EXHIBIT 10.25
AMENDMENT NO. 3 AND ASSIGNMENT AGREEMENT
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 HERETO,
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 September 7, 2001
AMENDMENT NO. 3 AND ASSIGNMENT AGREEMENT
to
THIRD AMENDED AND RESTATED REVOLVING LOAN, GUARANTY AND
SECURITY AGREEMENT
This AMENDMENT NO. 3 AND ASSIGNMENT AGREEMENT, dated as of September 7,
2001 (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"), CITIBANK, N.A. (successor by merger to European American
Bank, "Citibank"), PNC BANK, NATIONAL ASSOCIATION ("PNC"), FIRST PIONEER FARM
CREDIT, ACA ("First Pioneer") and NATIONAL BANK OF CANADA ("NBC" and, together
with Fleet, Sovereign, Mellon, Citibank, PNC and First Pioneer, 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"), a Delaware corporation (Suprema West, Suprema Northeast
and Suprema Northwest are collectively referred to herein as the "Guarantor")
and NATIONAL CITY BANK, as "Exiting Bank".
RECITALS:
A. The Borrower, the Banks, the Exiting Bank, 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, as amended by
an Amendment Number 1 and Assignment Agreement dated as of March 10, 2000 and
Amendment Number 2 dated as of December 28, 2000 (as so amended, the "Loan
Agreement").
B. The Borrower, the Guarantor, the Banks, the Exiting Bank and the
Agent wish to amend the Loan Agreement to permit an increase to the Commitment,
to permit the Exiting Bank to assign its interest to the Banks 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 Exiting Bank, 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,
Amendment Number 2 dated as of December 28, 2000 and as hereafter
amended from time to time, 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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, CITIBANK, N.A.
(successor by merger to European American Bank, "Citibank"), having an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, PNC BANK,
NATIONAL ASSOCIATION ("PNC"), having an office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, FIRST PIONEER FARM CREDIT, ACA
("First Pioneer"), having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and NATIONAL BANK OF CANADA ("NBC"), having an office
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (Fleet, Sovereign,
Mellon, Citibank, PNC, First Pioneer and NBC, 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 Suprema 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. 3" shall be added to Section 1
of the Loan Agreement in its correct alphabetical order to read in its entirety
as follows:
"Amendment No. 3" means that certain Amendment No. 3 to this
Agreement dated as of September 7, 2001 among the parties thereto.
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(c) A new definition for "Combined Group" shall be added to Section 1
of the Loan Agreement in its correct alphabetical order to read in its entirety
as follows:
"Combined Group" means A&J Cheese Co., Inc. and ▇▇ ▇▇▇▇▇
Cheese, Inc., certain account debtors of the Borrower.
(d) 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 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 $130,000,000, as such
amount may be increased pursuant to Section 2.1 and reduced pursuant to
Section 5.
(e) A new definition for "Equity Issuance" shall be added to Section 1
of the Loan Agreement in its correct alphabetical order to read in its entirety
as follows:
"Equity Issuance" means any offering by the Borrower of its
common stock, any offering by the Borrower of its preferred stock
and/or any other equity offering by the Borrower.
(f) The definition of "Eligible Receivable" contained in Section 1 of
the Loan Agreement is amended by deleting the word "and" at the end of subpart
"(k)" thereof, by replacing the period at the end of subpart "(l)" thereof with
a semicolon and by adding new subparts "(m)" through "(q)" to read in their
entirety as follows:
(m) with respect to the Borrowing Base at any time calculated
for the period beginning September 1, 2001 through and including May
31, 2002, that portion of the Receivables owed by any single account
debtor (other than those within the Combined Group) which exceeds
twenty percent (20%) of all of the Receivables at the time of any such
determination of the Borrowing Base;
(n) with respect to the Borrowing Base at any time calculated
for the period beginning June 1, 2002 and for all periods thereafter,
that portion of the Receivables owed by any single account debtor
(other than those within the Combined Group) which exceeds fifteen
percent (15%) of all of the Receivables at the time of any such
determination of the Borrowing Base;
(o) with respect to the Borrowing Base at any time calculated
for the period beginning September 1 2001 through and including
November 30, 2001, that portion of the Receivables owed by the Combined
Group which collectively exceeds thirty percent (30%) of all of the
Receivables at the time of any such determination of the Borrowing
Base;
(p) with respect to the Borrowing Base at any time calculated
for the period beginning December 1, 2001 and for all periods
thereafter through and including May 31, 2002, that portion of the
Receivables owed by the Combined Group which collectively exceeds
twenty five percent (25%) of all of the Receivables at the time of any
such determination of the Borrowing Base; and
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(q) with respect to the Borrowing Base at any time calculated
for the period beginning June 1 2002 and for all periods thereafter,
that portion of the Receivables owed by the Combined Group which
collectively exceeds twenty percent (20%) of all of the Receivables at
the time of any such determination of the Borrowing Base.
