EXHIBIT 2.18
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment")
is dated as of October 17, 1996 among LASALLE NATIONAL BANK (the "Lender") and
ATLANTIC BEVERAGE COMPANY, INC. ("ABC"), CARLTON FOODS CORP. ("Carlton"), PREFCO
CORP. (formerly known as ABEV Acquisition Corp.) ("Prefco"), RICHARDS CAJUN
FOODS CORP. ("Richards") and GROGAN'S MERGER CORP. ("Grogan's" and, together
with ABC, Carlton, Prefco, and Richards, collectively referred to herein as the
"Borrowers").
R E C I T A L S:
A. Pursuant to and in accordance with the terms of that certain Loan
and Security Agreement dated as of March 15, 1996, among the Lender, ABC,
Carlton and Prefco, as amended by that certain First Amendment to Loan and
Security Agreement dated as of August 1, 1996 and as modified by that certain
Joinder executed by Richards dated as of August 1, 1996, pursuant to which
Richards became a party thereto (the "Original Loan Agreement"), the Lender
agreed to make a term loan and revolving loans to ABC, Carlton, Prefco and
Richards. All initially capitalized terms not otherwise defined in this
Amendment shall have the meanings ascribed to such terms in the Original Loan
Agreement. The Original Loan Agreement as the same is amended and modified by
the terms and conditions of this Amendment is referred to herein as the "Loan
Agreement."
B. The Borrowers have requested that the Lender consent to (i) the
Grogan's Transaction, the Arizona Acquisition and the Partin's Acquisition (as
each such capitalized term is hereinafter defined), (ii) funding a portion of
the cost of the Grogan's Transaction and the Arizona Acquisition, (iii) Grogan's
becoming a party to the Loan Agreement, and (iv) making additional term loans
and increasing the amount of the Revolving Credit Commitment. The Lender has
agreed to give its consent to all of the foregoing on the terms and conditions
herein set forth.
A G R E E M E N T S:
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Amendment, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrowers and the Lender hereby
agree as follows:
1. DEFINITIONS. Section 1.1 of the Loan Agreement is amended as follows:
(A) The following definitions are hereby added to Section 1.1
in alphabetical order:
"Arizona Acquisition" shall mean the acquisition by
ABC of certain of the assets of Central Distributors, Inc., a
Maryland corporation ("CDI"), pursuant to that certain Asset
Purchase Agreement (the "Arizona Agreement") dated October 16,
1996, by and among ABC, CDI and Dominic Ciuffreda, the
principal shareholder of CDI.
"Arizona Term Loan" shall have the meaning ascribed
to it in Section 2.1(a)(iv).
"Arizona Term Note" shall have the meaning ascribed
to it in Section 2. 1(b).
"Grogan's Transaction" shall mean, collectively, (a)
the merger of Grogan's Farm, Inc., a Kentucky corporation
("GFI"), with and into Grogan's pursuant to that certain
Agreement and Plan of Reorganization dated as of October 1,
1996 by and among Grogan's, GFI, and Bobby L. Grogan and Betty
Ruth Grogan, individuals residing in the Commonwealth of
Kentucky, as a result of which Grogan's shall be the surviving
corporation, (b) the acquisition by Grogan's of certain assets
of Grogan's Sausage, Inc., a Kentucky corporation ("GSI"),
pursuant to that certain Asset Purchase Agreement dated
September 27, 1996, by and among Grogan's, GSI, and Bobby L.
Grogan and Betty Ruth Grogan and (c) the acquisition by
Grogan's of the Grogan's Property pursuant to that certain
Real Estate Purchase Agreement dated September 27, 1996 by and
among Grogan's and Bobby L. Grogan and Betty Ruth Grogan.
"Mezzanine Debt" shall mean any subordinated notes of
ABC issued after October 17, 1996 and before April 15, 1997 in
an amount and on terms and conditions satisfactory to the
Lender.
"Partin's Acquisition" shall mean the acquisition by
ABC or its assignee of certain assets of the business known as
Partin's Country Sausage in a transaction substantially in the
form as described in that certain Agreement in Principle dated
July 8, 1996 by and between ABC and Jeff Davis, an individual
residing in the Commonwealth of Kentucky.
(B) The definition of the term "Grogan's" is hereby deleted in
its entirety and the following is substituted therefor:
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"Grogan's" shall mean Grogan's Merger Corp., a
Delaware corporation, a wholly-owned subsidiary of ABC which,
after the merger of GFI with and into Grogan's Merger Corp.,
will change its name to Grogan's Farm, Inc.
(C) The definition of the term "Grogan's Initial Payment
Amount" is hereby deleted in its entirety and the following is
substituted therefor:
"Grogan's Initial Payment Amount" shall mean an
amount equal to (a) $100,000.00, divided by (b) the number of
whole calendar months between the Grogan Initial Payment Date
and March 15, 1997.
(D) The definition of the term "Grogan's Merger" is hereby
deleted in its entirety and each reference thereto in the Loan
Agreement shall be deemed to refer to the "Grogan's Transaction."
(E) The definition of the term "Grogan's Merger Note" is
hereby deleted in its entirety and the following is substituted
therefor:"
Grogan's Merger Note" means the promissory note in
the original principal amount of $200,000 executed by Grogan's
and payable to and for the benefit of Bobby L. Grogan and
Betty Ruth Grogan in connection with the Grogan's Transaction,
incurred on terms and conditions approved by the Lender and
which is subordinated, in a manner approved by the Lender, as
to right and time of payment of principal and interest thereon
to any and all of the Obligations.
(F) EXHIBIT A attached to the Original Loan Agreement is
hereby deleted in its entirety and EXHIBIT A attached hereto and made a
part hereof is hereby substituted therefor. As a result, the reference
to EXHIBIT A contained in the definition of the term "Borrowing Base
Certificate" and any other provision of the Loan Agreement shall be
deemed to refer to EXHIBIT A attached hereto.
