AMENDMENT NO. 1 AND ASSIGNMENT AGREEMENT
to
THIRD AMENDED AND RESTATED REVOLVING LOAN, GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 1 AND ASSIGNMENT AGREEMENT, dated as of March 10, 2000
(this "Amendment"), is by and among FLEET BANK, NATIONAL ASSOCIATION (as
successor to NatWest Bank N.A. and National Westminster Bank NJ, "Fleet"),
SOVEREIGN BANK ("Sovereign"), MELLON BANK, N.A. ("Mellon" and, together with
Fleet and Sovereign, the "Current Banks"), EUROPEAN AMERICAN BANK ("EAB"), PNC
BANK, NATIONAL ASSOCIATION ("PNC"), NATIONAL CITY BANK ("National City" and,
together with EAB and PNC, the "New Banks") (the Current Banks and the New Banks
are referred to herein individually as a "Bank" and collectively as the
"Banks"), FLEET BANK, NATIONAL ASSOCIATION, as administrative and collateral
agent for the Banks (in such capacity, the "Agent"), SOVEREIGN BANK, as
syndication agent for the Banks (in such capacity the "Syndication Agent"),
MELLON BANK, N.A., as documentation agent for the Banks (in such capacity the
"Documentation Agent"), SUPREMA SPECIALTIES, INC., a New York corporation (the
"Borrower"), SUPREMA SPECIALTIES WEST, INC. ("Suprema West"), a California
corporation and SUPREMA SPECIALTIES NORTHEAST, INC. ("Suprema Northeast"), a New
York corporation (Suprema West and Suprema Northeast are collectively referred
to herein as the "Guarantor").
RECITALS:
A. The Borrower, the Current Banks, the Agent and the Guarantor have
entered into a Third Amended and Restated Revolving Loan, Guaranty and Security
Agreement, dated as of September 23, 1999 (the "Loan Agreement").
B. Each New Bank wishes to become a party to, and make Loans to the
Borrower under, the Loan Agreement as a Bank and the Borrower, the Guarantor,
the Agent and the Current Banks have consented to each New Bank becoming a Bank.
C. Sovereign wishes to become the Syndication Agent under the Loan
Agreement and Mellon wishes to become the Documentation Agent under the Loan
Agreement and the Borrower, the Guarantor, the Agent and the Banks have
consented to Sovereign becoming the Syndication Agent and Mellon becoming the
Documentation Agent.
D. The Borrower, the Guarantor, the Current Banks and the Agent wish to
amend the Loan Agreement to permit an increase to the Commitment, to add the
New Banks as Bank parties to the Loan Agreement and to otherwise amend the Loan
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration whose receipt and sufficiency are acknowledged, the
Borrower, the Guarantor, the Banks, the Agent, the Syndication Agent and the
Documentation Agent agree as follows:
Section 1. Definitions. Each capitalized term used but not defined in this
Amendment shall have the meaning ascribed to such term in the Loan Agreement.
Section 2. Amendments of Loan Agreement.
(a) The introductory paragraph of the Loan Agreement is amended to read in
its entirety as follows:
THIS THIRD AMENDED AND RESTATED REVOLVING LOAN, GUARANTY AND SECURITY
AGREEMENT dated as of September 23, 1999, as amended by Amendment No. 1 and
Assignment Agreement dated as of March 10, 2000 is by and among FLEET BANK,
NATIONAL ASSOCIATION (as successor to NatWest Bank N.A. and National
Westminster Bank NJ, "Fleet"), having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, SOVEREIGN BANK ("Sovereign"), having an office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, MELLON BANK, N.A.
("Mellon"), having an office at Raritan Plaza I, Raritan Center, Edison,
New Jersey 08837, EUROPEAN AMERICAN BANK ("EAB"), having an office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, PNC BANK, NATIONAL ASSOCIATION
("PNC"), having an office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, NATIONAL CITY BANK ("National City") having an office at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fleet,
Sovereign, Mellon, EAB, PNC and National City, together with any other
financial institution that becomes a party hereto, are referred to herein
individually as a "Bank" and collectively as the "Banks"), FLEET BANK,
NATIONAL ASSOCIATION, as administrative and collateral agent for the Banks
hereunder (in such capacity, the "Agent"), having an office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, SOVEREIGN BANK, as
syndication agent for the Banks (in such capacity the "Syndication Agent")
having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, MELLON
BANK, N.A., as documentation agent for the Banks (in such capacity the
"Documentation Agent") having an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, SUPREMA SPECIALTIES, INC. (the "Borrower"), a New
York corporation with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, SUPREMA SPECIALTIES WEST, INC.