(g) 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., Suprema Specialties Northwest Inc.
and the ▇▇▇▇▇▇▇ Purchaser (if it is not the Borrower), jointly and
severally.
(h) A new definition for "▇▇▇▇▇▇▇" shall be added to Section 1 of the
Loan Agreement in its correct alphabetical order to read in its entirety as
follows:
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Foods, Inc.
(i) A new definition for "▇▇▇▇▇▇▇ Purchaser" shall be added to Section
1 of the Loan Agreement in its correct alphabetical order to read in its
entirety as follows:
"▇▇▇▇▇▇▇ Purchaser" means the Borrower or the Affiliate or
Subsidiary of the Borrower that is the purchaser of the facility in
connection with the ▇▇▇▇▇▇▇ Transaction.
(j) 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
September 7, 2001 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 executed prior thereto, 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. 3.
(k) A new definition for "Permitted ▇▇▇▇▇▇▇ Transaction" shall be added
to Section 1 of the Loan Agreement in its correct alphabetical order to read in
its entirety as follows:
"Permitted ▇▇▇▇▇▇▇ Transaction" means the purchase by the
▇▇▇▇▇▇▇ Purchaser from ▇▇▇▇▇▇▇ of the furniture, fixtures, equipment
and real property comprising a certain privately-owned, approximately
80,000 square foot turn-key cheese production facility located in
Heuvelton, New York, for an aggregate consideration of not in excess of
$5,250,000, from which some or all of the property so purchased may be
sold by the ▇▇▇▇▇▇▇ Purchaser to a leasing company (or other financing
entity) and then leased back to the ▇▇▇▇▇▇▇ 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) the ▇▇▇▇▇▇▇ Purchaser shall not have 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, prior to the consummation of such ▇▇▇▇▇▇▇ Transaction, fully
executed copies of the (A) supply agreement between the Borrower and
▇▇▇▇▇▇▇, (B) the Letter of Intent executed by the Borrower with respect
to the ▇▇▇▇▇▇▇ Transaction and (C) purchase agreement and any other
material documents executed in connection with the ▇▇▇▇▇▇▇ Transaction
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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 Permitted
Liens and 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.
(l) 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"):
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
First Pioneer Farm Credit, ACA $ 17,500,000.00
National Bank of Canada $ 15,000,000.00
PNC Bank, National Association $ 10,000,000.00
Citibank $ 10,000,000.00
TOTAL $ 130,000,000.00
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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
its 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 $150,000,000.00;
(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;
(iii) from the date hereof through the Commitment
Expiration Date, the Commitment shall not be increased on more
than two (2) 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,
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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 the Borrower and
upon the Agent's distribution of same, the Commitment of each
Bank shall be automatically adjusted to be the Commitment set
forth therein;
(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; and
(viii) the Borrower and the Agent shall have agreed
upon an agency fee in an amount satisfactory to the Agent.
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 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.
