FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.51
10/31/24
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Amended and Restated Loan and Security Agreement (this “Fourth Amendment”) made and entered into as of the 31st day of October, 2024, is by and among S&W Seed Company, a Nevada corporation (“S&W Seed”; together with any other party joined as a borrower under the Loan Agreement (as hereinafter defined), each individually a “Borrower” and collectively referred to as "Borrowers"), the other Loan Parties hereto, the financial institutions that are or may from time to time become parties hereto (together with their respective successors and assigns, the “Lenders”), and CIBC Bank USA (in its individual capacity, “CIBC US”), as administrative agent for the Lenders (“Administrative Agent”).
W I T N E S S E T H:
Whereas, prior hereto, Administrative Agent and Lenders provided loans, extensions of credit and other financial accommodations to Borrowers pursuant to (a) that certain Amended and Restated Loan and Security Agreement dated as of March 22, 2023, as amended by that certain First Amendment to Amended and Restated Loan and Security Agreement dated as of September 25, 2023, that certain Second Amendment to Amended and Restated Loan and Security Agreement dated as of May 13, 2024, and that certain Third Amendment to Amended and Restated Loan and Security Agreement dated as of July 3, 2024, but effective as of July 1, 2024, each by and among Xxxxxxx, Borrowers, the other Loan Parties thereto and Administrative Agent (collectively, the “Loan Agreement”), and (b) the other documents, agreements and instruments referenced in the Loan Agreement or executed and delivered pursuant thereto;
Whereas, Borrowers desire Administrative Agent and Lenders to, among other things, extend the Maturity Date (the “Additional Financial Accommodations”); and
Whereas, Administrative Agent and Xxxxxxx are willing to provide the Additional Financial Accommodations, but solely on the terms and subject to the provisions set forth in this Fourth Amendment and the other agreements, documents and instruments referenced herein or executed and delivered pursuant hereto.
Now, Therefore, in consideration of the foregoing, the mutual promises and understandings of the parties hereto set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Administrative Agent, Xxxxxxx, Borrowers and the other Loan Parties hereto hereby agree as set forth in this Fourth Amendment.
I. Definitions.
A. Use of Defined Terms. Except as expressly set forth in this Fourth Amendment, all terms which have an initial capital letter where not required by the rules of grammar are used herein as defined in the Loan Agreement.
B. Amended Definitions. Effective as of the Fourth Amendment Effective Date, Section 1.1 of the Loan Agreement is hereby amended by substituting the definitions set forth below for the corresponding definitions set forth in the Loan Agreement:
Eligible Inventory Sublimit shall mean $5,000,000 through the Maturity Date, or such lower number as may be determined by Administrative Agent in its sole and absolute discretion; provided that (a) the Eligible Inventory Sublimit shall automatically decrease by the amount of the proceeds of the Specified Letter of Credit received by Administrative Agent and applied to the Revolving Loans in accordance with Section 2.3.3(c) effective upon Administrative Agent’s receipt of such proceeds, and (b) for so long as the Specified Letter of Credit is outstanding, Administrative Agent shall not decrease the Eligible Inventory Sublimit to an amount that is less than $5,000,000.
Maturity Date shall mean November 8, 2024, and, provided that Administrative Agent receives the Specified L/C Modification by not later than November 8, 2024, and no Event of Default then exists, shall be automatically extended to November 30, 2024. For purposes of clarification, if the Specified L/C Modification is not delivered to Administrative Agent on or before November 8, 2024, or if an Event of Default exists as of November 8, 2024, then the Maturity Date shall remain November 8, 2024, without notice or action by any party.
Total Revolving Loan Commitment shall mean an amount equal to Thirteen Million and No/100 Dollars ($13,000,000.00), except, as such amount may, upon the occurrence and at all times during the continuance of an Event of Default, decreased by Required Lenders in their sole discretion.
C. New Definitions. Effective as of the Fourth Amendment Effective Date (as hereinafter defined), Section 1.1 of the Loan Agreement is hereby amended by adding the following new definitions thereto in the appropriate alphabetical order, respectively:
Fourth Amendment shall mean that certain Fourth Amendment to Amended and Restated Loan and Security Agreement dated as of the Fourth Amendment Effective Date, by and among Xxxxxxx, Borrowers, the other Loan Parties thereto and Administrative Agent.
