EXHIBIT 10.27
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of March
___, 2005 by and among ARABICA FUNDING, INC. (the "Borrower"); the financial
institutions signing below and FLEET NATIONAL BANK, as administrative agent for
the Lenders party to the Credit Agreement referred to below (in such capacity,
together with its successors and assigns in such capacity, the "Administrative
Agent").
RECITALS
A. The Borrower, the financial institutions party thereto and the
Administrative Agent are parties to the Credit Agreement dated as of June 29,
2004 (as in effect from time to time, the "Credit Agreement"). Capitalized terms
used herein without definition have the meanings assigned to them in the Credit
Agreement.
B. The Borrower has requested certain amendments to the Credit Agreement
and the consent of the Lenders to the Borrower's execution and delivery of an
amendment to the Master Lease, and the Lenders signing below are willing to
effect such amendment, and consent to such execution and delivery, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
I. AMENDMENTS TO CREDIT AGREEMENT AND CONSENT. Subject to the satisfaction of
each of the conditions set forth herein, the Credit Agreement is hereby amended
as follows:
A. Definitions. Section 1.1 of the Credit Agreement is amended as follows:
1. By inserting the following new definition in alphabetical order:
"Management Fee Payments": for any period, payments by the
Company or any of its Subsidiaries of any management fee to Crescent
Capital Investments Inc. or any of its affiliates.
2. By amending the definition of "Consolidated EBITDA" (a) by
replacing the word "and" following subclause (f) thereof with a comma, and
adding the words "and (h) Management Fee Payment expenses" after clause (g)
thereof.
3. By amending the definition of "Compliance Certificate" by
replacing the words "a Responsible Officer" with the words "an appropriate
officer of the Borrower, such officer to be reasonably acceptable to the
Administrative Agent".
B. Section 6.2(b). Section 6.2(b) of the Credit Agreement is hereby
restated in its entirety as follows:
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) (A) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each of
Holdings and each of its Subsidiaries during such period has observed or
performed all of its covenants and other agreements, and satisfied every
condition contained in the Transaction Documents to which it is a party to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any "Default" or "Event of Default"
(each as defined in the Master Lease) except as specified in such
certificate and (B) a certificate of appropriate officer of the Borrower,
such officer to be reasonably acceptable to the Administrative Agent,
stating that to the best of such officer's knowledge, each of the Borrower
and the Securities Pledgor during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition
contained in this Agreement and the other Transaction Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officerofficer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate, (ii) a Store by
Store report substantially in the form of Exhibit 6.2(b), and (iii) in the
case of quarterly or annual financial statements, (x) a Compliance
Certificate, (y) to the extent not previously disclosed to the
Administrative Agent, a description of any change in the jurisdiction of
organization of any Loan Party and a list of any Intellectual Property or
other property as to which action is required under Section 6.10 hereof, in
each case acquired by any Loan Party since the date of the most recent
report delivered pursuant to this clause (y) (or, in the case of the first
such report so delivered, since the Closing Date), and (z) the applicable
compliance certificate required to be delivered under the Master Lease;
C. Consents. The Lenders signing this Amendment hereby consent to the
execution and delivery by the Borrower of each of the documents listed in
Section IV.A and B hereof (together with this Amendment, the "Related
Documents") and the amendments to the Lease/Purchase Documents effected thereby.
D. Compliance Certificate. Exhibit D to the Credit Agreement is hereby
restated in its entirety
in the form attached as Exhibit D hereto.
E. No Further Amendments. Except as specifically amended hereby, the text
of the Credit Agreement and all other Loan Documents shall remain unchanged and
in full force and effect.
II. REFERENCES IN LOAN DOCUMENTS; CONFIRMATION OF SECURITY. All references to
the "Credit Agreement" in all Loan Documents shall, from and after the date
hereof, refer to the Credit Agreement, as amended by this Amendment, and all
obligations of the Borrower under the Loan Documents shall be secured by and be
entitled to the benefits of the Security Documents. All Security Documents
heretofore executed by the Borrower shall remain in full force and effect and,
by the Borrower's signature hereto, such Security Documents are hereby ratified
and affirmed.
III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower
hereby represents
and warrants to, and covenants and agrees with, the Lenders that:
A. The execution and delivery of this Amendment and the Related Documents
to which any Loan Party is a party have been duly authorized by all requisite
action on the part of such Loan Party.