(m) Section 10.2(b) of the Loan Agreement is amended to read in its
entirety as follows:
(b) (i) from time to time as requested by the Agent or any
Bank, but no more often than twice a year and no less frequently than
annually (together with the annual certified financial statements
required to be furnished by the Borrower), provide each Bank with a
written acknowledgment, in form and substance satisfactory to each
Bank, from the Borrower's and the Guarantor's accountant acknowledging
that the Banks are relying on the accountant's professional accounting
services to the Borrower and Guarantor, and acknowledging the
Borrower's and Guarantor's knowledge of each Bank's reliance thereon
and (ii) within 5 days of when received by the Borrower and/or any
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Guarantor, provide each Bank with a copy of the annual management
letter furnished to the Borrower and/or the Guarantor by their
accountant;
(n) Section 10.14(c) of the Loan Agreement is amended to read in its
entirety as follows:
(c) Consolidated Net Worth. Maintain at all times Consolidated
Net Worth of not less than $35,000,000, which Consolidated Net Worth
requirement shall be increased (i) each Fiscal Year end commencing with
the Fiscal Year ending June 30, 2001 (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 (A) 50% of Consolidated
Net Earnings for such Fiscal Year, and (B) $0 and (ii) upon the
consummation of each Equity Issuance, by an amount equal to 50% of all
proceeds received by the Borrower in connection with each such Equity
Issuance (less reasonable expenses and other costs of issuance in
connection therewith), which increased amount shall be maintained
during each subsequent fiscal quarter until the required Consolidated
Net Worth shall again increase pursuant to any of the provisions of
this subsection 10.14(c).
(o) Section 10.17 of the Loan Agreement is amended by replacing the
phrase "and (iii) the sale of property pursuant to the Permitted Snake River
Transaction" with the phrase "and (iii) the sale of property pursuant to the
Permitted Snake River Transaction and ▇▇▇▇▇▇▇ Transaction."
(p) Section 10.19(vi) of the Loan Agreement is amended to read in its
entirety as follows:
(vi) the Permitted Snake River Transaction, the ▇▇▇▇▇▇▇
Transaction and transactions permitted by Sections 10.16 and 10.21
hereof.
(q) A new Section 10.32 shall be added to the Loan Agreement
immediately after Section 10.31 and shall read in its entirety as follows:
10.31 ▇▇▇▇▇▇▇ Purchase. Within 30 days of the consummation of
the ▇▇▇▇▇▇▇ Transaction, if the ▇▇▇▇▇▇▇ Purchaser is not the Borrower,
the Borrower shall (i) ensure that the ▇▇▇▇▇▇▇ Purchaser executes any
and all documents reasonably required by the Agent to ensure that the
▇▇▇▇▇▇▇ Purchaser becomes a Guarantor and in connection therewith the
Agent shall be authorized to file Uniform Commercial Code financing
statements with respect to all Collateral owned by the ▇▇▇▇▇▇▇
Purchaser, (ii) deliver to the Agent a fully executed Amendment to the
Pledge Agreement to include the stock of the ▇▇▇▇▇▇▇ Purchaser under
such Pledge Agreement, which Amendment shall be substantially similar
to the Amendment to Pledge Agreement delivered in connection with
Amendment No. 2, together with one or more certificates representing
all the issued and outstanding shares of the ▇▇▇▇▇▇▇ Purchaser and an
irrevocable power of attorney in the form of Exhibit A to the Pledge
Agreement or other stock power satisfactory to the Agent, with respect
to such shares, (iii) take any other action and deliver any other
documents as is reasonably requested by the Agent and is consistent
with the requirements of the Agent with respect to new Subsidiaries
and/or Affiliates of the Borrower, and (iv) deliver to the Agent
satisfactory evidence of the consummation of the Permitted ▇▇▇▇▇▇▇
Transaction and satisfactory evidence that each of the conditions set
forth under "Permitted ▇▇▇▇▇▇▇ Transaction" have been satisfied.
8
(r) Section 12.1 (i) of the Loan Agreement is amended to read in its
entirety as follows:
(i) Ownership. If (i) the Guarantor ceases to be a wholly
owned subsidiary of the Borrower, or (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is no longer
actively involved in the day to day management of the Borrower and the
Guarantor as President in substantially the same manner as presently
exists; or
(s) 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
(iv) if to Mellon, to:
Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
(v) if to Citibank, to:
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
9
(vi) if to PNC, to:
PNC Bank, National Association
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
(vii) if to First Pioneer, to:
First Pioneer Farm Credit, ACA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Commercial Loan Officer
(viii) if to National Bank of Canada, to:
National Bank of Canada
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, 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. 3, 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.
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 the existing note payable by the
Borrower to the order of such Bank, with changes necessary to reflect each such
Bank's new commitment (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.
