TERM REVOLVING CREDIT AGREEMENT
Exhibit 10.1
Loan No. 3789055-101
Loan No. 3789055-101
THIS
TERM REVOLVING CREDIT AGREEMENT (“Agreement”) is
entered into as of May 1, 2008,
between FARM CREDIT WEST, PCA, Visalia, California (“FCW”) and CALAVO GROWERS, INC., Santa Paula,
California (the “Company”).
SECTION 1. The Credit Facility. On the terms and conditions set forth in this Agreement, FCW
agrees to make advances to the Company during the period set forth below in an aggregate principal
amount not to exceed $30,000,000.00 (the “Commitment”). The Agreement and Commitment is executed,
delivered and accepted not in payment of but for the purpose of amending, restating and replacing
the following described obligations, and renewing any unpaid balance(s) evidenced thereby: Note
dated June 7, 2007, in the principal amount of $20,000,000.00. Furthermore, the Commitment also
evidences an additional loan advance(s) to the extent the Commitment under this Agreement exceeds
the renewed unpaid balance(s) referred to above.
SECTION 2. Sale of Interest. The Company acknowledges that FCW has the option to participate
all or a portion of the Commitment with one or more lenders, including CoBank, ACB (“CoBank”). All
advances hereunder shall be made by CoBank as agent for FCW and all repayments by the Company
hereunder shall be made to CoBank as agent for FCW.
SECTION 3. Purpose. The purpose of the Commitment is to finance the purchase and installation
of capital items and other corporate needs of the Company.
SECTION 4. Term. The term of the Commitment shall be from the date hereof, up to and
including February 1, 2012.
SECTION 5. Availability. Subject to the provisions of Section 25, advances will be made
available on any day on which FCW, CoBank, and the Federal Reserve Banks are open for business upon
the telephonic or written request of the Company. Requests for advances must be received no later
than 12:00 Noon, Company’s local time, on the date the advance is desired. Advances will be made
available by CoBank by wire transfer of immediately available funds to such account or accounts as
may be authorized by the Company. The Company shall furnish to CoBank a duly completed and
executed copy of a CoBank Delegation and Wire and Electronic Transfer Authorization Form, and
CoBank shall be entitled to rely on (and shall incur no liability to the Company in acting on) any
request or direction furnished in accordance with the terms thereof.
SECTION 6. Interest and Fees.
(A) Interest. The Company agrees to pay interest on the unpaid balance of the Commitment in
accordance with the following interest rate option:
(1) 7-Day LIBOR Index Rate. At a rate (rounded upward to the nearest 1/100th% and adjusted
for reserves required on “Eurocurrency Liabilities” (as hereinafter defined) for banks subject to
“FRB Regulation D” (as hereinafter defined) or required by any other federal law or
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regulation) per annum equal at all times to 125 basis points (1.25%) above the annual rate quoted by the British
Bankers Association (the “BBA”) at 11:00 a.m. London time for the offering of seven (7) day of U.S.
dollars deposits, as published by Bloomberg or another major information vendor listed on BBA’s
official website on the first U.S. Banking Day (as hereinafter defined) in each week with such rate
to change weekly on such day. The rate shall be reset automatically, without the necessity of
notice being provided to the Company or any other party, on the first U.S. Banking Day of each
succeeding week and each change in the rate shall be applicable to all balances subject to this
option and information about the then current rate shall be made available upon telephonic request.
For purposes hereof (a) “U.S. Banking Day” shall mean a day on which CoBank is open for business,
dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks
are open for business in Xxx Xxxx Xxxx xxx Xxxxxx, Xxxxxxx; (b) “Eurocurrency Liabilities” shall
have meaning as set forth in “FRB Regulation D”; and (c) “FRB Regulation D” shall mean Regulation D
as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as
amended.
