Exhibit 10.1
INCREASE SUPPLEMENT
INCREASE SUPPLEMENT, dated as of February 15, 2001, to the Third Amended
and Restated Revolving Loan, Guaranty and Security Agreement, dated as of'
September 23, 1999, (as amended from time to time the "Loan Agreement"), among
Fleet National Bank, as administrative and collateral agent (the "Agent"),
Sovereign Bank, as Syndication Agent and Mellon Bank, N.A., as Documentation
Agent, the banks signatory thereto, Suprema Specialties, Inc. (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
collectively the "Guarantor"). Capitalized terms used herein that are not
otherwise defined herein and are defined in the Loan Agreement shall have the
meanings therein defined.
1. Pursuant to Section 2.1(b) of the Loan Agreement, the Borrower hereby
proposes to increase (the "Increase") the total Commitment of all the Banks from
$111,000,000.00 to $125,000,000.00.
2. Each of the following proposed institutions (each a "New Bank") has been
invited by the Borrower, and is ready, willing and able to become a "Bank" and
assume or provide a Commitment under the Loan Agreement as follows:
Name of Proposed Institution Commitment
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First Pioneer Farm Credit, ACA $8,500,000.00
National Bank of Canada $8,500,000.00
3. In connection with the New Banks becoming a "Bank" and assuming and
providing a Commitment under the Loan Agreement, Fleet National Bank has agreed
to decrease its Commitment to $27,000,000.00.
4. In connection with the New Banks becoming a "Bank" and assuming and
providing a Commitment under the Loan Agreement, each New Bank hereby assigns
and/or assumes from each other Bank such rights, and assigns to or assumes from
or delegates to such other Bank such obligations, in each case without recourse,
representation or warranty, as shall cause (i) the outstanding principal balance
of its Loans to be an amount equal to its Percentage of the aggregate amount of
all outstanding Loans and (ii) its Commitment to be the Commitment as set forth
in Section 2.1(a) of the Loan Agreement, as modified by Paragraph 6 below. Each
New 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 adjustments contemplated by this Increase
Supplement. 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, as modified by Paragraph 6 below, by the total Commitment of all the
Banks as set forth in such Section 2. 1 (a), as modified by Paragraph 6 below;
provided, that, the term "Banks" shall include all existing Batiks and each of
the New Banks.t, the term "Banks" shall include all existing Batiks and each of
the New Banks.
5. The Borrower hereby agrees that (x) any amount that a New Bank so pays
to another Bank pursuant to this Increase Supplement shall be entitled to all
rights of a Bank under the Loan Agreement and such payments to Banks shall
constitute Loans held by each such New Bank under this Agreement, (y) that each
such New 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 New Bank had initially advanced the Borrower the amount of
such payments and (z) in connection with this Increase Supplement all
outstanding Eurodollar Loans are being prepaid by the Borrower and in connection
therewith the Borrower shall pay to each existing Bank the breakage fee
described in the Loan Agreement. .
6. The table set forth in Section 2.1(a) of the Loan Agreement is hereby
amended and replaced in its entirety by the immediately following table (which
immediately following table gives effect to the new and decreased Commitments
effected pursuant to this Increase Supplement) and the Commitment of each Bank
(including each New Bank and the decreased Commitment of Fleet National Bank) is
hereby amended and adjusted to be the Commitment set forth below:
Name of Bank Amount
------------------------- --------------
Fleet National Bank $27,000,000.00
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
First Pioneer farm Credit, ACA $8,500,000.00
National Bank of Canada $8,500,000.00
TOTAL $125,000,000.00
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7. The proposed effective date for this Increased Supplement is February
15, 2001.
8. The Borrower hereby represents and warrants to the Agent and each Bank
(including each New Bank) that (i) immediately before and after giving effect to
the transactions contemplated by this Increase Supplement, no Default or Event
of Default exists or would exist and each of the representations and warranties
set forth in the Loan Documents is true and correct in all material respects
(except to the extent any such representation or warranty expressly relates to
an earlier date) and (ii) immediately after giving effect thereto (and taking
into account any prior increases), the total Commitment of all the Banks does
not exceed $125,000,000.
9. Pursuant to Section 2.1(b) of the Loan Agreement, by execution and
delivery of this Increase Supplement, together with the satisfaction of all of
the other requirements set forth in said Section 2.1 (b), each Bank (i) shall
have, on and as of the effective date of this Increase Supplement, a Commitment
equal to the amount set forth in Section 6 above next to its name and (ii) with
respect to each New Bank, shall be and shall be deemed to be a "Bank" under, and
as such term is defined in, the Loan Agreement.
10. Each New Bank hereby confirms to and agrees with the Borrower, the
Agent and the existing Banks as follows:
(a) The Agent and/or the Banks have made no representation or warranty
and shall have no responsibility with respect to any statements, warranties
or representations made in or in connection with the Loan Agreement or the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency, collectibility or value of the Loan Agreement,
the other Loan Documents, and Collateral, or any other instrument or
document furnished pursuant to the Agreement.
(b) The Agent and/or the Banks have made no representation or warranty
and shall have no responsibility with respect to the financial condition of
the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of their obligations under the Loan
Agreement or any of the other Loan Documents, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of their obligations under the
Loan Agreement or any of the other Loan Documents or any other instrument
or document furnished pursuant thereto.
(c) Each New Bank confirms that it has received a copy of the Loan
Agreement and the other Loan Documents, together with copies of the most
recent financial statements referred to in the Loan Agreement and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Increase Supplement and
the documents, instruments and agreements executed pursuant hereto or in
connection herewith.
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(d) Each New Bank will, independently and without reliance upon the
other Banks or the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Agreement.
(e) Each New Bank appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Agreement and the other Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental
thereto.
(f) Each New Bank agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Loan Agreement and
other Loan Documents are required to be performed by it as a Bank.
(g) Each New Bank represents and warrants that it is legally
authorized to enter into this Increase Supplement and the documents,
instruments and agreements executed pursuant hereto or in connection
herewith.
11. It is expressly agreed that this Increase Supplement shall serve as the
notice the Agent is required to furnish to each Bank pursuant to Section 2.1(b)
of the Loan Agreement, which notice is to include the revised table set forth in
Section 2.1(a) of the Loan Agreement to reflect the adjustments to the
Commitments contemplated hereby and by Section 2.1(b)(iv) of the Loan Agreement.
A copy of this Increase Supplement shall be distributed by the Agent to each
Bank.
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IN WITNESS WHEREOF, the parties hereto have caused this Increase Supplement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
SUPREMA SPECIALTIES, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
Each of the guarantors indicated below hereby consents to this Increase
Supplement 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/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
SUPREMA SPECIALTIES NORTHEAST, INC.,
as a Guarantor
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
SUPREMA SPECIALTIES NORTHWEST, INC.
as a Guarantor
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
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FLEET NATIONAL BANK, as Agent and a Bank
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
FIRST PIONEER FARM CREDIT, ACA,
as a Bank
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address for Notices:
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx,
Commercial Loan Officer
NATIONAL BANK OF CANADA, as a Bank
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Manager
Address for Notices:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx, Vice President
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