Exhibit 10.41
MELLON
MELLON BANK
October 12, 2001
Sylvan Inc.
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
Re: Revolving Credit Agreement, dated as of August 6, 1998, by
and among SYLVAN INC., ET AL. (collectively, the
"Borrower"), MELLON BANK, N.A. ("Mellon Bank") and the other
financial institutions party thereto from time to time
(together with any related agreements, documents (including
any and all notes issued to Mellon pursuant thereto),
certificates, exhibits and schedules and any amendments,
modifications or other supplements thereto, the "Agreement")
Dear Sir or Madam:
As you are aware, Mellon Financial Corporation ("Mellon Financial") recently
entered into an agreement to sell to Citizens Financial Group, Inc.
("Citizens") among other things, regional retail banking operations and
related lines of business including, without limitation, its consumer lending,
business banking, auto dealer floor plan lending, and a portion of its middle
market lending (the "Transaction"). Pursuant to the Agreement, we are
providing you with notice of the Transaction and requesting your consent to
the transfer of all of Mellon Bank's right, title and interest in, to and
under the Agreement to Citizens or a wholly owned banking subsidiary of
Citizens (the "Citizens Entity") in connection with the Transaction.
Mellon Financial and Citizens expect to close the Transaction as soon as
possible. From and after the closing of the Transaction and the receipt of all
necessary consents, all of Mellon Bank's rights, duties and obligations
arising under the Agreement from and after the closing of the Transaction
shall inure to the benefit of and be enforceable by Citizens as if Citizens
were an original party to the Agreement. In furtherance of that result, Mellon
Bank hereby agrees to execute, and to cause Citizens or the Citizens Entity to
execute, the attached form of assignment/transfer agreement (the "Transfer
Agreement") (with the blanks appropriately completed), at the closing of the
Transaction (the "Effective Date") and deliver, and cause Citizens or the
Citizens Entity to deliver, the same to you after such closing. In addition,
you agree that from and after the Effective Date, you shall look only to
Citizens or the Citizens Entity for performance of all of Mellon Bank's
obligations under the Agreement arising from and after the date on which the
Agreement is assigned by Mellon Bank to Citizens or the Citizens Entity.
A Mellon Financial Company
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Accordingly, we request that, by no later than OCTOBER 31, 2001, you consent to
the execution and delivery by Mellon Bank and Citizens or the Citizens Entity of
the Transfer Agreement and to the transfer of all of Mellon Bank's right, title
and interest in, to and under the Agreement to Citizens or the Citizens Entity
pursuant thereto by having an authorized representative of your organization
sign on the signature line provided below. Once executed, please return this
original executed letter to the following address:
Xxxxx X. Xxxxxxxxxxx, Esq.
Xxxx Xxxxx LLP
2500 One Liberty Place
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Furthermore, by consenting to the foregoing, you hereby acknowledge that Mellon
Bank, upon (a) the execution and delivery of all documents as described above,
(b) the receipt of all necessary consents, and (c) the payment of all processing
fees, if any, required under the Agreement, will have satisfied all of its
obligations under the Agreement related to the transfer of its right, title and
interest in, to and under the Agreement, and you hereby waive any notice period
requirements under the Agreement in connection with such transfer.
In connection with the Transaction, Citizens or the Citizens Entity will acquire
from Mellon Financial a risk participation with respect to: (i) outstanding
letters of credit, if any, issued by Mellon Bank prior to the closing of the
Transaction for the account of the Borrower or the Borrower's affiliates; and
(ii) derivative contracts (including interest rate swap agreements, hedge
agreements, etc.), if any, entered into by and between Mellon Bank and the
Borrower or the Borrower's affiliates prior to the closing of the Transaction.
Under these participation agreements, Citizens or the Citizens Entity will
provide funds to Mellon Bank equal to amounts owing by the Borrower or the
Borrower's affiliates to Mellon Bank under such derivative contracts and/or
letters of credit, but not paid by the Borrower or its affiliates when due. By
signing on the first signature line below, the Borrower hereby acknowledges and
consents to the foregoing participation arrangements, to the extent such consent
is required, and agrees that if Citizens or the Citizens Entity makes a payment
to Mellon Bank under the participation agreements, the corresponding payment
obligation of the Borrower or its affiliates in the same amount under the
derivative contracts and/or letters of credit shall be deemed to be obligations
to Citizens or the Citizens Entity and, to the extent a lien on collateral has
been granted by the Borrower or its affiliates to Mellon Bank, Borrower hereby
confirms that the grant of the security interest in such collateral shall run in
favor of both Mellon Bank and Citizens or Citizens Entity, as their interests
may appear, and shall-secure such payment obligations by the Borrower or its
affiliates to both Mellon Bank and Citizens or the Citizens Entity.