(2) LIBOR. At a fixed rate per annum equal to “LIBOR” (as hereinafter defined) plus 125 basis
points (1.25%). Under this option: (1) rates may be fixed for “Interest Periods” (as hereinafter
defined) of 1, 2, 3, 6, 9, 12, 24, 36 or 48 months as selected by the Company; (2) amounts may be
fixed in increments of $100,000.00 or multiples thereof; (3) the maximum number of fixes in place
at any one time shall be 10; and (4) rates may only be fixed on a “Banking Day” (as hereinafter
defined) on 3 Banking Days’ prior written notice. For purposes hereof: (a) “LIBOR” shall mean the
rate (rounded upward to the nearest sixteenth) and adjusted for reserves required on “Eurocurrency
Liabilities” (as hereinafter defined) for banks subject to “FRB Regulation D” (as herein defined)
or required by any other federal law or regulation) quoted by the British Bankers Association (the
“BBA”) at 11:00 a.m. London time 2 Banking Days before the commencement of the Interest Period for
the offering of U.S. dollar deposits in the London interbank market for the Interest Period
designated by the Company; as published by Bloomberg or another major information vendor listed on
BBA’s official website; (b) “Banking Day” shall mean a day on which CoBank is open for business,
dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks
are open for business in New York City and London, England; (c) “Interest Period” shall mean a
period commencing on the date this option is to take effect and ending on the numerically
corresponding day in the next calendar month or the month that is 2, 3, 6, 9, 12, 24, 36 or 48
months thereafter, as the case may be; provided, however, that: (i) in the event such ending day is
not a Banking Day, such period shall be extended to the next Banking Day unless such next Banking
Day falls in the next calendar month, in which case it shall end on the preceding Banking Day; and
(ii) if there is no numerically corresponding day in the month, then such period shall end on the
last Banking Day in the relevant month; (d) “Eurocurrency Liabilities” shall have meaning as set forth in “FRB
Regulation D”; and (e) “FRB Regulation D” shall mean Regulation D as promulgated by the Board of
Governors of the Federal Reserve System, 12 CFR Part 204, as amended.
(3) Fixed Rate. At a fixed rate per annum to be quoted by FCW and CoBank in its sole
discretion in each instance. Under this option, rates may be fixed on such balances and for such
periods, as may be agreeable to FCW and CoBank in its sole discretion in each instance, provided
that: (1) the minimum fixed period shall be 1 years; (2) amounts may be fixed in
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increments of $100,000.00 or multiples thereof; and (3) the maximum number of fixes in place at any one time
shall be 10.
The Company shall select the applicable rate option at the time it requests a loan hereunder and
may, subject to the limitations set forth above, elect to convert balances bearing interest at the
variable rate option to one of the fixed rate options. Upon the expiration of any fixed rate
period, interest shall automatically accrue at the variable rate option provided for above unless
the amount fixed is repaid or fixed for an additional period in accordance with the terms hereof.
Notwithstanding the foregoing, rates may not be fixed in such a manner as to cause the Company to
have to break any fixed rate balance in order to pay any installment of principal. All elections
provided for herein shall be made telephonically or in writing and must be received by 12:00 Noon
Company’s local time. Interest shall be calculated on the actual number of days each loan is
outstanding on the basis of a year consisting of 360 days and shall be payable monthly in arrears
by the 20th day of the following month or on such other day in such month as CoBank shall require
in a written notice to the Company.
(B) Commitment Fee. In consideration of the Commitment, the Company agrees to pay to FCW a
commitment fee on the average daily unused portion of the Commitment at the rate of 0.15% per annum
(calculated on a 360 day basis based on utilization, which is defined as outstanding advances plus
issued and outstanding letters of credit divided by the total available amount of the Commitment),
payable quarterly in arrears by the 20th day following each quarter. Such fee shall be payable for
each quarter (or portion thereof) occurring during the original or any extended term of the
Commitment.
SECTION 7. Repayment and Maturity. The unpaid principal balance of the Commitment shall
mature and be due and payable on February 1, 2012 (the “Maturity Date”).
SECTION 8. Promissory Note. The Company’s obligation to repay the Commitment shall be
evidenced by a promissory note in the form attached hereto as Exhibit A (“Note”).
SECTION 9. Manner and Time of Payment. CoBank shall maintain a record of all loans, the
interest accrued thereon, and all payments made with respect thereto, and such record shall, absent
proof of manifest error, be conclusive evidence of the outstanding principal and interest on the
loans. All payments shall be made by wire transfer of immediately available funds, by check, or by
automated clearing house or other similar cash handling processes as
specified by separate agreement between the Company and CoBank. Wire transfers shall be made to
ABA No. 000000000 for advice to and credit of CoBank (or to such other account as CoBank may direct
by notice). The Company shall give CoBank telephonic notice no later than 12:00 Noon Company’s
local time of its intent to pay by wire and funds received after 3:00 p.m. Company’s local time
shall be credited on the next business day. Checks shall be mailed to XxXxxx, Xxxxxxxxxx 000,
Xxxxxx, Xxxxxxxx 00000-0000 (or to such other place as CoBank may direct by notice). Credit for
payment by check will not be given until the later of: (a) the day on which CoBank receives
immediately available funds; or (b) the next business day after receipt of the check all as set
forth in the Servicing Agreement between Borrower, FCW, and CoBank in form attached hereto as
Exhibit B.
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SECTION 10. Capitalization. The Company has purchased a $1,000.00 stock investment under FCW’s
capitalization plan. The Company understands that FCW’s stock is at risk and that any reference to
“FCW equities” or to “stock or participation certificates required by Lender’s bylaws” in any
document, agreement or Loan Document shall mean the FCW stock investment described herein.
