Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is made and
entered into as of ______________, 2001 by and between XXXXX BROTHERS, INC., a
Delaware corporation ("PBI"), XXXXX BROTHERS ARIZONA, INC., an Arizona
corporation ("PBAI"), XXXXX BROTHERS DISTRIBUTING, INC., an Arizona corporation
("PBDI"), TEJAS PB DISTRIBUTING, INC., an Arizona corporation ("TEJAS"), XXXXX
BROTHERS - BLUFFTON, LLC (formerly known as Wabash Foods, LLC ("WABASH")), a
Delaware limited liability company ("PBB"), BOULDER NATURAL FOODS, INC., an
Arizona corporation ("BOULDER"), and BN FOODS, INC., a Colorado corporation
("BNF") (PBI, PBAI, PBDI, Tejas, PBB, Boulder and BNF each a "BORROWER" and
collectively the "BORROWER" or the "BORROWERS"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, successor in interest to U.S.
BANCORP REPUBLIC COMMERCIAL FINANCE, INC., a Minnesota corporation (the
"LENDER").
RECITALS:
A. PBI, PBAI, PBDI, Tejas, PBB (as Wabash) and the Lender entered into a
certain Credit Agreement dated as of October 3, 1999, as amended by that certain
First Amendment to Credit Agreement dated as of June 30, 2000 (as amended, the
"CREDIT AGREEMENT"). All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Credit Agreement.
B. Boulder became a party to, and a "Borrower" under, the Credit Agreement
pursuant to the terms and conditions of that certain Joinder Agreement dated as
of June 7, 2000 by and between Boulder, Lender, PBI, PBAI, PBDI, Tejas and PBB
(as Wabash).
C. BNF became a party to, and a "Borrower" under, the Credit Agreement
pursuant to the terms and conditions of that certain Joinder Agreement dated as
of June 30, 2000 by and between BNF, Lender, PBI, PBAI, PBDI, Tejas, PBB (as
Wabash) and Boulder.
D. The Borrowers have requested the Lender to amend the Credit Agreement to
provide a temporary ninety (90) day increase in the Revolving Commitment Amount
(as defined in the Credit Agreement). The Lender has agreed to do so upon the
terms and subject to the conditions herein set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for One Dollar and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DELIVERY OF DOCUMENTS. At or prior to the execution of this Amendment,
Borrowers shall have delivered or caused to be delivered to the Lender the
following documents each dated such date and in form and substance satisfactory
to the Lender and duly executed by all appropriate parties:
(a) This Amendment.
(b) Revolving Note in the form attached hereto.
(c) Acknowledgment and Consent of Subordinated Lender from Xxxxx
Fargo Small Business Investment Company, Inc. in the form
attached hereto.
(d) The Articles of Merger of PBDI with and into PBI, for filing with
the State of Arizona;
(e) The Plan and Agreement of Merger of PBDI with and into PBI;
(f) The Certificate of Ownership and Merger of PBDI with and into
PBI, for filing with the State of Delaware;
(g) The Unanimous Consent of the Directors of PBDI authorizing the
merger transaction contemplated by the documents listed in items
1(d)-1(f) above;
(h) The Unanimous Consent of Directors of PBI authorizing the merger
transaction contemplated by the documents listed in items
1(d)-(f) above;
(i) UCC-3 Financing Statement relating to that certain UCC-1
Financing Statement filed with the Arizona Secretary of State on
September 16, 1999 as Document No. 01084753 showing PBDI, as
Debtor, and Lender, as Secured Party, which UCC-3 Financing
Statement amends such UCC-1 Financing Statement by changing the
Debtor's name from PBDI to PBI;
(j) The Articles of Merger of PBAI with and into PBI, for filing with
the State of Arizona;
(k) The Plan and Agreement of Merger of PBAI with and into PBI;
(l) The Certificate of Ownership and Merger of PBAI with and into
PBI, for filing with the State of Delaware;
(m) The Unanimous Consent of the Directors of PBAI authorizing the
merger transaction contemplated by the documents listed in items
1(j)-1(l) above;
(n) The Unanimous Consent of Directors of PBI authorizing the merger
transaction contemplated by the documents listed in items
1(j)-(l) above;
(o) UCC-3 Financing Statement relating to that certain UCC-1
Financing Statement filed with the Arizona Secretary of State on
September 16, 1999 as Document No. 01084752 showing PBAI, as
Debtor, and Lender, as Secured Party, which UCC-3 Financing
Statement amends such UCC-1 Financing Statement by changing the
Debtor's name from PBAI to PBI;
(p) The Certificate of Name Change, together with proof of filing
with the State of Delaware showing the change of name of Wabash
to PBB;
(q) UCC-3 Financing Statement relating to that certain UCC-1
Financing Statement filed with the Delaware Secretary of State on
March 30, 1998 as Document No. 9813046 showing Wabash, as Debtor,
and Lender, as Secured Party, which UCC-3 Financing Statement
2
amends such UCC-1 Financing Statement by changing the Debtor's
name from Wabash to PBB;
(r) Evidence of the conversion of the subordinated debt previously
held by Renaissance Capital Growth and Income Fund III, Inc. into
capital stock of PBI; and
(s) Such other documents or instruments as the Lender may reasonably
require, including, without limitation, any financing statements,
notices or other instruments, required by Lender to evidence or
perfect more effectively the security interest of Lender in the
Collateral (as that term is defined in the Security Agreement).
