EXHIBIT 10(A)
AMENDMENT NO. 9
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 9 ("Amendment") is entered into as of March 11,
1998, by and between Lincoln Snacks Company, a Delaware corporation,
having its principal place of business at 0 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("Borrower") and BNY Financial Corporation, as
successor-in-interest to The Bank of New York Commercial Corporation,
having offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Lender").
BACKGROUND
------------
Borrower and Lender are parties to a Revolving Credit, Term Loan
and Security Agreement dated December 3, 1993, as amended by Amendment
No. 1 to Revolving Credit, Term Loan and Security Agreement dated as of
March 24, 1994, Amendment No. 2 to Revolving Credit, Term Loan and
Security Agreement dated as of September 14, 1994, Amendment No. 3 to
Revolving Credit, Term Loan and Security Agreement dated as of March 31,
1995, Amendment No. 4 to Revolving Credit, Term Loan and Security
Agreement dated as of June 29, 1995, Amendment No. 5 to Revolving
Credit, Term Loan and Security Agreement dated as of November 7, 1995,
Amendment No. 6 to Revolving Credit, Term Loan and Security Agreement
dated as of May 8, 1996, Amendment No. 7 to Revolving Credit, Term Loan
and Security Agreement dated as of October 8, 1996 and Amendment No. 8
to Revolving Credit, Term Loan and Security Agreement dated as of
January 13, 1998 (as further amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement") pursuant to
which Lender provided Borrower with certain financial accommodations.
Borrower has 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 Borrower
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:
(a) The following defined term is added to Section 1.2 of the
Loan Agreement in the appropriate alphabetical order to provide as
follows:
""BNY Letters of Credit" shall have the meaning set forth in
Section 2.12 hereof."
(b) New Sections 2.12, 2.13 and 2.14 are added to the Loan
Agreement and provide as follows:
"2.12 Letters of Credit. Subject to the terms and
conditions hereof, Lender shall issue or cause the issuance of
letters of credit ("BNY Letters of Credit") provided, however,
that Lender will not be required to issue or cause to be issued
any BNY Letters of Credit to the extent that the face amount of
such BNY Letters of Credit would then cause the sum of the
outstanding Revolving Advances plus outstanding BNY Letters of
Credit to exceed the lesser of (x) the Maximum Revolving Advance
Amount minus the FX Reserve or (y) the Formula Amount. All
disbursements or payments related to BNY Letters of Credit shall
be deemed to be Revolving Advances and shall bear interest at the
Revolving Interest Rate. BNY Letters of Credit that have not been
drawn upon shall not bear interest. BNY Letters of Credit shall
be subject to the terms and conditions set forth in the Letter of
Credit Financing Supplement attached hereto as Exhibit 2.12."
"2.13 Issuance of BNY Letters of Credit.
(a) Borrower may request Lender to issue or cause the
issuance of a BNY Letter of Credit by delivering to Lender at the
Payment Office, Lender's standard form of Letter of Credit
Financing Supplement and the Lender's or the Bank's standard form
of Letter of Credit Application (collectively, the "Letter of
Credit Application") completed to the satisfaction of Lender,
together with such other certificates, documents and other papers
and information as Lender may reasonably request.
(b) Each BNY Letter of Credit shall, among other things,
(i) provide for the payment of sight drafts when presented for
honor thereunder in accordance with the terms thereof and when
accompanied by the documents described therein and (ii) have an
expiry date not later than twelve months after such BNY Letter of
Credit's date of issuance and in no event later than the last day
of the Term. Each Letter of Credit Application and each BNY
Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, and any amendments or
revisions thereof and, to the extent not inconsistent therewith,
the laws of the State of New York."
"2.14 Requirements for Issuance of BNY Letters of Credit.
(a) In connection with the issuance or creation of any BNY
Letter of Credit, Borrower shall indemnify, save and hold Lender
harmless from any loss, cost, expense or liability, including,
without limitation, payments made by Lender, and expenses and
reasonable attorneys' fees incurred by Lender arising out of, or
in connection with, any BNY Letter of Credit to be issued or
created for Borrower. Borrower shall be bound by Lender's or any
issuing or accepting bank's regulations and good faith
interpretations of any BNY Letter of Credit issued or created for
Borrower's account, although this interpretation may be different
from Borrower's own; and neither Lender nor any of its
correspondents shall be liable for any error, negligence, or
mistake, whether by omission or commission, in following
Borrower's instructions or those contained in any BNY Letter of
Credit or of any modifications, amendments or supplements thereto
or in creating or paying any BNY Letter of Credit, except for
Lender's or such correspondent's willful misconduct.