(G) The definition of the term "Revolving Credit Commitment"
is hereby deleted in its entirety and the following is substituted
therefor:
"Revolving Credit Commitment" shall mean $8,500,000,
as such amount may be reduced from time to time pursuant to
Section 2.3(b) or Section 9.2 of this Agreement.
(H) The definition of the term "Term Loan" is hereby deleted
in its entirety and the following is substituted therefor:
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"Term Loan" shall collectively mean the Initial Term
Loan, the Richards Term Loan, the Grogan's Term Loan, the
Arizona Term Loan and any other Term Loan made hereunder.
(I) The definition of the term "Term Note" is hereby deleted
in its entirety and the following is substituted therefor:
"Term Note" shall collectively mean the Initial Term
Note, the Richards Term Note, the Grogan's Term Note, the
Arizona Term Note and any other Term Note issued hereunder.
2. AMOUNT AND FUNDING OF TERM LOAN AND REVOLVING CREDIT COMMITMENT.
(A) The amount of the Term Loan is hereby increased to
$7,900,000. As a result of and in connection with the foregoing,
Section 2.1 of the Loan Agreement is hereby amended as follows:
(i) Section 2.1(a) is hereby amended by deleting the
reference to "$7,725,000" contained in the fourth
line thereof and inserting "$7,900,000" in
substitution therefor.
(ii) Section 2.1(a)(iii) is hereby amended by deleting the
reference to "$1,825,000" contained in the first line
thereof and inserting "$1,550,000" in substitution
therefor.
(iii) The following is hereby added to Section 2.1(a)
immediately after the end of Section 2.1(a)(iii) as a
new Section 2.1(a)(iv):
"(iv) the Lender shall make $450,000 of the proceeds of the
Term Loan (the "Arizona Term Loan") available to ABC
upon satisfaction of the applicable conditions set
forth in Sections 8.2 and 2.1(c) hereof, by
transferring same day funds equal to such amount to
an account designated in writing by ABC."
(iv) Section 2.1(b) is hereby deleted in its entirety and
the following is substituted
therefor:
"(b) Term Note. The Borrowers shall execute and
deliver to Lender (i) a promissory note,
substantially in the form of EXHIBIT D attached
hereto and made a part hereof (as the same has been
or may be amended, modified, extended, and renewed
from time to time, the "Initial Term Note"), to
evidence the Initial Term Loan, (ii) a promissory
note, substantially in the form of EXHIBIT J attached
hereto and made a part hereof (as
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the same has been or may be amended, modified,
extended, and renewed from time to time, the
"Richards Term Note"), to evidence the Richards Term
Loan, (iii) a promissory note, substantially in the
form of EXHIBIT K attached hereto and made a part
hereof (as the same has been or may be amended,
modified, extended, and renewed from time to time,
the "Grogan's Term Note"), to evidence the Grogan's
Term Loan, and (iv) a promissory note, substantially
in the form of EXHIBIT O attached hereto and made a
part hereof (as the same has been or may be amended,
modified, extended, and renewed from time to time,
the "Arizona Term Note"), to evidence the Arizona
Term Loan. The principal amount of the Initial Term
Note shall be payable in sixty (60) consecutive
monthly installments payable on the last Business Day
of each successive calendar month commencing on March
31, 1996 with installments payable through and
including February 28, 1997 in the amount of
$66,666.67, thereafter installments payable through
and including February 28, 1998 in the amount of
$70,833.34, thereafter installments payable through
and including February 28, 1999 in the amount of
$75,000, thereafter installments payable through and
including February 29, 2000 in the amount of
$83,333.34, thereafter installments through and
including February 1, 2001 in an amount of $79,166.67
with a final installment of any and all principal
remaining on March 15, 2001. The principal amount of
the Richards Term Note shall be payable in
consecutive monthly installments payable on the last
Business Day of each successive calendar month
commencing on the last Business Day of the calendar
month in which the Richards Term Loan is advanced
(the "Richards Initial Payment Date") in accordance
with the following schedule:
Monthly
Period Payment
Richards Initial Payment Date Richards Initial
through February 28, 1997 Payment Amount
March 1, 1997 through February 28, 1998 $23,333.33
March 1, 1998 through February 28, 1999 $25,128.21
March 1, 1999 through February 29, 2000 $26,923.08
March 1, 2000 through February 28, 2001 $30,512.83
with a final installment of any and all principal remaining on
March 15, 2001. The principal amount of the Grogan's Term Note
shall be payable in consecutive monthly installments payable
on the last
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Business Day of each successive calendar month
commencing on the last Business Day of the calendar
month in which the Grogan's Term Loan is advanced
(the "Grogan's Initial Payment Date") in accordance
with the following schedule:
Monthly
Period Payment
Grogan's Initial Payment Date Grogan's Initial
through February 28, 1997 Payment Amount
March 1, 1997 through February 28, 1998 $25,000.00
March 1, 1998 through February 28, 1999 $27,083.33
March 1, 1999 through February 29, 2000 $33,333.33
March 1, 2000 through February 28, 2001 $35,416.67
with a final installment of any and all principal remaining on
March 15, 2001, or such other schedule as shall be mutually
satisfactory to the Lender and the Borrowers. The principal
amount of the Arizona Term Note shall be payable upon the
earlier to occur of (x) the issuance of the Mezzanine Debt by
ABC and (y) April 15, 1997.
(v) The heading of Section 2.1(c) is hereby amended by
inserting "and Arizona Term Loan" immediately after
"Grogan's Term Loan."
(vi) Section 2.1(c)(ii) is hereby amended by deleting "the
Grogan's Merger is approved by the Lender, (B)"
contained in the second and third lines thereof and
by deleting the reference to "(C)" contained in the
fifth line thereof and inserting "(B)" in
substitution therefor.
