EXHIBIT 10.13
NINTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT
AND WAIVER AND AMENDMENT TO BUSINESS LOAN SECURITY
AGREEMENT AND BUSINESS LOAN CONTINUING GUARANTY
THIS NINTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT AND WAIVER AND
WAIVER AND AMENDMENT TO BUSINESS LOAN SECURITY AGREEMENT AND BUSINESS LOAN
CONTINUING GUARANTY (the "Amendment") is entered into as of November 15, 1999,
between FRESH AMERICA CORP., a Texas corporation ("BORROWER"), the
"SUBSIDIARY/DEBTORS" (herein so called) named on the signature pages of this
Amendment, and BANK OF AMERICA, N.A., formerly Bank of America NT & SA,
successor in interest by merger with Bank of America, N.A., formerly
NationsBank, N.A. ("BANK").
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. Borrower has
requested Bank to amend certain provisions of the Loan Agreement as provided in
PARAGRAPH 2 below and the other Loan Documents as provided herein, and provide
certain waivers as provided in Paragraph 3 below, and Bank has, upon and subject
to the terms of this Amendment, agreed to those amendments and waivers.
Accordingly, for adequate and sufficient consideration, 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. The Loan Agreement is amended as follows:
(A) SECTION 2.1(A) is entirely amended as follows:
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, FROM
NOVEMBER 15, 1999, THROUGH MARCH 14, 2000, $22,000,000, FROM
MARCH 15, 2000, THROUGH MARCH 29, 2000, $21,500,000, ON MARCH
30, 2000, $21,000,000, AND, THEREAFTER, $20,000,000, WHICH
AMOUNT IS (I) NOT SUBJECT TO ANY ADJUSTED BORROWING BASE
RESTRICTIONS OR REDUCTIONS FROM NOVEMBER 15, 1999, THROUGH
MARCH 31, 2000, BUT (II) SUBJECT TO ADJUSTED BORROWING BASE
RESTRICTIONS AND REDUCTIONS AT ALL TIMES AFTER MARCH 31, 2000,
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(B) SECTION 2.3 is entirely amended as follows:
PURPOSE. THE LINE OF CREDIT WILL BE USED FOR WORKING CAPITAL
AND GENERAL CORPORATE PURPOSES OF THE COMPANIES.
(C) SECTIONS 2.4(A) AND (B) are entirely amended and a new SECTION
2.4(E) is added to read as follows:
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(A) THE BORROWER WILL PAY INTEREST ON ALL AMOUNTS BEARING
INTEREST BASED ON THE REFERENCE RATE ON NOVEMBER 15,
1999, AND ON THE LAST DAY OF EACH MONTH THEREAFTER UNTIL
PAYMENT IN FULL OF ALL PRINCIPAL OUTSTANDING UNDER THE
REVOLVING FACILITY COMMITMENT.
(B) ANY AMOUNT BEARING INTEREST AT THE EURODOLLAR RATE (AS
DESCRIBED BELOW) WILL BE REPAID AT THE END OF EACH
APPLICABLE INTEREST PERIOD, PROVIDED THAT (I) NO
INTEREST PERIOD MAY END AFTER THE EXPIRATION DATE, AND
(II) IF ANY INTEREST PERIOD IS GREATER THAN ONE MONTH,
THEN ACCRUED INTEREST IS ALSO DUE AND PAYABLE ON THE
DATE ONE MONTH AFTER THE COMMENCEMENT OF THE APPLICABLE
INTEREST PERIOD.
(E) THE BORROWER WILL PAY ON MARCH 15, 2000, MARCH 30, 2000,
AND MARCH 31, 2000, PRINCIPAL OUTSTANDING UNDER THE
REVOLVING NOTE TO THE EXTENT THAT THE PRINCIPAL AMOUNT
THEREOF OUTSTANDING ON SUCH DATES PLUS THE OUTSTANDING
AMOUNTS OF ANY LETTERS OF CREDIT ON SUCH DATES
(INCLUDING THE FACE AMOUNT OF ALL UNDRAWN AND
UNCANCELLED LETTERS OF CREDIT AND AMOUNTS DRAWN ON
LETTERS OF CREDIT AND NOT YET REIMBURSED), EXCEEDS THE
REVOLVING FACILITY COMMITMENT ON SUCH DATES.