("Suprema West"), a California corporation with its principal place of
business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and SUPREMA
SPECIALTIES NORTHEAST, INC. ("Suprema Northeast"), a New York corporation
with its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (Suprema West and Suprema Northeast are collectively referred to
herein as the "Guarantor"). Capitalized terms used herein without
definition shall have the meanings assigned to such terms in Section 1
hereof.
(b) A new definition of "Adjusted Restricted Payments" shall be added to
Section 1 of the Loan Agreement in its correct place alphabetically to read in
its entirety as follows:
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"Adjusted Restricted Payments" means any and all dividends and other
distributions to shareholders of the Borrower and any and all payments by
the Borrower to its shareholders in connection with the Borrower's
repurchase of its outstanding capital stock, excluding, in the case of
payments by the Borrower to its shareholders in connection with its
repurchase of its outstanding capital stock, the first $1,500,000 paid by
the Borrower on account thereof at any time on or after the Effective Date
of Amendment No. 1.
(c) A new definition for "Amendment No. 1" shall be added to Section 1 of
the Loan Agreement in its correct alphabetical order to read in its entirety as
follows:
"Amendment No. 1" means that certain Amendment No. 1 and Assignment
Agreement to this Agreement dated as of March 10, 2000 among the parties
thereto.
(d) The definition of "Borrowing Base" contained in Section 1 of the Loan
Agreement is amended to read in its entirety as follows:
"Borrowing Base" means the sum, as reasonably determined by the Agent,
of (i) 85% of Eligible Receivables, and (ii) 60% of the book value of
Eligible Inventory.
(e) The definition of "Commitment" contained in Section 1 of the Loan
Agreement is amended to read in its entirety as follows:
"Commitment" means for the period from and including the Closing to,
but excluding, the Commitment Expiration Date, the commitment of the Banks
to make Loans to the Borrower pursuant to this Agreement in an aggregate
principal amount not to exceed at any time outstanding (i) $55,000,000 with
respect to the period from the Closing to, but excluding, the Effective
Date of Amendment No. 1 and (ii) $85,000,000 with respect to the period
from the Effective Date of Amendment No. 1 to, but excluding, the
Commitment Expiration Date, as such amounts may be reduced pursuant to
Section 5.2.
(f) The definition of "Commitment Expiration Date" contained in Section 1
of the Loan Agreement is amended to read in its entirety as follows:
"Commitment Expiration Date" means February 15, 2004.
(g) A new definition of "EBITDA" shall be added to Section 1 of the Loan
Agreement in its correct place alphabetically to read in its entirety as
follows:
"EBITDA" means, with respect to the Borrower and its Subsidiaries for
any period, the sum of (i) Consolidated Net Earnings, (ii) interest
expense, (iii) depreciation and amortization and (iv) Federal, state and
local income taxes, in each case of the Borrower and its Subsidiaries on a
consolidated basis for such period, computed in accordance with GAAP.
(h) A new definition of "Funded Debt" shall be added to Section 1 of the
Loan Agreement in its correct place alphabetically to read in its entirety as
follows:
"Funded Debt" means, at any date of determination, the aggregate
funded Indebtedness (computed in accordance with GAAP) and Capitalized
Leases of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP, on such date.
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(i) The definition of "Lending Rate" contained in Section 1 of the Loan
Agreement is amended to read in its entirety as follows:
"Lending Rate" means, on any date, a rate of interest per annum (based
on a three hundred sixty (360) day year and the actual number of days
elapsed) equal to, in the case of Fluctuating Rate Loans, .75% in excess of
the Prime Rate and, in the case of Eurodollar Loans for the Interest Period
therein specified, equal to 1.75% in excess of the LIBOR Rate.