(b) Borrower shall authorize and direct any bank which
issues a BNY Letter of Credit to name Borrower as the "Account
Party" therein and to deliver to Lender all instruments,
documents, and other writings and property received by the bank
pursuant to the BNY Letter of Credit or in connection with any
acceptance and to accept and rely upon Lender's instructions and
agreements with respect to all matters arising in connection with
the BNY Letter of Credit, the application therefor or any
acceptance therefor.
(c) In connection with all BNY Letters of Credit issued or
created by Lender under this Agreement, Borrower hereby appoints
Lender, or its designee, as its attorney, with full power and
authority (a) to sign and/or endorse Borrower's name upon any
warehouse or other receipts, letter of credit applications and
acceptances; (b) to sign Borrower's name on bills of lading; (c)
to clear Inventory through Customs in the name of Borrower or
Lender or Lender's designee, and to sign and deliver to Customs
Officials powers of attorney in the name of Borrower for such
purpose; and (d) to complete in Borrower's or Lender's name, or in
the name of Lender's designee, any order, sale or transaction,
obtain the necessary documents in connection therewith, and
collect the proceeds thereof. Neither Lender nor its attorneys
will be liable for any acts or omissions nor for any error of
judgement or mistakes of fact or law, except for Lender's or its
attorneys' willful misconduct. This power, being coupled with an
interest, is irrevocable as long as any BNY Letters of Credit
remain outstanding."
(c) A new Section 3.2(d) is added to the Loan Agreement and
provides as follows:
"(d) Letter of Credit Fees. Borrower shall pay Lender (i)
for issuing or causing the issuance of a BNY Letter of Credit, a
fee equal to one-quarter of one percent (0.25%) per month on the
outstanding amount thereof from time to time (such fees being
referred to as "Letter of Credit Fees") and (ii) any bank's other
customary charges payable in connection with BNY Letters of Credit
as in effect from time to time (which charges shall be furnished
to Borrower by Lender upon request). Borrower shall also pay in
connection with the issuance of a BNY Letter of Credit the fees
and charges specified in the Letter of Credit Financing Supplement
to this Agreement. Such fees and charges shall be payable (i) in
the case of any BNY Letter of Credit, on its opening, (ii) in the
case of a standby BNY Letter of Credit, (A) monthly thereafter in
advance and (B) upon each increase in the outstanding amount
thereof, and (iii) in the case of any BNY Letter of Credit that is
not a standby BNY Letter of Credit, at the time of each increase
in the face amount thereof. Any such charge in effect at the time
of a particular transaction shall be the charge for that
transaction, notwithstanding any subsequent change in the Bank's
prevailing charges for that type of transaction. All Letter of
Credit Fees payable hereunder shall be deemed earned in full on
the date when the same are due and payable hereunder and shall not
be subject to rebate or proration upon the termination of this
Agreement for any reason."
3. Conditions of Effectiveness. This Amendment shall become
effective upon receipt by Lender of four (4) copies of this Amendment
executed by Borrower.
4. Representations and Warranties. Borrower hereby represents
and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrower and
are enforceable against Borrower in accordance with their respective
terms.
(b) No Event of Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(c) Borrower has no defense, counterclaim or offset with
respect to the Loan Agreement or the Obligations thereunder.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, 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.
IN WITNESS WHEREOF, this Amendment No. 9 has been duly executed as
of the day and year first written above.
LINCOLN SNACKS COMPANY
By: /s/ Xxxxxxxx X. Crabs
Name: Xxxxxxxx X. Crabs
Title: Chief Financial Officer
BNY FINANCIAL CORPORATION
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT 2.12
BNY FINANCIAL CORPORATION LETTERHEAD
BNY FINANCIAL CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
000-000-0000
Date: March 11, 1998
Lincoln Snacks Company
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: LETTER OF CREDIT FINANCING SUPPLEMENT TO REVOLVING
CREDIT, TERM LOAN AND SECURITY AGREEMENT
Gentlemen:
Reference is made to the Revolving Credit, Term Loan and Security
Agreement between us dated December 3,1993, as supplemented and amended
(the "Agreement"). Capitalized terms hereinafter appearing but not
otherwise defined herein shall have the meanings given in the Agreement.
From time to time, in order to assist you in establishing or
opening Letters of Credit with a bank or trust company (herein the
"Bank") to cover the importation of goods or inventory or for other
purposes, you may request us to join in the applications for such
Letters of Credit, and/or guarantee payment or performance of such
Letters and any drafts or acceptances thereunder, thereby lending our
credit to you. These arrangements shall be handled by us subject to the
following terms and conditions.