(D) SECTIONS 6.2(A) AND (D) are entirely amended as follows:
(A) PRESENT AND FUTURE ACCOUNTS RECEIVABLE, INVENTORY,
MACHINERY, EQUIPMENT, FIXTURES, CONTRACT RIGHTS,
PATENTS, TRADEMARKS, LICENSES, OTHER GENERAL
INTANGIBLES, INSTRUMENTS, CHATTEL PAPER, AND DOCUMENTS
OF EACH PRESENT AND FUTURE COMPANY, TOGETHER WITH ALL
PROCEEDS AND PRODUCTS THEREOF, PURSUANT TO THE SECURITY
AGREEMENT; INCLUDING WITHOUT LIMITATION BORROWER'S
RIGHTS TO PAYMENT UNDER THE SAM'S CONTRACT;
(D) FEE SIMPLE INTERESTS OF ANY PRESENT AND FUTURE COMPANY
IN ANY REAL PROPERTY (OTHER THAN THE REAL PROPERTY OWNED
BY BORROWER IN WHICH BANK ONE, TEXAS, N.A. HAS A FIRST
LIEN), PURSUANT TO MORTGAGES OR DEEDS OF TRUST, AS THE
CASE MAY BE, IN FORM AND SUBSTANCE ACCEPTABLE TO THE
BANK.
(E) SECTION 10.3(E) is entirely amended as follows:
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(E) MONTHLY WITHIN THIRTY (30) DAYS AFTER THE LAST DAY OF
THE APPLICABLE MONTH, A BORROWING BASE REPORT SETTING
FORTH THE RESPECTIVE AMOUNTS OF ACCEPTABLE RECEIVABLES,
ACCEPTABLE GROWER CONTRACT RECEIVABLES, AND ACCEPTABLE
INVENTORY AS OF THE LAST DAY OF EACH CALENDAR MONTH OR
ANY MORE RECENT DATE FOR WHICH SUCH INFORMATION MAY BE
AVAILABLE, TOGETHER WITH THE CALCULATION OF THE ADJUSTED
BORROWING BASE. ANY BORROWING BASE REPORT WHICH HAS BEEN
TIMELY DELIVERED SHALL REMAIN IN EFFECT UNTIL THE NEXT
BORROWING BASE REPORT IS TIMELY DELIVERED.
(F) SECTION 10.11 is entirely amended as follows:
CAPITAL EXPENDITURES. NO COMPANY SHALL MAKE CAPITAL
EXPENDITURES OTHER THAN PERMITTED CAPITAL EXPENDITURES.
"PERMITTED CAPITAL EXPENDITURES" MEANS FOR ANY FISCAL MONTH,
COMMENCING WITH NOVEMBER 1999, A TOTAL AMOUNT OF CAPITAL
EXPENDITURES THAT DOES NOT EXCEED $250,000.
(G) SECTION 10.13(J) is entirely amended as follows:
INVESTMENTS IN OTHER PERSONS MADE ON OR PRIOR TO NOVEMBER 15,
1999; PROVIDED THAT SUCH INVESTMENTS DO NOT IN THE AGGREGATE
EXCEED $2,000,000.
(H) SECTION 10.14 is amended to add the following sentence at the
end thereof:
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO
PERMITTED ACQUISITION SHALL OCCUR ON OR AFTER NOVEMBER 15,
1999, WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK.
(I) SECTION 10.15 is entirely amended as follows:
THE BORROWER SHALL CAUSE EACH OF ITS PRESENT AND FUTURE
SUBSIDIARIES OTHER THAN UNRESTRICTED SUBSIDIARIES (WHETHER AS
A RESULT OF ACQUISITION, CREATION, OR OTHERWISE) TO PROMPTLY
AND FULLY COMPLY WITH SECTIONS 6.1 AND 6.2 AND SHALL CAUSE ITS
ACCOUNTS RECEIVABLE, INVENTORY, EQUIPMENT, GENERAL
INTANGIBLES, CAPITAL STOCK, AND OTHER ASSETS OR EQUITY
SECURITIES OWNED BY ANY COMPANY TO BECOME SUBJECT TO THE LIENS
REQUIRED BY SECTION 6.2. ANY SUBSIDIARY OF THE BORROWER FORMED
OR ACQUIRED AFTER NOVEMBER 15, 1999, MUST BE A WHOLLY OWNED
DIRECT OR INDIRECT SUBSIDIARY OF THE BORROWER, UNLESS SUCH
SUBSIDIARY IS WHOLLY OWNED BY A DIRECT SUBSIDIARY OR
COMBINATION OF DIRECT SUBSIDIARIES OF THE BORROWER.
