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EXHIBIT 10.1.5
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Loan and Security Agreement, dated as of September
30, 1998 (this "Sixth Amendment") by and between Vita Food Products, Inc., a
Nevada corporation, (herein the "Borrower"), and American National Bank and
Trust Company of Chicago, a national banking association, and successor to NBD
Bank (the "Bank");
WITNESSETH
WHEREAS, the Borrower and the Bank have heretofore entered into a Loan and
Security Agreement dated as of March 20, 1995 (as amended, extended, modified
or supplemented from time to time the "Credit Agreement"), pursuant to which
the Bank has agreed to consider making certain loans to the Borrower pursuant
to the terms and on the conditions set forth therein;
WHEREAS, the Borrower and the Bank mutually desire to further amend the
Credit Agreement to revise certain provisions thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. (a) Section 2.1 of the Credit Agreement is amended by deleting the
number "$4,750,000" on the twelfth line thereof and inserting in its place the
number "$5,250,000."
(b) Section 2.3 of the Credit Agreement is amended by deleting the
number "$4,750,000" contained on the fourth line thereof and inserting in its
place the number "$5,250,000."
(c) Exhibit 1, of the Credit Agreement is amended and restated in its
entirety by the Amended and Restated Revolving Note appearing as Schedule I
hereto and all references to the Revolving Note contained in the Credit
Agreement shall mean and be references to said Amended and Restated Revolving
Note.
2. Borrower agrees that it shall further execute and deliver to the Bank a
replacement Revolving Note in the form of Schedule I hereto together with
additional or further documents, including without limitation, any amended or
replacement notes, necessary to further effectuate the intent and purpose of
the Credit Agreement and this Sixth Amendment.
3. Borrower represents and warrants that:
(a) The execution, delivery and performance of this Sixth Amendment and
the replacement Revolving Note by the Borrower is within its corporate powers,
has been duly authorized, and is not in contravention of any law, rule or
regulation, or any judgment, decree,
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writ, injunction, or order or award of an arbitrator, court or governmental
authority, or of the terms of its Articles of Incorporation or By-Laws or of
any contract to which it or its property may be bound or affected.
(b) The Borrower is a corporation duly organized, validly existing and
in good standing under the Laws of the State of Nevada, and is duly qualified to
do business, and is in good standing, in all additional jurisdictions where
such qualification is necessary under applicable law. Borrower has all
requisite corporate power to execute and deliver this Sixth Amendment. The
Credit Agreement, as amended by this Sixth Amendment, and the replacement
Revolving Note are each valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their terms.
(c) The most recent financial statements delivered to the Bank in
accordance with the Credit Agreement are complete and accurate in all material
respects and present fairly the financial condition of the Borrower as of such
date and the results of its operations for the periods covered thereby, in
accordance with generally accepted accounting principles. There has been no
material adverse change in the condition of the Borrower, financial or
otherwise, since the date of such statements.
(d) After giving effect to the amendments contained herein, the
representations and warranties contained in the Credit Agreement are true on
and as of the date hereof with the same force and effect as if made on and as
of the date hereof.
4. This Sixth Amendment shall be governed by and construed in accordance
with the laws of the State of Illinois without reference to conflict of laws
principles.
5. Except as specifically amended hereby, the Credit Agreement, and any
and all certificates, instruments and other documents executed pursuant thereto
shall in all respects continue in full force and effect. Except as otherwise
expressly defined herein, all terms used in this Sixth Amendment shall have the
respective meanings set forth in the Credit Agreement.
Witness the due execution hereof as of this 30th day of September, 1998, which
shall be the effective date of this Sixth Amendment, notwithstanding the day
and year first above written.
American National Bank Vita Food Products, Inc.
and Trust Company Of Chicago
By: /s/ Xxxxx Xxxxx By: /s/ Xxx X. Xxxxxxx
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Its: Assistant Vice President Its: Vice President and CFO
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AMENDED AND RESTATED REVOLVING NOTE
$5,250,000 September 30, 0000
Xxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, VITA FOOD PRODUCTS, INC., a Nevada corporation
("Maker"), hereby promises to pay to the order of American National Bank and
Trust Company of Chicago, a national banking association, and successor to NBD
BANK, ("Lender"), the principal sum of FIVE MILLION TWO HUNDRED FIFTY THOUSAND
AND NO/1OO DOLLARS ($5,250,000), or such lesser sum as is indicated on Lender's
records, together with interest thereon and any other charges applicable
thereto, all as set forth more fully in the Loan and Security Agreement
referred to below.
This Note is delivered by Maker to Lender pursuant to and in accordance
with that certain Loan and Security Agreement dated as of March 20, 1995 (as
amended, extended, modified or supplemented from time to time, the "Loan and
Security Agreement") by and between Maker and Lender and to evidence the
Revolving Loans (this term and all other capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the Loan
and Security Agreement). Reference is hereby made to the Loan and Security
Agreement, the terms and conditions of which are incorporated herein by
reference as fully and with the same effect as if set forth herein at length.
