TERM NOTE C
EXHIBIT 10.5
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$6,000,000 |
Phoenix, Arizona |
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March 22, 2013 |
FOR VALUE RECEIVED, the undersigned INVENTURE FOODS, INC., a Delaware corporation, and BN FOODS INC., a Colorado corporation, BOULDER NATURAL FOODS, INC., an Arizona corporation, XX XXXXXX PROPERTIES, INC., an Arizona corporation, XXXXX BROTHERS - BLUFFTON, LLC, a Delaware limited liability company, XXXXX FARMS, INC., a Delaware corporation, and TEJAS PB DISTRIBUTING, INC., an Arizona corporation, (each a “Borrower” and collectively, “Borrower”, as the context may require), promises to pay to the order of U.S. Bank National Association, a national banking association (hereinafter referred to as “U.S. Bank”) at 000 Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or at such other place as U.S. Bank may designate, in lawful money of the United States of America, the principal sum of Six Million Dollars $6,000,000 or so much thereof as may be advanced and be outstanding, together with interest on any and all principal amounts outstanding calculated in accordance with the provisions set forth below. This Note is issued under that certain Loan and Security Agreement between Borrower and U.S. Bank dated March 22, 2013 (as the same has been and may be amended, replaced, restated and/or supplemented from time to time, the “Loan Agreement”). All terms not defined herein shall have the definition given to them in the Loan Agreement.
Interest on each Advance hereunder shall accrue at an annual rate equal to the Applicable Margin plus the one-month LIBOR rate quoted by U.S. Bank from Reuters Screen LIBOR01 Page or any successor thereto, which shall be that one-month LIBOR rate in effect two New York Banking Days prior to the Reprice Date, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation, such rate rounded up to the nearest one-sixteenth percent and such rate to be reset monthly on each Reprice Date. The term “New York Banking Day” means any date (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York. The term “Reprice Date” means the first day of each month. If the initial advance under this Note occurs other than on the Reprice Date, the initial one-month LIBOR rate shall be that one-month LIBOR rate in effect two New York Banking Days prior to the date of the initial advance, which rate plus the percentage described above shall be in effect until the next Reprice Date. Bank’s internal records of applicable interest rates shall be determinative in the absence of manifest error.
A request for a Loan (a “Loan Request”) shall be made not later than 11:00 a.m. (mountain time) on the New York Banking Day that is two New York Banking Days prior to the proposed date of the Loan.
Interest accrued hereunder shall be computed on the basis of actual days elapsed and a year of 360 days. In the event after the date of initial funding any governmental authority subjects U.S. Bank to any new or additional charge, fee, withholding or tax of any kind with respect to any loans hereunder or changes the method of taxation of such loans or changes the reserve or deposit requirements applicable to such loans, the Borrower shall pay to U.S. Bank such additional amounts as will compensate U.S. Bank for such costs or lost income resulting therefrom as reasonably determined by U.S. Bank.
Borrower shall have the right to make prepayments of principal, without charge at any time.
The unpaid balance of this obligation at any time shall be the total amounts advanced hereunder by U.S. Bank together with accrued and unpaid interest, less the amount of payments made hereon by or for Borrower, which balance may be endorsed hereon from time to time by U.S. Bank.
Interest shall be payable in arrears beginning April 1, 2013 and on the same date of each month thereafter, plus a final interest payment with the final payment of principal. When any interest is due and payable under this Note, U.S. Bank may (a) make an automatic Loan of principal under the Loan Agreement, or (b) take the payment by a debit to a Deposit Account maintained with U.S. Bank per any preauthorization provided by Borrower to U.S. Bank.
