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EXHIBIT 4.9
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and entered into this 20th day of December, 1999, among Atlantic Premium
Brands, Ltd., Carlton Foods Corp., Prefco Corp., Xxxxxx'x Farm, Inc., Xxxxxxxx
Cajun Foods Corp. and Potter Sausage Co. ("Potter;" hereinafter, individually
referred to as a "Borrower" and collectively as "Borrowers") and Fleet Capital
Corporation (hereinafter referred to as "Lender").
RECITALS:
Lender and Borrowers are parties to a certain Loan and Security
Agreement dated March 20, 1998 (the "Loan Agreement"), pursuant to which Lender
has made certain revolving credit and term loans to Borrower.
Borrowers have requested that Lender amend certain provisions of the
Loan Agreement and consent to certain transactions Borrowers wish to consummate.
Lender is willing to amend the Loan Agreement and consent to the transactions on
the terms and conditions set forth in this Amendment.
The parties desire to amend the Loan Agreement as hereinafter set
forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
a. By deleting the reference to "March ___, 2003" in
Section 5.1 of the Loan Agreement and by substituting in lieu thereof a
reference to "March 20, 2003."
b. By deleting the Section 9.2.8 of the Loan Agreement
in its entirety and by substituting the following in lieu thereof:
9.2.8. Capital Expenditures. Make Capital
Expenditures (including, expenditures by way of capitalized
leases) which, in the aggregate, as to all Borrowers and their
Subsidiaries, exceed (i) $1,300,000 during any Fiscal Year of
Borrowers other than Fiscal Year 1999, and (ii) $2,100,000
during Fiscal Year 1999.
c. By deleting in Section 9.3.5 of the Loan Agreement
the last Period reference to "Fourth Fiscal Quarter of 2003" in and by
substituting in lieu thereof a reference to "Fourth Fiscal Quarter of 2003, and
thereafter."
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d. By inserting a period at the end of Section 11.1.1 of
the Loan Agreement.
e. By deleting the reference to "Bank One Documents" in
Section 11.1.7 of the Loan Agreement and by substituting in lieu thereof a
reference to "Banc One Documents."
f. By deleting in Appendix A to the Loan Agreement the
definition of "Effective Net Worth" and by substituting in lieu thereof the
following new definition:
Effective Net Worth - on any date, the sum of the
stockholder's equity plus Subordinated Debt of Borrowers and
their Subsidiaries on such date plus an amount equal to
$1,370,000 (the Xxxxxx'x purchase price), on a combined and
Consolidated basis.
g. By deleting in Appendix A to the Loan Agreement the
reference to "Snack Foods" in the definition of Stock Pledge Agreements.
h. By deleting on page 22 of Appendix A to the Loan
Agreement the reference to "March ___, 1998" and by substituting in lieu thereof
a reference to "March 20, 1999."
i. By deleting in Schedule 8.1.13 to the Loan Agreement
the reference to Potter's Acquisition Corp. and by substituting in lieu thereof
a reference to "Potter Sausage Co." with a Tax ID Number of 00-0000000.
3. RATIFICATION AND REAFFIRMATION. Each Borrower hereby ratifies
and reaffirms the Obligations, each of the Loan Documents and all of Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
4. ACKNOWLEDGEMENTS AND STIPULATIONS. Each Borrower acknowledges
and stipulates that the Loan Agreement and the other Loan Documents executed by
such Borrower are legal, valid and binding obligations of such Borrower that are
enforceable against such Borrower in accordance with the terms thereof; all of
the Obligations are owing and payable without defense, offset or counterclaim
(and to the extent there exists any such defense, offset or counterclaim on the
date hereof, the same is hereby waived by such Borrower); the security interests
and liens granted by such Borrower in favor of Lender are duly perfected, first
priority security interests and liens.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants to Lender, to induce Lender to enter into this Amendment, that no
Default or Event of Default exists on the date hereof; the execution, delivery
and performance of this Amendment have been duly authorized by all requisite
corporate action on the part of such Borrower and this Amendment has been duly
executed and delivered by such Borrower; and all of the representations and
warranties made by such Borrower in the Loan Agreement are true and correct on
and as of the date hereof.
6. BREACH OF AMENDMENT. This Amendment shall be part of the Loan
Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute an Event of Default.
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7. CONSENT OF LENDER. Borrowers have informed Lender that (i)
Atlantic desires to redeem or repurchase Equity Interests (in the form of
capital stock) of Atlantic in an amount not to exceed $500,000 during the period
from December 1, 1999, to Xxxxx 00, 0000 (xxx "Xxxxx Xxxxxxxxxx"), and (ii) with
respect to the Real Estate of Potter located in Malvern, Hot Spring County,
Arkansas, Potter desires to grant a water line easement to the Xxxxx Xxxxxx
Regional Water District, Hot Spring County, Arkansas, such easement consisting
of a temporary easement of twenty-five feet of land that will revert to a
permanent easement of fifteen feet of land along the northwest side of Arkansas
Highway 84 (the "Arkansas Easement Grant"). Pursuant to the terms of the Loan
Agreement, Borrowers are not permitted to enter into the foregoing transactions
without the prior written consent of Lender. Lender hereby consents to Borrowers
entering into the Stock Repurchase and Arkansas Easement Grant, provided, that
(i) with respect to the Stock Repurchase (A) Atlantic shall not be permitted to
repurchase stock with a market value in excess of $500,000 and (B) such Stock
Repurchase is completed by Atlantic not later than March 31, 2000, and (ii) with
respect to the Arkansas Easement Grant, such easement shall be on the terms and
conditions of the Waterline Easement agreement previously delivered to Lender by
Borrowers.
8. EXPENSES OF LENDER. Borrowers jointly and severally agree to
pay, ON DEMAND, all costs and expenses incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment and any other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated
hereby.
9. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be
effective upon acceptance by Lender in Atlanta, Georgia (notice of which
acceptance is hereby waived), whereupon the same shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
11. NO NOVATION, ETC. Except as otherwise expressly provided in
this Amendment, nothing herein shall be deemed to amend or modify any provision
of the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
12. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
13. FURTHER ASSURANCES. Each Borrower agrees to take such further
actions as Lender shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any of
the transactions contemplated hereby.
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14. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
15. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS
AMENDMENT, EACH BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER,
AND ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF
LENDER, FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF
ACTION OF ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT,
DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT SUCH
BORROWER NOW HAS OR EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH
ANY OF THE LOAN DOCUMENTS OR OTHERWISE. EACH BORROWER REPRESENTS AND WARRANTS TO
LENDER THAT SUCH BORROWER HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY
CLAIM THAT SUCH BORROWER EVER HAD OR CLAIMED TO HAVE AGAINST LENDER.
16. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
ATTEST: ATLANTIC PREMIUM BRANDS, LTD.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
ATTEST: CARLTON FOODS CORP.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
ATTEST: PREFCO CORP.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
[Signatures continued on the following page]
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ATTEST: XXXXXX'X FARM, INC.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
ATTEST: XXXXXXXX CAJUN FOODS CORP.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
ATTEST: POTTER SAUSAGE CO.
("Borrower")
/s/ XXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
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Secretary Xxxxx X. Xxxxxx, President
ACCEPTED IN ATLANTA, GEORGIA:
FLEET CAPITAL CORPORATION
("Lender")
By: /s/
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Title: VP
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