A. Our assistance in this matter shall at all times and in all
respects be in our sole discretion. The amount and extent of the
Letters of Credit and the terms and conditions thereof and of any drafts
or acceptances thereunder, shall in all respect be determined solely by
us and shall be subject to change, modification and revision by us, at
any time and from time to time.
B. Any indebtedness, liability or obligation of any sort
whatsoever, arising or incurred in connection with any Letters of
Credit, guarantees, drafts or acceptances thereunder or otherwise,
including without limitation all amounts due or which may become due
under said Letters of Credit, guarantees or any drafts or acceptances
thereunder; all amounts charged or chargeable to you or to us by any
Bank, other financial institutions or correspondent bank which opens,
issues or is involved with such Letters of Credit; any other bank
charges; fees and commissions; duties and taxes; costs of insurance; all
such other charges and expenses which may pertain either directly or
indirectly to such Letters of Credit, drafts, acceptances, guarantees or
to the goods or documents relating thereto, and our charges as herein
provided, shall be incurred solely as an accommodation to you and for
your account, shall constitute Obligations as defined in the Agreement,
may be charged by us to your account thereunder at any time without
notice to you, shall be secured by all collateral in which you have
heretofore granted to us or hereafter grant to us a security interest
(including without limitation all inventory acquired under the Letters
of Credit, all documents evidencing such inventory, and the proceeds
thereof), shall bear interest at the rate provided in the Agreement, and
shall be repayable to us on demand. All Obligations are to be repaid to
us solely in United States currency.
C. You warrant and represent that any Letters of Credit opened
hereunder in connection with the importation of goods and inventory
shall cover actual goods and inventory imported solely for your account,
and said goods and inventory will not be sold or transferred, other than
to customers in the ordinary course of business, without our specific,
prior written consent.
D. You unconditionally agree to indemnify us and hold us harmless
from and against any and all loss, claim or liability arising from any
transactions, occurrences, errors or omissions relating to Letters of
Credit established or opened for your account; the goods acquired
thereunder (the "Goods"); the documents evidencing the Goods (the
"Documents"); any discrepant or nonconforming provisions thereof;
steamship or airway guaranties, releases, indemnities or delivery orders
or similar documents; any drafts or acceptances; and all Obligations
hereunder, including, but not limited to, any such loss, claim or
liability due to any action errors or omissions attributable to any
Bank, us, any other entity, or any other cause. Your unconditional
obligation to us hereunder shall not be modified or diminished for any
reason or in any manner whatsoever. You agree that any charges made by
us for your account by the Bank shall be conclusive on us and may be
charged to your account.
E. We shall not be responsible for: the existence, character,
quality, quantity, condition, packing, value or delivery of the goods
purporting to be represented by any documents; any difference or
variation in the character, quality, quantity, condition, packing, value
or delivery of the goods from that expressed in the documents; the
validity, sufficiency, or genuineness of any documents or of any
endorsements thereon, even if such documents should in fact provide to
be in any or all respects invalid, insufficient, fraudulent or forged;
any discrepant or nonconforming provisions in any Documents; the time,
place, manner or order in which shipment is made; partial or incomplete
shipment, or failure or omission to ship any or all of the goods
referred to in the Letters of Credit or documents; any deviation from
instructions; delay, default, or fraud by the shipper and/or anyone else
in connection with the Goods or the shipping thereof; or any breach of
contract between the shipper or vendors and yourselves. Furthermore,
without being limited by the foregoing, we shall not be responsible for
any act or omission with respect to or in connection with any of the
Goods or the Documents.
F. You agree that any action taken by us, or any action taken by
any Bank if taken in good faith, under or in connection with the Letters
of Credit, the guarantees, the drafts or acceptances, or the Goods or
the Documents, shall be binding on you and shall not put us in any
resulting liability to you. In furtherance thereof, we shall have the
full right and authority to take any of the following actions in our
name or yours (and you agree that you shall not have the right to take
any such action without our express written endorsement in writing): to
clear and resolve any questions of non-compliance of documents; to give
any instructions as to acceptance or rejection of any documents or
goods; to execute any and all applications for steamship or airways
guarantees, releases, indemnities or delivery orders or similar
documents; to grant any extensions of the maturity of, time of payment
for, or time of presentation of, any drafts, acceptances, or documents;
and to agree to any amendments, renewals, extensions, modifications,
changes or cancellations of any of the terms or conditions of any of the
applications, Letters of Credit, drafts or acceptances, all in our sole
name; and the Bank shall be entitled to comply with and honor any and
all such documents or instructions executed by or received solely from
us, all without any notice to or any consent from you.