(d) Each Bank and the Exiting Bank shall hereby assign or assume, as
applicable, from each other Bank and/or the Exiting Bank such rights, and shall
hereby assign or delegate to such other Bank and/or the Exiting Bank such
10
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 (which in the case
of the Exiting Bank shall be zero) 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 and/or the Exiting Bank 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 (i) any Bank that has made payment to another Bank
and/or the Exiting Bank pursuant to this Amendment shall be entitled to all
rights of a Bank under the Agreement and such payments to Banks and/or the
Exiting Bank 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 and (ii) each Bank receiving payment of
its Loans pursuant to this Amendment may treat the assignment of Eurodollar
Loans as a prepayment of such Eurodollar Loans for purposes of Section 5.4
hereof.
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.
Section 5. Consent of Noteholders; Amendment to Note Agreement. This
Amendment shall not be effective unless and until the Agent shall have received
a consent to this Amendment binding on each noteholder which may include an
amendment to the Note Agreement and in any event shall be in form and substance
satisfactory to the Administrative Agent and each Bank.
Section 6. Acknowledgments, Confirmations and Consent.
(a) The Borrower and each Guarantor (including each Guarantor that
became a Guarantor after September 23, 1999) 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 and under the Loan
Agreement as further amended by this Amendment and under the other Loan
11
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. It is expressly agreed that
each of the provisions of Section 8 of the Loan Agreement apply to each party
that became a Guarantor after September 23, 1999 with the same effect as if such
Guarantor were a party to such original Loan Agreement and each such Guarantor
(as well as the Borrower each other Guarantor) hereby reaffirms the grant to the
Agent, for the ratable benefit of the Banks, of a first priority continuing
security interest and Lien in and to all the Assets, as more fully described in
the Loan Agreement.
(b) Each Guarantor (including each Guarantor that became a Guarantor
after September 23, 1999) consents in all respects to the execution by the
Borrower of this Amendment and acknowledges and confirms that such Guarantor is
a "Guarantor" under the Loan Agreement and 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 7. Representations and Warranties. The Borrower and the
Guarantor, as the case may be, each represents and warrants to the Banks, the
Exiting Bank, 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.
12
(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 in an aggregate amount in excess of that
permitted by the Loan Agreement.
(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.
(g) As used herein, the term Guarantor means Guarantor as defined in
the Loan Agreement and as amended by this Agreement.
13
Section 8. Fees and Expenses; Post Closing Examination.
(a) The Borrower shall pay the following fees and expenses in
connection with this Amendment:
(i) 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
prior to the Effective Date of this Amendment, such fee to be payable
upon execution of this Amendment.
(ii) 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.
(iii) The Borrower agrees to pay Fleet Securities, Inc. a fee
in an amount agreed to between the Borrower and Fleet Securities, Inc.
in consideration of Fleet Securities, Inc. arranging the increased
Commitment provided in this Amendment.
(b) Within 30 days of the date hereof, the Borrower shall permit the
Agent, by or through any of its officers, agents, employees, attorneys or
accountants to inspect and make extracts from the Borrower's books and records.
The cost of the foregoing shall be borne by the Borrower.
Section 9. 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
14
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 Exiting Bank, 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 10. 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) the payment of the fees and expenses set forth in Section 8 of this
Amendment, (iv) receipt by the Agent of corporate resolutions and certificates
of good standing with respect to Borrower and Guarantor, (v) 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. 2,
(vi) receipt by the Agent of the consent/amendment referred to in Section 5 of
this Amendment and (vii) receipt by the Agent of such other documents that it
shall reasonably request; provided, that, upon the satisfaction of each of such
conditions, the amendment to Section 12.1(i) of the Agreement (but only such
Section 12.1(i)) shall be effective as of August 1, 2001.
[Signature Pages Follow]
15
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. 3 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
16
FLEET NATIONAL BANK,
successor by merger to Fleet Bank,
National Association, as Agent and
as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
17
SOVEREIGN BANK,
as Syndication Agent and as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
18
MELLON BANK, N.A.,
as Documentation Agent and as a
Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
19
CITIBANK, N.A.
successor by merger to European
American Bank, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
20
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
21
FIRST PIONEER FARM CREDIT, ACA,
as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
22
NATIONAL BANK OF CANADA,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ Gexa
----------------- --------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Vice President
23
By its signature below, NATIONAL CITY BANK, agrees to the Amendment as
an Exiting Bank as set forth therein.
NATIONAL CITY BANK,
as an Exiting Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
24