EXHIBIT 10.12
EIGHTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT
AND WAIVER
THIS EIGHTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT AND WAIVER (the
"Amendment") is entered into as of October 31, 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 Bank has, upon and subject to the terms of this
amendment, agreed to those amendments. 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 Credit 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 1, 1999, THROUGH NOVEMBER 15, 1999, $22,000,000, AND,
THEREAFTER, $20,000,000, WHICH AMOUNT IS (I) NOT SUBJECT TO
ANY ADJUSTED BORROWING BASE RESTRICTIONS OR REDUCTIONS FROM
NOVEMBER 1, 1999, THROUGH NOVEMBER 15, 1999, BUT (II) SUBJECT
TO ADJUSTED BORROWING BASE RESTRICTIONS AND REDUCTIONS AT ALL
TIMES AFTER NOVEMBER 15, 1999, IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT.
(B) SECTION 10.3 is amended to add subsection (i) thereto to read as
follows:
(I) ON OR BEFORE FRIDAY OF EACH WEEK, BORROWER'S WEEKLY FLASH
REPORT OF REVENUES FOR THE PREVIOUS WEEK.
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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)
November 15, 1999. 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. 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
Bank has received counterparts of this amendment duly executed and delivered by
Bank, Borrower, and each other party named on the signature page below.
5. 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.
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. Telecopies of signatures shall be binding and effective as
originals.
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 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.
9. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
10. 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 INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment
to Restated Business Loan Agreement and Waiver to be executed as of the date
first written above.
BANK OF AMERICA, N.A. (formerly
Bank of America NT & SA, successor FRESH AMERICA CORP., as BORROWER
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, (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.,
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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