(vii) The following is hereby added to Section 2.1(c)
immediately after the end of Section 2.1(c)(iv) as
new Sections 2.1(c)(v) and 2.1(c)(vi):
"(v) the Lender shall not be required to fund any
portion of the Arizona Term Loan until such time as
(A) the Borrowers otherwise comply with the
conditions and requirements set forth in Section 4(B)
of the Second Amendment to this Agreement and (B) the
Borrowers shall have paid the fee due in accordance
with the terms of Section 5(F) of the Second
Amendment to this Agreement; and
(vi) the proceeds of the Arizona Term Loan may only
be used by ABC to pay amounts due and owing by ABC
(including,
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without limitation, fees, costs and expenses) in
connection with the Arizona Acquisition or for
working capital investments.
(viii) The final paragraph of Section 2.1(c) is hereby
deleted in its entirety and the following is
substituted therefor:
"Any request by any Borrower for the Lender to fund
any of the Richards Term Loan, the Grogan's Term Loan
or the Arizona Term Loan shall be deemed a
representation, warranty and covenant by the
Borrowers that the proceeds of such requested advance
shall solely be used for the purposes permitted by
the terms of this subparagraph (c)."
(ix) Section 2.1(d) is hereby deleted in its entirety and
the following is substituted therefor:
"(d) Outside Funding Date for Richards Term Loan
Grogan's Term Loan and Arizona Term Loan.
Notwithstanding any provision in this Agreement or
any of the other Loan Documents to the contrary, the
Borrowers shall have no right to receive, and the
Lender shall have no obligation to advance, (i) any
portion of the Richards Term Loan unless all
conditions precedent thereto are fulfilled and a
request made for the funding thereof no later than
August 30, 1996, (ii) any portion of the Grogan's
Term Loan unless all conditions precedent thereto are
fulfilled and a request made for the funding thereof
no later than October 22, 1996 or (iii) any portion
of the Arizona Term Loan unless all conditions
precedent thereto are fulfilled and a request made
for the funding thereof no later than October 24,
1996."
(B) EXHIBIT K attached to the Original Loan Agreement is
hereby deleted in its entirety and EXHIBIT K attached hereto and made a
part hereof is hereby substituted therefor. As a result, the reference
to EXHIBIT K contained in the definition of the term "Grogan's Term
Note" in Section 2.1(b) and any other provision of the Loan Agreement
shall be deemed to refer to EXHIBIT K attached hereto.
(C) EXHIBIT O attached hereto and made a part hereof is hereby
added to the Loan Agreement as EXHIBIT O. As a result, the reference to
EXHIBIT O contained in Section 2.1 or any other provision of the Loan
Agreement shall be deemed to refer to EXHIBIT O attached hereto.
(D) Section 2.2(c) is hereby amended by deleting the reference
to "$7,500,000" contained on the fifth line thereof and substituting
"$8,500,000" therefor.
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(E) Section 2.11 is hereby amended by deleting all of the
language after the end of the second sentence thereof.
3. AMENDMENT TO COVENANTS. The covenants of the Borrowers set forth in
Article VII of the Original Loan Agreement are hereby amended as follows:
(A) Section 7.22 is hereby amended by deleting the period
after the word "thereafter" contained in the last line thereof and by
adding the following language:
"; provided, however, that the first $100,000 of Capital
Expenditures incurred by Grogan's and, if the Arizona
Acquisition is consummated, the first $31,000 of Capital
Expenditures by ABC for purchases of New Coolers (as such term
is defined in the Arizona Asset Purchase Agreement) shall be
excluded from the computation of the aggregate amount of
Capital Expenditures incurred by all Borrowers and their
Subsidiaries."
(B) Section 7.1 is hereby amended by adding the following
language to the end thereof:
"Such Borrower shall notify Lender if it becomes aware of any
Liens on its Property. In addition, the Lender shall have the
right from time to time to cause title searches and/or
judgment searches to be conducted with respect to any Real
Property and the Borrowers shall pay all costs and expenses
incurred in connection therewith."
4. LENDER'S CONSENTS TO GROGAN'S TRANSACTION, ARIZONA ACQUISITION AND
PARTIN'S ACQUISITION.
(A) The Lender hereby consents to the Grogan's Transaction,
provided that the Borrowers and Grogan's otherwise comply with the
conditions and requirements set forth in Section 8.3 hereof with
respect to such Transaction.
(B) The Lender hereby consents to the Arizona Acquisition and
agrees to fund the Arizona Term Loan, provided that the following
conditions are satisfied:
(i) All conditions precedent to the closing of the
Arizona Acquisition set forth in the Arizona
Agreement (other than payment of the full purchase
price)shall have been satisfied;
(ii) The Borrowers shall have provided to the Lender
updated and corrected Schedules in form and substance
satisfactory to
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the Lender which shall be substituted for the
Schedules attached to this Agreement; and
(iii) The Lender shall have received all of the
following items:
(a) An executed copy of the Arizona
Agreement, together with all attachments
thereto and all bills of sale, agreements,
instruments and other documents required
under Section 7 thereof to be delivered by
any party as a condition to closing,
certified by ABC to be true, complete and
correct copies thereof.
(b) Lien searches against CDI and the Owner
(as such capitalized term is defined in the
Arizona Agreement) satisfactory to the
Lender.
(c) A certificate of the President of CDI
and a letter from the Owner, in each case
dated the Closing Date (as such capitalized
term is defined in the Arizona Agreement)
certifying that (a) the Arizona Agreement is
in full force and effect and no material
term or condition thereof has been amended,
from the form thereof delivered to the
Lender, or waived, except as disclosed to
the Lender or its counsel prior to the
Closing Date, (b) they and, to the best of
their knowledge, the other parties thereto
have performed or complied in all material
respects with all agreements and conditions
contained in the Arizona Agreement and any
agreements or documents referred to therein
required to be performed or complied with by
each of them on or before the requested
funding on the Closing Date, and (c) subject
to the foregoing, neither they nor, to the
best of their knowledge, such other parties
are in default in the performance or
compliance with any of the material terms or
provisions thereof (except to the extent
that performance thereof or compliance
therewith or default has been waived with
the prior written consent of the Lender).
