Exhibit 10
AGREEMENT OF AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
AND OTHER DOCUMENTS
This Agreement of Amendment to Loan and Security Agreement and Other
Documents ("Amendment") is effective April 18, 2005 by and among FLEET NATIONAL
BANK, a Bank of America Company, and successor in interest to Fleet Capital
Corporation, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Lender"), PURE
WORLD BOTANICALS, INC., a Delaware Corporation with its chief executive office
and principal place of business at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxx
Xxxxxx, 00000 ("Borrower"); and PURE WORLD, INC., conducting business at 000
Xxxx Xxxxxx, XX Xxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Creditor").
RECITALS
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A. Borrower has executed and delivered a certain (i) Revolving Credit Note
dated December 22, 2003 in the maximum principal sum of Five Million Dollars
($5,000,000) ("Revolving Credit Note"); (ii) Secured Promissory Note dated
December 22, 2003 in the maximum principal sum of Two Million Dollars
($2,000,000) ("Secured Promissory Note") and (iii) Equipment Loan Note dated
December 22, 2003 in the maximum principal sum of Five Hundred Thousand Dollars
($500,000) ("Equipment Loan Note"), payable to the order of Lender. The
Revolving Credit Note, Secured Promissory Note and Equipment Loan Note are
referred to collectively as the "Note."
B. In connection with the execution and delivery of the Note and to secure
payment and performance of the Note and other obligations of Borrower to Lender,
the Lender and Borrower have executed, among other things, a Loan and Security
Agreement dated December 22, 2003 ("Loan Agreement").
C. In addition to the foregoing documents, the Borrower, Lender and
Creditor have executed a certain Subordination Agreement dated December 22, 2003
relating to loans made to the Borrower by the Creditor ("Subordination
Agreement").
D. In addition to the foregoing documents, the Borrower, Lender and/or
Creditor have executed or delivered other collateral agreements, certificates
and instruments perfecting or otherwise relating to the security interests
created. For purposes of convenience, the Note, Loan Agreement, Subordination
Agreement and related collateral agreements, certificates and instruments are
collectively referred to as the "Loan Documents".
E. Borrower has requested a modification of the loan evidenced by the Note
subject to the Loan Documents.
F. Lender and Borrower wish to clarify their rights and duties to one
another as set forth in the Loan Documents.
NOW, THEREFORE, in consideration of the promises, covenants and
understandings set forth in this Amendment and the benefits to be received from
the performance of such promises, covenants and understandings, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENTS
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1. Lender and Borrower and Creditor reaffirm, consent and agree to all of the
terms and conditions of the Loan Documents as binding, effective and
enforceable according to their stated terms, except to the extent that such
Loan Documents are hereby expressly modified by this Amendment.
2. In the case of any ambiguity or inconsistency between the Loan Documents
and this Amendment, the language and interpretation of this Amendment is to be
deemed binding and paramount.
3. It is agreed and understood that references to Borrowing Base, Borrowing
Base Certificate, Eligible Accounts and Eligible Inventory are hereby
deleted. The Borrower and Lender agree that the Revolving Credit Loans are
no longer based on a borrowing formula and the aggregate of all Revolving
Credit Loans may not exceed at any time Five Million ($5,000,000.00)
Dollars.
4. The Loan Documents (and any exhibits thereto) are hereby amended as
follows:
A. As to the Loan Agreement:
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1. The Equipment Loan Amortization Date set forth in paragraph 1.2.2(ii)(2)
is hereby amended to December 21, 2005.
2. Paragraph 2.1.1 is hereby amended to read as follows:
2.1.1 Rates of Interest. Interest shall accrue on the principal amount
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of the (i) Base Rate Advances outstanding at the end of each day at a
fluctuating rate per annum equal to the Base Rate and on the LIBOR
Advances outstanding at the end of each day at a fixed rate per annum
equal to 2.00% plus the LIBOR for the applicable Interest Period; (ii)
Term Loan outstanding at the end of each day at a fluctuating rate per
annum equal to the Base Rate; and (iii) Equipment Loans outstanding at
the end of each day at a fluctuating rate per annum equal to the Base
Rate. The rate of interest applicable to the Base Rate shall increase
or decrease by an amount equal to any increase or decrease in the Base
Rate, effective as of the opening of business on the day that any such
change in the Base Rate occurs.