In addition to the repayment requirements imposed upon Borrower under the Loan Agreement, together with the agreements referred to therein, the principal owing under this Note shall be payable in monthly installments of Seventy One Thousand Four Hundred Twenty Eight and 57/100 Dollars ($71,428.57) on April 1, 2013, and on the same date of each month thereafter, plus a final payment equal to all unpaid principal on the Maturity Date. When any such payment due, U.S. Bank may take the payment by a debit to a Deposit Account maintained with U.S. Bank per any preauthorization provided by Borrower to U.S. Bank. “Maturity Date” shall mean, as applicable, the earlier of: (a) May 31, 2014; (b) the date of termination in whole of the Commitments pursuant to Sections 2.3(c), 2.8 or 9.1 of the Loan Agreement; or (c) the date of the TGIF Early Maturity Date.
Interim payments made by Borrower either pursuant to the Loan Agreement or as a voluntary prepayment shall be applied first to any costs or fees owing by Borrower to U.S. Bank, shall be applied second to any interest payments owing hereunder which are due and unpaid, shall be applied third to any outstanding principal owing hereunder, and shall be applied fourth to interest accrued but not yet due.
Anything herein or in the Loan Agreement to the contrary notwithstanding, all principal and interest remaining unpaid on the Maturity Date shall be immediately due and payable unless such Maturity Date shall be extended by U.S. Bank as set forth below.
Loans hereunder, to the total amount of the principal sum stated above, may be made by U.S. Bank at the oral or written request of the natural Person signing this Note on behalf of Borrower (or any one of them, if more than one), or any natural Person designated by them (or any one of them). Such persons shall be authorized to request Loans and direct the disposition of any such Loans until written notice of the revocation of such authority is received by U.S. Bank at the address designated above. Any such Loans shall be conclusively presumed to have been made to or for the benefit of Borrower when U.S. Bank believes in good faith that such requests and directions have been made by authorized persons, or when said Loans are mailed to Borrower or deposited to the credit of the account of Borrower regardless of the fact that persons other than those authorized hereunder may have authority to draw against such account.
Notwithstanding the provisions of this Note, U.S. Bank shall have the option, in its sole discretion and without any obligation to do so, to make Loans to Borrower (or for Borrower’s account where authorized to do so under the Loan Agreement or related documents), in amounts in excess of those amounts that would otherwise be prescribed by this Note. Such overadvances, when made by U.S. Bank, shall become an obligation of Borrower and any surety of Xxxxxxxx’s indebtedness to U.S. Bank under this Note to the same extent as any other disbursements hereunder, and notwithstanding the fact that such overadvances may create a principal balance owing to U.S. Bank in excess of the face amount stated in this Note. U.S. Bank shall also have the option, in its sole discretion and without any obligation to do so, to extend the Maturity Date of the indebtedness hereunder. Such extensions shall be immediately effective when made by U.S. Bank and notice thereof shall be given by U.S. Bank as provided for in the Loan Agreement.
Should any Matured Default occur, as provided for in the Loan Agreement, which shall not have been cured, if a right to cure is provided for therein, then at U.S. Bank’s option, U.S. Bank may declare all sums of principal and interest outstanding hereunder to be immediately due and payable without presentment, demand or notice of dishonor, all of which are expressly waived, and U.S. Bank shall have no obligation to make any further Loans hereunder.
Should more than one person or entity sign this Note, the obligations of each signer shall be joint and several. U.S. Bank may settle, release, compromise, collect or otherwise liquidate the obligations of any Borrower, any guarantor of such obligations, and any security or collateral for such obligations or for any such guaranty, in any manner, without affecting or impairing the obligations of the undersigned hereunder.
This Note shall be construed in accordance with the laws of the State of Arizona.
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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BN FOODS, INC. | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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BOULDER NATURAL FOODS, INC. | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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XX XXXXXX PROPERTIES, INC. | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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XXXXX BROTHERS — | |
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BLUFFTON, LLC | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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XXXXX FARMS, INC. | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
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TEJAS PB DISTRIBUTING, INC. | |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Xxxxx Xxxxxxxxxx |
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Chief Financial Officer |
[Signature Page to Term Note C]