By signing this consent, the Borrower also is consenting, on behalf of the
Borrower and its affiliates, to the transfer from Mellon Bank to Citizens or
the Citizens Entity of all agreements, if any, relating to lockbox, automatic
borrowing, ACH origination or other cash management or ancillary services
provided by Mellon Bank to the Borrower or its affiliates.
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If you require additional information, please telephone Xxxx X. Xxxxxxxxx
immediately at 000-000-0000. As noted above, we would like to complete this
process by NO LATER THAN OCTOBER 31, 2001. We greatly appreciate your efforts in
helping us meet our goal.
Thank you.
Sincerely,
/s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx
Vice President
CONSENT PAGE IMMEDIATELY FOLLOWS
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CONSENTED TO AND AGREED AS OF
THIS 17th DAY OF October, 2001:
MELLON BANK, N.A.,
in its capacity as Agent
By: /s/ XXXX XXXXXXXXX
-------------------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------------------------
Title: V.P.
-------------------------------------------
ABN AMRO BANK N.V. (PGH BRANCH),
in its capacity as Bank
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
SYLVAN INC.,
in its capacity as Borrower
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------------
Title: Chief Financial Officer
-------------------------------------------
SYLVAN FOODS (NETHERLANDS) B.V.,
in its capacity as Borrower
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------------
Title: Authorized Signer
-------------------------------------------
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TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date specified in
Item 1 of Schedule I hereto, among the Transferor Bank specified in Item 2 of
Schedule I hereto (the "Transferor Bank"), each Purchasing Bank specified in
Item 3 of Schedule I hereto (each a "Purchasing Bank") and MELLON BANK, N.A., as
Agent for the Banks and the Issuing Bank under the Credit Agreement described
below.
Recitals:
A. This Transfer Supplement is being executed and delivered in
accordance with Section 9.12(c) of the Revolving Credit Agreement, dated as of
August 6, 1998, by and among Sylvan Inc., a Nevada corporation (the "Company"),
Sylvan Foods (Netherlands) B.V., a Dutch corporation ("SFNBV") (the Company and
SFNBV being referred to collectively as the "Borrowers"), the Banks party
thereto from time to time, the Issuing Bank named therein, and Mellon Bank,
N.A., as Agent for the Banks and the Issuing Bank (as the same may be amended,
modified or supplemented from time to time, the "Credit Agreement"). Capitalized
terms used herein without definition have the meaning specified in the Credit
Agreement.
B. Each Purchasing Bank (if it is not already a Bank) wishes
to become a Bank party to the Credit Agreement.
C. The Transferor Bank is selling and assigning to each
Purchasing Bank, and each Purchasing Bank is purchasing and assuming, a certain
portion of the Transferor Bank's rights and obligations under the Credit
Agreement, including, without limitation, the Transferor Bank's Revolving Credit
Commitment and Loans owing to it and any Revolving Credit Note held by it (the
"Transferor Bank's Interests").
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. TRANSFER EFFECTIVE NOTICE. Upon receipt by the Agent of
seven counterparts of this Transfer Supplement (to each of which is attached a
fully completed Schedule I and Schedule II), and each of which has been executed
by the Transferor Bank, by each Purchasing Bank and by any other Person required
by Section 9.12(c) of the Credit Agreement to execute this Transfer Supplement,
the Agent will transmit to each Borrower, the Transferor Bank and each
Purchasing Bank a transfer effective notice, substantially in the form of
Schedule III to this Transfer Supplement (a "Transfer Effective Notice"). The
date specified in such Transfer Effective Notice as the date on which the
transfer effected by this Transfer Supplement shall become effective (the
"Transfer Effective Date") shall be the fifth Business Day following the date of
such Transfer Effective Notice or such other date as shall be agreed upon among
the Transferor Bank, the Purchasing Bank, the Agent and the Borrowers. From and
after the close of business at the Agent's Office on the Transfer Effective Date
each Purchasing Bank (if not already a Bank party to the Credit Agreement) shall
be a Bank party to the Credit Agreement for all purposes thereof having the
respective interests in the Transferor Bank's Interest reflected in this
Transfer Supplement.
