AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of June ___,
2000, by and between CFP Holdings, Inc., Custom Food Products, Inc. and QFAC,
LLC (as assignee of QF Acquisition Corp.) (collectively, the "Borrowers") and
Fleet Capital Corporation ("Lender").
BACKGROUND
Borrowers and Lender are parties to a Loan and Security Agreement dated
as of May 5, 1998 (as amended, supplemented, restated or otherwise modified from
time to time, the "Loan Agreement") pursuant to which Lender provides Borrowers
with certain financial accommodations.
Borrowers have requested that Lender amend the Loan Agreement and
Lender is willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
2.1. Section 1.1 of the Loan Agreement is hereby amended as
follows:
(a) the following defined term is hereby added in its
appropriate alphabetical order:
Leverage Ratio - for any fiscal period, the ratio of
(i) the amount of Obligations outstanding under this Agreement (whether for
principal, interest or premium) as at the date of determination to (ii) EBITDA
for the four most recent fiscal quarters ending on or prior to the date of
determination.
(b) the following defined term is hereby amended in
its entirety to provide as follows:
Maximum Revolving Credit Amount - an amount at any
time equal to (a) Forty Five Million Dollars ($45,000,000) minus (b) the sum of
(i) the aggregate face amount of all outstanding Letters of Credit at such time
and (ii) the outstanding principal balance of the Term Loan and the Equipment
Loans at such time.
2.2. Section 2.2(A) of the Loan Agreement is hereby amended by
inserting the following sentence after the fourth sentence thereof:
"The Term Loan shall be payable in consecutive quarterly
installments of $250,000 each commencing on October 1, 2000 and on the first
Business Day of each quarter thereafter, with the remaining unpaid principal
balance due and payable on the last day of the Original Term, subject to
acceleration upon the occurrence of a Default or Event of Default under this
Agreement or termination of this Agreement and to mandatory prepayments pursuant
to Section 2.2(B) hereof."
2.3. The second sentence of Section 2.7 of the Loan Agreement
is deleted in its entirety and replaced with the following sentence:
"The maximum principal amount of outstanding Standby Letters
of Credit shall not exceed Eight Million Dollars ($8,000,000) in the aggregate
at any time.
2.4. A new Section 9.3 is hereby added in the Loan Agreement
in the appropriate numerical order to provide as follows:
"9.3. Specific Financial Covenants. During the term of this
Agreement, and thereafter for so long as there are any Obligations to Lender,
each Borrower covenants that, unless Lender has first consented thereto in
writing, it shall:
(A) Leverage Ratio. Maintain Leverage Ratio as at the
end of each fiscal quarter of 2.25 to 1.00 commencing on the fiscal quarter
ending June 30, 2000."
3. Conditions of Effectiveness. This Amendment shall become effective
upon receipt by Lender of (a) four (4) copies of this Amendment executed by each
Borrower, (b) payment of an amendment fee of $25,000 which shall be charged by
Lender to Borrowers' account as a Revolving Credit Loan and (c) such other
certificates, instruments, documents, agreements and opinions of counsel as may
be required by Lender or its counsel, each of which shall be in form and
substance satisfactory to Lender and its counsel.
4. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and are
enforceable against each Borrower in accordance with their respective terms.
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(b) Upon the effectiveness of this Amendment, each Borrower
hereby reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Lender,
nor constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which taken together shall be deemed to constitute one and the same
agreement. Any signature delivered by a party via facsimile transmission shall
be deemed to be an original signature hereto.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
CFP HOLDINGS, INC.
CUSTOM FOOD PRODUCTS, INC.
QFAC, LLC
By:___________________________________
Name: Xxx Xxxxx
Title: Senior Vice President and CFO of each
of the foregoing entities
FLEET CAPITAL CORPORATION
By:___________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
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AMENDED AND RESTATED REVOLVING CREDIT NOTE
$45,000,000 As of June ___, 2000
This Amended and Restated Revolving Credit Note (this "Note")
is the Revolving Credit Note referred to in, and is issued pursuant to, that
certain Loan and Security Agreement dated as of May 5, 1998 between each of the
undersigned (each a "Borrower" and collectively "Borrowers") and Fleet Capital
Corporation ("Fleet" or "Lender") (as same may be amended, restated, modified or
supplemented from time to time, the "Loan Agreement"), and is entitled to all of
the benefits and security of the Loan Agreement. All capitalized terms used
herein, unless otherwise specifically defined in this Note, shall have the
meanings ascribed to them in the Loan Agreement. All of the terms, covenants and
conditions of the Loan Agreement and the Loan Documents are hereby made a part
of this Note and are deemed incorporated herein in full.
FOR VALUE RECEIVED, each of the undersigned hereby jointly and
severally promises to pay to the order of Fleet in such coin or currency of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, the principal sum of FORTY FIVE
MILLION AND 00/100 DOLLARS ($45,000,000) or, if different from such amount, such
amount of the Revolving Credit Loans as may be due and owing under the Loan
Agreement, payable in accordance with the provisions of the Loan Agreement and
subject to acceleration upon the occurrence of an Event of Default under the
Loan Agreement or earlier termination of the Loan Agreement pursuant to the
terms thereof, together with interest from and after the date hereof on the
unpaid principal balance outstanding at the applicable rates set forth in the
Loan Agreement which shall be payable in accordance with the provisions of the
Loan Agreement.
Upon the occurrence of an Event of Default, Lender shall have
all of the rights and remedies set forth in Section 11 of the Loan Agreement.
Time is of the essence of this Note. To the fullest extent
permitted by applicable law, each Borrower, for itself and its legal
representatives, successors and assigns, expressly waives presentment, demand,
protest, notice of dishonor, notice of non-payment, notice of maturity, notice
of protest, presentment for the purpose of accelerating maturity, diligence in
collection, and the benefit of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or remaining provisions of this Note. No delay or failure on the part of Lender
in the exercise of any right or remedy hereunder shall operate as a waiver
thereof, nor as an acquiescence in any default, nor shall any single or partial
exercise by Lender of any right or remedy preclude any other right or remedy.
Lender, at its option, may enforce its rights against any collateral securing
this Note without enforcing its rights against Borrowers, any guarantor of the
indebtedness evidenced hereby or any other property or indebtedness due or to
become due to Borrowers. Each Borrower agrees that, without releasing or
impairing any Borrower's liability hereunder, Lender
may at any time release, surrender, substitute or exchange any collateral
securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
This Note amends and restates in its entirety and is given in
substitution for, but not in satisfaction of, and supersedes that certain
Revolving Credit Note dated as of May 5, 1998 issued by Borrowers in favor of
Lender in the original principal amount of $40,000,000.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, each Borrower has caused this Note to be
duly executed and delivered on the date first above written.
CFP HOLDINGS, INC.
CUSTOM FOOD PRODUCTS, INC.
QFAC, LLC (as assignee of QF Acquisition Corp.)
By:___________________________________
Name: Xxx Xxxxx
Title: Senior Vice President and CFO of each of
the foregoing entities
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STATE OF ____________)
: ss.:
COUNTY OF ___________)
On this ____ day of June, 2000, before me personally came Xxxx
X. Ek, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President and CFO of CFP Holdings, Inc., Custom Food Products, Inc. and
QFAC, LLC, the entities described in and which executed the foregoing
instrument; and that he signed his name thereto by order of the board of
directors or managers, as the case may be, of each such entities.
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Notary Public
