AMENDMENT NO. 2
to
THIRD AMENDED AND RESTATED REVOLVING LOAN, GUARANTY AND
SECURITY AGREEMENT
among
SUPREMA SPECIALTIES, INC.,
SUPREMA SPECIALTIES WEST, INC,
SUPREMA SPECIALTIES NORTHEAST, INC.,
SUPREMA SPECIALTIES NORTHWEST INC.,
THE BANKS SIGNATORY THERETO,
FLEET NATIONAL BANK, as Administrative Agent,
SOVEREIGN BANK, as Syndication Agent
and
MELLON BANK, N.A., as Documentation Agent
Arranged by
FLEET SECURITIES, INC.
Dated as of December 28, 2000
AMENDMENT NO. 2
to
THIRD AMENDED AND RESTATED REVOLVING LOAN, GUARANTY
AND SECURITY AGREEMENT
This AMENDMENT NO. 2, dated as of December 28, 2000 (this "Amendment"), is
by and among FLEET NATIONAL BANK (successor by merger to Fleet Bank, National
Association and as successor to NatWest Bank N.A. and National Westminster Bank
NJ, "Fleet"), SOVEREIGN BANK ("Sovereign"), MELLON BANK, N.A. ("Mellon"),
EUROPEAN AMERICAN BANK ("EAB"), PNC BANK, NATIONAL ASSOCIATION ("PNC") and
NATIONAL CITY BANK ("National City" and, together with Fleet, Sovereign, Mellon,
EAB and PNC, the "Banks"), FLEET NATIONAL BANK, successor by merger to 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, SUPREMA
SPECIALTIES NORTHEAST, INC. ("Suprema Northeast"), a New York corporation and
SUPREMA SPECIALTIES NORTHWEST INC. ("Suprema Northwest"), Delaware corporation
(Suprema West, Suprema Northeast and Suprema Northwest are collectively referred
to herein as the "Guarantor").
RECITALS:
A. The Borrower, the Banks, the Agent and the Guarantor (other than Suprema
Northwest) have entered into a Third Amended and Restated Revolving Loan,
Guaranty and Security Agreement, dated as of September 23, 1999, as amended by
an Amendment Number 1 and Assignment Agreement dated as of March 10, 2000 (as so
amended, the "Loan Agreement").
B. The Borrower, the Guarantor, the Banks and the Agent wish to amend the
Loan Agreement to permit an increase to the Commitment, to add Suprema Northwest
as a Guarantor 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:
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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
NATIONAL BANK (successor by merger to 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
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 NATIONAL BANK, 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 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, SUPREMA
SPECIALTIES NORTHEAST, INC. ("Suprema Northeast"), a New York corporation
with its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ and SUPREMA SPECIALTIES NORTHWEST INC. ("Suprema Northwest"), a
Delaware corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (Suprema West, Suprema Northeast and Suprema
Northwest 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 for "Amendment No. 2" shall be added to Section 1 of
the Loan Agreement in its correct alphabetical order to read in its entirety as
follows:
"Amendment No. 2" means that certain Amendment No. 2 to this Agreement
dated as of December 28, 2000 among the parties thereto.
(c) The definition of "Capital Expenditures" contained in Section 1 of the
Loan Agreement is amended to read in its entirety as follows:
"Capital Expenditures" means, as to any Person, Capital Expenditures
(Non-Operating Leases).
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(d) The definition of "Capital Expenditures (Non-Operating Leases)"
contained in Section 1 of the Loan Agreement is amended to read in its entirety
as follows:
"Capital Expenditures (Non-Operating Leases)" means, as to any Person,
for any period, the sum of (a) expenditures for any fixed assets or
improvements and replacements, substitutions or additions thereto which
would be treated as capital expenditures in accordance with GAAP and (b)
the portion of all payments with respect to each Capitalized Lease which
are required to be capitalized on the balance sheet of the applicable
lessee in accordance with GAAP.
(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) $85,000,000 with
respect to the period from the Closing to, but excluding, the Effective
Date of Amendment No. 2 and (ii) $111,000,000 with respect to the period
from the Effective Date of Amendment No. 2 to, but excluding, the
Commitment Expiration Date, as such amounts may be increased pursuant to
Section 2.1 and reduced pursuant to Section 5.
