Amendment to Loan Documents
Exhibit 10.1
THIS AMENDMENT TO LOAN DOCUMENTS (this “Amendment”) is made as of March 29, 2011, by and between
XXX XXXXX FARMS, INC., an Ohio corporation (the “Borrower”), and PNC BANK, NATIONAL ASSOCIATION
(the “Bank”).
BACKGROUND
A. The Borrower has executed and delivered to the Bank (or a predecessor which is now known by
the Bank’s name as set forth above), a Line of Credit Promissory Note dated April 20, 2010 and
other agreements, instruments, certificates and documents related thereto, some or all of which are
more fully described on attached Exhibit A, which is made a part of this Amendment (collectively as
amended from time to time, the “Loan Documents”) which evidence or secure some or all of the
Borrower’s obligations to the Bank for one or more loans or other extensions of credit (the
“Obligations”).
B. The Borrower and the Bank desire to amend the Loan Documents as provided for in this
Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain of the Loan Documents are amended as set forth in Exhibit A. Any and all references to
any Loan Document in any other Loan Document shall be deemed to refer to such Loan Document as
amended by this Amendment. This Amendment is deemed incorporated into each of the Loan Documents.
Any initially capitalized terms used in this Amendment without definition shall have the meanings
assigned to those terms in the Loan Documents. To the extent that any term or provision of this
Amendment is or may be inconsistent with any term or provision in any Loan Document, the terms and
provisions of this Amendment shall control.
2. The Borrower hereby certifies that: (a) all of its representations and warranties in the Loan
Documents, as amended by this Amendment, are, except as may otherwise be stated in this Amendment:
(i) true and correct as of the date of this Amendment, (ii) ratified and confirmed without
condition as if made anew, and (iii) incorporated into this Amendment by reference, (b) no Event of
Default or Pending Default, exists under any Loan Document which will not be cured by the execution
and effectiveness of this Amendment, (c) no consent, approval, order or authorization of, or
registration or filing with, any third party is required in connection with the execution, delivery
and carrying out of this Amendment or, if required, has been obtained, and (d) this Amendment has
been duly authorized, executed and delivered so that it constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms. The Borrower confirms that
the Obligations remain outstanding without defense, set off, counterclaim, discount or charge of
any kind as of the date of this Amendment.
3. As a condition precedent to the effectiveness of this Amendment, the Borrower shall comply with
the terms and conditions (if any) specified in Exhibit A.
4. This Amendment may be signed in any number of counterpart copies and by the parties to this
Amendment on separate counterparts, but all such copies shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually executed counterpart. Any
party so executing this Amendment by facsimile transmission shall promptly deliver a manually
executed counterpart, provided that any failure to do so shall not affect the validity of the
counterpart executed by facsimile transmission.
5. This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and
their respective heirs, executors, administrators, successors and assigns.
6. This Amendment has been delivered to and accepted by the Bank and will be deemed to be made in
the State where the Bank’s office indicated in the Loan Documents is located. This Amendment will
be interpreted and the rights and liabilities of the parties hereto determined in accordance with
the laws of the State where the Bank’s office indicated in the Loan Documents is located, excluding
its conflict of laws rules.
7. Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are
and shall remain in full force and effect unless and until modified or amended in writing in
accordance with their terms, and are hereby ratified and confirmed. Except as expressly provided
herein, this Amendment shall not constitute an amendment, waiver, consent or release with respect
to any provision of any Loan Document, a waiver of any default or Event of Default under any Loan
Document, or a waiver or release of any of the Bank’s rights and remedies (all of which are hereby
reserved). The Borrower expressly ratifies and confirms the confession of judgment (if applicable)
and waiver of jury trial provisions contained in the Loan Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
WITNESS the due execution of this Amendment as a document under seal as of the date first written
above.
