EXHIBIT 10.4
[BANK OF AMERICA LOGO]
COMBINED
SECOND AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT
AND
SECOND AMENDMENT TO BUSINESS LOAN SECURITY AGREEMENT
THIS COMBINED SECOND AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT AND
SECOND AMENDMENT TO BUSINESS LOAN SECURITY AGREEMENT (this "AMENDMENT") is dated
as of May 14, 1998, between 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 that certain Restated Business
Loan Agreement dated February 2, 1998, (as amended through the date of this
Amendment and as may further be amended, extended, renewed, or restated from
time to time, the "LOAN AGREEMENT"), providing for (a) a revolving line of
credit of up to $12,000,000, and (b) a bridge loan of up to $5,000,000, each
made available by Bank to Borrower;
WHEREAS, to secure the payment and performance of, among other things,
Borrower's obligations under the Loan Agreement, Borrower and Subsidiary/Debtors
executed that certain Business Loan Security Agreement dated February 2, 1998
(as amended through the date of this Amendment and as may further be amended,
extended, renewed, or restated from time to time, the "SECURITY AGREEMENT"),
creating and granting Liens in favor of Bank with respect to certain assets of
Borrower and Subsidiary/Debtors;
WHEREAS, simultaneously with the effectiveness of this
Amendment, Borrower is prepaying the Bridge Note in full;
WHEREAS, Bank and Borrower desire to amend the Loan Agreement as described
herein to, among other things, (a) increase the maximum amount available under
the revolving line of credit from $12,000,000 to $15,000,000, (b) modify the
collateral required to be pledged as security for the indebtedness under the
Loan Agreement, (c) amend certain limitations on capital expenditures and
acquisitions, and (d) modify certain borrowing base reporting requirements; and
WHEREAS, Bank, Borrower, and Subsidiary/Debtors desire to amend the
Security Agreement as described herein to modify the collateral required to be
pledged as security for the indebtedness under the Loan Agreement;
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 hereby
amended as follows:
(a) SECTION 2.1(A) 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
$15,000,000, SUBJECT TO ADJUSTED BORROWING BASE RESTRICTIONS
AND REDUCTION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(b) SECTION 2.1(C) is entirely amended, as follows:
(C) AT ANY TIME WHEN THE PRINCIPAL AMOUNT OUTSTANDING
UNDER THE REVOLVING FACILITY COMMITMENT EXCEEDS
$7,500,000, THE BORROWER AGREES NOT TO PERMIT THE
OUTSTANDING PRINCIPAL BALANCE OF THE LINE OF
CREDIT PLUS THE OUTSTANDING AMOUNTS OF ANY
LETTERS OF CREDIT, INCLUDING (I) THE TOTAL FACE
AMOUNT OF ALL UNDRAWN AND UNCANCELLED LETTERS OF
CREDIT AND (II) AMOUNTS DRAWN ON LETTERS OF
CREDIT AND NOT YET REIMBURSED, TO EXCEED THE
ADJUSTED BORROWING BASE. IF THE BORROWER EXCEEDS
THIS LIMIT, THE BORROWER WILL IMMEDIATELY PAY THE
EXCESS TO THE BANK UPON THE BANK'S DEMAND.
(c) SECTION 6.2(A) is entirely amended, as follows:
(A) WITH RESPECT TO ANY COMPANY THAT IS PARTY TO THE
SECURITY AGREEMENT ON MAY 5, 1998, PRESENT AND
FUTURE ACCOUNTS RECEIVABLE (INCLUDING, WITHOUT
LIMITATION, GROWER CONTRACT RECEIVABLES),
INVENTORY, MACHINERY, EQUIPMENT, FIXTURES,
CONTRACT RIGHTS, PATENTS, TRADEMARKS, LICENSES,
OTHER GENERAL INTANGIBLES, INSTRUMENTS, CHATTEL
PAPER, AND DOCUMENTS OF SUCH 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) SECTION 6.2(D) is entirely amended, as follows:
(D) WITH RESPECT TO ANY COMPANY THAT BECOMES A PARTY TO THE
SECURITY AGREEMENT AFTER MAY 14, 1998, ALL PRESENT AND FUTURE
ACCOUNTS RECEIVABLE (INCLUDING, WITHOUT LIMITATION, GROWER
CONTRACT RECEIVABLES) AND INVENTORY OF SUCH COMPANY, TOGETHER
WITH ALL PROCEEDS AND PRODUCTS THEREOF, PURSUANT TO THE
SECURITY AGREEMENT.
