Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD 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, and as further
amended by that certain Second Amendment to Credit Agreement dated as of March
1, 2001 (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 for (i) an increase in the Revolving Commitment Amount (as defined in
the Credit Agreement) to $5,000,000, (ii) a new $500,000 capital expenditure
line of credit, and (iii) certain modifications to the financial covenants set
forth therein. 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 nature, 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) Capital Expenditure Note in the form attached hereto;
(d) Acknowledgment and Consent of Subordinated Lender from Xxxxx
Fargo Small Business Investment Company, Inc. in the form
attached hereto;
(e) The Articles of Merger of PBDI with and into PBI, for filing with
the State of Arizona;
(f) The Plan and Agreement of Merger of PBDI with and into PBI;
(g) The Certificate of Ownership and Merger of PBDI with and into
PBI, for filing with the State of Delaware;
(h) The Unanimous Consent of the Directors of PBDI authorizing the
merger transaction contemplated by the documents listed in items
1(e)-1(g) above;
(i) The Unanimous Consent of Directors of PBI authorizing the merger
transaction contemplated by the documents listed in items
1(e)-(g) above;
(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) Evidence of the conversion of the subordinated debt previously
held by Renaissance Capital Growth and Income Fund III, Inc. into
capital stock of PBI;
(p) Evidence of payment to Lender of a fully earned, nonrefundable
facility increase fee of $20,000;
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(q) Evidence of payment to Lender of a fully earned, nonrefundable
origination fee of $5,000 with respect to the new capital
expenditure line of credit; and
(r) 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 terms defined in Section 1.1 of the Credit Agreement
are hereby amended and restated in their entirety to read as follows:
"NOTES": The Revolving Note, the Term Notes and the Capital
Expenditure Loan Note.
"REVOLVING COMMITMENT AMOUNT": An amount equal to $5,000,000.
(b) The definition of "Facility Amount" in Section 2.1 of the Credit
Agreement is hereby deleted in its entirety.
(c) The following new defined terms are hereby added to Section 1.1 of
the Credit Agreement:
"CAPITAL EXPENDITURE LOAN": As defined in Section 2.1(f).
"CAPITAL EXPENDITURE LOAN AMOUNT": As defined in Section 2.1(f).
"CAPITAL EXPENDITURE LOAN AVAILABILITY TERMINATION DATE": As
defined in Section 2.1(f).
"CAPITAL EXPENDITURE LOAN COMMITMENT": The obligation of the
Lender to make Capital Expenditure Loans to the Borrower up to
the Capital Expenditure Loan Amount upon the terms and subject to
the conditions and limitations of this Agreement.
"CAPITAL EXPENDITURE LOAN NOTE": As defined in Section 2.3.
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"COMMITMENTS": The Revolving Commitment, the Term Loan A
Commitment, the Term Loan B Commitment, the Term Loan C
Commitment, the Term Loan D Commitment and the Capital
Expenditure Loan Commitment.
"FACILITY AMOUNT": An amount equal to the sum of the Revolving
Commitment Amount, plus the Term Loan A Commitment Amount, plus
the Term Loan B Commitment Amount, plus the Term Loan C
Commitment Amount, plus the Term Loan D Commitment Amount, plus
the Capital Expenditure Loan Amount.
"QUALIFIED CAPITAL EXPENDITURE": A Capital Expenditure which
meets the following requirements:
(a) it arises in the ordinary course of the Borrower's
business;
(b) no portion thereof has been paid by or financed with any
other Person;
(c) the capital assets acquired with such Capital
Expenditure are in good and workable conditions, ordinary wear
and tear excepted;
(d) the capital assets acquired with such Capital
Expenditure are not subject to any prior assignment, claim or
Lien other than (i) a first priority Lien in favor of the Lender,
and (ii) Liens consented to by the Lender in writing;
(e) the capital assets acquired with such Capital
Expenditure comply with the Borrower's specifications and has
been delivered to and accepted by the Borrower;
(f) there exists no dispute with respect thereto between the
Borrower and the manufacturer or supplier of the capital assets
acquired with such Capital Expenditure including, without
limitation, warranties or other claims;
(g) the capital assets acquired with such Capital
Expenditure do not, in any way violate or fail to meet any
warranty, representation or covenant contained in the Loan
Documents relating directly or indirectly to such assets;
(h) the Lender has determined in its sole and absolute
discretion that the capital assets acquired with such Capital
Expenditure are not unacceptable due to age, type, condition or
quality; and
(i) the Capital Expenditure is not made in payment of
obligations arising under any lease with respect to which the
lessee is required concurrently to recognize the acquisition of
an assent and the incurrence of a liability in accordance with
GAAP.