(f) The definition of "Guarantor" contained in Section 1 of the Loan
Agreement is amended to read in its entirety as follows:
"Guarantor" means collectively Suprema Specialties West, Inc., Suprema
Specialties Northeast, Inc. and Suprema Specialties Northwest Inc., jointly
and severally.
(g) A new definition for "Increase Supplement" shall be added to Section 1
of the Loan Agreement in its correct alphabetical order to read in its entirety
as follows:
"Increase Supplement" means an increase supplement substantially in
the form of Exhibit A to Amendment No. 2.
(h) 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 December 28,
2000 made by the Borrower in favor of each institution that was a Bank as
of the date thereof, which Notes were given in substitution for certain
notes dated March 10, 2000, but in each case not in cancellation, discharge
or extinguishment of the indebtedness formerly evidenced by such notes, as
amended from time to time, together with all promissory notes delivered in
replacement or substitution thereof and any all notes made by the Borrower
in favor of an institution that becomes a Bank after the Effective Date of
Amendment No. 2.
(i) A new definition for "Permitted Snake River Transaction" shall be added
to Section 1 of the Loan Agreement in its correct alphabetical order to read in
its entirety as follows:
"Permitted Snake River Transaction" means the purchase by the Borrower
or Suprema Northwest (the actual purchaser of such facility is referred to
herein as the "Snake River Purchaser") from Snake River Cheese, LLC of the
furniture, fixtures, equipment and real property
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comprising a certain privately-owned, approximately 37,280 square foot
turn-key cheese production facility located in Blackfoot, Idaho, for an
aggregate consideration of not in excess of [$6,000,000], from which some
or all of the property so purchased shall be sold by the Snake River
Purchaser to a leasing company (or other financing entity) and then leased
back to the Snake River Purchaser by such leasing company (or other
financing entity) pursuant to a sale-leaseback arrangement; provided, that,
with respect to such described transaction (the "Transaction"); each of the
following conditions shall have been satisfied (i) neither the Borrower nor
Suprema Northwest (if Suprema Northwest is such Snake River Purchaser) has
incurred any additional Indebtedness to finance such acquisition (other
than the sale-leaseback arrangement described above), whether in the form
of seller notes, third party Indebtedness or otherwise; (ii) at the time of
the Transaction no Default or Event of Default exists and no Default or
Event of Default would occur after giving effect to such Transaction; (iii)
the Borrower shall have delivered to the Agent, within five days of the
execution thereof, but in no event less than 10 days prior to the
consummation of such Transaction, copies of the purchase agreement and any
other material documents executed in connection with the Transaction and
each such document shall be in form and substance reasonably satisfactory
to the Agent; (iv) the assets being acquired are being acquired free and
clear of any and all Liens (other than Liens reasonably satisfactory to the
Agent); (v) the Agent shall have received such other information or
documents as it shall have reasonably requested in connection with such
Transaction; (vi) the Transaction shall have been consummated in accordance
with the definitive Transaction documents, without any waiver or amendment
of any material term or condition therein not consented to by the Agent
(acting with the consent of the Required Banks, if needed) and in
compliance with all applicable laws and all necessary approvals, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect; (vii) all applicable environmental issues shall
have been addressed in a manner reasonably satisfactory to the Agent and
(viii) all governmental and third-party consents and approvals necessary in
connection with each aspect of the Transaction shall have been obtained
(without the imposition of any unreasonable conditions) and shall remain in
effect, except where the failure to obtain same could not reasonably be
expected to have a Material Adverse Effect; all applicable waiting periods
shall have expired or been terminated or waived without any material
adverse action being taken by any authority having jurisdiction; and no law
or regulation shall be applicable that restrains, prevents or imposes
material adverse conditions upon any aspect of the Transaction as
reasonably determined by the Borrower.
(j) Section 2.1 of the Loan Agreement is amended to read in its entirety as
follows:
2.1 Commitment; Maximum Credit; Increases to Commitments.
(a) 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, that,
pursuant to the terms of Section 2.1(b) the table set forth below is
subject to revision upon written notice from the Agent consented to in
writing by the Borrower (and upon the Agent's distribution of any such
notice that includes a revised table, absent manifest error the table below
shall be deemed amended and automatically revised as set forth in such
notice); provided, however, that in no event shall the aggregate
outstanding principal amount of Loans at any time outstanding exceed the
lesser of (A) the Commitment, or (B) the Borrowing Base, each as in effect
at the time of such Loan (the "Maximum Credit"):
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Name of Bank Amount
Fleet National Bank $ 30,000,000.00
Sovereign Bank $ 25,000,000.00
Mellon Bank, N.A. $ 22,500,000.00
National City Bank $ 15,000,000.00
PNC Bank, National Association $ 10,000,000.00
European American Bank $ 8,500,000.00
TOTAL $111,000,000.00
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 make 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.
