EXHIBIT 10.14
[BANK OF AMERICA LOGO]
THIRD AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT
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THIRD AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT
THIS THIRD AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT is entered into
as of March 4, 1999, by and among FRESH AMERICA CORP., a Texas corporation
("BORROWER"), the undersigned "SUBSIDIARY/DEBTORS" (herein so called), and BANK
OF AMERICA TEXAS, N.A., a national banking association ("BANK").
W I T N E S S E T H:
WHEREAS, Borrower and Bank entered into the Restated Business Loan
Agreement dated February 2, 1998, (as amended, extended, renewed, or restated,
the "LOAN AGREEMENT"), providing Borrower with a revolving line of credit of up
to $15,000,000; and
WHEREAS, Borrower has requested, and Bank has agreed, to an increase of
the maximum amount available under the revolving line of credit from $15,000,000
to $20,000,000;
NOW, THEREFORE, in consideration of the agreements herein contained and
subject to the terms and conditions set forth herein, Bank, Borrower, and
Subsidiary/Debtors hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and defined in the Loan
Agreement shall have the meanings set forth in the Loan Agreement except
as otherwise provided herein.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is amended as follows:
(A) SECTION 2.1(A) of the Loan Agreement is entirely amended as follows:
(a) DURING THE AVAILABILITY PERIOD DESCRIBED BELOW, THE BANK WILL
PROVIDE A LINE OF CREDIT TO THE BORROWER. THE AMOUNT OF THE
LINE OF CREDIT (THE "REVOLVING FACILITY COMMITMENT") IS
$20,000,000, SUBJECT TO ADJUSTED BORROWING BASE RESTRICTIONS
AND REDUCTION IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT.
(B) SCHEDULE 9.2 and EXHIBIT A-1 are amended in the forms of, and all
references in the Loan Agreement to that schedule and exhibit are
changed to, the attached SECOND AMENDED SCHEDULE 9.2 and SECOND
AMENDED EXHIBIT A-1, RESPECTIVELY.
3. CONDITIONS PRECEDENT. This amendment will become effective as of the date
first written above, provided that (A) Bank has received from Borrower (1)
duly executed counterparts of this amendment and (2) each item set forth
on the attached ANNEX 1, and (B) Borrower has paid all outstanding
invoices of Bank's legal counsel.
THIRD AMENDMENT
4. CONTINUED EFFECT. Except to the extent amended hereby, all terms,
provisions and conditions of the Loan Agreement and the other Loan
Documents shall continue in full force and effect and the Loan Agreement
and the other Loan Documents shall remain enforceable and binding in
accordance with their respective terms. Borrower and each
Subsidiary/Debtor confirms and agrees that the other Loan Documents, and
the liens and security interests granted therein, shall continue to secure
Borrower's obligations and indebtedness to Bank, direct or indirect,
arising pursuant to the Revolving Note and the Loan Agreement, each as
amended hereby, whether or not such other Loan Documents shall be
expressly supplemented or amended in connection with this amendment. All
references in the Loan Documents to the Loan Agreement shall hereafter be
deemed to be references to the Loan Agreement as amended hereby.
5. COUNTERPARTS. This amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one and
the same document, and each party hereto may execute this amendment by
signing any of such counterparts.
6. SUCCESSORS AND ASSIGNS. This amendment shall be binding upon, and inure to
be the benefit of, the parties hereto and their respective heirs,
administrators, successors and assigns.
7. NO ORAL AGREEMENTS. THIS WRITTEN AMENDMENT AND THE DOCUMENTS EXECUTED IN
CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
2
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed as of the date first written above.