SECTION 11. Patronage. The Commitment is eligible for patronage under the plan and in
accordance with the provisions of FCW’s bylaws and its practices and procedures related to
patronage distribution and as set forth in Section 27.
SECTION 12. Security. The Company’s obligations under this Agreement and the Note shall be
secured by a statutory first lien on all equity which the Company may now own or hereafter acquire
in FCW. With the exception of the security referenced in the preceding sentence, the Company’s
obligations under this Agreement and the Note shall be unsecured.
SECTION 13. Conditions Precedent. FCW’s obligation to make advances hereunder is subject to
the condition precedent that FCW receive, in form and content satisfactory to FCW, each of the
following:
(A) Agreement. A duly executed copy of this Agreement and all instruments and documents
contemplated hereby.
(B) Evidence of Authority. Such certified board resolutions, evidence of incumbency, and
other evidence that FCW may require that this Agreement and the Note have been duly authorized and
executed.
(C) Fees and Other Charges. All fees and other charges provided for herein.
(D) Evidence of Insurance. Such evidence as FCW may require that the Company is in compliance
with Section 15(C) hereof
(E) Event of Default. That no “Event of Default” (as defined in Section 18 hereof) or event
which with the giving of notice and/or the passage of time would become an Event of Default
hereunder (a “Potential Default”), shall have occurred and be continuing.
SECTION 14. Representations and Warranties.
(A) Agreement. The Company represents and warrants to FCW that as of the date of this
Agreement:
(1) Compliance. The Company and, to the extent contemplated hereunder, each “Subsidiary” (as
defined below), is in compliance with all of the terms of this Agreement, and no Event of Default
or Potential Default exists hereunder.
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(2) Subsidiaries. The Company has the following Subsidiaries: Calavo de Mexico S.A. de C.V.;
and Calavo Foods de Mexico S.A. de C.V. . For purposes hereof, a “Subsidiary” shall mean a
corporation of which shares of stock having ordinary voting power to elect a majority of the board
of directors or other managers of such corporation are owned, directly or indirectly, by the
Company.
(3) Conflicting Agreements. This Agreement and the Note (collectively, at any time, the “Loan
Documents”), do not conflict with, or require the consent of any party to, any other agreement to
which the Company is a party or by which it or its property may be bound or affected, and do not
conflict with any provision of the Company’s bylaws, articles of incorporation, or other
organizational documents.
(4) Compliance. The Company and, to the extent contemplated hereunder, each Subsidiary, if
any, is in compliance with all of the terms of the Loan Documents.
(5) Binding Agreement. The Loan Documents create legal, valid, and binding obligations of the
Company which are enforceable in accordance with their terms, except to the extent that enforcement
may be limited by applicable bankruptcy, insolvency, or similar laws affecting creditors’ rights
generally.
SECTION 15. Affirmative Covenants. Unless otherwise agreed to in writing by FCW, while this
Agreement is in effect, the Company agrees to and with respect to Subsections 15(A) through 15(F)
hereof, agrees to cause each Subsidiary, if any, to:
(A) Corporate Existence, Licenses. (i) Preserve and keep in full force and effect its
existence and good standing in the jurisdiction of its incorporation or formation; (ii) qualify and
remain qualified to transact business in all jurisdictions where such qualification is required;
and (iii) obtain and maintain all licenses, certificates, permits, authorizations, approvals, and
the like which are material to the conduct of its business or required by law, rule, regulation,
ordinance, code, order, and the like (collectively, “Laws”).
(B) Compliance with Laws. Comply in all material respects with all applicable Laws,
including, without limitation, all Laws relating to environmental protection. In addition, the
Company agrees to cause all persons occupying or present on any of its properties, and to cause
each Subsidiary, if any, to cause all persons occupying or present on any of its properties, to
comply in all material respects with all environmental protection Laws.
(C) Insurance. Maintain insurance with insurance companies or associations acceptable to FCW
in such amounts and covering such risks as are usually carried by companies engaged in the same or
similar business and similarly situated, and make such increases in the type or amount of coverage
as FCW may request. At FCW’s request, all policies (or such other proof of compliance with this
Subsection as may be satisfactory to FCW) shall be delivered to FCW.
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(D) Property Maintenance. Maintain all of its property that is necessary to or useful in the
proper conduct of its business in good working condition, ordinary wear and tear excepted.
(E) Books and Records. Keep adequate records and books of account in which complete entries
will be made in accordance with generally accepted accounting principles (“GAAP”) consistently
applied.
(F) Inspection. Permit FCW or its agents, upon reasonable notice and during normal business
hours or at such other times as the parties may agree, to examine its properties, books, and
records, and to discuss its affairs, finances, and accounts, with its respective officers,
directors, employees, and independent certified public accountants.