(b) Provided that no Default or Event of Default exists or would exist
immediately before and after giving effect thereto, the Borrower may at any
time and from time to time, at its sole cost and expense, request any one
or more of the Banks to increase its Commitment (such decision to increase
the Commitment of a Bank to be within the sole and absolute discretion of
such Bank), or request any other institution reasonably satisfactory to the
Agent to provide a new Commitment, by submitting an Increase Supplement,
duly executed by the Borrower and each such increasing Bank or other
institution agreeing to increase its Commitment or provide a new
Commitment, as the case may be. If such Increase Supplement is in all
respects reasonably satisfactory to the Agent, the Agent shall execute such
Increase Supplement and deliver a copy thereof to the Borrower and each
such increasing Bank or other institution, as the case may be. Upon
execution and delivery of such Increase Supplement, (i) in the case of each
such increasing Bank, such increasing Bank's Commitment shall be increased
to the amount set forth in such Increase Supplement, (ii) in the case of
each such other institution, such other institution shall become a party
hereto and shall for all purposes of the Loan Documents be deemed a "Bank"
with a Commitment in the amount set forth in such Increase Supplement,
(iii) in each case, the Commitment of such increasing Bank or such other
institution, as the case may be, shall be as set forth in the applicable
Increase Supplement, and (iv) the Borrower shall contemporaneously
therewith execute and deliver to the Agent (x) for each Bank providing an
increased Commitment, a new Note in the amount of such increased Commitment
in exchange for the return and cancellation of each such Bank's existing
Note and (y) for each such other institution providing a new Commitment, a
Note in the amount of its Commitment; provided, however, that:
(i) immediately after giving effect thereto, the aggregate
Commitment of all the Banks shall not be in excess of $125,000,000.00;
(ii) unless otherwise agreed to by the Agent, each such increase
shall be in an amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof;
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(iii) from the date hereof through the Commitment Expiration
Date, the Commitment shall not be increased on more than two
occasions;
(iv) if Loans shall be outstanding immediately after giving
effect to such increase, each Bank shall be deemed to have
automatically assigned or assumed from each other Bank such rights,
and shall have been deemed to have automatically assigned to or
assumed from or delegated to such other Bank such obligations, in each
case without recourse, representation or warranty, 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(a) of the Loan
Agreement, by the total Commitment of all the Banks as set forth in
such Section 2.1(a); provided, that, in each case (x) the table
utilized with respect to such Section 2.1(a) shall be the revised
table distributed by the Agent pursuant to this Section 2.1(b) , (y)
the Commitment shall be the increased Commitment of all the Banks as
provided by the Agent pursuant to this Section 2.1(b) and (z) the term
"Banks" shall include all then existing Banks and any and all such
"other institutions" that shall become Banks (as more fully described
above)). 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 after giving effect to the Commitment
increase. The Borrower hereby agrees that (x) any amount that a Bank
so pays to another Bank pursuant to this Section 2.1(b) shall be
entitled to all rights of a Bank under this Agreement and such
payments to Banks shall constitute Loans held by each such payor Bank
under this Agreement, (y) 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 and (z) each Bank receiving payment of its Loans
pursuant to this Section may treat the assignment of Eurodollar Loans
as a prepayment of such Eurodollar Loans for purposes of Section 5.4
hereof.
(v) each such other institution shall have delivered to the Agent
and the Borrower all forms, if any, that are required to be delivered
by such other institution pursuant to this Agreement;
(vi) within two Business Days after the Agent executes and
delivers each Increase Supplement in accordance with the terms hereof,
the Agent shall revise the table set forth in Section 2.1(a) to
reflect the adjustments to the Commitments contemplated by clause (iv)
above and shall promptly send a copy thereof to the Banks and upon the
Agent's distribution of same, the Commitment of each Bank shall be
automatically adjusted to be the Commitment set forth therein; and
(vii) the Borrower shall have paid to Fleet Securities, Inc., as
arranger of the increase of the facility, an arrangement fee
satisfactory to Fleet Securities, Inc. and the Borrower.