G. You agree that any necessary import, export or other licenses
or certificates for the import or handling of the Goods will have been
promptly procured; all foreign and domestic governmental laws and
regulations in regard to the shipment and importation of the Goods, or
the financing thereof will have been promptly and fully complied with;
and any certificates in that regard that we may at any time request will
be promptly furnished. In this connection, you warrant and represent
that any Letters of Credit established or opened hereunder shall be in
full compliance with the governmental laws and regulations of all
countries involved and are not prohibited by any such laws and
regulations, and that all shipments made under any such Letters of
Credit are in accordance with the governmental laws and regulations of
the countries in which the shipments originate and terminate, and are
not prohibited by any such laws and regulations. You assume all risk,
liability for, and agree to pay and discharge, all present and further
local, state, federal or foreign taxes, duties or levies. Any embargo,
restriction, laws, customs or regulations of any country, state, city or
other political subdivision, where the Goods are or may be located, or
wherein payments are to be made, or wherein drafts may be drawn,
negotiated, accepted, or paid, shall be solely your risk, liability and
responsibility.
H. Any rights, remedies, duties or obligations granted or
undertaken by you to any Bank in any application for Letters of Credit,
or any standing agreement relating to Letters of Credit or otherwise,
shall be deemed to have been granted to us and apply in all respects to
us and shall be in addition to any rights, remedies, duties or
obligations container herein.
I. You hereby agree that prior to your repayment of all
Obligations to us, we may be deemed to be the absolute owner of, with
unqualified rights to possession and disposition of, the Goods and the
Documents, all of which may be held by us as security as herein
provided. Should possession of any Goods or Documents be transferred to
you, they shall continue to serve as security as herein provided, and
may be sold, transferred or disposed of only as hereinabove provided.
J. The terms and provisions of all agreements executed by you in
our favor granting collateral security for the Obligations shall apply
with equal force to the Goods and the Documents, including without
limitation provisions relating to the insurance, maintenance and
surrender or other dispositions of any such collateral, and the proceeds
thereof.
K. On breach by you of any of the terms or provisions of this
agreement, the Agreement or any other agreement or arrangement now or
hereafter entered into between us, or on the non-payment when due of any
Obligations, we shall have all of the rights and remedies of a Secured
Party under the Uniform Commercial Code or granted to us under the
Agreement or any of such other agreements.
L. In addition to any charges, fees or expenses charged to us for
your account by any Bank in connection with these transactions (all of
which will be charged to your account and when made by the Bank shall be
conclusive on us), we shall be entitled to charge your account for our
services hereunder with the following:
1. UCC filing and search fees.
2. A commission at the Applicable Rate, as set forth below
(minimum fee in any event $75). However, where "time" drafts
are involved, we shall be entitled to the Applicable Rate
herein described for the term of such drafts remaining unpaid
beyond the expiry date of the Letter of Credit. The Applicable
Rate shall be one quarter of one percent (1/4%) per month on
the face amount of each Letter of Credit, either opened or
amended (as to expiry date or dollar amount) for the entire
term of said Letter of Credit.
3. Upon and after the occurrence of an Event of Default, and
during the continuation thereof a commission of one sixth
percent (1/6%) in excess of the Applicable Rate.
For the purpose of the preceding subdivision 2, Letters of Credit
will be deemed to include not only Letters of Credit established or
opened for you with our assistance as hereinabove provided, but also
other letters of credit established or opened for you by other
institutions with respect to which we are or hereafter become obligated
to indemnify such institutions.
This agreement, which is subject to modification only in writing,
is supplementary to, and is to be considered as a part of, the Agreement
and shall take effect when dated, accepted and signed in New York State
by one of our officers. If the foregoing is in accordance with your
understanding, please so indicate by signing and returning the enclosed
copies of this letter, after which we will return a fully executed copy
to you for your files.
Very truly yours,
BNY FINANCIAL CORPORATION
By: /s/ Xxxx Xxxxxxxx
Title: Assistant Vice President
READ AND AGREED TO:
LINCOLN SNACKS COMPANY
By: /s/ Xxxxxxxx X. Crabs
Title: Chief Financial Officer
Accepted as of March 11, 1998, at New York, New York
BNY FINANCIAL CORPORATION
By: /s/ Xxxx Xxxxxxxx
Title: Assistant Vice President