Fourth Amendment Effective Date shall mean October 31, 2024.
Specified L/C Modification shall mean an amendment to the Specified Letter of Credit that modifies the Specified Letter of Credit as follows, and is otherwise in form and substance satisfactory to Administrative Agent in Administrative Agent’s sole discretion: (i) extends the expiration date thereof to not earlier than December 31, 2024, (ii) amends the beneficiary’s statement to be delivered in connection with a beneficiary draw request to reflect the language set forth on Exhibit A attached to the Fourth Amendment, and (iii) amends the account party name specified therein to solely reference S&W Seed Company, a Nevada corporation.
II. ANNEX I – Commitments. Effective as of the Fourth Amendment Effective Date, Annex 1 attached to the Loan Agreement is hereby amended by deleting Annex I in its entirety and substituting therefor Annex 1 attached to this Fourth Amendment.
III. Conditions Precedent. Administrative Agent’s and Lenders’ obligations to provide the Additional Financial Accommodations to Borrowers are subject to the full and timely
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performance of the following covenants prior to or contemporaneously with the execution and delivery of this Fourth Amendment:
A. Borrowers executing and delivering, or causing to be executed and delivered to the Administrative Agent and the Lenders, the following documents, each of which shall be in form and substance acceptable to the Administrative Agwent and the Lenders:
(i) a fully-executed original of this Fourth Amendment;
(ii) a fully-executed Note in favor of CIBC US, in form and substance satisfactory to CIBC US; and
(iii) such other agreements, documents and instruments as Administrative Agent or Lenders may reasonably request.
B. No Default or Event of Default exists under the Loan Agreement, as amended by this Fourth Amendment, or any of the other Loan Documents, other than the “Existing Defaults” (as hereinafter defined);
C. No claims, litigation, arbitration proceedings or governmental proceedings not disclosed in writing to Administrative Agent and the Lenders prior to the date hereof shall be pending or known to be threatened against Borrowers or any other Loan Party and no known material development not so disclosed shall have occurred in any claims, litigation, arbitration proceedings or governmental proceedings so disclosed which in the opinion of Administrative Agent is likely to materially or adversely affect the financial position or business of Borrowers or any other Loan Party or the capability of Borrowers to pay their obligations and liabilities to Administrative Agent and Lenders; and
D. There shall have been no Material Adverse Effect since the date of each Borrower’s most recent financial statements delivered to Administrative Agent.
IV. Organizational Information. Each Loan Party hereby represents and warrants to Administrative Agent and Lenders that as of the Fourth Amendment Effective Date, (a) the formation and organizational documents of each such Loan Party attached to the Company General Certificate dated as of March 22, 2023, executed and delivered by each such Loan Party to Administrative Agent and Lenders (the “Certificate”), have not been modified or altered in any way, (b) the resolutions attached to the Certificate have not been modified, rescinded or altered in any way and are sufficient to authorize the execution and delivery of this Fourth Amendment and the other agreements, documents and instruments executed and delivered in connection herewith, and (c) each Loan Party is and continues to be in good standing in the state of its formation and in all other states where it is qualified or licensed to do business in which the laws thereof require such Loan Party to be so qualified or licensed except where the failure to qualify would not have a material adverse effect.
V. Default Rate. Each Loan Party hereby acknowledges and agrees that as a result of the Existing Defaults, Administrative Agent and Required Lenders have the right to exercise such of their rights and remedies as they deem advisable in their sole discretion, including, without limitation, implementing an interest rate of two percent (2.0%) per annum plus the interest rate otherwise payable thereon pursuant to Section 4.1(b) of the Loan Agreement with respect to the Loans and other Obligations. Administrative Agent, Required Lenders and each Loan Party hereby agree that effective as of September [__], 2024, through the date the Obligations
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are paid in full, the Loans shall continue to bear interest at the otherwise applicable interest rate for such loans plus two percent (2.0%) per annum.
