FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING LOAN, GUARANTY AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of May 28, 1999 by and
among FLEET BANK, N.A. (as successor to NatWest Bank, N.A. and National
Westminster Bank NJ, "Fleet"), having an office at 000 Xxxxxxxxxx Xxxx, Xxxx
Xxxx, Xxx Xxxxxx 00000, SOVEREIGN BANK ("Sovereign"), having an office at 000
Xxxx Xxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000 (Fleet and Sovereign are individually
referred to herein as a "Bank" and collectively as the "Banks"), FLEET BANK,
N.A., as agent for the Banks hereunder (in such capacity, the "Agent"), having
an office at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000, SUPREMA
SPECIALTIES, INC. (the "Borrower"), a New York corporation, with its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, SUPREMA
SPECIALTIES WEST, INC. ("Suprema West"), a California corporation, with its
principal place of business at 00000 Xxxxx Xxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx
00000 and SUPREMA SPECIALTIES NORTHEAST, INC. ("Suprema Northeast"), a New York
corporation, with its principal place of business at 00 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxx 00000 (Suprema West and Suprema Northeast are collectively referred to
as the "Guarantor") to that certain SECOND AMENDED AND RESTATED REVOLVING LOAN,
GUARANTY AND SECURITY AGREEMENT dated as of December 16, 1998 (the "Credit
Agreement") by and among Fleet, Sovereign, the Agent, the Borrower and the
Guarantor.
W I T N E S S E T H:
WHEREAS, the Borrower and the Guarantor have requested that the revolving
credit facility maintained pursuant to the Credit Agreement be amended to modify
certain of the covenants and other terms and conditions set forth in the Credit
Agreement; and
WHEREAS, the Banks are agreeable to said amendments and modifications,
subject to terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
Section 1. Effect of Amendment. This Amendment is an amendment to the
Credit Agreement. Unless the context of this Amendment otherwise requires, the
Credit Agreement and this Amendment shall be read together and shall have effect
as if the provisions of the Credit Agreement and this Amendment were contained
in one agreement. After the effective date of this
Amendment, references to the Credit Agreement shall mean the Credit Agreement as
amended by this Amendment. Capitalized terms used herein without definition
shall have the respective meanings assigned to such terms in the Credit
Agreement.
Section 2. Amendments to Credit Agreement.
(a) SECTION 10.14(a) of the Credit Agreement is amended and restated in its
entirety to read as follows:
"(a) Tangible Net Worth. Not permit its Tangible Net Worth as at the
fiscal quarters set forth below to be less than the amount set forth
opposite such fiscal quarter ending:
Fiscal Quarter Ended Minimum Tangible Net Worth
-------------------- --------------------------
12/31/98 $16,583,000
3/31/99 $17,394,000
6/30/99 $18,267,000
9/30/99 $19,159,000
12/31/99 $20,078,000
3/31/00 $21,017,000
6/30/00, $22,003,000
and each quarter thereafter;
provided, however, that the minimum Tangible Net Worth requirements
set forth above shall be reduced by any reduction in Tangible Net
Worth resulting solely from the purchase by the Borrower of treasury
stock during the relevant fiscal quarters, provided that the aggregate
amount of all such reductions may not exceed $3,200,000."
(b) SECTION 10.18 of the Credit Agreement is amended and restated in its
entirety to read as follows:
"10.18 Limitation on Dividends. Not (i) declare or pay any dividends
(other than lawful dividends to the Borrower from the Guarantor,
dividends to stockholders of the Borrower payable in shares of common
stock and cash dividends to holders of the preferred stock of the
Borrower, so long as no Event of Default has occurred), (ii) purchase,
redeem, retire, or otherwise acquire for value any of its stock now or
hereafter outstanding in excess of $3,200,000 in the aggregate for the
Borrower and Guarantor, or (iii) make any distribution of Assets to
its stockholders as such whether in case, or other Assets or
obligations, (iv) allocate or otherwise set
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apart any sum for the payment of any dividend (other than lawful
dividends to the Borrower from the Guarantor) or distribution on, or
for the purchase, redemption, or retirement of, any shares of its
stock, or (v) make any other distribution by reduction of capital or
otherwise in respect of any shares of its stock, or (vi) permit the
Guarantor to purchase or otherwise acquire for value any stock of the
Borrower in excess of $3,200,000 in the aggregate for the Borrower and
Guarantor."