(j) A new definition of "Long Term Debt" shall be added to Section 1 of the
Loan Agreement in its correct place alphabetically to read in its entirety as
follows:
"Long Term Debt" means indebtedness for borrowed money which by its
terms matures more than 12 months after the date incurred or if maturing
sooner, the maturity thereof may be extended at the option of the debtor
beyond such 12 month period.
(k) The definition of "Notes" contained in Section 1 of the Loan Agreement
is amended to read in its entirety as follows:
"Notes" means those certain Secured Revolving Notes dated March 10,
2000 made by the Borrower in favor of each institution that was a Bank as
of the date thereof in the aggregate principal amount as to all notes of up
to $85,000,000, which Notes, in the case of Fleet, Sovereign, and Mellon
were given in substitution for certain notes dated December 16, 1998 in the
case of Fleet, July 23, 1999 in the case of Sovereign and September 23,
1999 in the case of Mellon, which notes, in the case of Fleet and Sovereign
were themselves given in substitution for certain notes dated October 19,
1998 and June 30, 1999, but in each case not in cancellation, discharge or
extinguishment of the indebtedness formerly evidenced by such notes,
together with all promissory notes in replacement or substitution thereof
and any all notes made by the Borrower in favor of an institution that
became a Bank after the Effective Date of Amendment No. 1.
(l) The definition of "Required Banks" contained in Section 1 of the Loan
Agreement is amended to read in its entirety as follows:
"Required Banks" means, at any time, Banks having at least 51% of the
aggregate amount of the Commitments and, if the Commitments have been
terminated, Banks having at least 51% of the Loans outstanding at such
time.
(m) A new definition of "Unfunded Capital Expenditures" shall be added to
Section 1 of the Loan Agreement in its correct place alphabetically to read in
its entirety as follows:
"Unfunded Capital Expenditures" means for any period of determination,
Capital Expenditures during such period of determination minus the amount
of increases in Long Term Debt (excluding Loans) less any amount of such
increase in Long Term Debt utilized to satisfy other existing Indebtedness
of the Borrower during such period of determination and minus, without
duplication, offsetting sales of capital equipment during such period of
determination, all computed in accordance with GAAP.
(n) Section 2.1 of the Loan Agreement is amended to read in its entirety as
follows:
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2.1 Commitment; Maximum Credit. Subject to the terms and conditions of
this Agreement, each Bank severally (but not jointly) agrees to make loans
to the Borrower (hereinafter collectively referred to as "Loans" and
individually as a "Loan"), from time to time before the Termination Date,
in such amounts as Borrower may from time to time request, not to exceed at
any time outstanding the amount set opposite the Bank's name below;
provided, however, that the aggregate outstanding principal amount of Loans
at any time outstanding shall at no time exceed the lesser of (A) the
Commitment, or (B) the Borrowing Base (the "Maximum Credit"):
Name of Bank Amount
------------ ------
Fleet Bank, National Association $22,500,000.00
Sovereign Bank $17,500,000.00
Mellon Bank, N.A. $17,500,000.00
National City Bank $10,000,000.00
PNC Bank, National Association $10,000,000.00
European American Bank $ 7,500,000.00
TOTAL $85,000,000.00
Each Loan shall be made by each Bank in the proportion which that Bank's
Commitment bears to the total amount of all the Banks' Commitments;
provided, however, that the failure of any Bank to make any requested Loan
to be made by it on the date specified for such Loan shall not relieve each
other Bank of its obligation (if any) to make such Loan on such date, but
no Bank shall be responsible for the failure of any other Bank to may any
Loan to be made by such other Bank. Subject to the terms hereof, the
Borrower may borrow, prepay and reborrow, and may continue and convert any
Loan in accordance with Section 2.5, until the Termination Date. The Banks
have no obligation to make any Loan on or after the Termination Date.
(o) A new Section 9.22 shall be added to the Loan Agreement to read in its
entirety as follows:
9.22 Payments to Suppliers. No payment owing to any party from whom
the Borrower and/or the Guarantor purchases farm products is more than
fifteen (15) days past due.
