment No. 7, consents to the
terms thereof, and ratifies and
confirms its Guaranty, dated as of
January 24, 1997, in favor of the
Lenders, and all documents,
instruments and agreements executed
in connection therewith.
QUANTZ ACQUISITION CO., INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Secretary
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Schedule I to Amendment No. 7 to Credit Agreement
ATTACHMENT 6
(to __/__/__ Compliance
Certificate)
RATIO OF SENIOR FUNDED INDEBTEDNESS TO
EBITDA FOR DETERMING APPLICABLE MARGIN
AND NONUSE FEE RATE
ON ____________, _________
COMPUTATION DATE
On a Consolidated basis for Borrower and its Subsidiaries,
all determined on a trailing four quarter basis:
1. Senior Funded Indebtedness $________
2. EBITDA $________
3. Ratio of Item 1 to Item 2 ____%