(G) Reports and Notices. Furnish to FCW:
(1) Annual Financial Statements. As soon as available, but in no event more than 90 days
after the end of each fiscal year of the Company occurring during the term hereof, annual
consolidated and consolidating financial statements of the Company and its consolidated
Subsidiaries, if any, prepared in accordance with GAAP consistently applied. Such financial
statements shall: (a) be audited by independent certified public accountants selected by the
Company and acceptable to FCW; (b) be accompanied by a report of such accountants containing an
opinion thereon acceptable to FCW; (c) be prepared in reasonable detail and in comparative form;
and (d) include a balance sheet, a statement of income, a statement of retained earnings, a
statement of cash flows, and all notes and schedules relating thereto.
(2) Interim Financial Statements. As soon as available, but in no event more than 45 days
after the end of each fiscal quarter, a consolidated balance sheet of the Company and its
consolidated Subsidiaries, if any, as of the end of such quarter, a consolidated statement of
income for the Company and its consolidated Subsidiaries, if any, for such period and for the
period year to date, and such other interim statements as FCW may specifically request, all
prepared in reasonable detail and in comparative form in accordance with GAAP consistently applied
and certified by an authorized officer or employee of the Company acceptable to FCW.
(3) Notice of Default. Promptly after becoming aware thereof, notice of the occurrence of an
Event of Default or a Potential Default.
(4) Notice of Non-Environmental Litigation. Promptly after the commencement thereof, notice
of the commencement of all actions, suits, or proceedings before any court, arbitrator, or
governmental department, commission, board, bureau, agency, or instrumentality affecting the
Company or any Subsidiary which, if determined adversely to the Company or any such Subsidiary,
could have a material adverse effect on the financial condition, properties, profits, or operations
of the Company or any such Subsidiary.
(5) Notice of Environmental Litigation. Promptly after receipt thereof, notice of the receipt
of all pleadings, orders, complaints, indictments, or any other communication alleging a condition
that may require the Company or any Subsidiary to undertake or to
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contribute to a cleanup or other response under environmental Laws, or which seek penalties, damages, injunctive relief, or criminal
sanctions related to alleged violations of such Laws, or which claim personal injury or property
damage to any person as a result of environmental factors or conditions.
(6) Bylaws and Articles. Promptly after any change in the Company’s bylaws or articles of
incorporation (or like documents), copies of all such changes, certified by the Company’s
Secretary.
(7) Other Information. Such other information regarding the condition or operations,
financial or otherwise, of the Company or any Subsidiary as FCW may from time to time reasonably
request, including but not limited to copies of all pleadings, notices, and communications referred
to in Subsections 15(G)(4) and (5) above.
(8) Financial Certificate. Together with each set of financial statements furnished to FCW
pursuant to Section 15(G)(1), and each quarterly statement submitted pursuant to Section 15(G)(2)
for a period corresponding to a period for which one or more of the financial covenants set forth
in Section 17 hereof are required to be tested, a certificate of an officer or employee of the
Company acceptable to FCW setting forth calculations showing compliance with each of the financial
covenants that require compliance at the end of the period for which the statements are being
furnished.
(H) Certain Organizational Changes. Provide FCW with prior notice (and as early as
practicable) of any merger, consolidation reorganization under a different provision of law,
acquisition of all or a material part of the assets of another organization, change of name,
adoption of any trade name, or creation of any Subsidiary, affiliate or material joint venture(s).
For purposes of this covenant, joint venture transaction(s), which alone or in the aggregate
exceed $1,000,000, are considered material.
SECTION 16. Negative Covenants. Unless otherwise agreed to in writing by FCW, which agreement
will not be unreasonably withheld, while this Agreement is in effect, the Company will not:
(A) Borrowings. Create, incur, assume, or allow to exist, directly or indirectly, any
indebtedness or liability for borrowed money (including trade or bankers’ acceptances), letters of
credit, or the deferred purchase price of property or services (including capitalized leases),
except for: (i) debt to FCW; (ii) accounts payable to trade creditors incurred in the ordinary
course of business; and (iii) current operating liabilities (other than for borrowed money)
incurred in the ordinary course of business; (iv) debt of the Company to Bank of America in an
amount not to exceed $10,000,000.00 and all extensions, renewals, and refinancings thereof; (v)
letters of credit issued by any bank for the account of the Company in an aggregate face amount not
to exceed $5,000,000.00 at any one time outstanding; and (vi) capitalized leases existing on the
date hereof existing from time to time.