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:
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"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 31, 2003 (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."
SECTION 2.3 NEW CAPITAL EXPENDITURE LINE OF CREDIT. A new Section
2.1(f) is hereby added to the Credit Agreement to read as follows:
"2.1(f) CAPITAL EXPENDITURE LOANS. One or more loans (each, a
"CAPITAL EXPENDITURE LOAN" and collectively, the "CAPITAL EXPENDITURE
LOANS") to the Borrower during the period from and after the date
hereof until the earlier of the Revolving Maturity Date or December
31, 2001 (the "CAPITAL EXPENDITURE LOAN AVAILABILITY TERMINATION
DATE", in such amounts and at such times as the Borrower may from time
to time request, up to but not in excess of (i) with respect to each
Capital Expenditure Loan, an amount equal to the Qualified Capital
Expenditures to be paid with the proceeds of such Capital Expenditure
Loan, and (ii) with respect to Capital Expenditure Loans in the
aggregate, an amount equal to $500,000 (the "CAPITAL EXPENDITURE LOAN
AMOUNT"). The proceeds of each Capital Expenditure Loan shall be used
by the Borrower solely to pay Qualified Capital Expenditures. Each
request for a Capital Expenditure Loan shall be in a minimum amount of
$100,000."
SECTION 2.4 PROCEDURE FOR CAPITAL EXPENDITURE LOANS. Section 2.2 of
the Credit Agreement is hereby amended by deleting in its entirety the last
sentence of said Section and replacing it with the following:
"Notice of Borrower's intention to request a Term Loan or a
Capital Expenditure Loan shall be subject to the same time limits
and other requirements set forth in this Section 2.2."
SECTION 2.5 CAPITAL EXPENDITURE LOAN NOTE. Section 2.3 of the Credit
Agreement is hereby amended by deleting in its entirety the last sentence
of said Section and replacing it with the following:
"The Capital Expenditure Loan shall be evidenced by a promissory
note of the Borrower to the Lender in an amount equal to the
Capital Expenditure Loan Amount, such promissory note to be in a
form acceptable to the Lender (the "CAPITAL EXPENDITURE LOAN
NOTE"). The Lender shall enter in its ledgers and records the
payments made on the Revolving Note, Term Note A, Term Note B,
Term Note C, Term Note D and the Capital Expenditure Note, and
the amount of each Advance made and the payments made thereon,
and the Lender is authorized by the Borrower to enter on a
schedule attached to the Notes a record of such Advances and
payments."
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SECTION 2.6 INTEREST ON CAPITAL EXPENDITURE LOAN NOTE. Section 2.4 of
the Credit Agreement is hereby amended by adding the following new sentence
immediately before the last sentence of said Section:
"Interest shall accrue and be payable on the unpaid balance of
the Capital Expenditure Loan Note at a floating rate per annum
equal to the Reference Rate plus 1%; PROVIDED, HOWEVER, that upon
the happening of any Event of Default, then, at the option of the
Lender, the unpaid balance of the Capital Expenditure Loan Note
shall thereafter bear interest at a floating rate per annum equal
to the Reference Rate plus 3%."
