Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 4 AND WAIVER NO. 2 TO THE CREDIT AGREEMENT
Dated as of October 10, 2007
AMENDMENT NO. 4 AND WAIVER NO. 2 TO THE CREDIT AGREEMENT (this "Amendment and
Waiver") among Pierre Foods, Inc., a North Carolina corporation (the
"Borrower"), the Lenders (as hereinafter defined) party hereto, Wachovia Bank,
National Associations ("Wachovia"), as collateral agent (the "Collateral
Agent"), and Wachovia, as administrative agent (the "Administrative Agent";
together with the Collateral Agent, the "Agents").
PRELIMINARY STATEMENTS:
(1)
The Borrower, certain financial institutions and other persons
from time to time parties thereto (collectively, the "Lenders") and the Agents
have entered into that certain Credit Agreement dated as of June 30, 2004, as
amended by Amendment No. 1 dated as of April 3, 2006, Amendment No. 2 dated as
of August 21, 2006 and Amendment No. 3 dated as of December 11, 2006
(as
amended, restated, supplemented or otherwise modified, the "Credit Agreement";
capitalized terms used herein but not defined shall be used herein as defined in
the Credit Agreement).
(2)
The Borrower has requested that the Required Lenders agree (a) to
waive the Event of Default under Section 8.01(b)(i) of the Credit Agreement that
has occurred and is continuing as a result of the failure by the Borrower to
comply with the financial covenants set forth in Section 7.10 of the Credit
Agreement for the period from December 2, 2006 through September 1, 2007, and
(b) to amend certain provisions of the Credit Agreement as set forth herein.
(3)
Subject to the terms and conditions hereinafter set forth, the
Required Lenders have indicated their willingness to agree to the waiver and
amendments of the Credit Agreement set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto hereby agree as follows:
SECTION 1.
WAIVER.
EFFECTIVE AS OF THE AMENDMENT AND WAIVER EFFECTIVE
DATE (AS HEREINAFTER DEFINED), THE REQUIRED LENDERS HEREBY WAIVE ANY EVENT OF
DEFAULT UNDER SECTION 8.01(B)(I) OF THE CREDIT AGREEMENT THAT HAS OCCURRED AND
IS CONTINUING AS A RESULT OF THE FAILURE OF THE BORROWER TO COMPLY WITH SECTION
7.10(A) OF THE CREDIT AGREEMENT FOR THE PERIOD OF FOUR FISCAL QUARTERS ENDED
SEPTEMBER 1, 2007.
SECTION 2.
AMENDMENTS.
EFFECTIVE AS OF THE AMENDMENT AND WAIVER
EFFECTIVE DATE, THE CREDIT AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(A)
SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY INSERTING IN
ALPHABETICAL ORDER A NEW DEFINITION TO READ AS FOLLOWS:
"AMENDMENT AND WAIVER EFFECTIVE DATE" MEANS OCTOBER 10, 2007.
(B)
CLAUSE (A) OF THE DEFINITION OF "APPLICABLE MARGIN" SET FORTH IN SECTION
1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED IN ITS ENTIRETY TO READ AS
FOLLOWS:
"(a)
with respect to the Term B Facility, a per annum rate equal to (i)
if the Borrower has a corporate family rating and a corporate rating greater
than or equal to B2 and B from, respectively, Moody's and S&P, (A)