2. AMENDMENTS.
Section 2.1. DEFINED TERMS.
(a) The following definition is hereby added to Section 1.1 of the
Credit Agreement:
"REVOLVING COMMITMENT AMOUNT":
(a) as of any date of determination from February 12, 2001
through and including May 13, 2001, and amount equal to
$4,000,000; and
(b) as of any date of determination after May 13, 2001, an
amount equal to $3,000,000."
Section 2.2 REVISIONS TO REVOLVING LINE OF CREDIT.
Section 2.1(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"2.1(a) REVOLVING CREDIT. A revolving loan (the "Revolving Loan")
to the Borrower available as advances ("Advances") at any time and
from time to time from the Closing Date to October 3, 2002 (the
"Revolving Maturity Date"), during which period the Borrower may
borrow, repay, and reborrow in accordance with the provisions hereof,
PROVIDED, that the unpaid principal amount of revolving Advances shall
not exceed the lesser of (i) the Revolving Commitment Amount, and (ii)
the Borrowing Base."
3. CONTINUING OBLIGATION; REPRESENTATIONS. To induce the Lender to
enter into this Amendment, the Borrowers represent and warrant to the Lender as
follows:
Section 3.1 CONTINUING OBLIGATION. Borrowers acknowledge and agree
that they remain obligated for the payment of indebtedness evidenced and
secured by the Credit Agreement and the other Loan Documents, and agree to
be bound by and to perform all of the covenants and agreements set forth in
said documents and instruments, as the same may be amended by this
Amendment.
Section 3.2 REAFFIRMATION OF REPRESENTATIONS. Borrowers hereby restate
and reaffirm all representations, warranties and covenants contained in the
Credit Agreement and the Loan Documents, the same as if such covenants,
representations and warranties were made by Borrowers on the date hereof.
3
4. MERGER DOCUMENTS. Upon filing of the documents listed in Sections
1.1(d) and 1.1(f), and/or the documents listed in Sections 1.1(j) and 1.1(l),
with the Arizona Secretary of State and the Delaware Secretary of State,
Borrower agrees to promptly inform Lender of such filing, and Borrower further
agrees to deliver to the Lender, within ten (10) days of such filing, true
copies of such filed documents bearing proof of filing with the respective
Secretaries of State.
5. FEES AND EXPENSES. The Borrowers agree to pay or reimburse the
Lender for all reasonable out-of-pocket expenses (including, without limitation,
reasonable attorneys' fees, and out-of-pocket disbursements of Lender's legal
counsel) incurred by the Lender in connection with this Amendment and related
documents.
6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in two or
more counterparts each of which shall be an original and all of which shall
constitute but one and the same instrument.
7. REFERENCES. All references to the Credit Agreement in any document
or instrument are hereby amended and shall refer to the Credit Agreement as
amended by this Amendment. Except as amended hereby, the provisions of the
Credit Agreement shall remain unmodified and in full force and effect.
[Remainder of page intentionally left blank;
Signature pages follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Credit Agreement be executed as of the day and year first above written.
