SECOND AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING LOAN,
GUARANTY AND SECURITY AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") dated as of June 30, 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, as amended and
modified by that certain First Amendment to Second Amended and Restated
Revolving Loan, Guaranty And Security Agreement dated as of May __, 1999
(collectively, the "Loan 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 Loan Agreement be increased and that
certain of the covenants and other terms and conditions set forth in the Loan
Agreement be amended and modified; and
WHEREAS, Sovereign has agreed to make such additional loan to the Borrower
and 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. Defined Terms; Effect of Amendment.
(a) All capitalized terms used herein which are defined in the Loan
Agreement and not otherwise defined herein are used herein as defined therein.
(b) This Amendment is an amendment to the Loan Agreement. Unless the
context of this Amendment otherwise requires, the Loan Agreement and this
Amendment shall be read together and shall have effect as if the provisions of
the Loan Agreement and this Amendment were contained in one agreement. After the
effective date of this Amendment, all references in the Loan Agreement to the
"Agreement", "this Agreement", "hereto", "hereof", "hereunder" or words of like
import referring to the Loan Agreement shall mean the Loan Agreement as amended
by this Amendment, and all references in the Notes and the other Loan Documents
to the Loan Agreement shall mean the Loan Agreement as amended by this
Amendment.
Section 2. Amendments to Loan Agreement.
(a) The following definitions set forth in SECTION 1 of the Loan Agreement
are hereby amended in their entirety to read as follows:
"'Commitment' means for the period from and including the Closing to,
but excluding the Commitment Expiration Date, the commitment of the
Banks to make Loans to the Borrower pursuant to this Agreement in an
aggregate principal amount not to exceed at any time outstanding
$38,000,000, as such amount may be reduced pursuant to Section 5.2.
'Notes' means those certain Secured Revolving Notes dated December 16,
1998 and June 30, 1999 made by the Borrower in favor of the Banks in
the aggregate principal amount of up to $38,000,000, which Notes are
given in substitution for certain notes dated October 19, 1998 and
December 16, 1998, but not in cancellation, discharge or
extinguishment of the indebtedness formerly evidenced by such notes."
(b) SECTION 2.1 of the Loan Agreement is amended and restated in its
entirety to read as follows:
"2.1 Commitment; Maximum Credit. Subject to the terms and conditions
of this Agreement, each Bank severally agrees to make loans to the
Borrower (hereinafter collectively referred to as "Loans" and
individually as a "Loan"), from time to time before the Termination
Date, in such amounts as Borrower may from time to time
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request, not to exceed at any time outstanding the amount set opposite
such Bank's name below; provided, however, that the aggregate
outstanding principal amount of Loans at any time outstanding shall at
no time exceed the lesser of (A) the Commitment, or (B) the Borrowing
Base (the "Maximum Credit"):
Name of Bank Amount
------------ ------
Fleet Bank, N.A. $25,000,000.00
Sovereign Bank $13,000,000.00
TOTAL $38,000,000.00
Each Loan shall be made by each Bank in the proportion which that
Bank's Commitment bears to the total amount of all the Banks'
Commitments; provided, however, that the failure of any Bank to make
any requested Loan to be made by it on the date specified for such
Loan shall not relieve each other Bank of its obligation (if any) to
make such Loan on such date, but no Bank shall be responsible for the
failure of any other Bank to make any Loan to be made by such other
Bank. Subject to the terms hereof, the Borrower may borrow, prepay and
reborrow, and may continue and convert any Loan in accordance with
Section 2.5, until the Termination Date. The Banks have no obligation
to make any Loan on or after the Termination Date."
(c) SECTION 10.14(e) of the Loan Agreement is amended and restated in its
entirety to read as follows:
"(e) Consolidated Net Worth. Maintain a Consolidated Net Worth of not
less than $10,000,000, which shall be increased, commencing with the
first Fiscal Year ending after December 31, 1998 (and which shall be
maintained during each fiscal quarter of the ensuing Fiscal Year) by
the greater of (i) 50% of Consolidated Net Earnings for such Fiscal
Year, and (ii) $0."
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:
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(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 Loan
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 Loan 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 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;
(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;
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(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 Loan 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:
(a) this Amendment executed by the Banks, the Agent, the Borrower and the
Guarantor;
(b) an opinion of counsel for Borrower and Guarantor in form and substance
satisfactory to the Agent;
(c) Good Standing Certificates of the Borrower and Guarantor from the
Secretary of States of New Jersey, New York and California, respectively;
(d) Secretary's Certificates of the Borrower and the Guarantor attaching
incumbency certificate, Certificate of Incorporation, by-laws and resolutions of
the Board of Directors authorizing the transaction; and
(e) 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 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. Full Force and Effect. Except as expressly modified by this
Amendment, all of the terms and conditions of the Loan Agreement shall continue
in full force and effect, and all parties hereto shall be entitled to the
benefits thereof. 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 Loan Agreement, or (ii) to prejudice any right or rights which
the Agent and/or the Banks now have or may have in the
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future under or in connection with the Loan Agreement or the other Loan
Documents.
Section 7. 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 Loan Agreement and the other Loan Documents continue
to secure as a first priority Lien on the Assets described in Section 8.1 of the
Loan Agreement, inter alia, to the Banks the prompt and full payment of all of
the Obligations arising under the Loan Agreement, as amended by this Amendment,
and to secure to Fleet the reimbursement and repayment of the Letter of Credit,
the Master Agreement Obligations and the Fleet Mortgage Loan.
Section 8. Guarantor. The Guarantor, by their signatures below, hereby
acknowledge and agree to the changes to the Loan Agreement set forth in this
Amendment. The Guarantor hereby confirms that their joint and several guaranty
as set forth in Section 7 of the Loan Agreement remains in full force and effect
and that the Obligations guaranteed include, without limitation, those
Obligations arising under the Loan 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 Loan Agreement.
Section 9. 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 10. 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.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
day and year first above written.
SUPREMA SPECIALTIES, INC.
("Borrower")
By:
----------------------------
Name: Xxxx Xxxxxxxxx
Title: President
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
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SOVEREIGN BANK ("Sovereign")
By:
----------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