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3. Paragraph 2.6 is hereby deleted in its entirety.
4. Paragraph 2.7 is hereby amended to read as follows:
2.7 Appraisal Fees. Borrower shall pay to Lender appraisal fees in
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accordance with Lender's current schedule of fees in effect from time
to time in connection with appraisals and such other matters as Lender
shall deem appropriate, plus all out-of-pocket expenses incurred by
Lender in connection with such appraisals. Such fees shall be payable
on the first day of the month following the date of issuance by Lender
of a request for payment thereof to Borrower. After the occurrence of
an Event of Default, such fees shall be subject to change as Lender
shall determine.
5. Paragraphs 3.1.4, 3.1.5, 3.1.6 and 3.1.7 are hereby added to the Loan
Agreement, as follows:
3.1.4 LIBOR Advances. Notwithstanding the provisions of subsection
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3.1.1, in the event Borrower desires to obtain a LIBOR Advance,
Borrower shall give Lender prior, written, irrevocable notice no later
than 11:00 A.M. New York City Time on the 2nd Business Day prior to
the requested borrowing date specifying (i) Borrower's election to
obtain a LIBOR Advance, (ii) the date of the proposed borrowing (which
shall be a Business Day) and (iii) the amount to be borrowed, which
amount shall be in a minimum principal amount of $100,000.00 and may
increase in integral multiples of $100,000.00. In no event shall
Borrower be permitted to have outstanding at any one time LIBOR
Advances with more than five (5) different Interest Periods.
3.1.5 Conversion of Base Rate Advances. Provided that no Default has
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occurred which is then continuing, Borrower may, on any Business Day,
convert any Base Rate Advance into a LIBOR Advance. If Borrower
desires to convert a Base Rate Advance, Borrower shall give Lender not
less than two (2) Business Days' prior written notice (prior to 11:00
A.M. New York City Time on such Business Day), specifying the date of
such conversion and the amount to be converted. Each conversion into
or conversion of a LIBOR Advance shall be in a minimum principal
amount of $100,000.00 and may increase in integral multiples of
$100,000.00 in excess thereof. After giving effect to any conversion
of Base Rate Advances to LIBOR Advances, Borrower shall not be
permitted to have outstanding at any one time LIBOR Advances with more
than five (5) different Interest Periods.
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3.1.6 Continuation of LIBOR Advances. Borrower shall have the right on
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two (2) Business Days' prior irrevocable written notice given to
Lender by Borrower (prior to 11:00 A.M. New York City Time on such
Business Day), subject to the provisions hereof, to continue any LIBOR
Advance into a subsequent Interest Period of the same or a different
permitted duration, in each case subject to the satisfaction of the
following conditions:
(i) in the case of a continuation of less than all LIBOR
Advances, the LIBOR Advances continued shall each be in a minimum
principal amount of $100,000.00 and may increase in integral multiples
of $100,000.00; and
(ii) no LIBOR Advance (or portion thereof) may be continued as a LIBOR
Advance if a Default has occurred which is then continuing or if,
after giving effect to such continuation, Borrower shall have
outstanding more than five (5) separate LIBOR Advances in the
aggregate.
If Borrower shall fail to give timely notice of its election to
continue any LIBOR Advance or portion thereof as provided above, or if
such continuation shall not be permitted, such LIBOR Advance or
portion thereof, unless such LIBOR Advance shall be repaid, shall
automatically be converted into a Base Rate Advance at the end of the
Interest Period then in effect with respect to such LIBOR Advance.