(J) SECTION 10.25(D) is entirely amended as follows:
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SALE, ASSIGN, LEASE, TRANSFER, OR OTHERWISE DISPOSE OF ANY OF
ITS ASSETS (INCLUDING, WITHOUT LIMITATION, EQUITY INTERESTS IN
ANY REPORTING COMPANY) EXCEPT, WITHOUT DUPLICATION (I) SALES
AND DISPOSITIONS OF INVENTORY IN THE ORDINARY COURSE OF
BUSINESS, (II) SALES OF ASSETS WHICH ARE OBSOLETE OR ARE NO
LONGER IN USE AND WHICH ARE NOT SIGNIFICANT TO THE
CONTINUATION OF THAT COMPANY'S BUSINESS, (III) SALES OF ASSETS
(A) OBTAINED AS THE RESULT OF MERGERS AND CONSOLIDATIONS
PERMITTED UNDER THIS AGREEMENT AND PERMITTED ACQUISITIONS AND
(B) WHICH ARE UNNECESSARY TO THAT COMPANY'S BUSINESS
OPERATIONS, (IV) SALES AND DISPOSITIONS FROM ANY COMPANY TO
ANY OTHER COMPANY, (V) DISPOSITIONS OF ASSETS WHERE
SUBSTANTIALLY SIMILAR ASSETS HAVE BEEN OR ARE SIMULTANEOUSLY
BEING ACQUIRED, (VI) ARMS-LENGTH SALES AND DISPOSITIONS FROM
ANY COMPANY TO ANY UNRESTRICTED SUBSIDIARY IN THE ORDINARY
COURSE OF BUSINESS ON CUSTOMARY TRADE TERMS, AND (VII)
DISPOSITIONS OF ASSETS ON OR PRIOR TO NOVEMBER 15, 1999, THE
NET PROCEEDS OF WHICH DO NOT EXCEED $500,000 IN ANY FISCAL
YEAR. PROVIDED, HOWEVER, WITH RESPECT TO ANY SALES OTHER THAN
SALES OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS THE BANK
SHALL RECEIVE AT LEAST FIVE (5) BANKING DAYS PRIOR WRITTEN
NOTICE, AND WITH RESPECT TO SUBSECTIONS (II), (III), AND (VI),
THE PROCEEDS OF ALL SUCH SALES (OTHER THAN THE SALE OF CERTAIN
ASSETS IN LOUISIANA FOR APPROXIMATELY $350,000 AND THE SALE OF
CERTAIN ASSETS IN AUSTIN, TEXAS, FOR APPROXIMATELY $400,000
WHICH SALES CLOSED IN NOVEMBER 1999), EXCLUSIVE OF REASONABLE
EXPENSES OF SELLING, SHALL BE IMMEDIATELY APPLIED TOWARDS THE
REPAYMENT OF THE OUTSTANDING PRINCIPAL BALANCE OF THE
REVOLVING NOTE, AND THE AMOUNT OF SUCH PROCEEDS SHALL ALSO
CONSTITUTE A PERMANENT REDUCTION IN THE REVOLVING FACILITY
COMMITMENT.