(d) The Arizona Term Note, duly executed by
all of the Borrowers;
(e) A certificate signed by the chairman,
vice chairman, or chief executive officer
and the chief financial officer or treasurer
of each Borrower (i) reaffirming and
remaking each of the representations and
warranties
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made in Article VI of this Agreement, which
representations and warranties shall be
deemed to be remade as of the date thereof,
subject only to the fact that the same shall
be deemed to be modified by substitute
Schedules satisfactory to the Lender
provided by the Borrowers in accordance with
the terms of Section 4(B)(ii) hereof, and
(ii) certifying that the conditions
specified in this Section 4(B) have been
fulfilled.
(C) The Lender hereby consents to the Partin's Acquisition and
agrees that the Borrowers may use the proceeds of Loans in connection
therewith, provided that the following conditions are satisfied:
(i) All documents to be executed and delivered in
connection with the Partin's Acquisition
(collectively, the "Partin's Documents") shall be in
form and substance satisfactory to Lender;
(ii) All conditions precedent to the closing of the
Partin's Acquisition set forth in the Partin's
Documents (other than payment of the full purchase
price) shall have been satisfied;
(iii) The Borrowers shall have provided to the Lender
updated and corrected Schedules in form and substance
satisfactory to the Lender which shall be substituted
for the Schedules attached to this Agreement; and
(iv) The Lender shall have received all of the
following items:
(a) Executed copies of the Partin's
Documents, certified by ABC and, if an
assignee of ABC is a party to such
documents, by such assignee, to be true,
complete and correct copies thereof;
(b) Lien searches against Partin's and Jeff
Davis satisfactory to the Lender.
(c) A letter from Jeff Davis dated the
closing date of the Partin's Acquisition
(the "Partin's Closing Date") certifying
that (a) the Partin's Documents are in full
force and effect and no material term or
condition thereof has been amended, from the
forms thereof delivered to the Lender, or
waived, except as disclosed to the Lender or
its counsel prior to the Partin's Closing
Date, (b) he and, to the best of his
knowledge, the other parties thereto have
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performed or complied in all material
respects with all agreements and conditions
contained in the Partin's Documents and any
agreements or documents referred to therein
required to be performed or complied with by
each of them on or before the requested
funding on the Partin's Closing Date, and
(c) subject to the foregoing, neither he
nor, to the best of his knowledge, such
other parties are in default in the
performance or compliance with any of the
material terms or provisions thereof (except
to the extent that performance thereof or
compliance therewith or default has been
waived with the prior written consent of the
Lender).
(d) A certificate signed by the chairman,
vice chairman, or chief executive officer
and the chief financial officer or treasurer
of each Borrower (i) reaffirming and
remaking each of the representations and
warranties made in Article VI of this
Agreement, which representations and
warranties shall be deemed to be remade as
of the date thereof, subject only to the
fact that the same shall be deemed to be
modified by substitute Schedules
satisfactory to the Lender provided by the
Borrowers in accordance with the terms of
Section (4)(C)(iii) hereof, and (ii)
certifying that the conditions specified in
this Section 4(C) have been fulfilled.
5. EFFECTIVENESS OF THIS AMENDMENT. The Lender and the Borrowers agree
that the terms of this Amendment shall not be effective (and the Lender shall
have no obligations under this Amendment) unless and until all of the following
conditions have either been fulfilled in a manner satisfactory to the Lender or
waived in writing by the Lender:
(A) The Lender shall have received all items on the List of
Closing Documents attached hereto and made a part hereof as EXHIBIT P-1
(deliveries required for the Grogan's Transaction and this Amendment),
such items to be in form and substance satisfactory to the Lender, and
to be executed by all parties thereto when the nature of such items so
requires.
(B) The Borrowers shall have paid to the Lender all costs and
expenses incurred as of the date hereof in connection with this
Agreement and the other documents and instruments executed in
connection herewith or contemplated by the terms hereof (collectively,
the "Amendment Documents") or otherwise in connection with the Loan
which the Borrowers are obligated to pay pursuant to the terms of
Section 12.7 of the Loan Agreement.
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(C) All proceedings taken in connection with the execution of
this Amendment, all other Amendment Documents, and all documents and
papers relating thereto shall be satisfactory to the Lender. The Lender
shall have received copies of such documents and papers as the Lender
may reasonably request in connection therewith, all in form and
substance satisfactory to the Lender.
(D) The Lender shall have received a certificate dated as of
the date hereof and signed by the chairman, vice chairman or chief
executive officer and the chief financial officer or treasurer of each
Borrower certifying that the conditions specified in this Section 5
have been fulfilled.
(E) The Borrowers shall have provided to the Lender updated
and corrected Schedules in form and substance satisfactory to the
Lender which shall be substituted for the Schedules attached to the
Original Loan Agreement.
(F) The Borrowers shall have paid to the Lender a closing fee
in the amount of $35,000 in connection with the Lender's agreement (i)
to increase the amount of the Revolving Credit Commitment, (ii) to fund
the Grogan's Term Loan and (iii) to fund the Arizona Term Loan.
(G) The Borrowers shall have duly executed and delivered to
the Lender a promissory note, substantially in the form of EXHIBIT R
attached hereto and made a part hereof (as the same has been or may be
amended, modified, extended, and renewed from time to time, the
"Substitute Revolving Credit Note"), to evidence the increase m the
Revolving Credit Commitment and to replace the exiting Revolving Credit
Note. Upon the Borrowers complying with the foregoing, (i) the Lender
will return to the Borrowers the existing Revolving Credit Note, marked
"cancelled" and (ii) all references in the Loan Agreement to the
Revolving Credit Note shall be deemed to refer to the Substitute
Revolving Credit Note.
6. REPRESENTATIONS AND WARRANTIES. To induce the Lender to amend the
Loan Agreement and to consider making future Loans thereunder, Borrowers
represent and warrant to the Lender that:
(A) There are no Defaults or Events of Default with respect to
any Borrower under the Loan Agreement or any of the other Loan
Documents.
