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EXHIBIT 10.20
TWELFTH AMENDMENT TO
RESTATED BUSINESS LOAN AGREEMENT
THIS TWELFTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT (the
"Amendment") is entered into as of March 15, 2001, 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 the other Loan Documents as provided herein, and Bank has,
upon and subject to the terms of this Amendment, agreed. 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 Loan Documents are amended as follows:
(A) SECTION 2.2 of the Loan Agreement is amended to delete
therefrom the date "March 15, 2001" and substitute in lieu thereof the
date "March 29, 2001".
(B) Section 10.4 of the Loan Agreement is amended in its
entirety to read as follows:
10.4 Adjusted Borrowing Base Mandatory Prepayment. If
at any time the principal outstanding under the Revolving Note
plus the outstanding amounts of any letters of credit on such
date (including the face amount of all undrawn and uncancelled
letters of credit and amounts drawn on letters of credit and
not yet reimbursed) exceeds the Adjusted Borrowing Base
(calculated as of the end of the most recently preceding
calendar month) , the Company shall immediately pay to the
Bank any such excess.
"Subordinated Debt" means, at any time, (a) Debt of
any Company incurred in connection with Borrower's 12% Senior
Subordinated Notes Due May 1, 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
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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.
(C) SECTION 3 of the Tenth Amendment to Restated Business Loan
Agreement and Waiver dated as of March 31, 2000, among the Borrower,
the Subsidiaries/Debtors named therein, and the Bank is hereby amended
to delete therefrom the date "March 15, 2001" and substitute in lieu
thereof the date "March 29, 2001".
3. CONDITIONS PRECEDENT. This Amendment will not become effective until
all corporate actions of Borrower and each of the Subsidiary/Debtors taken in
connection herewith and the transactions contemplated hereby shall be
satisfactory in form and substance to the Bank, and each of the following
conditions precedent shall have been satisfied, all of which must occur on or
before March 15, 2001:
(a) Bank has received counterparts of this Amendment duly
executed and duly delivered by Bank, Borrower, and
each other party named on the signature page below.
(b) All fees and expenses, including reasonable legal and
other professional fees and expenses incurred on or
prior to the date of this Amendment by the Bank,
including without limitation the fees and expenses of
legal counsel and financial advisors to the Bank,
shall have been paid to the extent that same have
been billed.
(c) The Bank shall have received a certificate of the
Borrower certifying as to the accuracy, after giving
effect to this Amendment, of the representations and
warranties set forth in the Loan Agreement, the other
Loan Documents and this Amendment, that there exists
no Default or Potential Default after giving effect
to this Amendment, and that the execution, delivery
and performance of this Amendment will not cause a
Default or Potential Default.
(d) The Bank shall have received such other documents,
instruments and certificates, in form and substance
reasonably satisfactory to the Bank, as the Bank
shall deem necessary or appropriate in connection
with this Amendment and the transactions contemplated
hereby, including without limitation copies of
resolutions of the boards of directors of each of
Borrower and each Subsidiary/Debtor which is a party
to the documents contemplated by this Amendment.
(e) The Bank shall have received appraisals of the
Borrower's owned real estate as of a current date.
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(f) The Bank shall have received financial projections
for the Borrower and its Subsidiaries including
liquidity projections on a weekly basis through April
2001 in form and substance satisfactory to the Bank
and its financial advisor, PricewaterhouseCoopers
LLP.
4. RELEASE. In consideration of the Bank's agreements herein and
certain other good and valuable consideration, Borrower hereby expressly
acknowledges and agrees that as of the date hereof it has no setoffs,
counterclaims, adjustments, recoupments, defenses, claims or actions of any
character, whether contingent, non-contingent, liquidated, unliquidated, fixed,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against the Bank or any grounds or cause for
reduction, modification or subordination of the obligations or owed to the Bank
or any liens or security interests of the Bank. To the extent Borrower may
possess any such setoffs, counterclaims, adjustments, recoupments, claims,
actions, grounds or causes, Borrower hereby waives, and hereby releases the Bank
from, any and all of such setoffs, counterclaims, adjustments, recoupments,
claims, actions, grounds and causes, such waiver and release being with full
knowledge and understanding of the circumstances and effects of such waiver and
release and after having consulted counsel with respect thereto.
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.
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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 LEFT INTENTIONALLY BLANK - SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BANK OF AMERICA, N.A. (formerly FRESH AMERICA CORP., as Borrower
Bank of America NT & SA, successor in
interest by merger with Bank of America,
N.A., formerly NationsBank, N.A.), as Bank
By
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Xxxxxxx X. Xxxxxxxxxxx, XX By
Managing Director ---------------------------------
Xxxx X. Xxxx, Executive
Vice President
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 and
the terms hereof, including without limitation the amendments to the Security
Agreement and the Guaranty, (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.
FRESH AMERICA ARIZONA, INC.,
FRESH AMERICA FLORIDA, INC.,
FRANCISCO ACQUISITION CORP.,
ALLIED-PERRICONE, INC., F/K/A XXX XXXXXXXXX CITRUS CO., each as a
Subsidiary/Debtor
By
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Xxxx X. Xxxx, Vice President of each of the
above companies
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