(c) SECTION 12.1(c) of the Credit Agreement is amended and restated in its
entirety to read as follows:
"(c) Non-Compliance with Certain Covenants. The Borrower or the
Guarantor shall fail in the observance or performance of any covenant
or agreement set forth in Sections 10.4, 10.14, 10.15, 10.16, 10.17,
10.19, 10.20, 10.21(c), 10.22, 10.24, 10.26, 10.27, 10.28 or 10.30(a);
provided, however, a failure of the Borrower or the Guarantor in the
observance or performance of the covenant set forth in Section
10.14(b) shall not constitute an Event of Default as long as the
Leverage Ratio, tested at the end of a fiscal quarter, is not more
than 2.25 to 1.00, and the Leverage Ratio returns to a ratio of not
more than 2.00 to 1.00 within two fiscal quarters of such occurrence;
or"
Section 3. Representations and Warranties. In order to induce the Agent and
the Banks to enter into this Amendment, the Borrower and the Guarantor makes the
following representations and warranties to the Agent and the Banks, which shall
survive the execution and delivery hereof:
(a) It is a corporation duly incorporated and validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
corporate power to execute, deliver and perform its obligations under the Credit
Agreement as amended by this Amendment;
(b) The execution and delivery of this Amendment has been authorized by all
necessary corporate action on its part, this Amendment has been duly executed
and delivered by it; and this Amendment and the Credit Agreement, as amended
hereby, constitutes the legal, valid and binding obligations of it enforceable
against it in accordance with its terms subject to applicable bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors rights
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generally, and by general equitable principles (whether enforcement is sought in
proceedings in equity or at law).
(c) Neither the execution and delivery of this Amendment, nor the
consummation by the Borrower and the Guarantor of the transactions herein
contemplated, nor compliance by each with the terms, conditions and provisions
hereof will conflict with or result in a breach of any of the terms, conditions
or provisions of (i) its Certificate of Incorporation or By-Laws; (ii) any
material agreement or instrument to which it is now a party or by which it or
its property is, or may be, bound (except any agreement with the Banks), or
constitute a default thereunder, or result thereunder in the creation or
imposition of any security interest, mortgage, lien, charge or encumbrance of
any nature whatsoever upon any of its properties or assets; (iii) any judgment
or order, writ, injunction or decree of any court to which it is subject; or
(iv) any Requirement of Law;
(d) No action of, or filing with, any governmental or public body or
authority is required to authorize, or is otherwise required in connection with
the execution, delivery and performance of this Amendment (except pursuant to
Section 4(e) hereof);
(e) Without limiting the generality of clause (c) above, (i) the execution
and delivery of this Amendment shall not result in a breach, nor constitute a
default under the terms and conditions of the New Senior Subordinated Notes
(including, without limitation, the terms and conditions of that certain Note
Agreement dated as of March 9, 1998 among the Borrower and the holders of said
notes, and (ii) no consent, waiver or modification is necessary thereunder in
order to execute and deliver this Amendment or for the Borrower to perform its
obligations under this Amendment;
(f) No Event of Default has occurred and is continuing, and no event has
occurred which, with notice, lapse of time or both, would constitute an Event of
Default; and
(g) The representations and warranties set forth in the Credit Agreement
and the other Loan Documents are true and correct as of the date hereof in all
material respects.