(K) SECTION 10.25 is hereby amended to add immediately following
Section 10.25(j) the following subsection (k), and subsection
(l), and subsection (m) to read as follows:
(K) AMEND OR MODIFY ANY AGREEMENT OR OBLIGATION RELATED TO
ANY PAYMENT OF PRINCIPAL, INTEREST, EARN OUT,
CONTINGENCY PAYMENT, OR OTHER OBLIGATION OWED BY ANY
REPORTING COMPANY TO ANY PERSON AS THE RESULT OF THE
INCURRENCE OF SUCH OBLIGATIONS IN CONNECTION WITH A
PERMITTED ACQUISITION OR THE ACQUISITION BY A REPORTING
COMPANY OF SUBSTANTIALLY ALL OF THE BUSINESS (OR PART OF
A BUSINESS) OF A PERSON, WHETHER PURSUANT TO AN ASSET
ACQUISITION OR A STOCK PURCHASE, WHICH DOES NOT QUALIFY
AS A PERMITTED ACQUISITION BUT WHICH THE BANK HAS
OTHERWISE PERMITTED, IF SUCH AMENDMENT OR MODIFICATION
WOULD INCREASE THE OBLIGATIONS OF THE OBLIGOR OR CONFER
ADDITIONAL RIGHTS UPON THE HOLDER THEREOF OR OTHERWISE
ADVERSELY AFFECT THE INTERESTS OF THE BANK. FURTHERMORE,
THE BORROWER WILL GIVE TO THE BANK NO LESS THAN THREE
(3) BANKING DAYS WRITTEN NOTICE PRIOR TO MAKING ANY SUCH
PAYMENT ON OR AFTER NOVEMBER 15, 1999.
(L) PERMIT THE ADJUSTED BORROWING BASE TO AT ANY TIME ON OR
AFTER NOVEMBER 15, 1999, BE LESS THAN $13,131,400.
(M) MODIFY THE TREASURY MANAGEMENT ARRANGEMENTS AS IN EFFECT
WITH THE BANK ON NOVEMBER 15, 1999, OR OPEN ANY
ADDITIONAL DEPOSIT ACCOUNTS WITHOUT PROVIDING TO THE
BANK PROMPT NOTICE THEREOF.
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3. WAIVERS. Subject to the terms and conditions hereof, Bank hereby
waives, but only during the Waiver Period (hereinafter defined), the Specified
Defaults (hereinafter defined); PROVIDED, HOWEVER, that Bank's waiver of the
Specified Defaults and its rights and remedies as a result of the occurrence
thereof shall not constitute and shall not be deemed to constitute a waiver of
any other Default or Potential Default, whether arising as a result of further
violations of any provision of the Loan Agreement previously violated, or a
waiver of any rights and remedies arising as a result of such other Defaults or
Potential Defaults. As used herein, "WAIVER PERIOD" shall mean the period
commencing on the effective date of this Amendment and terminating on the
earlier to occur of (i) any further Default or Potential Default, and (ii) March
31, 2000. As used herein, "SPECIFIED DEFAULTS" shall mean the failure of
Borrower to observe the covenants set forth in Section 10.4, Section 10.5,
Section 10.6, Section 10.7, Section 10.8, and Section 10.11 of the Loan
Agreement for the fiscal quarter ended October 1, 1999, and the failure of
Borrower to observe the covenants set forth in Section 10.4, Section 10.5,
Section 10.6, Section 10.7, and Section 10.8 of the Loan Agreement for the
fiscal quarter ended December 31, 1999. At the end of the Waiver Period, the
waiver of the Specified Defaults will automatically terminate.
4. CONDITIONS PRECEDENT. This Amendment will not become effective until
all corporate actions of Borrower and each of the Subsidiary/Debtors taken in
connection herewith and the transactions contemplated hereby shall be
satisfactory in form and substance to the Bank, and each of the following
conditions precedent shall have been satisfied, all of which must occur on or
before November 29, 1999:
(a) Bank has received counterparts of this Amendment duly executed
and duly delivered by Bank, Borrower, and each other party
named on the signature page below.
(b) All fees and expenses, including reasonable legal and other
professional fees and expenses incurred on or prior to the
date of this Amendment by the Bank, including without
limitation the fees and expenses of legal counsel and
financial advisors to the Bank, shall have been paid to the
extent that same had been billed; provided that certain fees
and expenses due to Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. and
PricewaterhouseCoopers LLP shall be subject to Section 5 of
this Amendment.
(c) The Bank shall have received a certificate of the Borrower
certifying as to the accuracy, after giving effect to this
Amendment, of the representations and warranties set forth in
the Loan Agreement, the other Loan Documents and this
Amendment, that there exists no Default or Potential Default
after giving effect to this Amendment, and that the execution,
delivery and performance of this Amendment will not cause a
Default or Potential Default.