VI. Repayment of Obligations. In the event that the Obligations are not paid in full by Borrowers on or before the Maturity Date, each Loan Party hereby acknowledges and agrees that Administrative Agent shall in its sole discretion, for the benefit of Xxxxxxx and without notice to Borrowers of any kind, draw on the Specified Letter of Credit on the next Business Day immediately following the Maturity Date (or such later date as determined by Agent in its sole and absolute discretion). Such action shall not preclude or limit Administrative Agent or Lenders’ rights to pursue additional remedies available pursuant to the Loan Agreement and the other Loan Documents, as well as any rights and remedies at law, in equity or otherwise.
VII. Existing Defaults and Reservation of Rights. The Loan Parties each hereby acknowledge and agree as follows: (a) the following Events of Default currently exist under the Loan Agreement (collectively, the “Existing Defaults”): from time to time prior to the Fourth Amendment Effective Date, the Revolving Loan Outstandings exceeded (i) the Revolving Loan Availability and (ii) the Total Revolving Loan Commitment, in each case, in violation of Section 2.1.1(b) of the Loan Agreement, and (b) as a result of the Existing Defaults, Administrative Agent and the Lenders have the right to immediately exercise such of their rights and remedies pursuant to the Loan Agreement and the other Loan Documents as they deem appropriate. Each Loan Party hereby represents and warrants to Administrative Agent and the Lenders that no Event of Default currently exists other than the Existing Defaults set forth above. Nothing contained in this Fourth Amendment shall be or be deemed a waiver of any presently existing or any hereafter arising or occurring breach, Default or Event of Default (including, without limitation, the Existing Defaults), nor shall it preclude the subsequent exercise of any of Administrative Agent or Lenders’ rights or remedies arising with respect to the Existing Defaults at any time, without notice.
VIII. Conflict. If, and to the extent, the terms and provisions of this Fourth Amendment contradict or conflict with the terms and provisions of the Loan Agreement, the terms and provisions of this Fourth Amendment shall govern and control; provided, however, to the extent the terms and provisions of this Fourth Amendment do not contradict or conflict with the terms and provisions of the Loan Agreement, the Loan Agreement, as amended by this Fourth Amendment, shall remain in and have its intended full force and effect, and Lenders, Administrative Agent and Borrowers hereby affirm, confirm and ratify the same.
IX. Severability. Wherever possible, each provision of this Fourth Amendment shall be interpreted in such manner as to be valid and enforceable under applicable law, but if any provision of this Fourth Amendment is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed herefrom and such invalidity or unenforceability shall not affect any other provision of this Fourth Amendment, the balance of which shall remain in and have its intended full force and effect. Provided, however, if such provision may be modified so as to be valid and enforceable as a matter of law, such provision shall be deemed to be modified so as to be valid and enforceable to the maximum extent permitted by law.
X. Reaffirmation. Each Loan Party hereby reaffirms and remakes all of its respective representations, warranties, covenants, duties, obligations and liabilities contained in the Loan Agreement, as amended hereby, and the other Loan Documents.
XI. Fees, Costs and Expenses.
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A. Contemporaneously herewith, Borrowers shall pay Lender a fully earned, non-refundable amendment fee in the amount of Twenty-Five Thousand and No/100 Dollars ($25,000.00).
B. Borrowers’ acknowledge and agree that the additional Loan modification fee in the amount of Twenty-Five Thousand Dollars ($25,000.00), which was paid prior to the Fourth Amendment Effective Date, was fully earned as of the Third Amendment Effective Date and is and shall continue to be non-refundable.
C. Borrowers agree to pay, upon demand, all fees, costs and expenses of Administrative Agent and Lenders, including, but not limited to, reasonable attorneys’ fees, in connection with the preparation, execution, delivery and administration of this Fourth Amendment and the other agreements, documents and instruments executed and delivered in connection herewith or pursuant hereto.
XII. Reservation of Rights. Administrative Agent and Lenders reserve all of their rights and remedies, including all security interests, assignments and liens pursuant to the Loan Agreement and the other Loan Documents, as well as any rights and remedies at law, in equity or otherwise. Nothing contained in this Fourth Amendment shall be or be deemed a waiver of any presently existing or any hereafter arising or occurring breach, default or event of default, nor shall preclude the subsequent exercise of any of Administrative Agent’s or Lenders’ rights or remedies.