(B) Except as otherwise expressly set forth herein or in the
other Amendment Documents, none of the Loan Documents have been
heretofore amended, modified, changed, supplemented, renewed, replaced,
or terminated and none of the Borrowers' obligations under any of the
Loan Documents has been changed, terminated, forgiven or modified in
any way.
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(C) The pro forma balance sheet provided by the Borrowers in
accordance with the requirements of EXHIBIT P-1 presents fairly and
accurately in all material respects the Borrowers' financial condition
as at such date as if the transactions contemplated by the Grogan's
Transaction and the Arizona Acquisition have occurred on such date, the
Grogan's Term Loan and the Arizona Term Loan had been funded as of such
date, and the Revolving Credit Commitment had been increased in
accordance with the terms hereof as of such date.
(D) On the date hereof, the representations and warranties set
forth in the Loan Agreement (as modified by this Amendment) and in all
other Loan Documents are true and correct with the same effect as
though such representations and warranties had been made on the date
hereof (except to the extent that the same are specifically made as of
an earlier date).
7. POST-CLOSING RESTATEMENT OF CERTAIN TERM NOTES. The Borrowers agree
that, within 30 calendar days after the date hereof, they will deliver to Lender
(A) a promissory note, executed by all of the Borrowers, in a principal amount
equal to the aggregate principal amount of the Initial Term Loan, the Richards
Term Loan and the Grogan's Term Loan and having an amortization schedule
reflecting the combined amortization schedules thereof (such promissory note,
the "Restated Term Note), which Restated Term Note will replace the Initial Term
Note, the Richards Term Note, and the Grogan's Term Note, (B) any documents
required by the Lender to be executed by the Borrowers to amend the Loan
Agreement in connection with the Restated Term Note, and (C) a legal opinion of
counsel to the Borrowers in form and substance satisfactory to the Lender and
its counsel. Upon the Borrowers complying with the foregoing, the Lender will
return to the Borrowers the Initial Term Note, the Richards Term Note and the
Grogan's Term Note, in each case marked "cancelled."
8. INDEMNITY. The Borrowers agree to reimburse the Lender for any costs
and expenses (including, without limitation, reasonable attorneys' and
paralegals' fees and expenses) incurred by the Lender in defending any suit
brought against it by any Borrower or any other Person in connection with the
transactions contemplated by this Amendment and the other Amendment Documents.
All of the foregoing fees, costs and expenses shall be part of the Obligations,
payable upon demand, and secured by the Collateral.
9. MISCELLANEOUS.
(A) This Amendment may be executed in any number of
counterparts, and by the Lender and each of the Borrowers in separate
counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
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(B) The captions contained in this Amendment are for
convenience only, are without substantive meaning and should not be
construed to modify, enlarge, or restrict any provision.
(C) All obligations of the Borrowers under this Amendment
shall be joint and several obligations of the Borrowers. Each Borrower
shall be liable for the full amount of the Obligations with the rights
of contribution and reimbursement against the other Borrowers under
Section 12.13 of the Loan Agreement.
(D) Any reference in the Loan Agreement to the term
"Agreement," "Note," "Loan Documents," or any other term used to
describe any one or more of the Loan Documents shall be deemed to refer
to the applicable documents as the same are modified by the terms of
this Amendment and the other Amendment Documents. Any provision in any
of the Loan Documents which have been rendered inconsistent with any
other provision of Loan Documents as a result of the amendments and
modifications effectuated by this Amendment shall be deemed amended and
modified so as to be consistent with the terms and conditions of this
Amendment.
(E) Except to the extent that the Loan Agreement is expressly
amended and modified by the terms of this Amendment, the Loan Agreement
is and shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
ATLANTIC BEVERAGE COMPANY, INC.
By:_____________________________
Merrick M. Elfman
Title: Chairman
PREFCO CORP.
By:_____________________________
Merrick M. Elfman
Title: Chairman
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CARLTON FOODS CORP.
By:_____________________________
Merrick M. Elfman
Title: Chairman
RICHARDS CAJUN FOODS CORP.
By:_____________________________
Merrick M. Elfman
Title: Chairman
GROGAN'S MERGER CORP.
By:_____________________________
Merrick M. Elfman
Title: Chairman
LASALLE NATIONAL BANK
By:_____________________________
Title:_____________________
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EXHIBIT A
BORROWING BASE CERTIFICATE
-16-
EXHIBIT K
FORM OF GROGAN'S TERM NOTE
US $1,550,000 Dated: October __, 1996
FOR VALUE RECEIVED, the undersigned, ATLANTIC BEVERAGE COMPANY, INC., a
Delaware corporation, CARLTON FOODS CORP., a Delaware corporation, PREFCO CORP.,
a Delaware corporation, RICHARDS CAJUN FOODS CORP., a Delaware corporation, and
GROGAN'S MERGER CORP., a Delaware corporation (collectively referred to herein
as the "Borrowers"), jointly and severally hereby promise to pay to the order of
LaSalle National Bank (the "Lender") the principal amount of One Million Five
Hundred Fifty Thousand and 00/100 Dollars ($1,550,000). Capitalized terms used
herein have the meanings specified for such terms in the Loan Agreement (as
defined below).
The principal amount of this Grogan's Term Note ("Term Note") shall be
payable in consecutive monthly installments payable on the last Business Day of
each successive calendar month commencing on the last Business Day of the
calendar month in which the Grogan's Term Loan is advanced (the "Grogan's
Initial Payment Date") in accordance with the following schedule:
Monthly
Period Payment
Grogan's Initial Payment Date Grogan's Initial
through February 28, 1997 Payment Amount
March 1, 1997 through February 28, 1998 $25,000.00
March 1, 1998 through February 28, 1999 $27,083.33
March 1, 1999 through February 29, 2000 $33,333.33
March 1, 2000 through February 28, 2001 $35,416.67
with a final installment of any and all principal remaining on March 15, 2001.