Section 4. Conditions Precedent. This Amendment shall not be effective
until the Agent shall have received originals of the following documents and the
following conditions shall have been satisfied in full:
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(a) this Amendment executed by the Banks, the Agent, the Borrower and the
Guarantor; and
(b) the Borrower shall have paid the legal fees and disbursements of
Windels, Marx, Davies & Ives, in respect of matters related to this Amendment;
and
(c) Borrower and Guarantor shall have delivered such other documents,
information, agreements and opinions reasonably required by the Agent and the
Banks.
Section 5. Expenses. The Borrower and the Guarantor shall pay, jointly and
severally, all reasonable expenses of the Agent and the Banks, including,
without limitation, the reasonable legal fees incurred by the Agent and the
Banks as set forth in Section 4(e), in connection with the preparation,
negotiation, execution and delivery and review of this Amendment, and all other
documents and instruments executed in connection with this transaction and all
filing and search fees incurred in connection herewith.
Section 6. References to Credit Agreement. The Credit Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that after giving effect to this Amendment all
references in the Credit Agreement to "this Agreement," "hereto," "hereof,"
"hereunder" or words of like import referring to the Credit Agreement shall mean
the Credit Agreement, as amended through the date hereof; and all references in
the Note and the other Loan Documents to the Credit Agreement shall mean the
Credit Agreement, as amended hereby.
Section 7. Amendment. This Amendment is limited as written and shall not be
deemed (i) to be an amendment of or a consent under or waiver of any other term
or condition of the Credit Agreement, or any of the various agreements
guarantying or securing the obligations of the Borrower under the Credit
Agreement or (ii) to prejudice any right or rights which the Agent and the Banks
now has or may have in the future under or in connection with the Credit
Agreement or such other agreements except as expressly waived hereby.
Section 8. Security Interests. It is agreed and confirmed that after giving
effect to this Amendment, the security interests granted by the Borrower and the
Guarantor pursuant to the Credit Agreement and the other Loan Documents continue
to secure as a first priority Lien on the Assets described in Section 8.1 of the
Credit Agreement, inter alia, to the Banks the prompt and full payment of all of
the Obligations arising under the Credit Agreement, as amended by this
Amendment, and to secure to Fleet the
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reimbursement and repayment of the Letter of Credit, the Master Agreement
Obligations and the Fleet Mortgage Loan.
Section 9. Guarantor. The Guarantor, by their signatures below, hereby
acknowledge and agree to the changes to the Credit Agreement set forth in this
Amendment. The Guarantor hereby confirms that their joint and several guaranty
as set forth in Section 7 of the Credit Agreement remains in full force and
effect and that the Obligations guaranteed include, without limitation, those
Obligations arising under the Credit Agreement as amended by this Amendment and
that, to secure to the Banks the prompt and full payment and performance of all
of the Obligations, and to secure to Fleet the reimbursement and repayment of
the Letter of Credit, the Master Agreement Obligations and the Fleet Mortgage
Loan, they have jointly and severally granted to the Agent for the ratable
benefit of the Banks, a first priority continuing security interest and Lien in
and to all of the Assets as described in Section 8.1 of the Credit Agreement.
Section 10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all which when taken together shall constitute one and the same agreement.
Section 11. Governing Law. This Amendment, including the validity thereof
and the rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as
of the day and year first above written.
SUPREMA SPECIALTIES, INC.
("Borrower")
By:_____________________________
Name: Xxxx Xxxxxxxxx
Title: President
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SUPREMA SPECIALTIES WEST, INC.
("Guarantor")
By:_____________________________
Name: Xxxx Xxxxxxxxx
Title: President
SUPREMA SPECIALITIES NORTHEAST,
INC. ("Guarantor")
By:_____________________________
Name: Xxxx Xxxxxxxxx
Title: President
FLEET BANK, N.A. ("Agent")
By:_____________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
FLEET BANK, N.A. ("Fleet")
By:_____________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
SOVEREIGN BANK ("Sovereign")
By:_____________________________
Name: Xxxx X. XxXxxxx
Title: Vice President
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