SECTION 2.7 REPAYMENT OF CAPITAL EXPENDITURE LOAN NOTE. Section 2.6 of
the Credit Agreement is hereby amended by adding thereto a new subsection
2.6(f) to read as follows:
"2.6(f) REPAYMENT OF CAPITAL EXPENDITURE LOAN NOTE. Principal of
the Capital Expenditure Loans shall mature and be payable in
consecutive equal monthly installments due on the first day of each
month in an amount sufficient to fully amortize the aggregate
principal balance of the Capital Expenditure Loans outstanding on the
Capital Expenditure Loan Availability Termination Date by the last day
of the twenty-fourth (24th) month following such date. Such payments
shall commence on the first day of the first month to occur after the
Capital Expenditure Loan Availability Termination Date and shall
continue on the first day of each month thereafter until the Revolving
Maturity Date, at which time a final balloon payment equal to the
outstanding principal balance of the Capital Expenditure Loans
outstanding on such date shall be due and payable. Borrower may, upon
three Business Days' notice to the Lender, prepay the principal of the
Capital Expenditure Loans in whole or in part without premium. Any
partial prepayment of principal of the Capital Expenditure Loans shall
be in a minimum amount of the lesser of (A) the outstanding principal
balance of the Capital Expenditure Loans or (B) $25,000 or an integral
multiple thereof, and shall be applied to the unpaid installments of
the Capital Expenditure Loans in the inverse order of their
maturities. Any principal of the Capital Expenditure Loans which is
repaid may not be reborrowed. Any regularly scheduled payment due in
respect of the Capital Expenditure Loans may be made with the proceeds
of an Advance only if, immediately before and after giving effect to
such payment, no Default or Event of Default then exists or would
result therefrom. No portion of the Capital Expenditure Loans may be
prepaid with the proceeds of any Advance."
SECTION 2.8 AMENDMENT OF CAPITAL EXPENDITURES NEGATIVE COVENANT.
Section 6.4 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"SECTION 6.4 CAPITAL EXPENDITURES. The Borrowers will not make
Capital Expenditures, on a consolidated basis, in an aggregate amount
exceeding (a) $1,750,000 in the fiscal year ended December 31, 2001,
and (b) $335,000 in any fiscal year thereafter."
SECTION 2.9 AMENDMENT OF TANGIBLE CAPITAL BASE NEGATIVE COVENANT.
Section 6.9 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
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"SECTION 6.9 TANGIBLE CAPITAL BASE. The Borrower will not permit
its Tangible Capital Base (the excess of its assets, excluding
intangible assets, plus subordinated debt (which includes, without
limitation, debt subordinated pursuant to the Subordination
Agreements), over its liabilities, on a consolidated basis) to be less
than the amount set forth below opposite the applicable measurement
date set forth below:
Applicable Minimum Tangible
Measurement Date Capital Base
---------------- ------------
December 31, 2000 $4,000,000
December 31, 2001 $4,500,000
December 31, 2002 and each Required Tangible Capital
December 31 thereafter Base Amount
As used in this Section 6.9, the "Required Tangible Capital Base
Amount" for any given measurement date is an amount equal to the sum
of the minimum Tangible Capital Base required as of the immediately
preceding measurement date, plus fifty percent (50%) of the
consolidated Annual Net Profit realized by the Borrower since such
immediately preceding measurement date (with any net loss counting as
zero in such calculation)."
SECTION 2.10 AMENDMENT OF FIXED CHARGE COVERAGE RATIO NEGATIVE
COVENANT. Section 6.11 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 6.11 FIXED CHARGE COVERAGE RATIO.
(i) As of the last day of each period stated below, Borrower
will not permit the Fixed Charge Coverage Ratio for such period
to be less than the ratio stated below for such period:
PERIOD MINIMUM RATIO
------ -------------
From 1/1/01 through and including 3/31/01 0.90 to 1.00
From 1/1/01 through and including 6/30/01 1.00 to 1.00
From 1/1/01 through and including 9/30/01 1.00 to 1.00
From 1/1/01 through and including 12/31/01 1.00 to 1.00
(ii) Beginning with the fiscal quarter ending March 31,
2002, as of the last day of any fiscal quarter, Borrower will not
permit the Fixed Charge Coverage Ratio for the four consecutive
fiscal quarters ending on such date to be less than 1.10 to
1.00."