As used herein the term "Grogan's Initial Payment Amount" shall mean an amount
equal to (a) $100,000, divided by (b) the number of whole calendar months
between the Grogan Initial Payment Date and March 15, 1997.
The Borrowers, jointly and severally, promise to pay interest on the
unpaid principal amount of this Term Note from the Funding Date with respect
hereto until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Loan Agreement.
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Both principal and interest are payable in lawful money of the United
States of America to LaSalle National Bank, at 120 South LaSalle Street,
Chicago, Illinois 60603, in same day funds. All payments made on account of
principal hereof shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Term Note.
This Term Note is one of the Term Notes referred to in, and is entitled
to the benefits of, the Loan and Security Agreement dated as of March 15, 1996
(as amended by the First Amendment to Loan and Security Agreement dated as of
August 1, 1996, and by the Second Amendment to Loan and Security Agreement dated
as of October 17, 1996, and all further amendments, modifications, changes,
supplements, renewals or replacements, the "Loan Agreement") by and between the
Borrowers and the Lender. The Loan Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
IN WITNESS WHEREOF, the undersigned have executed this Term Note.
ATLANTIC BEVERAGE COMPANY, INC.
By:______________________________
Merrick M. Elfman
Title: Chairman
CARLTON FOODS CORP.
By:______________________________
Merrick M. Elfman
Title: Chairman
PREFCO CORP.
By:______________________________
Merrick M. Elfman
Title: Chairman
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RICHARDS CAJUN FOODS CORP.
By:______________________________
Merrick M. Elfman
Title: Chairman
GROGAN'S MERGER CORP.
By:______________________________
Merrick M. Elfman
Title: Chairman
-19-
EXHIBIT P-1
LIST OF CLOSING ITEMS FOR GROGAN'S TRANSACTION AND
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
As used herein, "Grogan's Transaction" shall mean, collectively, (a)
the merger of Grogan's Farm, Inc. with and into Grogan's Merger Corp. ("Merger
Corp."), in which Merger Corp. shall be the sole survivor, (b) the acquisition
by Merger Corp. of substantially all of the assets of Grogan's Sausage, Inc.,
and (c) the acquisition of the Grogan's Property by Merger Corp. from Bobby and
Betty Grogan. Other capitalized terms shall have the meanings set forth in the
Loan and Security Agreement dated as of March 15, 1996, as amended by the First
Amendment to Loan and Security Agreement dated as of August 1, 1996.
A. LOAN DOCUMENTS
1. Second Amendment to Loan Agreement executed by Merger Corp. and all
of the other Borrowers.
1a. Second Amendment to Stock Pledge Agreement, executed by ABC, and
Schedule 1 thereto.
lb. Substitute Revolving Credit Note, executed by Merger Corp. and all
of the other Borrowers.
2. Grogan's Term Note executed by Merger Corp. and all of the other
Borrowers in the amount of $1,550,000.
3. Endorsements to each Note other than the Grogan's Term Note executed
by Merger Corp.
4. Joinder to Loan Agreement executed by Merger Corp.
5. A Notice of Borrowing and Disbursement Directions with respect to
the Grogan's Term Loan and any Revolving Loan to be made on the date of the
Grogan's Transaction, executed by ABC.
6. Application for and copy of the Letter of Credit relating to the
bonding requirements under the Packers and Stockyards Act.
B. OTHER SECURITY AND GUARANTY DOCUMENTS
7. Vehicle titles covering all owned vehicles of Merger Corp. with
appropriate documentation duly executed in order to have the Lender's lien
notated thereon.
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8. Stock certificates relating to the issued and outstanding shares of
Merger Corp., and stock powers relating to those certificates, undated and duly
endorsed in blank.
C. REAL ESTATE COLLATERAL DOCUMENTS
9. Mortgage on the Grogan's Property.
10. ALTA Survey of Grogan's Property certified to the Lender.
11. Title insurance policy for Grogan's Property, satisfactory to the
Lender.
12. [No structural or engineering reports for Grogan's Property.]
13. [No Landlord waivers]
D. CORPORATE DOCUMENTS
14. Certificate or Articles of Incorporation for Merger Corp., Grogan's
Farm, Inc., and Grogan's Sausage, Inc. as amended, modified or supplemented to
the date the Grogan's Transaction is consummated (the "Consummation Date"),
certified to be true, correct and complete by the Secretary of State of such
entity's state of incorporation as of a recent date prior to the Consummation
Date, together with a good standing certificate from the Secretary of State of
such entity's state of incorporation and a good standing certificate from the
Secretaries of State (or the equivalent thereof) of each other State in which
each is qualified to transact business, each to be dated a recent date prior to
the Consummation Date.
15. A certificate of the Secretary or Assistant Secretary of each
Borrower (Atlantic Beverage Company, Inc., Carlton Foods Corp., Prefco Corp.,
Richards Cajun Foods Corp., and Merger Corp.) dated the Consummation Date
certifying (a) the names and true signatures of the incumbent officers of such
Borrower authorized to sign the Loan Documents, (b) the bylaws of such Borrower
as in effect on the date of such certification, (c) that attached thereto is a
true and complete copy of the resolutions of such Borrower's Board of Directors
approving and authorizing the execution, delivery and performance of the Loan
Documents and the execution of the Grogan's Term Note (and, in the case of
Merger Corp. and any other Borrower that is a party to the Affiliate Party
Acquisition Documents, the Affiliate Party Acquisition Documents) executed by
such Borrower, (d) in the case of Merger Corp., that attached thereto is a true
and complete copy of the resolutions of its Board of Directors approving and
authorizing the merger of Grogan's Farm, Inc. with and into Merger Corp. and the
change of the name of Merger Corp. to "Grogan's Farm, Inc." immediately after
such merger and (e) that there have been no changes in the Certificate of
Incorporation of such Borrower since the date of the
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most recent certification thereof by the Secretary of State of such Borrower's
state of incorporation.