3.1.7 Inability to Make LIBOR Advances. Notwithstanding any other
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provision hereof, if any applicable law, treaty, regulation or
directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for Lender (for purposes
of this subsection 3.1.7, the term "Lender" shall include the office
or branch where Lender or any corporation or bank then controlling any
Lender makes or maintains any LIBOR Advances) to make or maintain its
LIBOR Advances, or if with respect to any Interest Period, Lender is
unable to determine the LIBOR relating thereto, or adverse or unusual
conditions in, or changes in applicable law relating to, the London
interbank market make it, in the reasonable judgment of Lender,
impracticable to fund therein any of the LIBOR Advances, or make the
projected LIBOR unreflective of the actual costs of funds therefor to
Lender, the obligation of Lender to make LIBOR Advances hereunder
shall forthwith be suspended during the pendency of such circumstances
and Borrower shall, if any affected LIBOR Advances are then
outstanding, promptly upon request from Lender, convert such affected
LIBOR Advances into Base Rate Advances.
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6. Paragraph 3.2.5 is hereby added to the Loan Agreement, as follows:
3.2.5 Prepayment of LIBOR Advances. Borrower may prepay a LIBOR
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Advance only upon at least three (3) Business Days prior written
notice to Lender (which notice shall be irrevocable), and any such
prepayment shall occur only on the last day of the Interest Period for
such LIBOR Advance. Borrower shall pay to Lender, upon request of
Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of Lender) to compensate Lender for any loss, cost,
or expense incurred as a result of: (i) any payment of a LIBOR Advance
on a date other than the last day of the Interest Period for such
Loan; (ii) any failure by Borrower to borrow a LIBOR Advance on the
date specified by Borrower's written notice; or (iii) any failure by
Borrower to pay a LIBOR Advance on the date for payment specified in
Borrower's written notice. Without limiting the foregoing, Borrower
shall pay to Lender a "yield maintenance fee" in an amount computed as
follows: the current rate for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the Interest Period chosen pursuant to the
LIBOR Advance as to which the prepayment is made, shall be subtracted
from the LIBOR in effect at the time of prepayment. If the result is
zero or a negative number, there shall be no yield maintenance fee. If
the result is a positive number, then the resulting percentage shall
be multiplied by the amount of the principal balance being prepaid.
The resulting amount shall be divided by 360 and multiplied by the
number of days remaining in the Interest Period chosen pursuant to the
LIBOR Advance as to which the prepayment is made. Said amount shall be
reduced to present value calculated by using the above referenced
United States Treasury securities rate and the number of days
remaining in the term chosen pursuant to the LIBOR Advance as to which
prepayment is made. The resulting amount shall be the yield
maintenance fee due to Lender upon the prepayment of a LIBOR Advance.
If by reason of an Event of Default, Lender elects to declare the
Obligations to be immediately due and payable, then any yield
maintenance fee with respect to a LIBOR Advance shall become due and
payable in the same manner as though the Borrower had exercised such
right of prepayment. Borrower may prepay a Base Rate Advance at any
time without premium or penalty.
7. Paragraph 3.8 is hereby amended to read as follows:
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3.8 Increased Costs. If any law or any governmental or
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quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) adopted after the date of
this Agreement and having general applicability to all banks within
the jurisdiction in which Lender operates (excluding, for the
avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the
date of this Agreement), or any interpretation or application thereof
by any governmental authority charged with the interpretation or
application thereof, or the compliance of Lender therewith, shall:
(i) (1) subject Lender to any tax with respect to this Agreement
(other than (a) any tax based on or measured by net income or
otherwise in the nature of a net income tax, including, without
limitation, any franchise tax or any similar tax based on
capital, net worth or comparable basis for measurement and (b)
any tax collected by a withholding on payments and which neither
is computed by reference to the net income of the payee nor is in
the nature of an advance collection of a tax based on or measured
by the net income of the payee) or (2) change the basis of
taxation of payments to Lender of principal, fees, interest or
any other amount payable hereunder or under any Loan Documents
(other than in respect of (a) any tax based on or measured by net
income or otherwise in the nature of a net income tax, including,
without limitation, any franchise tax or any similar tax based on
capital, net worth or comparable basis for measurement and (b)
any tax collected by a withholding on payments and which neither