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(B) Liens. Create, incur, assume, or allow to exist any mortgage, deed of trust, pledge, lien
(including the lien of an attachment, judgment, or execution), security interest, or other
encumbrance of any kind upon any of its property, real or personal (collectively, “Liens”). The
foregoing restrictions shall not apply to: (i) Liens in favor of FCW or CoBank; (ii) Liens for
taxes, assessments, or governmental charges that are not past due; (iii) Liens and deposits under
workers’ compensation, unemployment insurance, and social security Laws; (iv) Liens and deposits to
secure the performance of bids, tenders, contracts (other than contracts for the payment of money),
and like obligations arising in the ordinary course of business as conducted on the date hereof;
(v) Liens imposed by Law in favor of mechanics, materialmen, warehousemen, and like persons that
secure obligations that are not past due; and (vi) easements, rights-of-way, restrictions, and
other similar encumbrances which, in the aggregate, do not materially interfere with the
occupation, use, and enjoyment of the property or assets encumbered thereby in the normal course of
its business or materially impair the value of the property subject thereto.
(C) Transfer of Assets. Sell, transfer, lease, or otherwise dispose of any of its assets,
except in the ordinary course of business.
(D) Contingent Liabilities. Assume, guarantee, become liable as a surety, endorse,
contingently agree to purchase, or otherwise be or become liable, directly or indirectly
(including, but not limited to, by means of a maintenance agreement, an asset or stock purchase
agreement, or any other agreement designed to ensure any creditor against loss), for or on account
of the obligation of any person or entity, except by the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of the Company’s business.
(E) Change in Business. Engage in any business activities or operations substantially
different from or unrelated to the Company’s present business activities or operations.
SECTION 17. Financial Covenants. Unless otherwise agreed to in writing, while this Agreement
is in effect:
(A) Working Capital. The Company will maintain, on a consolidated basis, current assets in
excess of current liabilities of at least Fifteen Million Dollars ($15,000,000), measured on a
quarterly basis beginning January 31, 2008
(B) Tangible Net Worth. The Company will maintain, on a consolidated basis, a “Tangible Net
Worth” equal to at least Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000.00),
measured on a quarterly basis. “Tangible Net Worth” means the value of total assets (including
leaseholds and leasehold improvements and reserves against assets but excluding goodwill, patents,
trademarks, trade names, organization expense, unamortized debt discount and expense, capitalized
or deferred research and development costs, deferred marketing expenses, and other like
intangibles, and monies due from affiliates, officers, directors, employees, shareholders, members
or managers) less total liabilities, including but not limited to accrued and deferred
income taxes, but excluding the non-current portion of
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Subordinated Liabilities. “Subordinated Liabilities” means liabilities subordinated to the Borrower’s obligations to FCW in a manner
acceptable to FCW in its sole discretion.
(C) EBITDA. The Company will maintain an “EBITDA” of at least Seven Million Five Hundred
Thousand Dollars ($7,500,000.00). “EBITDA” means net income, less income or plus loss from
discontinued operations and extraordinary items, plus income taxes, plus interest expense,
plus depreciation, depletion, and amortization. This covenant will be calculated at the end of
each reporting period for which FCW requires financial statements, using the results of the
twelve-month period ending with that reporting period.
SECTION 18. Events of Default. Each of the following shall constitute an “Event of Default”
under this Agreement:
(A) Payment Default. The Company should fail to make any payment when due.
(B) Representations and Warranties. Any representation or warranty made or deemed made by the
Company herein or in the Note, application, agreement, certificate, or other document related to or
furnished in connection with this Agreement or the Note, shall prove to have been false or
misleading in any material respect on or as of the date made or deemed made.
(C) Certain Affirmative Covenants. The Company or, to the extent required hereunder, any
Subsidiary should fail to perform or comply with Sections 15(A) through 15(G)(2), and 15(G)(6) and such failure continues for 15 days after written notice thereof shall
have been delivered by FCW to the Company.
(D) Other Covenants and Agreements. The Company or, to the extent required hereunder, any
Subsidiary should fail to perform or comply with any other covenant or agreement contained herein
or in any other Loan Document or shall use the proceeds of any loan for an unauthorized purpose.
(E) Cross-Default. The Company should, after any applicable grace period, breach or be in
default under the terms of any other agreement between the Company and FCW.
(F) Other Indebtedness. The Company or any Subsidiary should fail to pay when due any
indebtedness to any other person or entity for borrowed money or any long-term obligation for the
deferred purchase price of property (including any capitalized lease), or any other event occurs
which, under any agreement or instrument relating to such indebtedness or obligation, has the
effect of accelerating or permitting the acceleration of such indebtedness or obligation, whether
or not such indebtedness or obligation is actually accelerated or the right to accelerate is
conditioned on the giving of notice, the passage of time, or otherwise.