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(d) The Bank shall have received such other documents, instruments
and certificates, in form and substance reasonably
satisfactory to the Bank, as the Bank shall deem necessary or
appropriate in connection with this Amendment and the
transactions contemplated hereby, including without limitation
copies of resolutions of the boards of directors of each of
Borrower and each Subsidiary/Debtor which is a party to the
documents contemplated by this Amendment.
(e) All accrued and unpaid interest due and owing with respect to
the Revolving Loan through November 15, 1999, shall have been
paid in full.
(f) Borrower shall have executed and delivered to the Bank, or
cause to be executed and delivered to the Bank, the following
documents and other items, each satisfactory to the Bank:
i. As security for the payment and performance of all now
existing and hereafter owing obligations, indebtedness
and liabilities owed by the Borrower to the Bank, and
all renewals, extensions and modifications thereof, the
Borrower shall execute and deliver or cause to be
executed and delivered to the Bank mortgages or deeds of
trust, as appropriate, in form and substance
satisfactory to the Bank, granting to Bank a first
priority (except for certain customary permitted
encumbrances as delineated on title reports delivered to
the Bank and including zoning restrictions, easements,
licenses, or other minor irregularities of title which
do not in the aggregate materially detract from the
value of the property or materially impair the use
thereof) lien upon all real property owned by the
Borrower and the Subsidiary/Debtors other than the
Unrestricted Subsidiaries (the "Deeds of Trust"), which
real property is listed on Schedule 1 hereto, together
with such UCC-1 financing statements as the Bank may
require to confirm the perfection of its security
interest in the Collateral.
ii. The Borrower shall deliver to the Bank, to be attached
to this Amendment as Schedule 3 hereto, a listing of any
and all payments of principal, interest, earn-out,
contingency payment, or other obligation owed by any
Company to any Person which were incurred in connection
with the acquisition by Company of substantially all of
the business (or part of a business) or shares of a
Person, whether pursuant to an asset acquisition or a
stock purchase, including the amount of such payment,
the date on which such payment is due, the Person to
whom such payment is owed, and any grace period
currently available with respect to such payment.
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5. CONDITIONS SUBSEQUENT. As a condition subsequent to the effectiveness
of this Amendment, the Borrower shall (a) execute and deliver or cause to be
executed and delivered to the Bank, in form and substance reasonably
satisfactory to the Bank and its counsel, on or before January 15, 2000, the
items delineated on Schedule 2 hereto, and (b) pay or cause to be paid in
immediately available funds on or before December 15, 1999, all fees and
expenses, including reasonable legal and other professional fees and expenses,
incurred on or prior to such date by the Bank, including without limitation
certain fees and expenses due to Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. and
PricewaterhouseCoopers LLP, legal counsel and financial advisors to the Bank,
incurred as of the date of this Amendment. Upon the Borrower's failure to
deliver or cause to be delivered the items described on Schedule 2 hereto on or
before January 15, 2000, or pay such fees and expenses on or before December 15,
1999, the waiver of the Specified Defaults provided in this Amendment will
automatically terminate and be of no further force and effect, and a Default
shall exist without the giving of further notice or the lapse of further time.
6. AMENDMENT TO BUSINESS LOAN SECURITY AGREEMENT. Reference is made to the
Business Loan Security Agreement dated February 2, 1998, executed by the
Borrower and the Subsidiary/Debtors in favor of the Bank, as amended (the
"Security Agreement"). Effective as of the date hereof, the Security Agreement
is hereby amended as follows:
(a) The definition of Obligation in paragraph 1 of the Security
Agreement is hereby amended as follows:
Obligation means all present and future debts, liabilities,
and obligations of any Debtor to the Bank, whether now
existing or hereafter arising, and whether direct, indirect,
related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including
without limitation all present and future debts, liabilities,
and obligations of any Debtor under the Loan Agreement or any
other Loan Document, including without limitation all present
and future debts, liabilities, and obligations of each Debtor
arising under this agreement, and all present and future
out-of-pocket reasonable costs, attorneys' fees, and expenses
incurred by Secured Party to enforce any Debtor's or any other
obligor's payment on any of the Obligation, including, without
limitation (to the extent lawful), all present and future
amounts that would become due but for the operation of Section
502 or Section 506 or any other provision of Title 11 of the
United States Code and all present and future accrued and
unpaid interest (including, without limitation, all post
petition interest if any Debtor voluntarily or involuntarily
becomes subject to any Debtor Law).