is computed by reference to the net income of the payee nor is in
the nature of an advance collection of a tax based on or measured
by the net income of the payee);
(ii) impose, modify or hold applicable any reserve (except any
reserve taken into account in the determination of the applicable
LIBOR), special deposit, assessment or similar requirement
against assets held by, or deposits in or for the account of,
advances or loans by, or other credit extended by, any office of
Lender, including (without limitation) pursuant to Regulation D
of the Board of Governors of the Federal Reserve System; or
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(iii) impose on Lender or the London interbank market any other
condition with respect to any Loan Document;
and the result of any of the foregoing is to increase the cost to
Lender of making, renewing or maintaining Loans hereunder by an amount
that Lender deems to be material or to reduce the amount of any
payment (whether of principal, interest or otherwise) in respect of
any of the Loans by an amount that Lender deems to be material, then,
in any such case, Borrower shall pay Lender, upon demand and
certification not later than sixty (60) days following its receipt of
notice of the imposition of such increased costs, such additional
amount as will compensate Lender for such additional cost or such
reduction, as the case may be, to the extent Lender has not otherwise
been compensated, with respect to a particular Loan, for such
increased cost as a result of an increase in the Base Rate or the
LIBOR. An officer of Lender shall determine the amount of such
additional cost or reduced amount using reasonable averaging and
attribution methods and shall certify the amount of such additional
cost or reduced amount to Borrower, which certification shall include
a written explanation of such additional cost or reduction to
Borrower. Such certification shall be conclusive absent manifest
error. If Lender claims any additional cost or reduced amount pursuant
to this Section 3.8, then Lender shall use reasonable efforts
(consistent with legal and regulatory restrictions) to designate a
different lending office or to file any certificate or document
reasonably requested by Borrower if the making of such designation or
filing would avoid the need for, or reduce the amount of, any such
additional cost or reduced amount and would not, in the sole
discretion of Lender, be otherwise disadvantageous to Lender.
8. The following is hereby added as Paragraph 3.9 to the Loan Agreement:
3.9 Basis for Determining Interest Rate Inadequate or Unfair. In the
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event that Lender shall have determined that:
(i) reasonable means do not exist for ascertaining the LIBOR for
any Interest Period; or
(ii) Dollar deposits in the relevant amount and for the relevant
maturity are not available in the London interbank market with
respect to a proposed LIBOR Advance, or a proposed conversion of
a Base Rate Advance into a LIBOR Advance; then
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Lender shall give Borrower prompt written, telephonic or
electronic notice of the determination of such effect. If such
notice is given, (i) any such requested LIBOR Advance shall be
made as a Base Rate Advance, unless Borrower shall notify Lender
no later than 10:00 A.M. (New York City Time) two (2) Business
Days prior to the date of such proposed borrowing that the
request for such borrowing shall be canceled, and (ii) any Base
Rate Advance which was to have been converted to a LIBOR Advance
(which is not able to be made as a result of the conditions in
(i) or (ii) above), shall be continued as or converted into a
Base Rate Advance.
9. Paragraph 6.2.5 and Paragraph 6.2.6 are hereby deleted in their
entirety.
10. Paragraph 6.3.1 is hereby amended to read as follows:
6.3.1 Records and Reports of Inventory. Borrower shall keep
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accurate and complete records of its Inventory. Borrower shall
furnish to Lender Inventory reports in form and detail
satisfactory to Lender at such times as Lender may request, but
in no event later than forty-five (45) days after the end of each
quarter. Borrower shall conduct a physical inventory no less
frequently than annually and shall provide to Lender a report
based on each such physical inventory promptly thereafter,
together with such supporting information as Lender shall
request.
11. Paragraph 8.1.3(ii) is hereby amended to read as follows:
(ii) not later than forty-five (45) days after the end of each
quarter hereafter, and including the last quarter of Borrower's
fiscal year, management prepared interim financial statements of
Borrower and its Subsidiaries as of the end of such quarter and
of the portion of Borrower's financial year then elapsed, on a
Consolidated and consolidating basis, certified by the principal
financial officer of Borrower as prepared in accordance with GAAP
and fairly presenting the Consolidated financial position and
results of operations of Borrower and its Subsidiaries for such
quarter and period subject only to changes from audit and
year-end adjustments and except that such statements need not
contain notes;
12. Paragraph 8.1.3(iii) is hereby deleted with no material placed in its
stead.