XIII. Choice of Law. This Fourth Amendment has been delivered and accepted in Chicago, Illinois, and shall be governed by and construed in accordance with the laws of the State of Illinois, regardless of the laws that might otherwise govern under applicable principles of conflicts of law as to all matters, including matters of validity, construction, effect, performance and remedies.
XIV. Counterpart. This Fourth Amendment may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A facsimile or email transmitted executed counterpart to this Fourth Amendment and the other agreements, documents and instruments executed in connection herewith will be deemed an acceptable original for purposes of consummating this Fourth Amendment and such other agreements, documents and instruments; provided, however, each Borrower and each other Loan Party shall be required to deliver to the Administrative Agent original executed signature pages in substitution for said facsimile or email transmitted signature pages upon the Administrative Agent’s request therefor.
XV. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE LOAN AGREEMENT, AS AMENDED FROM TIME TO TIME, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY OTHER AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
XVI. WAIVER AND RELEASE. IN CONSIDERATION OF ADMINISTRATIVE AGENT’S AND EACH XXXXXX’S EXECUTION AND DELIVERY OF THIS FOURTH AMENDMENT, EACH BORROWER HEREBY,
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INDIVIDUALLY AND COLLECTIVELY, WAIVES, RELEASES AND FOREVER DISCHARGES ADMINISTRATIVE AGENT, EACH LENDER, THEIR PREDECESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, ATTORNEYS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AND EACH OF THEM (EACH A “RELEASED PARTY”), OF AND FROM ANY AND ALL CLAIMS, DEMANDS, COUNTERCLAIMS, SET-OFFS, DEFENSES, DEBTS, OBLIGATIONS, COSTS, EXPENSES, ACTIONS, CAUSES OF ACTION AND DAMAGES OF EVERY KIND, NATURE AND DESCRIPTION WHATSOEVER, KNOWN OR UNKNOWN, FORESEEABLE OR UNFORESEEABLE, LIQUIDATED OR UNLIQUIDATED, AND INSURED OR UNINSURED, WHICH BORROWERS HERETOFORE, NOW OR FROM TIME TO TIME HEREAFTER OWN, HOLD OR HAVE BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER, ARISING ON OR BEFORE THE DATE OF THIS FOURTH AMENDMENT FROM, RELATING TO OR IN CONNECTION WITH THE LOAN DOCUMENTS, THE OBLIGATIONS, THIS FOURTH AMENDMENT, BORROWERS’ BANKING OR CASH MANAGEMENT RELATIONSHIP WITH ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER RELEASED PARTY OR ANY MATTERS RELATING TO ANY OF THE FOREGOING.
[signature pages follow]
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In Witness Whereof, Administrative Agent, Xxxxxxx, Borrowers and each other Loan Party have caused this Fourth Amendment to be executed and delivered by their duly authorized officers as of the date first set forth above.
BORROWERS:
S&W SEED COMPANY, a Nevada corporation Xxxxxxx Xxxxxxxx, Chief Financial Officer |
|
[Signature page to Fourth Amendment to Loan and Security Agreement]
CIBC BANK USA,
as Administrative Agent and as a Lender
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Officer
[Signature page to Fourth Amendment to Loan and Security Agreement]
ANNEX 1 – COMMITMENTS
Lender |
Revolving Loan Commitment |
Percentage |
CIBC BANK USA |
$13,000,000.00 |
100.000000000 |
Total |
$13,000,000.00 |
100.000000000 |
Exhibit A
“The amount of this drawing USD ___________, under JPMorgan Chase Bank, N.A. letter of Credit No. NUSCGS044349 represents funds due to CIBC Bank USA, as administrative agent and a lender (“CIBC”), from S&W Seed Company, a Nevada Corporation (“Borrower”) under that certain Amended and Restated Loan and Security Agreement dated as of March 22, 2023, by and among Borrower, CIBC, the other lenders party thereto from time to time, and the other loan parties party thereto from time to time, as amended, restated or otherwise modified from time to time (the “Loan Agreement”). This drawing is made and permitted as a result of (i) Borrower failing to meet its obligations to pay certain loans in full upon the first to occur of the acceleration of the maturity of such loans or the scheduled maturity date(s) thereof, or (ii) Borrower filing for state or federal bankruptcy or other insolvency protection.