(b) The definitions of Chattel Paper, Document, Equipment, General
Intangibles, and Instrument in paragraph 1 of the Security
Agreement are hereby amended to eliminate therefrom the
following parenthetical:
(other than any Debtor executing an Additional Subsidiaries
Supplement pursuant to paragraph 10(e) after May 14, 1998).
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(c) Paragraph 4 of the Security Agreement is hereby amended to
delete therefrom the following parenthetical:
(other than any Debtor executing an Additional Subsidiaries
Supplement pursuant to paragraph 10(e) after May 14, 1998).
(d) Paragraph 10(e) of the Security Agreement is hereby amended to
delete therefrom the following parenthetical:
(except to the extent certain provisions specifically do not
apply to "Debtors" executing an Additional Subsidiaries
Supplement after May 14, 1998).
(e) Effective as of the date hereof, Annex 4 to the Security
Agreement is hereby amended to delete therefrom the following
two parentheticals:
(but only to the extent such provisions apply to a Debtor
executing an Additional Subsidiaries Supplement after May 5,
1998) and (except to the extent certain provisions expressly
do not apply to a Debtor executing an Additional Subsidiaries
Supplement after May 5, 1998).
(f) Each Additional Subsidiaries Supplement to the Security
Agreement which has been executed since May 5, 1998, is hereby
amended to delete therefrom the following two parentheticals:
(but only to the extent such provisions apply to a Debtor
executing an Additional Subsidiaries Supplement after May 5,
1998) and (except to the extent certain provisions expressly
do not apply to a Debtor executing an Additional Subsidiaries
Supplement after May 5, 1998).
7. AMENDMENT TO BUSINESS LOAN CONTINUING GUARANTY. Effective as of the
date hereof, the defined term "Debt" as set forth in that certain Business Loan
Continuing Guaranty dated as of February 2, 1998, executed by certain
Subsidiaries of the Borrower, as supplemented by certain Additional Subsidiaries
Supplements to such Guaranty which have been subsequently executed (as
supplemented and amended, the "Guaranty"), is hereby amended as follows: The
"Debt" includes all indebtedness, obligations, and liabilities to Bank that the
Borrower now or hereafter owes, whether direct, indirect, related, unrelated,
fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several, including without limitation the indebtedness, obligations and
liabilities to Bank that Borrower incurs under the Loan Documents at any time,
past, present, or future; voluntarily or involuntarily; directly or indirectly;
or individually or together with others, and further including all obligations
under the Loan Documents due or not yet due; absolute or contingent; liquidated
or unliquidated; or for a determined or undetermined amount, and furthermore
includes any and all renewals, amendments, restatements, extensions,
modifications, and increases of any of the foregoing.
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8. CONSENT TO BANO SALE. The Bank hereby consents to the sale by the
Borrower of certain personal property assets owned by Fresh America Louisiana,
Inc., for approximately $350,000, so long as (i) such sale occurs on or prior to
December 15, 1999, (ii) the consideration received in connection with such sale
is not less than the fair market value of the assets sold, and (iii) no Default
or Potential Default has occurred which has not been waived by the Bank.
9. RELEASE. In consideration of the Bank's agreements herein and certain
other good and valuable consideration, Borrower hereby expressly acknowledges
and agrees that as of the date hereof it has no setoffs, counterclaims,
adjustments, recoupments, defenses, claims or actions of any character, whether
contingent, non-contingent, liquidated, unliquidated, fixed, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, known or unknown,
against the Bank or any grounds or cause for reduction, modification or
subordination of the obligations or owed to the Bank or any liens or security
interests of the Bank. To the extent Borrower may possess any such setoffs,
counterclaims, adjustments, recoupments, claims, actions, grounds or causes,
Borrower hereby waives, and hereby releases the Bank from, any and all of such
setoffs, counterclaims, adjustments, recoupments, claims, actions, grounds and
causes, such waiver and release being with full knowledge and understanding of
the circumstances and effects of such waiver and release and after having
consulted counsel with respect thereto.