16. A certificate of the Secretary or Assistant Secretary of Grogan's
Farm, Inc. and of Grogan's Sausage, Inc. dated the Consummation Date certifying
(a) the By-laws of such entity as in effect on the date of such certification,
(b) that there have been no changes in the Certificate or Articles of
Incorporation of such entity since the date of the most recent certification
thereof by the Secretary of State of such entity's state of incorporation and
(c) that attached thereto is a true and complete copy of the resolutions of such
entity's Board of Directors approving and authorizing the execution, delivery
and performance of the Affiliate Party Acquisition Documents executed by such
entity and approving and authorizing, in the case of Grogan's Farm, Inc., the
merger with and into Merger Corp. and, in the case of Grogan's Sausage, Inc.,
the sale of substantially all of its assets to Merger Corp.
17. A copy of the Certificate of Merger filed with the Secretary of
State of Delaware, evidencing the merger of Grogan's Farm, Inc. with and into
Merger Corp., in the form filed with the Secretary of State of Delaware.
18. A copy of the Certificate or Articles of Merger filed with the
Secretary of State of Kentucky, evidencing the merger of Grogan's Farm, Inc.
with and into Merger Corp., in the form filed with the Secretary of State of
Kentucky.
19. A Certificate of the President of each of Grogan's Farm, Inc. and
Grogan's Sausage, Inc. and a letter from Bobby and Betty Grogan, in each case
dated the Consummation Date, certifying that (a) the applicable Affiliate Party
Acquisition Documents (including, without limitation, the Grogan's Merger Note)
are in full force and effect and no material term or condition thereof has been
amended, from the form thereof delivered to the Lender, or waived, except as
disclosed to the Lender or its counsel prior to the Consummation Date, (b) they
and, to the best of their knowledge, the other parties thereto have performed or
complied in all material respects with all agreements and conditions contained
in the applicable Affiliate Party Acquisition Documents and any agreements or
documents referred to therein required to be performed or complied with by each
of them on or before the requested funding on the Consummation Date, and (c)
subject to the foregoing, neither they nor, to the best of their knowledge, such
other parties are in default in the performance or compliance with any of the
material terms or provisions thereof (except to the extent that performance
thereof or compliance therewith or default has been waived with the prior
written consent of the Lender).
20. A Financial Condition Certificate dated the Consummation Date,
signed by the chief executive officer of each Borrower certifying, among other
things, that such Borrower is Solvent on the Consummation Date after giving
effect to any new funding under the Loan Agreement, the issuance of the Urogan's
Merger
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Note and any capital contribution noted in item 26 below as any of the
foregoing are required by the Affiliate Party Acquisition Documents and
consummation of the Grogan's Transaction and the consummation of the Arizona
Acquisition.
E. SUBORDINATED DEBT DOCUMENTS
21. Subordination Agreement covering the Grogan's Merger Note, together
with a copy of the Grogan's Merger Note.
F. OPINIONS
22. Opinion of Thomas D. Wippman, counsel to Borrowers, addressed to
the Lender.
23. Opinion of Gary B. Houston, counsel to Grogan's Farm, Inc.,
Grogan's Sausage, Inc. and Bobby and Betty Grogan, addressed to the Lender.
24. An opinion of local counsel with respect to the Grogan's Property,
addressed to the Lender.
G. ENVIRONMENTAL DOCUMENTS
25. Phase I Environmental Assessment Report on the Grogan's Property.
H. MISCELLANEOUS
26. Lender Loss Payable Endorsement(s) relating to casualty insurance
policies covering the Collateral obtained in the Grogan's Transaction or other
satisfactory evidence that such endorsements are effective (with copies of
certificates of insurance attached).
27. Certified copies of the proforma balance sheets of Borrowers as of
the Consummation Date, after giving effect to the Grogan's Transaction and the
Arizona Acquisition (together with current projected balance sheets and
forecasts of income, earnings and cash flow through 2000), which will be
attached to financial condition certificates.
28. [Payoff Letters - none]
29. A Certificate executed and delivered by the president or chief
operating officer and by the chief financial officer or treasurer of each
Borrower, certifying that, after giving effect to new funding under the Loan
Agreement, the issuance of the Grogan's Merger Note and any capital contribution
referred to in item 26 above as any of the foregoing are required by the
Affiliate Party Acquisition Documents and the consummation of the Grogan's
Transaction, no Event of Default or Default exists or would occur as a result
therefrom.
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30. Blocked Account Agreement with Merger Corp.'s local bank.
31. [NO BAILEE LETTER]
32. A copy of all Employment Agreements for chief executives of Merger
Corp.
I. UCC LIEN TAX AND JUDGMENT SEARCHES AND FILINGS
33. UCC lien, tax lien and judgment searches in the following offices,
where applicable, against Merger Corp., Urogan's Farm, Inc., Grogan's Sausage,
Inc. and Bobby and Betty Grogan:
a. County Clerk of Carlisle County, Kentucky
b. Secretary of State of Kentucky and other states in which
any of the foregoing conduct business
34. UCC-1 Financing Statements filed against Merger Corp. in the
following offices, together with acknowledgement copies or other evidence of
filing:
a. County Clerk of Carlisle County, Kentucky - regular filing
and fixture filing
b. Secretary of State of Kentucky and other states in which
Merger Corp. will conduct business
35. Vehicle Lien Statements or UCC-1 Financing Statements filed against
Merger Corp. and Grogan's Sausage, Inc. for the acquired vehicles, as
applicable, in the appropriate office as required by the state.
36. Post-Closing UCC Lien Searches against Merger Corp. in the
jurisdictions listed in items 33 and 34 above.
J. ACQUISITION DOCUMENTS
37. Amendment to Tax Sharing Agreement to take account of Grogan's
Transaction.