(p) Section 10.2(c) of the Loan Agreement is amended to read in its
entirety as follows:
(c) within ninety (90) days after each Fiscal Year end of the
Borrower, furnish annual projections for the next succeeding Fiscal Year in
a form reasonably acceptable to the Banks;
(q) Section 10.14 of the Loan Agreement is amended to read in its entirety
as follows:
10.14 Financial Covenants.
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(a) Leverage Ratio. Maintain at all times, to be tested at the end of
each fiscal quarter, on a rolling four (4) quarter basis, a ratio of (x)
total Funded Indebtedness of the Borrower and its Subsidiaries to (y)
EBITDA, in a proportion of not more than (i) 4.75 to 1.00 from March 31,
2000 through and including June 30, 2003 and (ii) 2.90 to 1.00 from July 1,
2003 and at all times thereafter.
(b) Fixed Charge Ratio. Maintain at all times, to be tested at the end
of each fiscal quarter on a rolling four (4) quarter basis, a ratio of (x)
EBITDA, minus Unfunded Capital Expenditures during the period of
determination, minus taxes paid (and/or required to be paid) during the
period of determination, minus Adjusted Restricted Payments paid during the
period of determination to (y) principal payments made (and/or required to
be made) on account of Long Term Debt during the period of determination,
plus interest paid during the period of determination, in a proportion of
not less than (i) 1.50 to 1.00 from March 31, 2000 through and including
June 30, 2001; (ii) 1.75 to 1.00 from July 1, 2001 through and including
June 30, 2003 and (iii) 2.00 to 1.00 from July 1, 2003 and at all times
thereafter.
(c) Consolidated Net Worth. Maintain at all times Consolidated Net
Worth of not less than $12,807,000, which Consolidated Net Worth
requirement shall be increased each Fiscal Year end commencing with the
Fiscal Year ending June 30, 2000 (and which shall be maintained during each
fiscal quarter of the ensuing Fiscal Year until the end of such Fiscal Year
at which time it shall again increase accordingly and be maintained as
aforesaid) by the greater of (i) 50% of Consolidated Net Earnings for such
Fiscal Year, and (ii) $0.
(r) Section 10.15(i) of the Loan Agreement is amended to read in its
entirety as follows:
(i) the Liens created by, or in connection with, the Fleet Mortgage;
provided, that, the amount of Indebtedness secured thereby shall not
increase from that secured as of the Effective Date of Amendment No. 1
(collectively, the Lines described in clauses (a) through (i) above are
referred to herein as the "Permitted Liens").
(s) Section 10.18 of the Loan Agreement is amended to read in its entirety
as follows:
10.18 Limitation on Dividends. Not (i) declare or pay any dividends
(other than lawful dividends to the Borrower from the Guarantor, dividends
to stockholders of the Borrower payable in shares of common stock and cash
dividends to holders of this preferred stock of the Borrower (if the
issuance of preferred stock is permitted pursuant to Section 10.21(c)
hereof), so long as no Event of Default has occurred), (ii) purchase,
redeem, retire, or otherwise acquire for value any of its stock now or
hereafter outstanding in excess of $3,000,000 in the aggregate for the
Borrower and Guarantor for the period beginning the Effective Date of
Amendment No. 1 through the Commitment Expiration Date, or (iii) make any
distribution of Assets to its stockholders as such, whether in the form of
other Assets or obligations, (iv) allocate or otherwise set apart any sum
for the payment of any dividend (other than lawful dividends to the
Borrower from the Guarantor) or distribution on, or for the purchase,
redemption, or retirement of, any shares of its stock, or (v) make any
other distribution by reduction of capital or otherwise in respect of any
shares of its stock, or (vi) permit the Guarantor to purchase or otherwise
acquire for value any stock of the Borrower in excess of $3,000,000 in the
aggregate for the Borrower and Guarantor for the period beginning the
Effective Date of Amendment No. 1 through the Commitment Expiration Date;
provided, that, the aggregate amount paid under subparagraphs (ii) and (vi)
hereof shall not exceed $3,000,000.