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SECTION 2.11 AMENDMENT OF DEBT SERVICE COVERAGE RATIO NEGATIVE
COVENANT. Section 6.12 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 6.12 DEBT SERVICE COVERAGE RATIO.
(i) As of the last day of each period stated below, Borrower
will not permit the Debt Service Coverage Ratio for such period
to be less than the ratio stated below for such period:
PERIOD MINIMUM RATIO
------ -------------
From 1/1/01 through and including 3/31/01 0.90 to 1.00
From 1/1/01 through and including 6/30/01 1.00 to 1.00
From 1/1/01 through and including 9/30/01 1.00 to 1.00
From 1/1/01 through and including 12/31/01 1.00 to 1.00
(ii) Beginning with the fiscal quarter ending March 31,
2002, as of the last day of any fiscal quarter, Borrower will not
permit the Debt Service Coverage Ratio for the four consecutive
fiscal quarters ending on such date to be less than 1.10 to
1.00."
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.
4. MERGER DOCUMENTS. Upon filing of the documents listed in Sections 1(e)
and 1(g), and/or the documents listed in Sections 1(j) and 1(l), with the
Arizona Secretary of State and the Delaware Secretary of State, respectively,
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.
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5. TRADEMARK REGISTRATION. Borrower covenants and agrees to deliver to
Lender (a) as soon as possible and in any event not later than ten (10) days
after Borrower's receipt of the same from the U.S. Patent and Trademark Office,
the Certificate of Registration relating to its application for federal
registration of its "Pizzarias" trademark, and (b) upon Lender's request, a
Notice of Grant of Security Interest in Trademarks signed by PBI and relating to
such trademark, in form and substance acceptable to Lender.
6. 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.
7. 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.
8. 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.
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Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third 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_______________________________
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BN FOODS, INC.,
a Colorado corporation
By_________________________________
Its_______________________________
LENDER: U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By_________________________________
Its_______________________________
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ACKNOWLEDGMENT AND CONSENT OF SUBORDINATED LENDER
XXXXX FARGO SMALL BUSINESS INVESTMENT COMPANY, INC., a California
corporation ("Xxxxx Fargo") hereby acknowledges and agrees that (a) the attached
Revolving Note and the increase in the Revolving Commitment Amount to $5,000,000
under the Credit Agreement (and any amounts borrowed by Borrowers pursuant to
such increase), (b) the attached Capital Expenditure Loan Note and any amounts
advanced against such Note, and (c) 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_______________________________
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REVOLVING NOTE
$5,000,000 ______________, 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
FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) 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 March 1, 2001, and as further amended
by that certain Third 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 March 1, 2001 made payable by the Borrowers to the
order of Lender in the original principal amount of Four Million and No/100
Dollars ($4,000,000.00).
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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
By_________________________________
Its_______________________________
BOULDER NATURAL FOODS, INC.,
an Arizona corporation
By_________________________________
Its_______________________________
BN FOODS, INC.,
a Colorado corporation
By_________________________________
Its_______________________________
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CAPITAL EXPENDITURE LOAN NOTE
$500,000 _______________, 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 the principal sum of
Five Hundred Thousand and No/100 Dollars ($500,000.00) or, if less, the
aggregate unpaid principal amount of all Capital Expenditure Loans made by the
Lender to the Borrower pursuant to the Credit Agreement referred to below,
together with interest on the principal amount hereunder from the date hereof
until this Note is fully paid at the rates from time to time in effect under the
Credit Agreement.
The principal hereof and interest accruing thereon shall be due and payable
as provided in the Credit Agreement. This Note may be prepaid only in accordance
with the Credit Agreement.
This Note is the "Capital Expenditure Loan 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 March 1, 2001, and
as further amended by that certain Third 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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
By_________________________________
Its_______________________________
BOULDER NATURAL FOODS, INC.,
an Arizona corporation
By_________________________________
Its_______________________________
BN FOODS, INC.,
a Colorado corporation
By_________________________________
Its_______________________________
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