| WITNESS / ATTEST: | XXX XXXXX FARMS, INC. | |||||||
| /s/ Xxxxxx Xxxxxx | By: | /s/ Xxxx X. XxXxxxxx | ||||||
| (SEAL) | ||||||||
| Print Name: | Xxxxxx Xxxxxx | Xxxx XxXxxxxx, Chief Financial Officer | ||||||
|
Title: |
||||||||
| (Include title only if an officer of entity signing to the right) | ||||||||
| PNC BANK, NATIONAL ASSOCIATION | ||||||||
| By: | /s/ Xxxxxx Xxxxx | |||||||
| (SEAL) | ||||||||
| Xxxxxx Xxxxx, Senior Vice President | ||||||||
| A. | The “Loan Documents” that are the subject of this Amendment include the following (as any
of the foregoing have previously been amended, modified or otherwise supplemented): |
| 1. | $75,000,000.00 Line of Credit Promissory Note dated April 20, 2010 executed and
delivered to the Bank by the Borrower (the “Note”). |
||
| 2. | Guaranty Agreements each dated April 20, 2010, executed and delivered to the
Bank by each of: |
| (a) | Mimi’s Café, LLC, a Delaware limited liability company; and |
||
| (b) | Xxx Xxxxx Farms, Inc, a Delaware corporation. |
| 3. | All other documents, instruments, agreements, and certificates executed and
delivered in connection with the Loan Documents listed in this Section A. |
| B. | The Loan Documents are amended as follows: |
| 1. | The definition of “Principal Payment Date” in section 1 of the Note is hereby
amended and restated in its entirety as follows: |
||
“Principal Payment Date” is the earlier of (i) April 18, 2012 and (ii) the
acceleration of the maturity of the indebtedness evidenced by the
Note following the occurrence of an Event of Default. |
|||
| 2. | Section 6.1 (g) of the Note is hereby amended and restated in its entirety as
follows: |
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(g) Any Obligor or any of its Subsidiaries, without the Bank’s
written consent: (i) liquidates or is dissolved; (ii) merges or
consolidates with any other Person; (iii) leases, sells or otherwise
conveys a material part of its assets or business outside the ordinary
course of its business; (iv) leases, purchases, or otherwise acquires
a material part of the assets of any other Person, except in the
ordinary course of its business; or (v) agrees to do any of the
foregoing; provided, however, that an Obligor or any Subsidiary of an
Obligor may merge or consolidate with any other Subsidiary of an
Obligor or with an Obligor (an “Intercompany Merger”) and an Obligor
or any Subsidiary of an Obligor may convey a material part of its
assets or business outside of the ordinary course of business to an
Obligor or any Subsidiary of an Obligor (an “Intercompany Transfer”)
as long as (x) in the case of either an Intercompany Merger or
Intercompany Transfer, the Borrower is the surviving entity or
ultimate transferee of the assets or business; or (y) in the case of
any Intercompany Merger or Intercompany Transfer involving the
Borrower where the survivor or transferee is other than the Borrower
such survivor or transferee has executed a joinder agreement in form
and substance satisfactory to the Bank becoming obligated on this Note
as a “Borrower,” and all guarantors have executed guaranties of the
indebtedness of such survivor or transferee to the Bank; or (z) in the
case of any Intercompany Merger or Intercompany Transfer involving a
guarantor where the survivor or transferee is other than the Borrower
or another guarantor, such survivor or transferee has executed a |
guaranty of the indebtedness of the Borrower. Neither an Intercompany
Merger nor an Intercompany Transfer will have the effect of releasing
any Obligor from any of the Liabilities. As used in this paragraph 7,
the term “material part” means with respect to the assets of an Obligor,
or any Subsidiary of an Obligor, when added to the book value of all
other assets conveyed outside of the ordinary course of business since
the date of this Note, an amount in excess of 30% of the total amount of
all assets of Xxx Xxxxx Farms, Inc., a Delaware corporation (the parent
of Borrower), and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP, and as determined as of the end of the fiscal
year immediately preceding such conveyance. |
| C. | Conditions to Effectiveness of Amendment: The Bank’s willingness to agree to the amendments
set forth in this Amendment is subject to the prior satisfaction of the following conditions: |
| 1. | Execution by all parties and delivery to the Bank of this Amendment,
including the attached Consent of Guarantor. |