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(t) Section 14.9 of the Loan Agreement is amended to read in its entirety
as follows:
14.9 Agency Fee. In consideration of services rendered hereunder and
pursuant to the other Loan Documents in its capacity as Agent hereunder and
thereunder, the Borrower shall pay to the Agent an annual agency fee equal
to $30,000, with the next such payment being due and payable on March 10,
2000, and subsequent payments due and payable on the anniversary date
thereof.
(u) Section 15.3 of the Loan Agreement is amended to read in its entirety
as follows:
15.3 Notices. Except as otherwise expressly provided herein, all
notices hereunder shall be in writing and shall be delivered by telecopier,
hand, overnight delivery or by mail. Notices given by mail shall be deemed
to have been given three (3) days after the date sent if sent by registered
or certified mail, postage prepaid, and:
(i) if to the Borrower and/or the Guarantor, to:
Suprema Specialties, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
(ii) if to the Agent or Fleet, to:
Fleet Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Senior Vice President
(iii) if to Sovereign, to:
Sovereign Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
(iv) if to Mellon, to:
Mellon Bank, N.A.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
(v) if to EAB, to:
European American Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
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(vi) if to PNC, to:
PNC Bank, National Association
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Land, Vice President
(vii) if to National City, to:
National City Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President
or in the case of any party, such other address as such party may, by
written notice, received by the Agent, have designated as its address for
notices and in the case of any institution that became a Bank after the
Effective Date of Amendment No. 1, such address as shall be designated on
its assignment agreement or otherwise in writing to the Agent. Notices
given by (i) telecopier shall be deemed to have been given when sent, (ii)
hand shall be deemed to have been given the same day they have been sent
and (iii) overnight delivery shall be deemed to have been given the day
after they have sent, in each case if properly addressed to the party to
whom sent, at its address, as aforesaid. The Agent shall be entitled to
reasonably rely upon any telephonic notices purportedly given pursuant to
the terms of this Agreement and the Borrower and the Guarantor shall hold
the Agent harmless from any loss, cost or expense ensuing from any such
reliance.
(v) Section 15.17 of the Loan Agreement is amended to read in its entirety
as follows:
15.17 References in Other Loan Documents. The Borrower and Guarantor
acknowledge and agree that any reference in any Loan Document to "the
Agreement", or words of like import shall mean this Agreement, as amended
from time to time, and any reference in any Loan Document to the Notes, the
Loans, the loans in the amount of $35,000,000 or $55,000,000 (or any other
amount) or words of like import shall mean the Notes and the Loans in the
aggregate principal amount of $85,000,000, as such amount may hereinafter
be increased, extended, amended, modified or restated.
(w) A new Section 15.18 shall be added to the Loan Agreement immediately
after Section 15.17 and shall read in its entirety as follows:
15.18 References to Agent. Except as expressly provided below,
notwithstanding that there is a Syndication Agent and Documentation Agent
for the facility described in this Agreement, each reference in this
Agreement and the other Loan Documents to the "Agent" shall mean solely
Fleet Bank, National Association, in such capacity. Notwithstanding the
foregoing, the exculpatory and indemnification provisions set forth in
Sections 14.2, 14.3 and 14.5 hereof shall accrue and benefit the
Syndication Agent and the Documentation Agent to the same extent as such
provisions accrue to and/or benefit the Agent.
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Section 3. Addition of New Banks; Reallocation of Commitments; Assignments.
(a) Each of the New Banks agrees to be bound as a Bank by the terms and
conditions of the Loan Agreement and the other Loan Documents and to make Loans
to the Borrower in accordance with the terms of the Loan Agreement. Upon the
Effective Date (as hereinafter defined), each New Bank shall be deemed for all
purposes a Bank under the Loan Agreement and the other Loan Documents and shall
be entitled to all of the rights and benefits, and shall have all the
obligations, of a Bank thereunder.
(b) The total amount of each Bank's Commitment pursuant to the Loan
Agreement shall be the amount set forth in Section 2.1 of the Loan Agreement, as
amended by this Amendment.
