Exhibit 10.44
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is made and
entered into as of June 30, 2000 by and between XXXXX BROTHERS, INC., a Delaware
corporation ("PBI"), XXXXX BROTHERS ARIZONA, INC., an Arizona corporation
("PBAI"), XXXXX BROTHERS DISTRIBUTING, INC., an Arizona corporation ("PBDI"),
TEJAS PB DISTRIBUTING, INC., an Arizona corporation ("TEJAS"), WABASH FOODS,
LLC, a Delaware limited liability company ("WABASH"), BOULDER NATURAL FOODS,
INC., an Arizona corporation ("BOULDER"), and BN FOODS, INC., a Colorado
corporation ("BNF") (PBI, PBAI, PBDI, Tejas, Wabash, Boulder and BNF each a
"BORROWER" and collectively the "BORROWER" or the "BORROWERS"), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, successor in interest to
U.S. BANCORP REPUBLIC COMMERCIAL FINANCE, INC., a Minnesota corporation (the
"LENDER").
RECITALS:
A. PBI, PBAI, PBDI, Tejas, Wabash and the Lender entered into a certain
Credit Agreement dated as of October 3, 1999 (the "CREDIT AGREEMENT"). All
capitalized terms not otherwise defined herein shall have the meanings given to
them in the Credit Agreement.
B. Boulder became a party to, and a "Borrower" under, the Credit Agreement
pursuant to the terms and conditions of that certain Joinder Agreement dated as
of June 7, 2000 by and between Boulder, Lender, PBI, PBAI, PBDI, Tejas and
Wabash.
C. BNF became a party to, and a "Borrower" under, the Credit Agreement
pursuant to the terms and conditions of that certain Joinder Agreement dated as
of June 30, 2000 by and between BNF, Lender, PBI, PBAI, PBDI, Tejas, Wabash and
Boulder.
D. The Borrowers have requested the Lender to amend the Credit Agreement
(i) to convert into a new term loan a portion of the fees owed by the Borrowers
to the Lender under the Credit Agreement, and (ii) to document the extension of
a new term loan by the Lender to the Borrowers. The Lender has agreed to do so
upon the terms and subject to the conditions herein set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for One Dollar and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DELIVERY OF DOCUMENTS. At or prior to the execution of this Amendment,
Borrowers shall have delivered or caused to be delivered to the Lender the
following documents each dated such date and in form and substance satisfactory
to the Lender and duly executed by all appropriate parties:
(a) This Amendment.
(b) Term Note C (defined below).
(c) Term Note D (defined below).
(d) Payment of $200,000 to the Lender as partial payment of the Wabash Sale
Fee.
(e) Acknowledgment and Consent of Subordinated Lender from Renaissance
Capital Growth and Income Fund III, Inc. and Xxxxx Fargo Small Business
Investment Company, Inc. in the form attached hereto.
(f) Such other documents or instruments as the Lender may reasonably
require, including, without limitation, any financing statements, notices or
other instruments, required by Lender to evidence or perfect more effectively
the security interest of Lender in the Collateral (as that term is defined in
the Security Agreement).
1
2. AMENDMENTS.
Section 2.1. DEFINED TERMS.
(a) The following definitions are hereby added to Section 1.1 of the Credit
Agreement:
"TERM LOAN C": As defined in Section 2.1(d).
"TERM LOAN D": As defined in Section 2.1(e).
"TERM LOAN C COMMITMENT": The obligation of the Lender to make a term loan
to the Borrower in the Term Loan C Commitment Amount upon the terms and subject
to the conditions and limitations of this Agreement.
"TERM LOAN D COMMITMENT": The obligation of the Lender to make a term loan
to the Borrower in the Term Loan D Commitment Amount upon the terms and subject
to the conditions and limitations of this Agreement.
"TERM LOAN C COMMITMENT AMOUNT": As defined in Section 2.1(d).
"TERM LOAN D COMMITMENT AMOUNT": As defined in Section 2.1(e).
"TERM NOTE C": As defined in Section 2.3.
"TERM NOTE D": As defined in Section 2.3.
(b) The following terms defined in Section 1.1 of the Credit Agreement are
hereby amended in their entirety to read as follows:
"COMMITMENTS": The Revolving Commitment, the Term Loan A Commitment, the
Term Loan B Commitment, the Term Loan C Commitment and the Term Loan D
Commitment.
"TERM NOTES: Term Note A, Term Note B, Term Note C and Term Note D.
Section 2.2. NEW TERM LOANS.