BANK OF AMERICA N.T. & S.A., as BANK FRESH AMERICA CORP., as BORROWER
By ________________________________ By _____________________________
W. Xxxxxx Xxxxxxx, Managing Xxxx X. Xxxx, Executive Vice
Director President
ONE OF TWO SIGNATURE PAGES TO THIRD AMENDMENT
COLUMBIA MARKETING SERVICES, JNC ACQUISITION CORP., as a
INC., as a SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
FRESH AMERICA ARIZONA, INC., as a FRESH AMERICA CALIFORNIA, INC., as
SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
XXXXXXX CORPORATION, as a TORONTO CORPORATION, as a
SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
FRESH AMERICA LOUISIANA, INC., as a FRESH AMERICA GEORGIA, INC., as a
SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
FRESH AMERICA FLORIDA, INC., as a HEREFORD HAVEN, INC., as a
SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
FRANCISCO ACQUISITION CORP., as a XXX XXXXXXXX CITRUS CO., as a
SUBSIDIARY/DEBTOR SUBSIDIARY/DEBTOR
By _______________________________ By ________________________________
Xxxx X. Xxxx, Vice President Xxxx X. Xxxx, Vice President
TWO OF TWO SIGNATURE PAGES TO THIRD AMENDMENT
ANNEX 1
Unless otherwise specified, all documents must be dated effective as of
March 4, 1999 (THE "AMENDMENT-CLOSING DATE").
1. THIRD AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT, dated the
Amendment-Closing Date, by and among FRESH AMERICA CORP., a Texas
corporation ("BORROWER"), the "SUBSIDIARY/DEBTORS" (herein so called), and
BANK OF AMERICA TEXAS, N.A., a national banking association ("BANK"), the
defined terms in which have the same meanings when used in this annex.
2. AMENDED AND RESTATED REVOLVING NOTE, dated the Amendment-Closing Date,
executed by Borrower, and payable to Bank in the stated principal amount
of $20,000,000.
3. SECRETARY OR ASSISTANT SECRETARY CERTIFICATES for Borrower and each
Subsidiary/Debtor, executed by its Secretary or any Assistant Secretary as
to the resolutions of its directors authorizing the Amendment, and
certifying as to no changes with respect to the incumbency of its
officers, its bylaws, or corporate charter.
ANNEX 1
SECOND AMENDED EXHIBIT A-1
AMENDED AND RESTATED REVOLVING NOTE
$20,000,000 March 4, 1999
FOR VALUE RECEIVED, FRESH AMERICA CORP., a Texas corporation ("MAKER"),
promises to pay to the order of BANK OF AMERICA TEXAS, N.A. ("PAYEE"), that
portion of the principal amount of $20,000,000 that may from time to time be
disbursed and outstanding under this note, TOGETHER WITH interest.
This note is a "REVOLVING NOTE" under the Restated Business Loan Agreement
(as renewed, extended, amended, or restated, the "LOAN AGREEMENT") dated as of
February 2, 1998, between Maker, as BORROWER, and Payee, as Bank. All of the
terms defined in the Loan Agreement have the same meanings when used, unless
otherwise defined, in this note.
This note incorporates by reference the principal and interest payment
terms in the Loan Agreement for this note, including, without limitation, the
final maturity date for this note, which is the Expiration Date. Principal and
interest are payable to Payee at its offices at 0000 X. Xxxx X. Xxxxxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000-0000, or at any other address of which Payee may
notify Maker in writing.
This note also incorporates by reference all other provisions in the Loan
Agreement applicable to this note, such as provisions for disbursement of
principal, applicable-interest rates before and after default, voluntary and
mandatory prepayments, acceleration of maturity, exercise of Rights, payment of
attorney's fees, courts costs, and other costs of collection, certain waivers by
Maker and other obligors, assurances and security, choice of Texas and United
States federal Law, usury savings, and other matters applicable to Loan
Documents under the Loan Agreement.
This note is executed in renewal, restatement, and replacement for and
increase of, but not extinguishment of the indebtedness evidenced by the
Revolving Note dated May 5, 1998, executed by Maker and payable to Payee's order
in the original stated principal amount of $15,000,000, which note was in
renewal, restatement, and replacement for and increase of, but not
extinguishment of the indebtedness evidenced by the Revolving Note dated
February 2, 1998, executed by Maker and payable to Payee's order in the original
stated principal amount of $12,000,000.