(e) SECTION 10.3(E) is entirely amended, as follows:
(E) (I) CONCURRENT WITH ANY BORROWING NOTICE
REQUESTING AN ADVANCE THAT, WHEN MADE, WILL CAUSE
THE PRINCIPAL AMOUNT OUTSTANDING UNDER THE
REVOLVING FACILITY COMMITMENT TO EXCEED
$7,500,000, 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 THE
PREVIOUS MONTH, TOGETHER WITH THE CALCULATION OF
THE ADJUSTED BORROWING BASE; AND
(II) FOR ANY MONTH DURING WHICH THE PRINCIPAL AMOUNT
OUTSTANDING UNDER THE REVOLVING FACILITY COMMITMENT EVER
EXCEEDS $7,500,000, 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 SUCH MONTH, TOGETHER
WITH THE CALCULATION OF THE ADJUSTED BORROWING BASE. ANY
BORROWING BASE REPORT REQUIRED TO BE DELIVERED UNDER THIS
CLAUSE (II) SHALL BE DELIVERED TO THE BANK WITHIN 30 DAYS
AFTER THE LAST DAY OF THE APPLICABLE MONTH.
ANY BORROWING BASE REPORT WHICH HAS BEEN TIMELY DELIVERED
SHALL REMAIN IN EFFECT UNTIL THE NEXT BORROWING BASE REPORT IS
TIMELY DELIVERED.
(f) The definition of "SUBORDINATED DEBT" in SECTION 10.4 is entirely
amended, as follows:
"SUBORDINATED DEBT" MEANS, AT ANY TIME, (A) DEBT OF ANY
COMPANY INCURRED IN CONNECTION WITH BORROWER'S 12% SENIOR
SUBORDINATED NOTES DUE MAY , 2003, IN THE PRINCIPAL AMOUNT OF
$20,000,000, AND ANY NOTES GIVEN BY BORROWER IN EXCHANGE FOR THOSE
NOTES IF THE NOTES SO GIVEN ARE SUBJECT TO THE SAME TERMS AS THE
ORIGINAL NOTES (COLLECTIVELY, THE "SUBORDINATED NOTES"), AND (B) ANY
OTHER DEBT OF ANY COMPANY (I) INCURRED AT A TIME WHEN NO POTENTIAL
DEFAULT OR DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THIS
AGREEMENT, (II) THE INCURRENCE OF WHICH SHALL NOT CAUSE A POTENTIAL
DEFAULT OR DEFAULT UNDER THIS AGREEMENT (III) FOR WHICH NO SCHEDULED
OR MANDATORY PRINCIPAL PAYMENT OR SINKING FUND PAYMENT IS DUE ON OR
BEFORE THE EXPIRATION DATE, (IV) WHOSE COVENANTS ARE NO MORE
RESTRICTIVE THAN THOSE SET FORTH IN THIS AGREEMENT, AND (V) THE
PAYMENT OF WHICH IS SUBORDINATED TO DEBT OWED BY THE COMPANIES TO
THE BANK IN A MANNER ACCEPTABLE TO THE BANK.
(g) SECTION 10.9(E) is entirely amended, as follows:
(E) INCURRING PURCHASE MONEY DEBT TO FINANCE THE PURCHASE OF
EQUIPMENT FOR ANY REPORTING COMPANY SO LONG AS THE OUTSTANDING
PRINCIPAL AMOUNT OF THAT DEBT FOR ALL OF THE REPORTING
COMPANIES, WHEN AGGREGATED WITH THE OUTSTANDING PRINCIPAL
AMOUNT OF THE DEBT PERMITTED UNDER SECTION 10.9(G) BELOW,
NEVER EXCEEDS $5,000,000.
