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Exhibit 10
LETTER AMENDMENT AND
EXTENSION OF WAIVER
Dated as of January 30, 1998
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lenders") parties
to the Credit Agreement referred to
below and to Citibank, N.A., as administrative
agent (the "Administrative Agent") for the Lenders
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of December 15, 1994, amended and
restated as of July 14, 1997 (such Credit Agreement, as so amended, the "Credit
Agreement") among the undersigned and you. Capitalized terms not otherwise
defined in this Letter Amendment have the same meanings as specified in the
Credit Agreement.
Pursuant to a Letter Waiver dated as of December 30, 1997 (the "Letter
Waiver"), the Required Lenders agreed to extend the period during which Asset
Proceeds of certain dispositions would be applied pursuant to the terms of the
Credit Agreement. The undersigned hereby requests the Lenders to extend the
effectiveness of the waivers included in the Letter Waiver and to amend the
Credit Agreement to further clarify the application of the proceeds of such
dispositions.
You have indicated your willingness, on the terms and conditions stated
below, to so agree. Accordingly, it is hereby agreed by you and us as follows:
(a) The reference in the Letter Waiver to "February 15, 1998" is amended to
read "March 15, 1998" and
(b) The Credit Agreement is, effective as of the date of this Letter
Amendment, hereby amended as follows:
(i) The definition of "Asset Proceeds" in Section 1.01 is amended by
restating the parenthetical phrase in clause (b) thereof in full to read as
follows:
(including (i) such amounts paid or payable by direct or indirect partners,
members of other holders of direct or indirect equity or other ownership
interests in the assets or
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options subject to such sale and, in any case (but without duplication of
amounts included in clause (i)) (ii) the "Tax Amount" (as defined in the
Amended and Restated Agreement of Limited Partnership of BFC Investments,
L.P.) distributable in connection with such sale).
(ii) Section 2.06(a)(ii) is amended by adding to the end thereof a
new proviso to read as follows:
; provided that the Borrower may, with respect to any Asset Proceeds
attributable in whole or in part to Trademark Appreciation, defer for a
period of up to 90 days the application in accordance with this Section
2.06(a) of a portion of such Asset Proceeds equal to all, or at the
borrowers election a portion of, a good faith estimate by the Borrower of
the amount of such Asset Proceeds that is attributable to the sale of the
applicable trademarks (the "Trademark Estimate") so long as the aggregate
amount of the Unused Working Capital Commitments of the Lenders is not less
than the Trademark Estimate during such period.
(iii) Section 2.06(c) is amended by adding to the end thereof a new
proviso to read as follows:
; provided that the Borrower may, with respect to any Trademark
Appreciation, defer for a period of up to 90 days the application in
accordance with this Section 2.06(c) of a portion of such Trademark
Appreciation equal to all, or at the borrowers election a portion of, the
Trademark Estimate (as defined in Section 2.06(a) above) so long as the
aggregate amount of the Unused Working Capital Commitments of the Lenders
is not less than the Trademark Estimate during such period.
This Letter Amendment shall become effective as of the date first
above written when, and only when, the Administrative Agent shall have received
counterparts of this Letter Amendment executed by the undersigned and the
Required Lenders or, as to any of the Lenders, advice satisfactory to the
Administrative Agent that such Lender has executed this Letter Amendment. This
Letter Amendment is subject to the provisions of Section 8.01 of the Credit
Agreement.
On and after the effectiveness of this Letter Amendment, each
reference in the Credit Agreement of the Letter Waiver to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Credit Agreement
or the Letter Waiver, respectively, and each reference in the Notes and each of
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 by this Letter Amendment.
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The Credit Agreement, the Letter Waiver, the Notes and each of the
other Loan Documents, as specifically amended by this Letter Amendment, are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. The execution, delivery and effectiveness of this Letter
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under the Credit
Agreement, nor constitute a waiver of any provision of the Credit Agreement.
If you agree to the terms and provisions hereof, please evidence such
agreement by executing and returning at least two counterparts of this Letter
Amendment to ▇▇▇▇▇▇▇▇ ▇▇▇▇ at ▇▇▇▇▇▇▇▇ & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
This Letter Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Letter Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Letter Amendment.
This Letter Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
▇▇▇▇▇▇, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior VP & Treasurer
▇▇▇▇▇▇, FOODS HOLDINGS
CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President & Treasurer
WISE HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Treasurer