(c) All Loans of each Bank to the Borrower shall be evidenced by a Note of
the Borrower substantially in the form of Exhibit A to the Agreement (the
"Note"), which Note, in the case of the Current Banks, shall amend and restate
the existing Note payable to such Current Bank.
(d) Upon the Effective Date, the Commitment of each Bank shall be
automatically adjusted to include each New Bank's Commitment.
(e) Each Bank shall hereby assign or assume from each other Bank such
rights, and shall hereby assign or delegate to such other Bank such obligations,
in each case without recourse, representation or warranty except as expressly
provided in this Amendment, as shall cause the outstanding principal balance of
its Loans to be an amount equal to its Percentage of the aggregate amount of all
outstanding Loans (as used herein, a Bank's "Percentage" shall be determined by
dividing the Commitment of such Bank as set forth in Section 2.1 of the Loan
Agreement, as amended by this Amendment, by the total Commitments of all the
Banks as set forth in the definition of Commitment, as amended by this
Amendment). Each such Bank shall make such payments to, and as directed by, the
Agent and the Agent shall make such payments to the Banks in order to cause the
outstanding principal balance of the Loans by each Bank to be an amount equal to
its Percentage of the aggregate amount of all outstanding Loans. The Borrower
hereby agrees that any amount that a Bank so pays to another Bank pursuant to
this Amendment shall be entitled to all rights of a Bank under the Agreement and
such payments to Banks shall constitute Loans held by each such payor Bank under
the Loan Agreement and that each such payor Bank may, to the fullest extent
permitted by law, exercise all of its right of payment (including the right of
set-off) with respect to such amounts as fully as if such payor Bank had
initially advanced the Borrower the amount of such payments.
(f) The Borrower, the Guarantor, the Agent and each of the Current Banks
hereby consents to the addition of each New Bank as a Bank under the Loan
Agreement with a Commitment as set forth in Section 2.1 of the Loan Agreement,
as amended by this Amendment.
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Section 4. Further Agreements of each New Bank. Each New Bank hereby
confirms to and agrees with the Borrower, the Guarantor, the Agent, the
Syndication Agent, the Documentation Agent and the Current Banks as follows:
(a) The Agent and/or the Current Banks have made no representation or
warranty and shall have no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Agreement
or the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency, collectibility or value of the Loan
Agreement, the other Loan Documents, and Collateral, or any other instrument or
document furnished pursuant to the Loan Agreement; provided, however, that each
represents and warrants the genuineness of any signature therein purporting to
be its own.
(b) The Agent and/or the Current Banks have made no representation or
warranty and shall have no responsibility with respect to the financial
condition of the Borrower, the Guarantor and its respective Subsidiaries or any
other Person primarily or secondarily liable in respect of any of their
obligations under the Loan Agreement or any of the other Loan Documents, or the
performance or observance by the Borrower, the Guarantor and its respective
Subsidiaries or any other Person primarily or secondarily liable in respect of
their obligations under the Loan Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant thereto.
(c) Each New Bank confirms that it has received a copy of the Loan
Agreement and the other Loan Documents, together with copies of the most recent
financial statements referred to in the Loan Agreement and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment and the documents, instruments and
agreements executed pursuant hereto or in connection herewith and each New Bank
consents in all respects to each of the matters covered by this Amendment. (d)
Each New Bank will, independently and without reliance upon the other Banks or
the Agent and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Agreement.
(e) Each New Bank appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Agreement and the
other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto.
(f) Each New Bank agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Loan Agreement are
required to be performed by it as a Bank.
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(g) Each New Bank represents and warrants that it is legally authorized to
enter into this Amendment and the documents, instruments and agreements executed
pursuant hereto or in connection herewith.
Section 5. Conforming Amendments. The Loan Agreement, the Loan Documents
and all agreements, instruments and documents executed and delivered in
connection with any of the foregoing, shall each be deemed to be amended and
supplemented hereby to the extent necessary, if any, to give effect to the
provisions of this Amendment, and each Bank is authorized to annex a copy of
this Amendment to its respective Note. Except as so amended hereby, the Loan
Agreement and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms.
Section 6. Acknowledgments, Confirmations and Consent.