(G) Judgments. A judgment, decree, or order for the payment of money shall be rendered
against the Company or any Subsidiary and either: (i) enforcement proceedings shall have been
commenced; (ii) a Lien prohibited under Section 10(B) hereof shall have been obtained; or (iii)
such judgment, decree, or order shall continue unsatisfied and in effect for a
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period of 20 consecutive days without being vacated, discharged, satisfied, or stayed pending appeal.
(H) Insolvency. The Company or any Subsidiary shall: (i) become insolvent or shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they come
due; or (ii) suspend its business operations or a material part thereof or make an assignment for
the benefit of creditors; or (iii) apply for, consent to, or acquiesce in the appointment of a
trustee, receiver, or other custodian for it or any of its property or, in the absence of such
application, consent, or acquiescence, a trustee, receiver, or other custodian is so appointed; or
(iv) commence or have commenced against it any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation Law of any jurisdiction.
(I) Material Adverse Change. Any material adverse change occurs, as reasonably determined by
FCW, in the Company’s financial condition, results of operation, or ability to perform its
obligations hereunder or under any instrument or document contemplated hereby. Material Adverse
Change means any event, occurrence or circumstance that has a material negative effect on (i) the
business, operations, property, financial condition or prospects of the Company, or (ii) the
validity or enforcement of any of the Loan Documents or the rights or
remedies of the Lenders hereunder, or (iii) the ability of the Company to perform its obligations
under any of the Loan Documents.
SECTION 19. Remedies. Upon the occurrence and during the continuance of an Event of Default
or any Potential Default, FCW shall have no obligation to continue to extend credit to the Company
and may discontinue doing so at any time without prior notice. For all purposes hereof, the term
“Potential Default” means the occurrence of any event which, with the passage of time or the giving
of notice or both would become an Event of Default. In addition, upon the occurrence and during
the continuance of any Event of Default, FCW may, upon notice to the Company, terminate any
commitment and declare the entire unpaid principal balance of the loans, all accrued interest
thereon, and all other amounts payable under this Agreement, all Supplements, and the other Loan
Documents to be immediately due and payable. Upon such a declaration, the unpaid principal balance
of the loans and all such other amounts shall become immediately due and payable, without protest,
presentment, demand, or further notice of any kind, all of which are hereby expressly waived by the
Company. In addition, upon such an acceleration:
(A) Enforcement. FCW may proceed to protect, exercise, and enforce such rights and remedies
as may be provided by this Agreement, any other Loan Document or under Law. Each and every one of
such rights and remedies shall be cumulative and may be exercised from time to time, and no failure
on the part of FCW to exercise, and no delay in exercising, any right or remedy shall operate as a
waiver thereof, and no single or partial exercise of any right or remedy shall preclude any other
or future exercise thereof, or the exercise of any other right. Without limiting the foregoing,
FCW may hold and/or set off and apply against the Company’s obligations to FCW any cash collateral
held by FCW, or any balances held by FCW for the Company’s account (whether or not such balances
are then due).
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(B) Application of Funds. CoBank may apply all payments received by it to the Company’s
obligations to FCW in such order and manner as FCW may elect in its sole discretion.
In addition to the rights and remedies set forth above: (i) if the Company fails to make any
payment when due, then at FCW’s option in each instance, such payment shall bear interest from the
date due to the date paid at 2% per annum in excess of the rate(s) of interest that would otherwise
be in effect on that loan; and (ii) after the maturity of any loan (whether as a result of
acceleration or otherwise), the unpaid principal balance of such loan (including without
limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per
annum in excess of the rate(s) of interest that would otherwise be in effect on that loan. All
interest provided for herein shall be payable on demand and shall be calculated on the basis of a
year consisting of 365 days.
SECTION 20. Broken Funding Surcharge. Notwithstanding any provision contained in the Note
giving the Company the right to repay any loan prior to the date it would otherwise be
due and payable, the Company agrees to provide three Business Days’ prior written notice for any
prepayment of a fixed rate balance and that in the event it repays any fixed rate balance prior to
its scheduled due date or prior to the last day of the fixed rate period applicable thereto
(whether such payment is made voluntarily, as a result of an acceleration, or otherwise), the
Company will pay to CoBank a surcharge in an amount equal to the greater of: (i) an amount which
would result in FCW being made whole (on a present value basis) for the actual or imputed funding
losses incurred by FCW as a result thereof; or (ii) $300.00. Notwithstanding the foregoing, in the
event any fixed rate balance is repaid as a result of the Company refinancing the loan with another
lender or by other means, then in lieu of the foregoing, the Company shall pay to CoBank a
surcharge in an amount sufficient (on a present value basis) to enable FCW to maintain the yield it
would have earned during the fixed rate period on the amount repaid. Such surcharges will be
calculated in accordance with methodology established by FCW (a copy of which will be made
available to the Company upon request).