(a) A new Section 2.1(d) and a new Section 2.1(e) are hereby added to the
Credit Agreement to read as follows:
2.1(d) TERM LOAN C. A term loan ("Term Loan C") from the Lender to the
Borrower on June 30, 2000 in the amount of $515,000.00 (the "Term Loan C
Commitment Amount").
2.1(e) TERM LOAN D. A term loan ("Term Loan D") from the Lender to the
Borrower on June 30, 2000 in the amount of $300,000.00 (the "Term Loan D
Commitment Amount").
(b) Section 2.3 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
2.3 THE NOTES. The Advances on the Revolving Loan shall be evidenced by a
single promissory note of the Borrower (the "Revolving Note"), substantially in
the form of Exhibit 2.3(a) hereto, in the amount of the Revolving Commitment
Amount originally in effect. Term Loan A shall be evidenced by a promissory note
("Term Note A"), substantially in the form of Exhibit 2.3(b) hereto, in an
2
amount equal to the Term Loan A Commitment Amount. Term Loan B shall be
evidenced by a promissory note ("Term Note B"), substantially in the form of
Exhibit 2.3(c) hereto, in an amount equal to the Term Loan B Commitment Amount.
Term Loan C shall be evidenced by a promissory note ("Term Note C"),
substantially in the form of Exhibit 2.3(d) hereto, in an amount equal to the
Term Loan C Commitment Amount. Term Loan D shall be evidenced by a promissory
note ("Term Note D"), substantially in the form of Exhibit 2.3(e) hereto, in an
amount equal to the Term Loan D Commitment Amount. The Lender shall enter in its
ledgers and records the payments made on the Revolving Note, Term Loan A, Term
Loan B, Term Loan C and Term Loan D and the amount of each Advance made and the
payments made thereon, and the Lender is authorized by the Borrower to enter on
a schedule attached to the Notes a record of such Advances and payments.
(c) Section 2.4 of the Credit Agreement is hereby amended to add the
following new sentences immediately before the last sentence of such Section
2.4:
"Interest shall accrue and be payable on the unpaid balance of Term Note C
at a floating rate equal to the Reference Rate plus 2.0% (the latter being the
"Applicable Term C Margin"); PROVIDED, HOWEVER, that upon the happening of any
Event of Default, then, at the option of the Lender, Term Note C shall
thereafter bear interest at a floating rate equal to the sum of (a) the
Reference Rate, plus (b) the Applicable Term C Margin, plus (c) 2%. Interest
shall accrue and be payable on the unpaid balance of Term Note D at a floating
rate equal to the Reference Rate plus 2.0% (the latter being the "Applicable
Term D Margin"); PROVIDED, HOWEVER, that upon the happening of any Event of
Default, then, at the option of the Lender, Term Note D shall thereafter bear
interest at a floating rate equal to the sum of (a) the Reference Rate, plus (b)
the Applicable Term D Margin, plus (c) 2%."
(d) A new Section 2.6(d) and a new Section 2.6(e) are hereby added to the
Credit Agreement to read as follows:
2.6(d) REPAYMENT OF TERM LOAN C. Principal of Term Note C is payable as
provided in Term Note C. Any prepayment must be accompanied by accrued and
unpaid interest on the amount prepaid. Amounts so prepaid cannot be reborrowed.
2.6(e) REPAYMENT OF TERM LOAN D. Principal of Term Note D is payable as
provided in Term Note D. Any prepayment must be accompanied by accrued and
unpaid interest on the amount prepaid. Amounts so prepaid cannot be reborrowed.
Section 2.3. NEW EXHIBITS. Exhibit 2.3(d) and Exhibit 2.3(e) attached
hereto are hereby incorporated by reference into and are made a part of the
Credit Agreement as Exhibit 2.3(d) and Exhibit 2.3(e), respectively, attached
thereto.
3 CONTINUING OBLIGATION; REPRESENTATIONS. To induce the Lender to enter
into this Amendment, the Borrowers represent and warrant to the Lender as
follows:
Section 3.1 CONTINUING OBLIGATION. Borrowers acknowledge and agree that
they remain obligated for the payment of indebtedness evidenced and secured by
the Credit Agreement and the other Loan Documents, and agree to be bound by and
to perform all of the covenants and agreements set forth in said documents and
instruments, as the same may be amended by this Amendment.
Section 3.2 REAFFIRMATION OF REPRESENTATIONS. Borrowers hereby restate and
reaffirm all representations, warranties and covenants contained in the Credit
Agreement and the Loan Documents, the same as if such covenants, representations
and warranties were made by Borrowers on the date hereof.
