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Exhibit 10.2.4
AMENDMENT NO. 2 TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT, dated as of
December 11, 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, as
subsequently amended (as so amended, 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 intended to be legally bound hereby, the parties
hereto agree as follows.
ARTICLE I
AMENDMENTS
1.01. Section 6.09 of the Original Agreement is amended by (a)
deleting the word "and" at the end of subsection (c), (b) substituting ",and"
for the period (".") at the end of subsection (d), and adding the following
subsection (e):
"The Company or a Subsidiary of the Company may acquire all of the
issued and outstanding capital stock of Tartarin S.A. on or prior to December
31, 1997 for an aggregate purchase price not to exceed $5,000,000."
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
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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 Authorization 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 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 violation could reasonably 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 business, operations, properties, assets or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole.
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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 details 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 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.
ARTICLE IV
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 the Agent, 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.
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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 /s/ XXXXXXX X. XXXXXX
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Title Chief Financial Officer
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SYLVAN FOODS (NETHERLANDS) BV
By /s/ XXXXXXX X. XXXXXX
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Title Director
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MELLON BANK, N.A.
individually and in its capacity as Agent
By /s/ XXXX XXXXX-XXXXXXX
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Title A.V.P.
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ABN AMRO BANK, N.V.
Pittsburgh Branch
By /s/ XXX X. XXXXXXXX
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Xxx X. Xxxxxxxx
Title Group Vice President and Director
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By /s/ XXXXX X. XXXXXXXX, XX.
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Xxxxx X. XxXxxxxx, Xx.
Title Vice President
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