(a) The Borrower and the Guarantor each acknowledge and confirm that the
Liens granted pursuant to the Loan Agreement secure the indebtedness,
liabilities and obligations of the Borrower to the Banks and the Agent under the
Notes, under the Loan Agreement as further amended by this Amendment and under
the other Loan Documents, whether or not so stated in such Loan Agreement and/or
other Loan Document, and that the term "Obligations" as used in the Loan
Agreement (or any other terms used in the Loan Agreement to describe or refer to
the indebtedness, liabilities and obligations of the Borrower to the Banks and
the Agent) includes all other indebtedness, liabilities and obligations of the
Borrower under the Loan Agreement as amended by this Amendment and under the
Notes executed in connection with this Amendment.
(b) The Guarantor consents in all respects to the execution by the Borrower
of this Amendment and acknowledges and confirms that the Guarantor continues to
guarantee the full payment and performance of the indebtedness, liabilities and
obligations of the Borrower under the Loan Agreement as further amended by this
Amendment and under the Notes executed in connection with this Amendment as
provided in the Loan Agreement, and remain in full force and effect in
accordance with their respective terms.
Section 7. Representations and Warranties. The Borrower and the Guarantor,
as the case may be, each represents and warrants to the Banks, the Agent, the
Syndication Agent and the Documentation Agent as follows:
(a) After giving effect to this Amendment (i) each of the representations
and warranties set forth in Section 9 of the Loan Agreement is true and correct
in all respects as if made on the date of this Amendment, except for changes in
the ordinary course of business which, either singly or in the aggregate, are
not materially adverse to the business or financial condition of the Borrower or
the Guarantor, and (ii) no Default or Event of Default exists under the Loan
Agreement.
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(b) Each of the Borrower and the Guarantor has the power to execute,
deliver and perform, and has taken all necessary corporate action to authorize
the execution, delivery and performance of, this Amendment and the other
agreements, instruments and documents to be executed by it in connection with
this Amendment. No consent or approval of any Person (except for such consents
as have been obtained) and no consent, license, certificate of need, approval,
authorization or declaration of, or filing with, any governmental authority,
bureau or agency is or will be required in connection with the execution,
delivery or performance by the Borrower or the Guarantor, or the validity or
enforceability of this Amendment and the other agreements, instruments and
documents executed in connection with this Amendment.
(c) The execution, delivery and performance by the Borrower and the
Guarantor of this Amendment and each of the agreements, instruments and
documents executed in connection with this Amendment to which it is a party will
not (i) violate any provision of law, (ii) conflict with or result in a breach
of any order, writ, injunction, ordinance, resolution, decree or other similar
document or instrument of any court or governmental authority, bureau or agency,
domestic or foreign, or the certificate of incorporation or by-laws of the
Borrower or any Guarantor, (iii) create (with or without the giving of notice or
lapse of time, or both) a default under or breach of any agreement, bond, note
or indenture to which the Borrower or any Guarantor is a party or by which any
of them is bound or any of their respective properties or assets is affected, or
(iv) result in the imposition of any Lien of any nature whatsoever upon any of
the properties or assets owned by or used in connection with the business of the
Borrower or any Guarantor, except for the Liens created and granted pursuant to
the Loan Documents.
(d) This Amendment and each of the other agreements, instruments and
documents executed in connection with this Amendment to which the Borrower or
the Guarantor is a party has been duly executed and delivered by the Borrower or
the Guarantor, as the case may be, and constitutes the valid and legally binding
obligation of the Borrower or the Guarantor, as the case may be, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally and except that the remedy of specific performance
and other equitable remedies are subject to judicial discretion; provided,
however, that such laws shall not materially interfere with the practical
realization of the benefits of the Security Documents or the Liens created
thereby, except for: (i) possible delay, (ii) situations which may arise under
Chapter II of the U.S. Bankruptcy Code, II U.S.C. ▇▇.▇▇. 10 1 et seq., and (iii)
equitable orders of any United States Bankruptcy Court.
(e) Since January 1, 2000, the Borrower has not repurchased any of its
issued and outstanding capital stock.