(h) SECTION 10.11 is entirely amended, as follows:
10.11 CAPITAL EXPENDITURES. NO COMPANY SHALL MAKE CAPITAL
EXPENDITURES OTHER THAN PERMITTED CAPITAL EXPENDITURES. "PERMITTED
CAPITAL EXPENDITURES" MEANS, WITHOUT DUPLICATION, (A) CAPITAL
EXPENDITURES MADE IN CONNECTION WITH PERMITTED ACQUISITIONS, (B) THE
PORTION OF CAPITAL EXPENDITURES FINANCED WITH DEBT PERMITTED UNDER
SECTION 10.9(E) OF THIS AGREEMENT, OR (C) FOR ANY FISCAL YEAR OF THE
BORROWER BEGINNING AFTER JANUARY 3, 1998, A TOTAL AMOUNT OF CAPITAL
EXPENDITURES (OTHER THAN CAPITAL EXPENDITURES IN CONNECTION WITH
PERMITTED ACQUISITIONS OR PERMITTED PURSUANT TO SUBSECTIONS (A) AND
(B) ABOVE) THAT DOES NOT EXCEED THE SUM OF (I) $3,500,000 FOR ALL
COMPANIES, PLUS (II) AMOUNTS, UP TO $500,000, FOR THE IMMEDIATELY
PRECEDING FISCAL YEAR UNDER CLAUSE (I) ABOVE THAT WERE NOT UTILIZED
FOR "PERMITTED CAPITAL EXPENDITURES".
(i) SECTION 10.13(J) is entirely amended, as follows:
(J) INVESTMENTS IN OTHER PERSONS; PROVIDED THAT SUCH INVESTMENTS
DO NOT IN THE AGGREGATE EXCEED $2,000,000.
(j) SECTION 10.14(D) is entirely amended, as follows:
(D) IF, IMMEDIATELY AFTER CONSUMMATION OF SUCH ACQUISITION, THE
PRINCIPAL AMOUNT OUTSTANDING UNDER THE REVOLVING FACILITY
COMMITMENT WILL EXCEED $7,500,000, THEN WITHOUT THE PRIOR
APPROVAL OF THE BANK, THE CONSIDERATION TO BE PAID BY ANY
COMPANY IN CONNECTION WITH THE
ACQUISITION THAT IS COMPRISED OF CASH AND/OR DEBT, TO THE
EXTENT SUCH DEBT IS A FIXED OBLIGATION OF THAT COMPANY THAT
WILL BECOME A LIABILITY OF THE COMPANY UNDER GAAP PRIOR TO THE
EXPIRATION DATE -- WHETHER ASSUMED, INCURRED, OR TO REMAIN,
BUT IN ANY EVENT SUBJECT TO SECTIONS 10.9(F) AND (G) -- (I)
DOES NOT COLLECTIVELY EXCEED $2,000,000;
(k) SECTION 10.14(E) is entirely amended, as follows:
(E) IF THE CONSIDERATION DESCRIBED IN SECTION 10.14(D) ABOVE TO BE
PAID BY ANY COMPANY IN CONNECTION WITH THE ACQUISITION
COLLECTIVELY EXCEED $2,000,000, THE BORROWER PROVIDES THE BANK
WITH EVIDENCE, SATISFACTORY TO THE BANK, OF THE POSITIVE
OPERATING INCOME OF THE PERSON TO BE ACQUIRED FOR THE MOST
RECENT 12-MONTH PERIOD;
(l) New SECTION 10.25(I) and (J) are hereby added immediately following
SECTION 10.25(H), to read as follows:
(I) PREPAY OR CAUSE TO BE PREPAID ANY PRINCIPAL OF, OR ANY
INTEREST ON, ANY OF THE SUBORDINATED NOTES EXCEPT (A)
EXCHANGES OF SUBORDINATED NOTES FOR OTHER SUBORDINATED NOTES,
AND (B) CONVERSIONS OF DEBT UNDER THE SUBORDINATED NOTES TO
EQUITY OF BORROWER THAT IS NOT MANDATORILY REDEEMABLE.