K. FURTHER MISCELLANEOUS
38. Post-Closing Undertaking Letter.
39. Certified copies of the Acquisition Documents.
40. Updated and corrected Schedules to the Loan Agreement.
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41. Certificate and Agreement, in the form of Exhibit O to the Loan
Agreement, executed by the Borrowers.
42. Certificate signed by the Chairman, Vice chairman or Chief
Executive Officer and the Chief Financial Officer or Treasurer of each Borrower
certifying that the conditions specified in Section 5 of the Second Amendment
have been fulfilled.
-25-
EXHIBIT O
FORM OF ARIZONA TERM NOTE
US $450,000 Dated: October __, 1996
FOR VALUE RECEIVED, the undersigned, ATLANTIC BEVERAGE
COMPANY, INC., a Delaware corporation, CARLTON FOODS CORP., a Delaware
corporation, PREFCO CORP., a Delaware corporation, RICHARDS CAJUN FOODS CORP., a
Delaware corporation, and GROGAN'S MERGER CORP., a Delaware corporation
(collectively referred to herein as the "Borrowers"), jointly and severally
hereby promise to pay to the order of LaSalle National Bank (the "Lender") the
principal amount of Four Hundred Fifty Thousand and 00/100 Dollars ($450,000).
Capitalized terms used herein have the meanings specified for such terms in the
Loan Agreement (as defined below).
The principal amount of this Arizona Term Note ("Term Note")
shall be payable on the earlier to occur of (a) the issuance of the Mezzanine
Debt and (b) April 15, 1997.
The Borrowers, jointly and severally, promise to pay interest
on the unpaid principal amount of this Term Note from the Funding Date with
respect hereto until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Loan Agreement.
Both principal and interest are payable in lawful money of the
United States of America to LaSalle National Bank, at 120 South LaSalle Street,
Chicago, Illinois 60603, in same day funds. All payments made on account of
principal hereof shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Term Note.
This Term Note is one of the Term Notes referred to in, and is
entitled to the benefits of, the Loan and Security Agreement dated as of March
15, 1996 (as amended by the First Amendment to Loan and Security Agreement dated
as of August 1, 1996, and by the Second Amendment to Loan and Security Agreement
dated as of October 17, 1996, and all further amendments, modifications,
changes, supplements, renewals or replacements, the "Loan Agreement") by and
between the Borrowers and the Lender. The Loan Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
-26-
IN WITNESS WHEREOF, the undersigned have executed this Term
Note.
ATLANTIC BEVERAGE COMPANY, INC.
By:__________________________________
Merrick M. Elfman
Title: Chairman
CARLTON FOODS CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
PREFCO CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
RICHARDS CAJUN FOODS CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
GROGAN'S MERGER CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
-27-
EXHIBIT R
FORM OF SUBSTITUTE REVOLVING CREDIT NOTE
US $8,500,000 Dated: October 17, 1996
FOR VALUE RECEIVED, the undersigned, ATLANTIC BEVERAGE
COMPANY, INC., a Delaware corporation, CARLTON FOODS CORP., a Delaware
corporation, PREFCO CORP., a Delaware corporation, RICHARDS CAJUN FOOD CORP., a
Delaware Corporation and GROGAN'S MERGER CORP., a Delaware corporation
(collectively referred to herein as the "Borrowers"), jointly and severally
hereby promise to pay to the order of LaSalle National Bank (the "Lender") the
principal amount of each Revolving Loan (as defined in the Loan Agreement
referred to below) made by the Lender to the Borrowers pursuant to the Loan
Agreement (as defined below) when required by the Loan Agreement and in full on
the Revolving Credit Termination Date (as defined in the Loan Agreement).
Capitalized terms used herein have the meanings specified in the Loan Agreement
(as defined below).
The Borrowers, jointly and severally, promise to pay interest
on the unpaid principal amount of each Revolving Loan from the date of such Loan
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Loan Agreement.
Both principal and interest are payable in lawful money of the
United States of America to LaSalle National Bank, at 120 South LaSalle Street,
Chicago, Illinois 60603, in same day funds. Each Revolving Loan made by the
Lender to the Borrowers and the maturity thereof, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Revolving Loan Note.
This Substitute Revolving Credit Note is the Revolving Credit
Note referred to in, and is entitled to the benefits of, the Loan and Security
Agreement dated as of March 15, 1996 (as amended by the First Amendment to Loan
and Security Agreement dated as of August 1, 1996, by the Second Amendment to
Loan and Security Agreement dated as of October 17, 1996 and by all further
amendments, modifications, changes, supplements, renewals or replacements, the
"Loan Agreement") by and among the Borrowers and the Lender. The Loan Agreement,
among other things, (i) provides for the making of Revolving Loans by the Lender
to the Borrowers from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned, the indebtedness
of the Borrowers resulting from each such Revolving Loan being
- -28-
evidenced by this Substitute Revolving Credit Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
The unpaid balance of the indebtedness evidenced, until the
date hereof, by that certain Substitute Revolving Credit Note dated August 1,
1996 in the original principal amount of $7,500,000 (the "Original Note") made
by the Borrowers and delivered to the Lender remains outstanding as of the date
hereof and shall continue to be secured pursuant to the terms of the Loan
Agreement and the Loan Documents (as defined in the Loan Agreement). The
principal balance of this Note includes all of the Borrowers' indebtedness
evidenced, until the date hereof, by the Original Note, is given in substitution
for, and not as payment of the Original Note, and is not intended to constitute
a novation of the Original Note.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this
Substitute Revolving Credit Note.
ATLANTIC BEVERAGE COMPANY, INC.
By:__________________________________
Merrick M. Elfman
Title: Chairman
PREFCO CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
CARLTON FOODS CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
RICHARDS CAJUN FOODS CORP.
By:__________________________________
Merrick M. Elfman
Title: Chairman
GROGAN'S MERGER CORP.
By:_________________________________
Merrick M. Elfman
Title: Chairman
Type Amount Interest Amount Unpaid
of of Period of Principal Notation
Date Loan Loan (if applicable) Principal Paid Balance made by
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