Interest shall accrue on the outstanding principal balance of the
Revolving Loans at a pre-Default rate per annum equal to the Prime Rate (the
"Note Rate"). Following a Default, the Note Rate shall be increased by three
percent (3%) on the outstanding principal balance of the Revolving Loans from
the date of Default until waived, cured or paid. The Note Rate shall be
computed on the basis of a year consisting of 360 days and actual days elapsed.
For purposes hereof, the "Prime Rate" shall mean the rate of interest
announced from time to time by Lender at its office in Chicago, Illinois as its
"Prime Rate", which rate may not be the lowest rate of interest charged by
Lender to any of its customers. Any change in the Prime Rate shall be
effective as of the effective date stated in the announcement by Lender of such
change.
All payments of principal and interest due under this Note shall be made
in accordance with the applicable provisions of the Loan and Security
Agreement.
This Note is entitled to the benefit of certain collateral security, all
as more fully set forth in the Loan and Security Agreement.
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No holder hereof shall, by any act of omission or commission, be deemed to
waive any of its rights, remedies or powers hereunder or otherwise unless such
waiver is in writing and signed by the holder hereof, and then only to the
extent specifically set forth therein. The rights, remedies and powers of the
holder hereof, as provided in this Note, in the Loan and Security Agreement and
in the other Ancillary Agreements are cumulative and concurrent, and may be
pursued singly, successively or together against Maker and any other security
given at any time to secure the repayment hereof, all at the sole discretion of
the holder hereof. If any suit or action is instituted or attorneys are
employed to collect this Note or any part thereof, Maker promises and agrees to
pay all costs of collection, including, without limitation, reasonable
attorneys' fees, fees of expert witnesses and court costs.
Maker hereby (i) waives presentment and demand for payment, notices of
nonpayment and of dishonor, protest of dishonor, and notice of protest; (ii)
waives any and all notices in connection with the delivery and acceptance
hereof and all other notices in connection with the performance, default, or
enforcement of the payment hereof or hereunder; (iii) waives any and all lack
of diligence and delays in the enforcement of the payment hereof; (iv) agrees
that the liability of Maker shall he unconditional and without regard to the
liability of any other person or entity for the payment hereof, and shall not
in any manner be affected by any indulgence or forbearance granted or consented
to by Lender with respect hereto; (v) consents to any and all extensions of
time, renewals, waivers, or modifications that may be granted by Lender with
respect to the payment or other provisions hereof, and to the release of any
security at any time given for the payment hereof, or any part thereof, with or
without substitution, and to the release of any person or entity liable for the
payment hereof; and (vi) consents to the addition of any and all other makers,
endorsers, guarantors, and other obligors for the payment hereof, and to the
acceptance of any and all other security for the payment hereof, and agrees
that the addition of any such maker , endorsers or other obligors, or security
shall not affect the liability of Maker for all or any part of the obligations
evidenced hereby.
The Revolving Loans are business loans which come within the purview of
Section 205/4, paragraph (1) (c) of Chapter 815 of the Illinois Compiled
Statutes, as amended. Maker agrees that the obligations evidenced by this Note
are an exempted transaction under the Truth In Lending Act, 15 U.S.C., Section
1601, et seg.
Time is of the essence hereof.
This Amended and Restated Revolving Note amends, restates, and
collectively re-evidences all of the terms, conditions and obligations
contained in that certain Amended and Restated Revolving Note, dated June 4,
1998, in the original principal amount of $4,750,000 payable to the order of
the Lender, and all obligations therein shall remain in full force and effect,
as re-evidenced and amended hereby, and nothing contained herein shall be
construed as a repayment or a novation of the foregoing obligations.
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This Note is governed and controlled as to validity, enforcement,
interpretation, construction, effect and in all other respects by the statutes,
laws and decisions of the State of Illinois. This Note may not be changed or
amended orally but only by an instrument in writing signed by the party against
whom enforcement of the change or amendment is sought.
The obligations and liabilities of Maker under this Note shall be binding
upon and enforceable against Maker and its successors and assigns. This Note
shall inure to the benefit of and may be enforced by Lender, its successors and
assigns.
In the event that any provision of this Note is deemed to be invalid by
reason of the operation of law, or by reason of the interpretation placed
thereon by any administrative agency or any court, Maker and Lender shall
negotiate an equitable adjustment in the provisions of the same in order to
effect, to the maximum extent permitted by law, the purpose of this Note, and
the validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain in full
force and effect.
IN WITNESS WHEREOF, Maker has executed this Note as of the day and year
first written above.
VITA FOOD PRODUCTS, INC., a
Nevada corporation
By: /s/ Xxx X. Xxxxxxx
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Its: Vice President & CFO
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