Section 3.3 INTELLECTUAL PROPERTY. Borrowers represent and warrant that
Borrowers possess or have the right to use all of the patents, trademarks, trade
names, service marks and copyrights, and applications therefor, and all
technology, know-how, processes, methods and designs used in or necessary for
the conduct of their business, without known conflict with the rights of others.
3
All such licenses, patents, trademarks, trade names, service marks and
copyrights, and applications therefor, existing on the date hereof are listed on
EXHIBIT A attached hereto.
4. ACKNOWLEDGMENT OF SECURITY INTEREST. The Borrowers acknowledge that the
Term Note C and Term Note D constitute an "Obligation" as that term is defined
in Section 1(a) of the Security Agreement and that the Collateral described in
the Security Agreement therefore secures the payment of the Term Note C and Term
Note D in accordance with the terms of the Security Agreement.
5. FEES AND EXPENSES. The Borrowers agree to pay or reimburse the Lender
for all reasonable out-of-pocket expenses (including, without limitation,
reasonable attorneys' fees, and out-of-pocket disbursements of Lender's legal
counsel) incurred by the Lender in connection with this Amendment and related
documents.
6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which shall
constitute but one and the same instrument.
7. REFERENCES. All references to the Credit Agreement in any document or
instrument are hereby amended and shall refer to the Credit Agreement as amended
by this Amendment. Except as amended hereby, the provisions of the Credit
Agreement shall remain unmodified and in full force and effect.
[Remainder of page intentionally left blank;
Signature pages follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Credit Agreement be executed as of the day and year first above written.
BORROWERS:
XXXXX BROTHERS, INC.,
a Delaware corporation
By
----------------------------------------
Its
--------------------------------------
XXXXX BROTHERS ARIZONA, INC.,
an Arizona corporation
By
----------------------------------------
Its
--------------------------------------
XXXXX BROTHERS DISTRIBUTING, INC.,
an Arizona corporation
By
----------------------------------------
Its
--------------------------------------
TEJAS PB DISTRIBUTING, INC.,
an Arizona corporation
By
----------------------------------------
Its
--------------------------------------
WABASH FOODS, LLC,
a Delaware limited liability company
By
----------------------------------------
Its
--------------------------------------
BOULDER NATURAL FOODS, INC.,
an Arizona corporation
By
----------------------------------------
Its
--------------------------------------
BN FOODS, INC.,
a Colorado corporation
By
----------------------------------------
Its
--------------------------------------
LENDER:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By
----------------------------------------
Its
--------------------------------------
5
ACKNOWLEDGMENT AND CONSENT OF SUBORDINATED LENDER
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC., a Texas corporation
("RENAISSANCE") and XXXXX FARGO SMALL BUSINESS INVESTMENT COMPANY, INC., a
California corporation ("XXXXX FARGO") hereby acknowledge and agree that Term
Note C, Term Note D and any other loans, advances or other financial
accommodations now or hereafter made by the Lender to any one or more of the
Borrowers (collectively, the "ADDITIONAL CREDIT") shall constitute "Senior Debt"
as that term is defined in (i) as to Renaissance, that certain Subordination
Agreement (Debt and Security) dated October 3, 1999 by and between Renaissance
and U.S. BANCORP REPUBLIC COMMERCIAL FINANCE, INC., a Minnesota corporation,
predecessor in interest to U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "RENAISSANCE SUBORDINATION AGREEMENT"), and (ii) as to Xxxxx
Fargo, that certain Subordination Agreement (Debt and Security) dated October 3,
1999 by and between Xxxxx Fargo and U.S. BANCORP REPUBLIC COMMERCIAL FINANCE,
INC, a Minnesota corporation, predecessor in interest to U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the "XXXXX FARGO SUBORDINATION
AGREEMENT"). Accordingly, Renaissance and Xxxxx Fargo each hereby expressly
acknowledge and agree that any obligation now or hereafter owed by any one or
more of the Borrowers to either of Renaissance or Xxxxx Fargo is and shall be
subordinate to the Additional Credit in accordance with the terms and conditions
set forth in the Renaissance Subordination Agreement or the Xxxxx Fargo
Subordination Agreement, as the case may be.
RENAISSANCE CAPITAL GROWTH &
INCOME FUND III, INC.
By
----------------------------------------
Its
--------------------------------------
XXXXX FARGO SMALL BUSINESS
INVESTMENT COMPANY, INC.
By
----------------------------------------
Its
--------------------------------------
6
EXHIBIT A
INTELLECTUAL PROPERTY
See attached.