SECTION 21. Complete Agreement, Amendments. This Agreement, the Note, and all other
instruments and documents contemplated hereby and thereby, are intended by the parties to be a
complete and final expression of their agreement. No amendment, modification, or waiver of any
provision hereof or thereof, and no consent to any departure by the Company herefrom or therefrom,
shall be effective unless approved by FCW and contained in a writing signed by or on behalf of FCW,
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. Additionally, any headings used in this Agreement are inserted
only as a matter of convenience and for reference, and in no way define, limit or describe the
scope or intent of any term or provision. As used herein, the word “including” means “including
without limitation” and/or “including but not limited to”.
SECTION 22. Applicable Law. Except to the extent governed by applicable federal law, this
Agreement and the Note shall be governed by and construed in accordance with the laws of the State
of California, without reference to choice of law doctrine.
| Calavo Growers, Inc. AGREEMENT NO. 3789055-101 |
Page 12 |
SECTION 23. Notices. All notices hereunder shall be in writing and shall be deemed to be duly
given upon delivery if personally delivered or sent by telegram or facsimile transmission, or 3
days after mailing if sent by express, certified or registered mail, to the parties at the
following addresses (or such other address for a party as shall be specified by like notice):
If to FCW, as follows:
|
If to the Company, as follows: | |
Farm Credit West, PCA
|
Calavo Growers, Inc. | |
0000 X. Xxxx Xxxxxx, Xxxxx X
|
Attn: Vice President-Finance | |
Xxxxxxx, XX 00000-0000
|
0000-X Xxxxxxxx Xxxx | |
| Xxxxx Xxxxx, XX 00000 | ||
| Fax No: (000) 000-0000 | ||
Attention: Xxxxx X. Xxxxxx |
||
Fax No.: 000-000-0000 |
SECTION 24. Taxes and Expenses. To the extent allowed by law, the Company agrees to pay all
reasonable out-of-pocket costs and expenses (including the fees and expenses of counsel retained by
FCW) incurred by FCW in connection with the administration, collection, and enforcement of this
Agreement and the other Loan Documents, including, without limitation, all costs and expenses
incurred in perfecting, maintaining, determining the priority of, and releasing any security for
the Company’s obligations to FCW, and any stamp, intangible, transfer, or like tax payable in
connection with this Agreement or any other Loan Document.
SECTION 25. Effectiveness and Severability. This Agreement shall continue in effect until:
(i) all indebtedness and obligations of the Company under this Agreement, the Note, and all other
Loan Documents shall have been paid or satisfied; and (ii) FCW has no commitment to extend credit
to or for the account of the Company hereunder. Any provision of this Agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof.
SECTION 26. Successors and Assigns. This Agreement, the Note, and the other Loan Documents
shall be binding upon and inure to the benefit of the Company and FCW and their respective
successors and assigns, except that the Company may not assign or transfer its rights or
obligations under this Agreement, the Note or any other Loan Document without the prior written
consent of FCW.
SECTION 27. Participations. From time to time, FCW may sell to one or more banks, financial
institutions or other lenders a participation in all or a portion of the Commitment or other
extensions of credit made pursuant to this Agreement. However, no such participation shall relieve
FCW of any commitment made to the Company hereunder, or any obligation FCW may have to pay
patronage due the Company from FCW under the provisions of the bylaws of FCW and its practices and
procedures related to patronage distribution. In connection with the foregoing, FCW may disclose
information concerning the Company and its Subsidiaries to any
| Calavo Growers, Inc. AGREEMENT NO. 3789055-101 |
Page 13 |
participant or prospective participant, provided that such participant or prospective participant agrees to keep such
information confidential. Accordingly, all interests in the Commitment that is included in a sale
of participation interests shall not be entitled to patronage distributions. A sale of
participation interest may include certain voting rights of the participants regarding the
Commitment hereunder (including without limitation the administration, servicing and enforcement
thereof). FCW agrees to give written notification to the Company of any sale of participation
interests.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized officers as of the date shown above.
| FARM CREDIT WEST, PCA | CALAVO GROWERS, INC., a California Corporation | |||||||||
By:
|
/s/ Xxxxx X. Xxxxxx
|
By: | /s/ Xxxxxx X. Xxxxx
|
|||||||
| Xxxxx X. Xxxxxx | Xxxxxx X. Xxxxx, | |||||||||
Title:
|
Sr. Vice President | Title: | Chief Operating Officer, Chief | |||||||
| Financial Officer & Corporate Secretary | ||||||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||||||
| Xxxxx X. Xxxxx, | ||||||||||
| Title | Treasurer | |||||||||
| Calavo Growers, Inc. | Agreement No. 3789055-101 |
EXHIBIT A
PROMISSORY NOTE
| $30,000,000.00 | May 1, 2008 |
FOR VALUE RECEIVED, on the Maturity Date as set forth in that certain Term Revolving Credit
Agreement dated April 9, 2008, or in any amendments thereto (the “Agreement”), the undersigned
promises to pay to the order of Farm Credit West, PCA (the “Payee”), or order, at the place and in
the manner set forth in the Agreement, the principal amount of THIRTY MILLION DOLLARS
($30,000,000.00). The undersigned promises to pay interest on the principal amount hereof
remaining unpaid from time to time from the date hereon until the date of payment in full, payable
as provided below under “Repayment Terms”.