BORROWERS: XXXXX BROTHERS, INC.,
a Delaware corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS ARIZONA, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS DISTRIBUTING, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
TEJAS PB DISTRIBUTING, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS - BLUFFTON, LLC,
a Delaware limited liability company
(formerly known as Wabash Foods, LLC)
By
---------------------------------------
Its
--------------------------------------
BOULDER NATURAL FOODS, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
BN FOODS, INC.,
a Colorado corporation
By
---------------------------------------
Its
--------------------------------------
LENDER: U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By
---------------------------------------
Its
--------------------------------------
5
ACKNOWLEDGMENT AND CONSENT OF SUBORDINATED LENDER
XXXXX FARGO SMALL BUSINESS INVESTMENT COMPANY, INC., a California
corporation ("XXXXX FARGO") hereby acknowledges and agrees that the attached
Revolving Note and the increase in the Revolving Commitment Amount to $4,000,000
under the Credit Agreement (and any amounts borrowed by Borrowers pursuant to
such increase) and any other loans, advances or other financial accommodations
now or hereafter made by the Lender to any one or more of the Borrowers
(collectively, the "ADDITIONAL CREDIT") shall constitute "Senior Debt" as that
term is defined in that certain Subordination Agreement (Debt and Security)
dated October 3, 1999 by and between Xxxxx Fargo and U.S. BANCORP REPUBLIC
COMMERCIAL FINANCE, INC, a Minnesota corporation, predecessor in interest to
U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
"SUBORDINATION AGREEMENT"). Accordingly, Xxxxx Fargo hereby expressly
acknowledges and agrees that any obligation now or hereafter owed by any one or
more of the Borrowers to Xxxxx Fargo is and shall be subordinate to the
Additional Credit and the other Senior Debt in accordance with the terms and
conditions set forth in the Subordination Agreement.
XXXXX FARGO SMALL BUSINESS
INVESTMENT COMPANY, INC.
By:
-------------------------------------------
Its:
------------------------------------------
6
REVOLVING NOTE
$4,000,000 ______________, 2001
FOR VALUE RECEIVED, XXXXX BROTHERS, INC., a corporation organized under the
laws of the State of Delaware ("PBI"), XXXXX BROTHERS ARIZONA, INC., an Arizona
corporation ("PBAI"), XXXXX BROTHERS DISTRIBUTING, INC., an Arizona corporation
("PBDI"), TEJAS PB DISTRIBUTING, INC., an Arizona corporation ("Tejas") and
XXXXX BROTHERS - BLUFFTON, LLC (formerly known as Wabash Foods, LLC), a Delaware
limited liability company ("PBB"), (PBI, PBAI, PBDI, Tejas and PBB each a
Borrower and collectively the "Borrower" or the "Borrowers"), hereby jointly and
severally promise to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the
"Lender") at its main office in Minneapolis, Minnesota, in lawful money of the
United States of America in immediately available funds on the Revolving
Maturity Date (as such term and each other capitalized term used herein are
defined in the Credit Agreement hereinafter referred to) the principal amount of
FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00) or, if less, the aggregate
unpaid principal amount of all Revolving Advances made by the Lender under the
Credit Agreement, and to pay interest (computed on the basis of actual days
elapsed and a year of 360 days) in like funds on the unpaid principal amount
hereof from time to time outstanding at the rates and times set forth in the
Credit Agreement.
This note is the Revolving Note referred to in the Credit Agreement dated
as of October 3, 1999, as amended by that certain First Amendment to Credit
Agreement dated as of June 30, 2000, as further amended by that certain Second
Amendment to Credit Agreement dated as of _______, 2001 (as the same may be
hereafter from time to time amended, restated or modified, the "Credit
Agreement") between the undersigned and the Lender. This note is secured, it is
subject to certain permissive and mandatory prepayments and its maturity is
subject to acceleration, in each case upon the terms provided in said Credit
Agreement.
In the event of default hereunder, the undersigned agrees to pay all costs
and expenses of collection, including reasonable attorneys' fees. The
undersigned waives demand, presentment, notice of nonpayment, protest, notice of
protest and notice of dishonor.
This note is issued as replacement for, and not payment of, that certain
Revolving Note dated as of October 3, 1999 made payable by the Borrowers to the
order of Lender in the original principal amount of Three Million and No/100
Dollars ($3,000,000.00).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF.
BORROWERS: XXXXX BROTHERS, INC.,
a Delaware corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS ARIZONA, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS DISTRIBUTING, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
TEJAS PB DISTRIBUTING, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
XXXXX BROTHERS - BLUFFTON, LLC,
a Delaware limited liability company
(formerly known as Wabash Foods, LLC)
By
---------------------------------------
Its
--------------------------------------
BOULDER NATURAL FOODS, INC.,
an Arizona corporation
By
---------------------------------------
Its
--------------------------------------
BN FOODS, INC.,
a Colorado corporation
By
---------------------------------------
Its
--------------------------------------
8