(J) AGREE TO ANY CHANGE OR AMENDMENT TO THE TERMS OF
THE SUBORDINATED NOTES (OR ANY INDENTURE OR
AGREEMENT IN CONNECTION THEREWITH) IF THE EFFECT
OF SUCH CHANGE OR AMENDMENT IS TO: (A) INCREASE
THE INTEREST RATE ON THE SUBORDINATED NOTES, (B)
CHANGE THE DATES UPON WHICH PAYMENTS OF PRINCIPAL
OR INTEREST ARE DUE ON THE SUBORDINATED NOTES
OTHER THAN TO EXTEND SUCH DATES, (C) CHANGE ANY
DEFAULT OR EVENT OF DEFAULT OR COVENANT OTHER
THAN TO DELETE OR MAKE LESS RESTRICTIVE ANY
DEFAULT OR COVENANT PROVISION THEREIN, (D) CHANGE
THE REDEMPTION OR PREPAYMENT PROVISIONS OF THE
SUBORDINATED NOTES OTHER THAN TO EXTEND THE DATES
THEREFOR OR TO REDUCE THE PREMIUMS PAYABLE IN
CONNECTION THEREWITH, OR (E) CHANGE OR AMEND ANY
OTHER TERM IF SUCH CHANGE OR AMENDMENT WOULD
MATERIALLY INCREASE THE OBLIGATIONS OF THE
OBLIGOR OR CONFER ADDITIONAL MATERIAL RIGHTS TO
THE HOLDER OF THE SUBORDINATED NOTES IN A MANNER
ADVERSE TO BORROWER OR THE BANK.
(m) EXHIBIT A-1 is entirely amended in the form of, and all references to
EXHIBIT A-1 are changed to, the attached AMENDED EXHIBIT A-1.
3. AMENDMENTS TO SECURITY AGREEMENT. The Security Agreement
is hereby amended as follows:
(a) PARAGRAPH 1 of the Security Agreement is amended by entirely amending
the following definitions, as follows:
CHATTEL PAPER MEANS, FOR EACH DEBTOR (OTHER THAN ANY DEBTOR
EXECUTING AN ADDITIONAL SUBSIDIARIES SUPPLEMENT PURSUANT TO
PARAGRAPH 10(E) AFTER MAY 14, 1998), ANY "CHATTEL PAPER," AS THAT
TERM IS DEFINED IN CHAPTER 9
OF THE UCC.
DOCUMENT MEANS, FOR EACH DEBTOR (OTHER THAN ANY DEBTOR EXECUTING AN
ADDITIONAL SUBSIDIARIES SUPPLEMENT PURSUANT TO PARAGRAPH 10(E) AFTER
MAY 14, 1998), ANY "DOCUMENT," AS THAT TERM IS DEFINED IN CHAPTER 9
OF THE UCC, INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTS OF TITLE
AND WAREHOUSE RECEIPTS OF DEBTOR.
EQUIPMENT MEANS, FOR EACH DEBTOR (OTHER THAN ANY DEBTOR EXECUTING AN
ADDITIONAL SUBSIDIARIES SUPPLEMENT PURSUANT TO PARAGRAPH 10(E) AFTER
MAY 14, 1998), ANY "EQUIPMENT," AS THAT TERM IS DEFINED IN CHAPTER 9
OF THE UCC, AND, IN ANY EVENT, INCLUDES, WITHOUT LIMITATION, ALL
MACHINERY, EQUIPMENT, FURNISHINGS, AND FIXTURES AND ANY AND ALL
ADDITIONS, SUBSTITUTIONS, AND REPLACEMENTS OF ANY OF THE FOREGOING,
WHEREVER LOCATED, TOGETHER WITH ALL ATTACHMENTS, COMPONENTS, PARTS,
EQUIPMENT, AND ACCESSORIES INSTALLED THEREON OR AFFIXED THERETO.
GENERAL INTANGIBLES MEANS, FOR EACH DEBTOR (OTHER THAN ANY DEBTOR
EXECUTING AN ADDITIONAL SUBSIDIARIES SUPPLEMENT PURSUANT TO
PARAGRAPH 10(E) AFTER MAY 5, 1998), ANY "GENERAL INTANGIBLES," AS
THAT TERM IS DEFINED IN CHAPTER 9 OF THE UCC, AND, IN ANY EVENT,
INCLUDES, WITHOUT LIMITATION, EACH OF THE FOLLOWING: (A) ALL OF
DEBTOR'S PATENTS, PATENT APPLICATIONS, PATENT RIGHTS, SERVICE MARKS,
TRADEMARKS, TRADE NAMES, TRADE SECRETS, INTELLECTUAL PROPERTY,
REGISTRATIONS, GOODWILL, COPYRIGHTS, FRANCHISES, LICENSES, PERMITS,
PROPRIETARY INFORMATION, CUSTOMER LISTS, DESIGNS, AND INVENTIONS;
(B) ALL OF DEBTOR'S BOOKS, RECORDS, DATA, PLANS, MANUALS, COMPUTER
SOFTWARE, AND COMPUTER PROGRAMS; (C) ALL OF DEBTOR'S CONTRACT
RIGHTS, PARTNERSHIP INTERESTS AND JOINT VENTURE INTERESTS, DEPOSIT
ACCOUNTS, INVESTMENT ACCOUNTS, AND CERTIFICATES OF DEPOSIT; (D) ALL
RIGHTS OF DEBTOR TO PAYMENT UNDER LETTERS OF CREDIT AND SIMILAR
AGREEMENTS;(E) ALL TAX REFUNDS AND TAX REFUND CLAIMS OF DEBTOR; (F)
ALL CAUSES OF ACTION OF DEBTOR (WHETHER ARISING IN CONTRACT, TORT,
OR OTHERWISE AND WHETHER OR NOT CURRENTLY IN LITIGATION) AND ALL
JUDGMENTS IN FAVOR OF DEBTOR; (G) ALL RIGHTS AND CLAIMS OF DEBTOR
UNDER WARRANTIES AND INDEMNITIES; AND (H) ALL RIGHTS OF DEBTOR UNDER
ANY INSURANCE, SURETY, OR SIMILAR CONTRACT OR ARRANGEMENT.