This note is given for advances to be made by Payee to the undersigned from time to time in
accordance with the terms and conditions of the Agreement, all the terms and conditions of which
are incorporated herein by reference. Advances, accrued interest, and payments shall be posted by
the Payee upon an appropriate accounting record, shall be prima facie evidence as to all such
amounts and shall be binding on the undersigned absent manifest error. The total of such advances
may not exceed the face amount of this note. This note is executed, delivered and accepted not in
payment of but for the purpose of amending, restating and replacing the following described
obligations, and renewing any unpaid balance(s) evidenced thereby: note dated June 7, 2007, in the
principal amount of $20,000,000.00. Furthermore, this note also evidences an additional loan
advance(s) to the extent the note exceeds the renewed unpaid balance(s) last referred to above.
Repayment Terms: The undersigned shall pay to Payee, for Account 101, Forty-five (45) monthly
interest only payments, in the amount billed, beginning on May 01, 2008; and One (1) installment of
interest in the amount billed plus principal of any amount necessary to pay the Account 101 in full
on February 1, 2012; and for Account 102, Two (2) monthly interest only payments, in the amount
billed, beginning on May 01, 2008; and One (1) installment of interest in the amount billed plus
principal of any amount necessary to pay Account 102 in full on July 1, 2008; and for Account 103,
Fourteen (14) monthly interest only payments in the amount billed, beginning on May 1, 2008; and
One (1) installment of interest in the amount billed plus principal of any amount necessary to pay
the Account 103 in full on July 1, 2009; and for Account 104, Twenty-six (26) monthly interest only
payments in the amount billed, beginning on May 1, 2008; and One (1) installment of interest in the
amount billed plus principal of any amount necessary to pay the Account 104 in full on July 1,
2010; and for Account 105, Thirty-eight monthly (38) interest only payments, in the amount billed,
beginning on May 1, 2008; and One (1) installment of interest in the amount billed plus principal
of any amount necessary to pay the Account 105 in full on July 1, 2011. Payments, other than those
required as specified in this Section or in the Agreement, may be made at any time and in any
amount during the term of this note, unless limited or prohibited herein or unless otherwise
required by FCW in writing. This note is due and payable in full on February 1, 2012 (“Maturity
Date”), at which time the undersigned shall pay the unpaid principal balance and all accrued
interest in full. Any amount of principal hereof which is not paid when due, whether at stated
maturity, by acceleration or otherwise, shall bear interest from the date when due until said
principal is paid in full, payable on demand, at a rate per annum set forth in the Agreement.
The makers or endorsers hereof hereby waive presentment for payment, demand, protest, and
notice of dishonor and nonpayment of this note, and all defenses on the ground of delay or of any
| Calavo Growers, Inc. | Agreement No. 3789055-101 Page 2 |
extension of time for the payment hereof which may be hereafter given by the holder or holders
hereof to them or either of them or to anyone who has assumed the payment of this note, and it is specifically agreed that the obligations
of said makers or endorsers shall not be in anyway affected or altered to the prejudice of the
holder or holders hereof by reason of the assumption of payment of the same by any other person or
entity.
The undersigned hereby promises to pay all costs and expenses of any rightful holder hereof
incurred in collecting the undersigned’s obligations hereunder or in enforcing or attempting to
enforce any of such holder’s rights hereunder, including reasonable attorneys’ fees and
disbursements, whether or not an action is filed in connection therewith.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA. REPRESENTATIVES OF FCW ARE NOT AUTHORIZED TO MAKE ANY ORAL AGREEMENTS OR
ASSURANCES. DO NOT SIGN THIS NOTE IF YOU BELIEVE THAT THERE ARE ANY AGREEMENTS OR UNDERSTANDING
BETWEEN YOU AND FCW THAT ARE NOT SET FORTH IN WRITING IN THIS NOTE, THE AGREEMENT OR OTHER LOAN
DOCUMENTS EVIDENCING THE COMMITMENT.
INDORSEMENT — The within Note is hereby indorsed by the payee named in the body of said Note as if
the name of the payee were actually executed under the indorsement.
PAY TO THE ORDER OF U.S. AgBANK, FCB, Wichita, Kansas