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Section 8. Fees. The Borrower shall pay the following fees and expenses in
connection with this Amendment:
(a) The Borrower shall pay to the Agent for its own account the Agency Fee
required pursuant to Section 14.9 (as amended by this Amendment) and any other
fees set forth in that certain letter agreement between the Agent and the
Borrower dated the date hereof.
(b) The Borrower agrees to pay the Agent upon demand all reasonable
expenses, including reasonable fees of attorneys and paralegals for the Agent,
incurred by the Agent in connection with the preparation, negotiation and
execution of this Amendment and any agreements, instruments and documents
executed or furnished in connection with this Amendment.
Section 9. Consent to Subordinated Note Amendments. By its signature below,
each Bank hereby consents to that certain Amendment to Note Agreement (the
"Amendment to Note Agreement") dated as of March 9, 2000 among Suprema
Specialties, Inc., Albion Alliance Mezzanine Fund, L.P. and the Equitable
Assurance Society of the United States substantially in the form attached to
this Amendment.
Section 10. Miscellaneous.
(a) Except as specifically amended by this Amendment, the Loan Agreement
and each of the other agreements, instruments and documents executed in
connection with the Loan Agreement shall remain in full force and effect in
accordance with their respective terms.
(b) THIS AMENDMENT AND ALL OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY APPLICABLE
TO CONTRACTS EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW
JERSEY BY RESIDENTS OF SUCH STATE.
(c) The provisions of this Amendment are severable, and if any clause or
provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause, provision or part in such jurisdiction and shall not in any manner
affect such clause, provision or part in any other jurisdiction or any other
clause or provision in this Amendment in any jurisdiction.
(d) This Amendment may be signed in any number of counterparts with the
same effect as if all parties to this Amendment signed the same counterpart.
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(e) This Amendment shall be binding upon and inure to the benefit of each
of the Borrower and the Guarantor and their respective successors and to the
benefit of the Agent, the Banks, the Syndication Agent and/or the Documentation
Agent and their respective successors and assigns. The rights and obligations of
each of the Borrower and the Guarantor under this Amendment shall not be
assigned or delegated without the prior written consent of the Agent and the
Banks, and any purported assignment or delegation without such consent shall be
void.
Section 11. Effectiveness of Amendment. This Amendment shall become
effective (the "Effective Date") upon the later of (i) delivery from Borrower to
each Bank of a Note in a face amount equal to such Bank's Commitment (as amended
by this Amendment) which, in the case of the Current Banks, shall be in
replacement of and substitution for its existing promissory note (such new
promissory note, when executed and delivered, shall be deemed one of the Notes
for all purposes of the Agreement) and documents relating thereto, (ii) the
payment of the fees and expenses set forth in Section 8 of this Amendment, (iii)
receipt by the Agent of corporate resolutions and certificates of good standing
with respect to Borrower and such other certificates, instruments, and documents
as the Agent shall reasonably request, (iv) receipt by the Agent of the fully
executed Amendment to Note Agreement and (v) receipt by the Agent of an opinion
of counsel to the Borrower in form and substance reasonably satisfactory to the
Agent.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Borrower, the Banks, the Agent, the Syndication
Agent, the Documentation Agent and the Guarantor have signed and delivered this
Amendment No. 1 as of the date first written above.
SUPREMA SPECIALTIES, INC.,
as Borrower
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Each of the guarantors indicated below hereby consents to this Amendment
and reaffirms its continuing obligations under its guarantee as set forth in the
Loan Agreement as amended hereby and all the documents, instruments and
agreements executed pursuant thereto or in connection therewith, without offset,
defense or counterclaim (any such offset, defense or counterclaim as may exist
being hereby irrevocably waived by each such guarantor).
SUPREMA SPECIALTIES WEST, INC.,
as a Guarantor
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
SUPREMA SPECIALTIES NORTHEAST, INC.,
as a Guarantor
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
15
FLEET BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
16
SOVEREIGN BANK,
as Syndication Agent and as a Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
17
MELLON BANK, N.A.,
as Documentation Agent and as a Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
18
EUROPEAN AMERICAN BANK,
as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: V.P.
19
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
20
NATIONAL CITY BANK,
as a Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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