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13. Paragraph 8.1.3(iv) is hereby deleted in its entirety with no material
placed in its stead.
14. Paragraph 8.1.3(v) is hereby amended to read as follows:
(v) not later than thirty (30) days after the end of each
quarter, a detailed Account receivable aging report and Accounts
payable aging report as of the last day of the preceding quarter,
along with a loan recapitulation report and loan/Accounts
receivable reconciliation report substantially in the form of
Exhibit R attached hereto and calculation of Accounts that fail
to meet the requirements of Eligible Accounts, in form and
substance satisfactory to Lender;
15. The General Definitions in Appendix A for Blocked Account Servicing
Agreement and Dominion Account are hereby deleted in their entirety.
16. The following General Definitions are hereby added to Appendix A:
Base Rate Advances - any Loan bearing interest computed by
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reference to the Base Rate.
Interest Period - as applicable to any LIBOR Advance, a period
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commencing on the date a LIBOR Advance is made, and ending on the
date which is one (1) month, two (2) months, three (3) months, or
six (6) months later, as may then be requested by Borrower;
provided that (i) any Interest Period which would otherwise end
on a day which is not a Business Day shall end in the next
preceding or succeeding Business Day as is Lender's custom in the
market to which such LIBOR Advance relates; (ii) there remains a
minimum of one (1) month, two (2) months, three (3) months or six
(6) months (depending upon which Interest Period Borrower
selects) in the Original Term (or any Renewal Term then in
effect); and (iii) all Interest Periods of the same duration
which commence on the same date shall end on the same date.
LIBOR - as applicable to any LIBOR Advance, the rate per annum
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(rounded upward, if necessary, to the nearest 1/32 of one
percent) as determined on the basis of the offered rates for
deposits in U.S. dollars, for a period of time comparable to such
LIBOR Advance which appears on the Telerate page 3750 as of 11:00
a.m. (London time) on the day that is two (2) London Banking Days
preceding the first day of such LIBOR Advance; provided, however,
if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR
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rate shall be the rate (rounded upwards as described above, if
necessary) for deposits in U.S. dollars for a period
substantially equal to the interest period on the Reuters Page
"LIBO" (or such other page as may replace the LIBO Page on that
service for the purpose of displaying such rates), as of 11:00
a.m. (London Time), on the day that is two (2) London Banking
Days prior to the beginning of such interest period. If both the
Telerate and Reuters systems are unavailable, then the rate for
that date will be determined on the basis of the offered rates
for deposits in U.S. dollars for a period of time comparable to
such LIBOR Advance which are offered by four (4) major banks in
the London interbank market at approximately 11:00 a.m. (London
time), on the day that is two (2) London Banking Days preceding
the first day of such LIBOR Advance as selected by Lender. The
principal London office of each of the major London Banks so
selected will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two (2) such quotations
are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as
requested, the rate for that date will be determined on the basis
of the rates quoted for loans in U.S. dollars to leading European
banks for a period of time comparable to such LIBOR Advance
offered by major banks in New York City at approximately 11:00
a.m. (New York City time), on the day that is two (2) London
Banking Days preceding the first day of such LIBOR Advance. In
the event that Lender is unable to obtain any such quotation as
provided above, it will be determined that LIBOR pursuant to a
LIBOR Advance cannot be determined. In the event that the Board
of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Bank then for any
period during which such Reserve Percentage shall apply, LIBOR
shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage.
LIBOR Advance - any Loan bearing interest computed by reference
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to the LIBOR.
Reserve Percentage - the maximum aggregate reserve requirement
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(including all basic, supplemental, marginal and other reserves)
which is imposed on member banks of the Federal Reserve System
against "Euro-currency Liabilities" as defined in Regulation D.