2. PURCHASE PRICE; SALE. At or before 12:00 Noon, local time
at the Transferor Bank's office specified in Schedule III, on the Transfer
Effective Date, each Purchasing Bank shall pay to the Transferor Bank, in
immediately available funds, an amount equal to the purchase price, as agreed
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between the Transferor Bank and such Purchasing Bank (the "Purchase Price"), of
the portion being purchased by such Purchasing Bank (such Purchasing Bank's
"Purchased Percentage") of the Transferor Bank's Interest. Effective upon
receipt by the Transferor Bank of the Purchase Price from a Purchasing Bank, the
Transferor Bank hereby irrevocably sells, assigns and transfers to such
Purchasing' Bank, without recourse, representation or warranty (express or
implied) except as set forth in Section 6 hereof, and each Purchasing Bank
hereby irrevocably purchases, takes and assumes from the Transferor Bank such
Purchasing Bank's Purchased Percentage of the Transferor Bank's Interest. The
Transferor Bank shall promptly notify the Agent of the receipt of the Purchase
Price from a Purchasing Bank ("Purchase Price Receipt Notice"). Upon receipt by
the Agent of such Purchase Price Receipt Notice, the Agent shall record in the
Register the information with respect to such sale and purchase as contemplated
by Section 9.12(d) of the Credit Agreement.
3. PRINCIPAL, INTEREST AND FEES. All principal payments,
interest, fees and other amounts that would otherwise be payable from and after
the Transfer Effective Date to or for the account of the Transferor Bank in
respect of the Transferor Bank's Interest shall, instead, be payable to or for
the account of the Transferor Bank and the Purchasing Banks, as the case may be,
in accordance with their respective interests as reflected in this Transfer
Supplement.
4. CLOSING DOCUMENTS. Concurrently with the execution and
delivery hereof, the Transferor Bank will request that the Borrower provide to
each Purchasing Bank (if it is not already a Bank party to the Credit Agreement)
conformed copies of all documents delivered to such Transferor Bank on the
Closing Date in satisfaction of conditions precedent set forth in the Credit
Agreement.
5. FURTHER ASSURANCES. Each of the parties to this Transfer
Supplement agrees that at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Transfer Supplement.
6. CERTAIN REPRESENTATIONS AND AGREEMENTS. By executing and
delivering this Transfer Supplement, the Transferor Bank and each Purchasing
Bank confirm to and agree with each other and the Agent and the Banks as
follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Bank makes no
representation or warranty and assumes no responsibility with respect
to (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of the Credit Agreement, any Note or
any Security Document, (ii) any recital, representation, warranty,
document, certificate, report or statement in, provided for in,
received under or in connection with, the Credit Agreement, any Note
or any Security Document, or (iv) the existence, validity,
enforceability, perfection, recordation, priority, adequacy or value,
now or hereafter, of any Lien or other direct or indirect security
afforded or purported to be afforded by any of the Security Documents
or otherwise from time to time.
(b) The Transferor Bank makes no representation or warranty
and assumes no responsibility with respect to (i) the performance or
observance of any of the terms or conditions of the Credit Agreement,
any Note or any Security Document on the part of the Company, any
Borrower or any other Person, (ii) the business, operations, condition
(financial or otherwise) or
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prospects of the Company, any Borrower or any other Person, or (iii)
the existence of any Event of Default or Potential Default.
(c) Each Purchasing Bank confirms that it has received a copy
of the Credit Agreement, each Note and each of the other Loan
Documents, together with copies of the financial statements referred
to in Section 3.06 thereof, the most recent financial statements
delivered pursuant to Section 5.01 thereof, if any, and such other
documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Transfer
Supplement. Each Purchasing Bank confirms that it has made such
analysis and decision independently and without reliance upon the
Agent, the Transferor Bank or any other Bank.
(d) Each Purchasing Bank, independently and without reliance
upon the Agent, the Transferor Bank or any other Bank, and based on
such documents and information as it shall deem appropriate at the
time, will make its own decisions to take or not take action under or
in connection with the Credit Agreement, any Note or any Security
Document.
(e) Each Purchasing Bank irrevocably appoints the Agent to act
as Agent for such Purchasing Bank under the Agreement and the Security
Documents, all in accordance with Article IX of the Credit Agreement
and the other provisions of the Credit Agreement and the Security
Documents.
(f) Each Purchasing Bank agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement and the Security Documents are required to be
performed by it as a Bank.
7. SCHEDULE II. Schedule II hereto sets forth the revised
Commitment Amount of the Transferor Bank and each Purchasing Bank as well as
administrative information with respect to each Purchasing Bank.
8. GOVERNING LAW. This Transfer Supplement shall be governed
by, construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to principles of choice of law.
9. COUNTERPARTS. This Transfer Supplement may be executed on
any number of counterparts 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item I of Schedule I hereto.
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