B. The representations and warranties of the Loan Parties contained in the
Credit Agreement and the other Loan Documents and Lease/Purchase Documents are
true and correct in all material respects on and as of the date of this
Amendment as though made at and as of such date, except to the extent (a) such
representations and warranties expressly relate to an earlier date (and the
representations and warranties set forth in Section 4.1 and Section 4.18
(relating solely to the Confidential Information Memorandum) of the Credit
Agreement and Section 19(a) and Section 19(q) (relating solely to the
Confidential Information Memorandum) of the Master Lease shall be construed to
relate only to the date of the Credit Agreement and the Master Lease,
respectively, and to the Closing Date), in which case each such representation
and warranty shall be true and correct in all material respects as of such
earlier date and (b) of inaccuracies resulting from transactions permitted under
the Loan Documents and Lease/Purchase Documents, as applicable.
C. No Loan Party is required to obtain any consent, approval or
authorization from, or to file any declaration or statement with, any
governmental instrumentality or other agency or any other person or entity in
connection with or as a condition to the execution, delivery or performance of
this Amendment or any of the other Related Documents.
D. Each of the Related Documents constitutes the legal, valid and binding
obligation of each Loan Party signatory thereto, enforceable against it in
accordance with its respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any
action at law or proceeding in equity, and subject to the availability of the
remedy of specific performance or of any other equitable remedy or relief to
enforce any right thereunder.
IV. CONDITIONS. The willingness of the Administrative Agent and the Lenders to
amend the Credit Agreement as provided above, and the effectiveness of this
Amendment, are subject to the following conditions precedent:
A. The Borrower and the Company shall have executed and delivered to the
Administrative Agent an amendment to the Master Lease, in form and substance
satisfactory to the Administrative Agent, effecting (a) amendments to Section 1
of the Master Lease to conform the amendment of "Consolidated EBITDA" set forth
therein to the corresponding definition in the Credit Agreement, as amended
hereby, (b) the consent by the Borrower to the formation of Caribou Coffee
Development Company, Inc. ("Caribou Development"), a direct Wholly-Owned
Subsidiary of the Company and (c) amending Section 22(f) of the Master Lease
(Restricted Payments) to permit Management Fee Payments by the Company, provided
that such amendment shall limit such Management Fee Payments as follows:
1. no such payment will be permitted if, either before or after giving
effect thereto, any Default or Event of Default shall have occurred and be
continuing, or if, after giving effect to such payment, the Company would
not be in compliance, on a pro forma basis, with its covenants set forth in
Section 20 of the Master Lease; and
2. the Company may not make payments, in any twelve-month period, in
an aggregate amount exceeding the sum of (a) $200,000 and (b) any amount
accrued and theretofore not permitted to be paid as a result of the
limitation set forth in clause (1) above.
B. The Loan Parties shall have executed and delivered to the Administrative
Agent all documents and agreements required under the Security Documents and the
Lease/Purchase Documents in connection with the Company's formation of Caribou
Development.
C. The Loan Parties shall have delivered to the Administrative Agent true
and complete copies of any required stockholders' and/or directors' consents
and/or resolutions, authorizing the execution and delivery of the Related
Documents, certified by the Secretary of each applicable Loan Party.
D. The Loan Parties shall have delivered to the Administrative Agent such
other supporting documents and certificates as the Administrative Agent or its
counsel may reasonably request.
E. All legal matters incident to the transactions hereby contemplated shall
be reasonably satisfactory to the Administrative Agent's counsel.
V. NEW COMMITMENT. This Amendment constitutes (a) the Borrower's Additional
Commitment Request to the Administrative Agent pursuant to Section 2.1(c) of the
Credit Agreement, with the Borrower requesting that Fleet National Bank increase
its Revolving Commitment from $20,000,000 to $25,000,000 and (b) the
Administrative Agent's approval of the terms of such Additional Commitment
Request. Contemporaneously with the execution and delivery hereof, the Proposed
Lender is delivering to the Administrative Agent an Additional Lender Supplement
in accordance with Section 2.1 of the Credit Agreement.
VI. MISCELLANEOUS.
A. As provided in the Credit Agreement, the Borrower agrees to reimburse
the Administrative Agent upon demand for all reasonable fees and disbursements
of counsel to the Administrative Agent incurred in connection with the
preparation of this Amendment.
B. This Amendment shall be governed by and construed in accordance with the
laws of the State of New York.
C. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement. Delivery of an executed
signature page of this Amendment by facsimile transmission shall be effective as
an in-hand delivery of an original executed counterpart hereof.
[The next page is the signature page.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as a sealed instrument by their duly authorized representatives,
all as of the day and year first above written.
ARABICA FUNDING, INC.
By: /s/ Xxxx XxXxxx
Name: Xxxx XxXxxx
Title: Vice President
FLEET NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Managing Director
M&I XXXXXXXX & ILSLEY BANK,
as a Lender
By:/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