10. CONTINUED EFFECT. Except to the extent provided herein, all terms,
provisions, and conditions of the Loan Agreement and the other Loan Documents
shall continue in full force and effect and are hereby ratified and confirmed,
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
guaranties, liens, and security interests granted therein, shall continue to
assure and secure Borrower's obligations and indebtedness to Bank, direct or
indirect, arising pursuant to the Revolving Note and the Loan Agreement, whether
or not such other Loan Documents shall be expressly affected by this Amendment.
All references in the Loan Documents to the Loan Agreement shall hereafter be
deemed to be references to the Loan Agreement affected by this Amendment.
11. 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. Telecopies of signatures shall be binding and effective as
originals.
12. 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.
13. NO ORAL AGREEMENTS. THIS WRITTEN DOCUMENT AND THE DOCUMENTS EXECUTED
IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES IN
RESPECT OF THE MATTERS COVERED HEREIN 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.
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14. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
15. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to all
provisions of the Loan Agreement applicable to Loan Documents, all of which are
incorporated in this Amendment by reference the same as if set forth in this
Amendment verbatim.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK - SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BANK OF AMERICA, N.A. (formerly FRESH AMERICA CORP., as BORROWER
Bank of America NT & SA, successor
in interest by merger with Bank of
America, N.A., formerly
NationsBank, N.A.), as BANK
By /S/ XXXXXXX X. XXXXXXXXXXX, XX By /S/ XXXX X. XXXX
Xxxxxxx X. Xxxxxxxxxxx, XX Xxxx X. Xxxx, Executive Vice President
Managing Director
CONSENT AND AGREEMENT
To induce Bank to enter into this Amendment the undersigned jointly and
severally (a) consent and agree to this Amendment's execution and delivery and
the terms hereof, including without limitation the amendments to the Security
Agreement and the Guaranty, (b) ratify and confirm that all guaranties,
assurances, liens, and subordinations granted, conveyed, or assigned to Bank
under the Loan Documents (as they may have been renewed, extended, and amended)
(i) are not released, diminished, impaired, reduced, or otherwise adversely
affected by this Amendment, and (ii) continue to guarantee, assure, secure, and
subordinate other debt to the full payment and performance of all present and
future obligations under the Loan Documents, and (c) waive notice of acceptance
of this consent and agreement, which consent and agreement binds the undersigned
and their successors and permitted assigns and inures to Bank and its successors
and permitted assigns.
COLUMBIA MARKETING SERVICES, INC.,
JNC ACQUISITION CORP.,
FRESH AMERICA ARIZONA, INC.,
FRESH AMERICA CALIFORNIA, INC.,
XXXXXXX CORPORATION,
TORONTO CORPORATION,
FRESH AMERICA LOUISIANA, INC.,
FRESH AMERICA GEORGIA, INC.,
FRESH AMERICA FLORIDA, INC.,
HEREFORD HAVEN, INC.,
FRANCISCO ACQUISITION CORP.,
ALLIED-PERRICONE, INC., F/K/A XXX XXXXXXXXX CITRUS CO., each as a
SUBSIDIARY/DEBTOR
By /S/ XXXX X. XXXX
Xxxx X. Xxxx, Vice President of each of the above companies
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SCHEDULE 1
REAL PROPERTY
1. Cutten Road, Houston, Texas
2. N.W. 00xx Xxxxxx, Xxxxxxxx, Xxxxxxx
3. Genet Street, Scranton, Pennsylvania
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SCHEDULE 2
CONDITIONS SUBSEQUENT
1. Mortgagee policies of title insurance insuring the priority of the Bank's
lien on the real property described on Schedule 1, in an amount, issued by a
title company, and showing a state of title and exceptions thereto
satisfactory to the Bank.
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SCHEDULE 3
ACQUISITION PAYMENTS
DATE ANY AVAILABLE
OBLIGOR AMOUNT PAYEE DUE GRACE PERIOD
------- ------ ----- ---- -------------
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