Exhibit 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of ______________, 2002 by and between XXXXX BROTHERS, INC., a
Delaware corporation ("PBI") (including XXXXX BROTHERS ARIZONA, INC., formerly
an Arizona corporation ("PBAI") and XXXXX BROTHERS DISTRIBUTING, INC., formerly
an Arizona corporation ("PBDI"), both of which are now merged with and into PBI
by operation of merger under Delaware and Arizona law), 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, 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, as 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 March 30, 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) extension of the maturity date of the Revolving Loan (as defined
in the Credit Agreement) from October 31, 2003 to October 31, 2005, and (ii)
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.
Section 1.1 DELIVERABLES PRIOR TO EXECUTION. 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) Evidence of the conversion of the subordinated debt previously
held by Xxxxx Fargo Small Business Investment Company, Inc. into
capital stock of PBI; and
(c) 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).
Section 1.2 DELIVERABLES SUBSEQUENT TO EXECUTION. Within 30 days after
the execution of this Amendment, Borrowers will deliver or cause 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) A copy, duly certified by the secretary or an assistant secretary
of each Borrower, of the resolutions of the Board of Directors,
Members, or Managers (as applicable) of such Borrower authorizing
the execution, delivery and performance by such Borrower of this
Amendment and any other documents delivered or to be delivered in
connection herewith to which such Borrower is a party or by which
it is bound, together with all documents evidencing other
necessary corporate action;
(b) A certificate of the secretary or an assistant secretary of each
Borrower, certifying: (i) the names of the officers of such
Borrower authorized to sign this Amendment and the other
documents delivered or to be delivered in connection herewith to
which such Borrower is a party or by which it is bound, and (ii)
that the Articles of Incorporation and Bylaws (or the equivalent
of such Minnesota charter and organizational documents for
corporations and limited liability entities in Delaware, Arizona,
and Colorado, as applicable) of such Borrower have not been
amended, modified, supplemented or restated since the date such
documents were last certified to the Lender; and
(c) 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 MATURITY EXTENSION OF REVOLVING LINE OF CREDIT. Section
2.1(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"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, 2005 (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 2.2 EXTENSION OF TERMINATION FEE PERIOD. Section 2.10 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Section 2.10 TERMINATION FEE. In the event that the Term Loan A
or the Capital Expenditure Loan Note is prepaid in whole or in part,
or that the Revolving Loan facility is terminated prior to the
Revolving Maturity Date, the Borrower will pay to the Lender a
prepayment charge, as additional compensation for the Lender's costs
of entering into this Agreement, such prepayment charge with respect
to the Term Loan A or the Capital Expenditure Loan Note to be in the
amount of 1% of the prepaid amount, and such prepayment charge with
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respect to the Revolving Loan to be in the amount of 1% of the
Revolving Commitment Amount, but if any such prepayment or termination
occurs on or after November 1, 2004, such prepayment fee will instead
be .5% of the prepaid amount with respect to the Term Loan A or the
Capital Expenditure Loan Note, and .5% of the Revolving Commitment
Amount with respect to the Revolving Loan."
Section 2.3 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) $1,000,000 in the fiscal year ended December 31, 2002,
and (b) $750,000 in any fiscal year thereafter."
Section 2.4 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:
"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
---------------- ------------
June 30, 2002 $6,500,000
September 30, 2002 $6,500,000
December 31, 2002 $7,000,000
on March 31, 2003 and the last day of each fiscal quarter
thereafter, the Minimum Tangible Capital Base shall be the
Minimum Tangible Capital Base for the previous quarter, except
that for each measurement date that falls on the end of the
fiscal year, the Minimum Tangible Capital Base will be 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 in
the fiscal year ending on the then current measurement date (with
any net loss counting as zero in such calculation)."
Section 2.5 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. As of the end of each
of Borrower's fiscal quarters, for the period of four consecutive
fiscal quarters ending on such date Borrower will not permit the Fixed
Charge Coverage Ratio for such period to be less than 1.00 to 1.00."
Section 2.6 DELETION OF CASH FLOW COVERAGE RATIO. Section 6.10 of the
Credit Agreement is hereby deleted in its entirety.
Section 2.7 DELETION OF DEBT SERVICE COVERAGE RATIO NEGATIVE COVENANT.
Section 6.12 of the Credit Agreement is hereby deleted in its entirety.
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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. 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.
5. 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.
6. 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.
[Remainder of page intentionally left blank; Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Credit Agreement be executed as of the day and year first above
written.
BORROWERS: XXXXX BROTHERS, INC.,
a Delaware 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________________________________
BN FOODS, INC.,
a Colorado corporation
By_________________________________
Its________________________________
LENDER: U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By_________________________________
Its________________________________
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