In connection with any increase to the Commitment pursuant to this
Section, the Borrower, the Guarantor, the Agent and each of the Banks
hereby consents to the addition of each "other institution" as a new
Bank as a Bank under this Agreement with a Commitment as set forth in
Section 2.1(a) of this Agreement, as amended and updated by the Agent.
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(k) Section 10.17 of the Loan Agreement is amended by adding the
following phrase immediately to the end thereof immediately before the
period:
and (iii) the sale of property pursuant to the Permitted Snake
River Transaction
(l) Section 10.19(vi) of the Loan Agreement is amended to read in its
entirety as follows:
(vi) the Permitted Snake River Transaction and transactions
permitted by Sections 10.16 and 10.21 hereof.
(m) Section 10.20(v) of the Loan Agreement is amended by replacing the
phrase "; provided, however, that in no event" with the phrase "; provided,
however, that, excluding obligations in connection with Equipment Operating
Leases, in no event".
(n) The initial paragraph of Section 10.27 of the Loan Agreement
(appearing prior to the table set forth in such Section 10.27) is amended
to read in its entirety as follows:
10.27 Limitation on Capital Expenditures.Expend in the
aggregate, for the Borrower and all Subsidiaries, in excess of
the amount set forth opposite the Fiscal Year ending the date set
forth below for Capital Expenditures including payments made on
account of Capitalized Leases (but excluding, for the avoidance
of doubt, payments made or to be made on account of Equipment
Operating Lease Obligations), to be tested on a quarterly basis.
For purposes of the foregoing, Capital Expenditures shall include
equipment acquired under direct purchases, bank financing and
payments made on account of any deferred purchase price or on
account of any indebtedness incurred to finance any such purchase
price:
(o) A new Section 10.31 shall be added to the Loan Agreement
immediately after Section 10.30 and shall read in its entirety as follows:
10.31 Margin Stock. Not use any portion of the proceeds of any
Loan, in whole or in part, for the purpose of purchasing or carrying
any "margin stock" as such term is defined in Regulation U of the Board
of Governors of the Federal Reserve System.
(p) Section 15.1(i) of the Loan Agreement is amended to read in its
entirety as follows:
(i) change the Commitments of the Banks, except as permitted by
Section 2.1 (which changes in Commitments shall only require the
consent of a Bank that is increasing its Commitment and shall
automatically apply to all other Banks; provided, that, changes to the
dollar amounts in the second clause (i) in Section 2.1(b) shall
require the approval of all Banks);
(q) Section 15.2 of the Loan Agreement is amended to read in its
entirety as follows:
15.2 WAIVER OF TRIAL BY JURY. THE BORROWER, GUARANTOR, AGENT AND
THE BANKS (BY ACCEPTANCE OF THE NOTES) MUTUALLY HEREBY
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KNOWINGLY, VOLUNTARILY AND INTENIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE AGENT AND/OR
THE BANKS RELATING TO THE ADMINISTRATION OF THE LOANS AND/OR ANY OTHER
CREDIT FACILITIES HEREUNDER OR THE ENFORCEMENT OF THE LOAN DOCUMENTS
AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. EXCEPT AS PROHIBITED BY LAW, THE BORROWER AND GUARANTOR EACH
HEREBY WAIVE ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE
BORROWER AND GUARANTOR EACH CERTIFY THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE AGENT AND/OR THE BANKS HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT AND/OR THE BANKS WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSITUTES A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS TO ACCEPT
THIS AGREEMENT, THE NOTES, THE OTHER LOAN DOCUMENTS AND TO EXTEND
CREDIT TO THE BORROWER.
(r) 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 National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Senior Vice President
(iii) if to Sovereign, to:
Sovereign Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
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(iv) if to Mellon, to:
Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
(v) if to EAB, to:
European American Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
(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. 2, 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.
(s) Section 15.7 of the Loan Agreement is amended by adding the phrase
"(excluding the laws applicable to conflicts or choice of law)" immediately
after the phrase "construed by the laws of the State of New Jersey".
(t) 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
9
Loan Document to the Notes, the Loans, or words of like import shall
mean the Notes and the Loans as defined herein.