INSTRUMENT MEANS, FOR EACH DEBTOR (OTHER THAN ANY DEBTOR EXECUTING
AN ADDITIONAL SUBSIDIARIES SUPPLEMENT PURSUANT TO PARAGRAPH 10(E)
AFTER MAY 14, 1998), ANY "INSTRUMENT," AS THAT TERM IS DEFINED IN
CHAPTER 9 OF
THE UCC.
(b) PARAGRAPH 4 of the Security Agreement is entirely amended, as
follows:
4. COLLATERAL. THE TERM "COLLATERAL" MEANS THE
FOLLOWING ITEMS AND TYPES OF PROPERTY, WHEREVER
LOCATED AND NOW OR IN THE FUTURE ACQUIRED OR EXISTING:
O FOR EACH DEBTOR, ALL OF ITS ACCOUNTS, INVESTMENT
PROPERTY, GROWER CONTRACT RECEIVABLES, INVENTORY,
AND PLEDGED SECURITIES;
O FOR EACH DEBTOR (OTHER THAN ANY DEBTOR EXECUTING AN ADDITIONAL
SUBSIDIARIES SUPPLEMENT PURSUANT TO PARAGRAPH 10(E) AFTER MAY
14, 1998), ALL OF ITS CHATTEL PAPER, DOCUMENTS, EQUIPMENT,
GENERAL INTANGIBLES, AND INSTRUMENTS; AND
O ALL CASH AND NONCASH PROCEEDS OF ANY OTHER
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ALL
CASH, ACCOUNTS, GENERAL INTANGIBLES, DOCUMENTS,
INSTRUMENTS, CHATTEL PAPER, GOODS, AND ANY OTHER
PROPERTY RECEIVED UPON THE SALE OR DISPOSITION OF
ANY OTHER COLLATERAL AND ALL INSURANCE PROCEEDS
OF ANY KIND PAID AT ANY TIME IN CONNECTION WITH
ANY OTHER COLLATERAL.
(c) PARAGRAPH 10(E) of the Security Agreement is entirely amended, as
follows:
(E) ADDITIONAL DEBTORS. ANY PERSON THAT BECOMES A SUBSIDIARY OF ANY
DEBTOR SUBSEQUENT TO THE DATE HEREOF AND THAT WAS NOT A "DEBTOR"
UNDER THIS AGREEMENT AT THE TIME OF INITIAL EXECUTION HEREOF SHALL
BECOME A "DEBTOR" HEREUNDER BY EXECUTING AND DELIVERING TO SECURED
PARTY AN ADDITIONAL SUBSIDIARIES SUPPLEMENT IN THE FORM ATTACHED
HERETO AS ANNEX 4. ANY SUCH SUBSIDIARY SHALL THEREAFTER BE DEEMED A
"DEBTOR" FOR ALL PURPOSES UNDER THIS AGREEMENT (EXCEPT TO THE EXTENT
CERTAIN PROVISIONS SPECIFICALLY DO NOT APPLY TO "DEBTORS" EXECUTING
AN ADDITIONAL SUBSIDIARIES SUPPLEMENT AFTER MAY 14, 1998).
(d) ANNEX 4 to the Security Agreement is entirely amended in the form of,
and all references to ANNEX 4 are changed to, the attached AMENDED ANNEX
4.