FRESH AMERICA CORP., as MAKER
By _____________________________________
Name: ____________________________
Title: ___________________________
SECOND AMENDED EXHIBIT A-1
SECOND AMENDED SCHEDULE 9.2
COMPANIES AND NAMES
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Shareholder(s)
Other Names Name Change (excluding qualified
Qualified to Used in Past in Last 4 Outstanding shares required by
Company Incorporated do Business 5 Years Months Capital Stock foreign Law)
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Fresh America
Corp. Texas Alabama 1) Gourmet Packing, Inc. N/A see 10K Publicly traded
Arkansas
Connecticut 2) Premier Produce
Delaware
Florida 3) Five Points Farmers Market
Georgia
Illinois
Indiana
Kansas
Louisiana
Massachusetts
Maryland
Maine
Mississippi
New Hampshire
New Jersey
New York
North Carolina
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Virginia
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100 shares
common
Columbia stock, $1.00
Marketing par value
Services, Inc. Pennsylvania N/A N/A N/A per share JNC Acquisition Corp.
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Connecticut
Maine Xxx. 1000 shares
Massachusetts Xxxxxxxxxx - common
JNC New Jersey a Fresh stock, $.01
Acquisition New York America par value
Corp. Pennsylvania Vermont Company N/A per share Borrower
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SECOND AMENDED SCHEDULE 9.2
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Shareholder(s)
Other Names Name Change (excluding qualified
Qualified to Used in Past in Last 4 Outstanding shares required by
Company Incorporated do Business 5 Years Months Capital Stock foreign Law)
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100 shares
common
stock, $1.00
Xxxxxxx par value
Corporation Pennsylvania N/A N/A N/A per share JNC Acquisition Corp.
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1000 shares
common
Fresh America stock, $.01
California, Chef's par value
Inc. Texas California Produce Team N/A per share Borrower
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1,000 shares
common
stock,
$.01 par
Fresh America value per
Georgia, Inc. Texas Georgia N/A N/A share Borrower
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Xxx Xxxxxxxx
Citrus 100 shares
Xxx Xxxxxxxx Xxxxxxxx common
Citrus Co. California N/A Citrus N/A stock, no par Borrower
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600 shares
common
stock, $1.00
Toronto par value
Corporation Pennsylvania N/A N/A N/A per share JNC Acquisition Corp.
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1,000 shares
common stock,
$.01 par
Fresh America Bano Quality value per
Louisiana, Inc. Texas Louisiana Produce N/A share Borrower
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Arizona 1,000 shares
Colorado Kings Onion common stock,
New Mexico House - a $.01 par
Fresh America Nevada Fresh America value per
Arizona, Inc. Texas Utah Company N/A share Borrower
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1,000 shares
Xxxxxxxx'x common stock,
Alabama Produce - a $.01 par
Fresh America Florida Fresh America value per
Florida, Inc. Texas Mississippi Company N/A share Borrower
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9,000 shares
common
stock,
Xxxxxx $1.00 par
Hereford Brothers value per
Haven, Inc. Texas N/A Produce N/A share Borrower
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Francisco
Distributing
Company 1,000 shares
common stock
Francisco Francisco .01 par
Acquisition California Distributing value per
Corp. Texas Arizona Allied Growers N/A share Borrower
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SECOND AMENDED SCHEDULE 9.2
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Shareholder(s)
Other Names Name Change (excluding qualified
Qualified to Used in Past in Last 4 Outstanding shares required by
Company Incorporated do Business 5 Years Months Capital Stock foreign Law)
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1277649 Province of Province of
Ontario Limited Ontario Ontario N/A N/A 27,636,640 Common shares--Borrower
common
shares
Exchange shares:
Xxxxxx Xxxxx Holdings
Limited (242,219
shares),
505,108 Xxxxxxxx Holdings
exchange Limited (235,402
shares shares),
(which may
be converted Salsar Holdings
from time to Limited (3,927 shares),
time into
common stock Xxxxxx Xxxxx (11,780
of Borrower shares), and
on a share
per share Xxxxxxxx Xxxxxxxx
basis) (11,780 shares)
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Ontario Tree Province of Province of 15,002
Fruits Limited Ontario Ontario N/A N/A common shares Ontario Limited
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Trio Importing
(No. 2) Province of Province of 20 common
Company Ltd. Ontario Ontario N/A N/A shares Ontario Limited
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30 shares
common
Sarfog, Inc. New Jersey New Jersey N/A N/A stock, no par Ontario Limited
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100 shares
Bacchus common
Fosar, Inc. New Jersey New Jersey Associates N/A stock, no par Sarfog, Inc.
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SECOND AMENDED SCHEDULE 9.2
