1
EXHIBIT 10
AMENDMENT NO. 1 TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT, dated as of June
27, 1997 (this "Amendment"), among SYLVAN INC., a Nevada corporation (the
"Company"), SYLVAN FOODS (NETHERLANDS) BV ("SFNBV"), a Dutch corporation, THE
BANKS LISTED ON THE SIGNATURE PAGE HEREOF (individually, a "Bank" and
collectively the "Banks"), the ISSUING BANK under the Original Agreement, as
defined below (the "Issuing Bank"), and MELLON BANK, N.A., a national banking
association, as agent for the Banks and the Issuing Bank (in such capacity, the
"Agent").
BACKGROUND PROVISIONS
1. The Company, SFNBV, the Banks, the Issuing Bank and the Agent are
parties to a Revolving Credit Agreement, dated as of June 1, 1996 (the
"Original Agreement").
2. The Company, SFNBV, the Banks, the Issuing Bank and the Agent wish
to amend the Original Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows.
ARTICLE I
AMENDMENTS
1.01 Section 6.06 of the Original Agreement is amended by adding, at
the end thereof, the following:
"The provisions of Section 6.06(c)(i) notwithstanding, subject to the
conditions of Sections 6.06(c)(ii) and (iii), the Company may declare
and pay cash Stock Payments on account of a dividend on, or purchase,
redemption, retirement or acquisition of, its capital stock during the
period from May 15, 1997 through May 14, 1998, if the aggregate amount
of all Stock Payments declared or made during such period, plus the
proposed Stock Payment, does not exceed $6,000,000."
1.02 Section 6.14 of the Original Agreement is amended by adding, at
the end of the first sentence thereof, the following:
2
";provided however that the aggregate amount of Capital Expenditures
permitted to be made by the Company or any Subsidiary during the 1997
calendar year shall not be in excess of $8,000,000."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01. AUTHORITY AND AUTHORIZATION. Each of the Borrowers has the
corporate power and authority to execute and deliver this Amendment and to
perform its obligations hereunder. All such action has been duly and validly
authorized by all necessary corporate proceedings by each of the Borrowers.
2.02. EXECUTION AND BINDING EFFECT. This Amendment has been duly and
validly executed and delivered by each of the Borrowers and constitutes the
legal, valid and binding obligations of each of the Borrowers enforceable in
accordance with its terms, except as the enforceability hereof may be limited
by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
2.03. AUTHORIZATIONS AND FILINGS. No authorization, consent, approval,
license, exemption or other action by, and no registration, qualification,
designation, declaration or filing with, any Official Body is or will be
necessary or advisable in connection with the execution and delivery of this
Amendment, consummation of the transactions herein contemplated or performance
of or compliance with the terms and conditions hereof.
2.04. ABSENCE OF CONFLICTS. Neither the execution and delivery of this
Amendment nor consummation of the transactions herein contemplated nor
performance of or compliance with the terms and conditions hereof will (a)
violate any Law where such violations could reasonable be expected to have a
Material Adverse Effect, (b) conflict with or result in a breach of or a
default under the articles of incorporation or bylaws of either Borrower or any
agreement or instrument to which either Borrower may be subject or bound or (c)
result in the creation or imposition of any Lien upon any property (now owned
or hereafter acquired) of any Borrower Party.
2.05. NO EVENT OF DEFAULT; COMPLIANCE WITH INSTRUMENTS. No event has
occurred and is continuing and no condition exists which constitutes an Event
of Default or Potential Default.
2.06. NO MATERIAL ADVERSE CHANGE. Since December 31, 1996 there has
been no material adverse change in the business, operations, properties, assets
or condition (financial or otherwise) of the Company and its Subsidiaries taken
as a whole.
-2-
3
ARTICLE III
CONDITIONS
3.01. DETAILS, PROCEEDINGS AND DOCUMENTS. The obligations of the Banks,
the Issuing Bank and the Agent to agree to the amendments provided hereby are
subject to the accuracy as of the date hereof of the representations and
warranties herein contained and to the fact that all legal detains and
proceedings in connection with the transactions contemplated by this Amendment
shall be satisfactory to the Agent, the Banks and the Issuing Banks and their
respective counsel and the Agent, the Banks and the Issuing Bank shall have
received all such counterpart originals or certified or other copies of such
documents and proceedings in connection with such transactions, in form and
substance satisfactory to them, as any of them may from time to time request.
ARTICLEIV
MISCELLANEOUS
4.01. EXPENSES; TAXES; ATTORNEYS' FEES. The Borrowers agree to pay or
cause to be paid and to save the Banks, the Issuing Bank and the Agent harmless
against liability for the payment of all reasonable out-of-pocket expenses,
including but not limited to fees and expenses of counsel for the Banks, the
Issuing Bank and Issuing Bank, arising in connection with the preparation,
execution, delivery and performance of this Amendment and any documents,
instruments or transactions pursuant to or in connection herewith.
4.02. SAVINGS CLAUSE. This Amendment shall not, except as to matters
and to the extent herein expressly set forth, (a) constitute an amendment,
modification or alteration of the terms, conditions or covenants of the
Original Agreement, (b) constitute a waiver, release or limitation on the
exercise by any of the Banks, the Issuing Bank or the Agent of any of its
rights, legal or equitable, under the Original Agreement, (c) constitute a
waiver or release by any of the Banks, the Agent or the Issuing Bank of any
Event of Default which has occurred or may occur under the Original Agreement
or (d) relieve or release any Borrower Party in any way or to any extent from
any of their respective duties, obligation, covenants and agreements imposed
upon them by the Original Agreement and all documents relating thereto or from
the consequences of any default thereunder.
4.03. GOVERNING LAW. This Amendment and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
4.04. COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute but one and
the same instrument.
-3-
4
4.05. CAPITALIZED TERMS. Capitalized words and terms which are used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Original Agreement unless the context hereof clearly requires otherwise.
4.06. COUNSEL CONSENT. Each of the Borrowers, on the one hand, and the
Banks, the Issuing Bank and the Agent on the other hand, acknowledge that they
have engaged Xxxx Xxxxx Xxxx & XxXxxx to serve as their respective legal
counsel in connection with this Amendment and the transactions related hereto,
and consent to Xxxx Xxxxx Xxxx & XxXxxx serving as legal counsel for the
parties in connection with such matters.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Amendment as of the date
first above written.
SYLVAN INC.
By
----------------------------
Title: Chief Financial Officer
------------------------
SYLVAN FOODS (NETHERLANDS) BV
By
----------------------------
Title: Director
------------------------
MELLON BANK, N.A.
individually and in its capacity as Agent
By
----------------------------
Title: AVP
------------------------
ABN AMRO BANK, N.V.,
Pittsburgh Branch
By
----------------------------
Title: Group Vice President and
Operational Manager
By
----------------------------
Title: Group V.P.
------------------------
-4-