4. CONDITIONS PRECEDENT. This Amendment will become effective as of the date
first written above, provided that the Bank has received from the Borrower
a duly executed original of this Amendment, together with each item set
forth on the attached ANNEX 1.
5. 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, 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. All references in the Loan Documents to the
Security Agreement shall hereafter be deemed to be references to the
Security Agreement as amended hereby.
6. 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.
7. 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.
8. 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.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BANK:
BANK OF AMERICA TEXAS, N.A.
By:
Connor X. Xxxxxx, Vice President
BORROWER:
FRESH AMERICA CORP.
By:
Xxxxxx X. Xxxxxxx, Executive Vice President
COMBINED SECOND AMENDMENT SIGNATURE PAGE
PAGE ONE OF TWO PAGES
SUBSIDIARY/DEBTORS:
LONE STAR PRODUCE ACQUISITION CORP.
By:
Xxxxxx X. Xxxxxxx, Vice President
PRODUCE PLUS, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
ONE MORE TOMATO, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
FRESH AMERICA CALIFORNIA, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
X. XXXXX FRUIT AND VEGETABLE, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
SAM'S BANANA CO., INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
FRESH AMERICA LOUISIANA, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
FRESH AMERICA GEORGIA, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
FRESH AMERICA SAN DIEGO, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
HEREFORD HAVEN, INC.
By:
Xxxxxx X. Xxxxxxx, Vice President
FRANCISCO ACQUISITION CORP.
By:
Xxxxxx X. Xxxxxxx, Vice President
COMBINED SECOND AMENDMENT SIGNATURE PAGE
PAGE two OF TWO PAGES
ANNEX 1
1. COMBINED SECOND AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT AND SECOND
AMENDMENT TO BUSINESS LOAN SECURITY AGREEMENT (this "AMENDMENT") dated as
of May 14, 1998, between 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, to which
must be attached the following:
AMENDED EXHIBIT A-1 [TO CREDIT AGREEMENT] - AMENDED AND RESTATED REVOLVING NOTE
AMENDED ANNEX 4 [TO SECURITY AGREEMENT] - AMENDED ADDITIONAL SUBSIDIARIES SUPPLEMENT
2. AMENDED AND RESTATED REVOLVING NOTE dated as of May 14, 1998, executed by
Borrower, and payable to Bank in the stated principal amount of
$15,000,000.
3. RELEASE OF LIEN, executed by Bank, releasing liens granted to Bank by
Borrower by that certain Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rents dated as of February 2, 1998, executed
by Borrower as GRANTOR, for the benefit of Bank, with respect to certain
Real Property located in Xxxxxx County, Texas, and recorded in the Real
Property Records of Xxxxxx County, Texas at Vol. 516-91, Pgs. No.
0842-0864, Filmcode No. S858449.
4. RELEASE OF LIEN, executed by Bank, releasing liens granted to Bank by
Borrower by that certain Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rents dated as of February 2, 1998, executed
by Borrower as GRANTOR, for the benefit of Bank, with respect to certain
Real Property located in Xxxxx County, Indiana, and recorded in the Real
Property Records of Xxxxx County, Indiana at Instrument No.
1998001571.
5. EVIDENCE OF PAYMENT of all amounts outstanding under the Bridge Loan
Commitment.
6. CONSENT of Bank to Borrower's incurrence of debt described in ITEMS 7-10,
below.
7. SECURITIES PURCHASE AGREEMENT dated as of May , 1998, executed by and
between Borrower and each PURCHASER described therein.
8. NOTE AGREEMENT dated as of May , 1998, executed by and between Borrower
and each PURCHASER described therein.
9. WARRANT AGREEMENT dated as of May , 1998, executed by and between Borrower
and each PURCHASER described therein.
10. SUBORDINATED GUARANTY dated as of May , 1998, one executed by each
Subsidiary of Borrower OTHER THAN Unrestricted Subsidiaries.
11. 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 the
transactions contemplated inITEMS 7-10, above, and as to no changes with
respect to the incumbency of its officers, its bylaws or corporate
charter.
12. OPINION of counsel to Borrower with respect to ITEMS 7-10 above, addressed
to the PURCHASERS described therein.
13. OPINION of counsel to Purchasers with respect to ITEMS 7-10 above,
addressed to the PURCHASERS described therein.