London Banking Day - any date on which commercial banks are open
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for business in London, England.
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5. Borrower and the Creditor represent and warrant that there are no defaults or
events of default pursuant to or defined in any of the Loan Documents, and that
all warranties and covenants which have been made or performed by Borrower or
the Creditor in connection with the Loan Documents were true and complete when
made or performed.
6. The Loan Documents are hereby amended to provide that a default, breach or
failure on the part of either the Borrower or the Creditor to perform any
covenant or condition hereunder or an event of default otherwise defined in
either this Amendment or any document executed in connection with this Amendment
is to be deemed an event of default for purposes of the Loan Documents.
7. All representations, warranties and covenants made by Borrower and Creditor
to Lender in the Loan Documents are hereby repeated as though first made
expressly in this Amendment, it being understood that the Borrower has provided
Lender with an update of current trademark applications.
8. Except as otherwise provided herein, the Loan Documents shall continue in
full force and effect, in accordance with their respective terms. The parties
hereto hereby expressly confirm and reaffirm all of their respective
liabilities, obligations, duties and responsibilities under and pursuant to said
Loan Documents and consent to the terms of this Amendment. Capitalized terms
used in this Amendment which are not otherwise defined herein have the meaning
ascribed thereto in the Loan Documents.
9. The parties agree to sign, deliver and file any additional documents and take
any other actions that may reasonably be required by Lender, including, but not
limited to, affidavits, resolutions, or certificates for a full and complete
consummation of the matters covered by this Amendment. The execution of this
Amendment is not intended to imply or infer an agreement or consent by Lender to
further amend the Loan Documents at any time hereafter.
10. This Amendment is binding upon, inures to the benefit of, and is enforceable
by the heirs, personal representatives, successors and assigns of the parties.
This Amendment is not assignable by Borrower or Creditor without the prior
written consent of Lender.
11. To the extent that any provision of this Amendment is determined by any
court or legislature to be invalid or unenforceable in whole or part either in a
particular case or in all cases, such provision or part thereof is to be deemed
surplusage. If that occurs, it does not have the effect of rendering any other
provision of this Amendment invalid or unenforceable. This Amendment is to be
construed and enforced as if such invalid or unenforceable provision or part
thereof were omitted.
12. This Amendment may only be changed or amended by a written agreement signed
by all of the parties. By the execution of this Amendment, Lender is not to be
deemed to consent to any future renewal or extension of the loan.
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13. This Amendment is governed by and is to be construed and enforced in
accordance with the laws of New Jersey as though made and to be fully performed
in New Jersey (without regard to the conflicts of law rules of New Jersey).
14. The parties to this Amendment acknowledge that each has had the opportunity
to consult independent counsel of their own choice, and that each has relied
upon such counsel's advice concerning this Amendment, the enforceability and
interpretation of the terms contained in this Amendment and the consummation of
the transactions and matters covered by this Amendment.
THE BORROWER, FOR ITSELF, ITS SUBSIDIARIES (IF ANY), THE CREDITOR AND
LENDER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATING TO
THIS AMENDMENT OR THE OBLIGATIONS AS AN INDUCEMENT TO THE EXECUTION OF THIS
AMENDMENT.
IN WITNESS WHEREOF, the parties have signed this Amendment.
Attest: PURE WORLD BOTANICALS, INC.
/s/ Xxxxxx X'Xxxxxx By:/s/ Xxx Xxx Xxxxxxx
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XXXXXX X'XXXXXX XXX XXX XXXXXXX
Controller Chief Financial Officer
Attest/Witness PURE WORLD, INC.
/s/ Xxxxxxx X. Xxxxxxxx By:/s/ Xxx Xxx Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxxx XXX XXX XXXXXXX
Title: Controller Chief Financial Officer
FLEET NATIONAL BANK,
A Bank of America Company
By:/s/ Xxxxxx Xxxxxxxx Sandler
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XXXXXX XXXXXXXX XXXXXXX
Vice President and
Credit Products Officer
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