(u) New Sections 15.19, 15.20 and 15.21 shall be added to the Loan
Agreement immediately after Section 15.18 and shall read in their entirety
as follows:
15.19 Payments. All payments under this Agreement and the Notes
shall be applied first to the payment of all fees, expenses and other
amounts due to the Banks (excluding principal and interest), then to
accrued interest, and the balance on account of outstanding principal;
provided, however, that after the occurrence of an Event of Default,
payments will be applied to the obligations of the Borrower to the
Banks as the Required Banks determine in their sole discretion.
15.20 Integration. This Agreement and the other Loan Documents
are intended by the parties as the final, complete and exclusive
statement of the transactions evidenced thereby. All prior or
contemporaneous promises, agreements and understandings, whether oral
or written, are deemed to be superceded by this Agreement and such
other Loan Documents, and no party is relying on any promise,
agreement or understanding not set forth in this Agreement or such
other Loan Documents.
15.21 Name of Fleet. Any reference in this Agreement or any other
Loan Document to Fleet Bank, National Association or Fleet Bank, N.A.
shall be deemed to mean Fleet National Bank, successor by merger to
Fleet Bank, National Association.
Section 3. Reallocation of Commitments; Notes.
(a) 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.
(b) 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 Loan
Agreement (the "Note"), which Note shall amend and restate the existing
Note payable to such Bank.
(c) Upon the Effective Date, the Commitment of each Bank shall be
automatically adjusted as set forth in this Amendment.
Section 4. 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 copy of the Loan Agreement. 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.
10
Section 5. 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 as amended and restated pursuant to this Amendment, 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 amended and restated 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 amended and
restated 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 6. 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.
(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
11
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.
(f) To the extent the Borrower remains in compliance with the
Borrowing Base, all obligations under the Loan Agreement, as further
amended pursuant to the terms of this Amendment, constitute "Senior Debt"
as defined in that certain Note Agreement dated as of March 9, 1998 with
respect to $10,500,000 16.5% Senior Subordinated Notes Due March 1, 2006.
Section 7. Fees and Expenses. The Borrower shall pay the following fees and
expenses in connection with this Amendment:
(a) The Borrower shall pay to each increasing Bank a fee in the amount
of .25% of the amount of the increase, if any, in Bank's Commitment set
forth in this Amendment from such Bank's Commitment set forth in Amendment
No. 1, such fee to be payable upon execution of this Amendment.
(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
12
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 8. 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 (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
(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.
(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 9. 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 note shall amend and restate and be in replacement of
and substitution for its existing promissory note (such amended and restated
promissory note, when executed and delivered, shall be deemed one of the Notes
for all purposes of the Agreement) and documents relating thereto, (ii) receipt
by the Agent of counterparts of this Amendment duly signed by each party hereto,
(iii) receipt by the Agent of a fully executed
13
copy of an Amendment to the Pledge Agreement in the form of Exhibit B to
Amendment No. 2, (iv) receipt by the Agent of one or more certificates
representing all the issued and outstanding shares of Suprema Northwest and an
irrevocable power of attorney with respect to such shares in the form of Exhibit
A to the Pledge Agreement, (v) the payment of the fees and expenses set forth in
Section 7 of this Amendment, (vi) receipt by the Agent of corporate resolutions
and certificates of good standing with respect to Borrower and Guarantor, (vii)
receipt by the Agent of such other documents that it shall reasonably request,
including without limitation duly executed Uniform Commercial Code financing
statements with respect to all Collateral owned by Suprema Northwest, (vii)
receipt by the Agent of evidence to the consummation of the Permitted Snake
River Transaction and (ix) receipt by the Agent of an opinion of counsel to the
Borrower and Guarantor substantially similar to the opinion of counsel provided
in connection with Amendment No. 1.
[Signature Pages Follow]
14
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. 2 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
SUPREMA SPECIALTIES NORTHWEST INC.,
as a Guarantor
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
15
FLEET NATIONAL BANK,
successor by merger to Fleet Bank,
National Association, as Agent and
as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice 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: Vice President
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: Senior Vice President
21
EXHIBIT A
FORM OF INCREASE SUPPLEMENT
22
EXHIBIT B
FORM OF AMENDMENT TO PLEDGE AGREEMENT
23