Exhibit 10.24
FOURTEENTH AMENDMENT TO
RESTATED BUSINESS LOAN AGREEMENT
THIS FOURTEENTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT (the
"Amendment") is entered into as of January 2, 2002, between FRESH AMERICA CORP.,
a Texas corporation ("Borrower"), the "Subsidiary/Debtors" (herein so called)
named on the signature pages of this Amendment, and ENDEAVOUR, LLC, assignee of
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, including
without limitation a restructure and conversion of the line of credit into a
term loan, 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
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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:
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(A) The definition of Reference Rate in Section 1 is entirely
amended as follows:
"Reference Rate" is defined in Section 4.1 of this Agreement.
Provided, however, that the Reference Rate shall not at any
time equal less than 4.75% per annum.
(B) Section 2.2 of the Loan Agreement is amended to delete
therefrom the date "January 2, 2002" and substitute in lieu thereof the date
"January 6, 2003".
(C) Sections 2.4(c) is entirely amended to read as follows:
(c) The Borrower will pay on each of April 1, 2002, July
1, 2002, September 30, 2002, and December 30, 2002,
installments of principal outstanding under the Term
Note in the amount of $350,000, with a final
installment in the amount of the remaining principal
balance thereof to be due and payable on January 2,
2003, unless otherwise accelerated pursuant to the
terms hereof. In addition, the Borrower will pay on
July 1, 2002, an installment of principal outstanding
under the Term Note in the amount of one percent
(1.00%) of the outstanding principal balance thereof
on
June 30, 2002, which installment payment
shall be in addition to the installment
payment referenced in the previous sentence
of this Section 2.4(c).
(D) The first sentence of Section 4.1 of the Loan Agreement is
entirely amended as follows:
The interest rate on the outstanding principal
amounts under the Term Loan Commitment is equal to
the lesser of either (a) the maximum lawful rate of
interest permitted under applicable usury laws, now
or hereafter enacted (the "Maximum Rate") or (b) the
rate that is equal to the sum of the Bank's Reference
Rate plus four percent (4.00%) from January 2, 2002,
through and including April 1, 2002, four and
one-half percent (4.50%) from April 2, 2002, through
and including June 30, 2002, five percent (5.0%) from
July 1, 2002, through and including September 30,
2002, and five and one-half percent (5.50%) from
October 1, 2002, and thereafter.
(E) Section 5.2(c) of the Loan Agreement is entirely amended as
follows:
(c) The Borrower agrees to reimburse the Bank
for the reasonable costs of periodic audits
and appraisals of the Collateral at such
intervals as the Bank may reasonably
require. The audits and appraisals may be
performed by employees of the Bank or by
independent appraisers.
(F) The first paragraph of Section 10.4 of the Loan Agreement is
entirely amended to read as follows:
10.4 Adjusted Borrowing Base Mandatory
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Prepayment. If at any time the principal
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outstanding under the Term 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 most recent of (i) the last day of the
most recently preceding calendar month, or
(ii) the 15th day of the most recently
preceding calendar month) , the Company
shall immediately pay to the Bank any such
excess. Such payment shall be applied to
installments due under the Term Note in the
inverse order of maturity.
(G) Section 10.11 is entirely amended as follows:
Capital Expenditures. No Company shall make Capital
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Expenditures other than Permitted Capital
Expenditures. "Permitted Capital Expenditures" means
commencing with the period beginning January 1, 2002,
through and including March 31, 2002, a total amount
of Capital Expenditures that does not exceed $540,000
in the aggregate, for the
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period beginning April 1, 2002, through and including
June 30, 2002, a total amount of Capital Expenditures
that does not exceed $640,000 in the aggregate, for
the period beginning July 1, 2002, through and
including September 30, 2002, a total amount of
Capital Expenditures that does not exceed $215,000 in
the aggregate, and for the period beginning October
1, 2002, through and including December 31, 2002, a
total amount of Capital Expenditures that does not
exceed $235,000 in the aggregate. Additionally, the
Borrower shall provide to the Bank within thirty (30)
days after the end of each month a report of the
Capital Expenditures for the prior month and year to
date period from January 1, 2002, and a comparison of
such Capital Expenditures actually incurred to
Capital Expenditures budgeted to occur in such
calendar quarter and year to date period from January
1, 2002, commencing January 1, 2002. Provided that if
any amount referred to above is not expended in the
quarter for which it is permitted, such amount may be
carried over for expenditure into future calendar
quarters in such fiscal year, and provided further
that Capital Expenditures made during any quarter
shall be deemed made first in respect of amounts
permitted for such quarter and second in respect of
amounts carried over from the prior quarter.
(H) Section 10.25(n) and Section 10.25(o) are entirely amended to
read as follows:
(n) Additionally, the outstanding principal
balance of the Term Note shall be reduced
from time to time by the amount of one
hundred percent (100%) of any and all tax
refunds received by the Borrower, net of any
penalties required to be paid in connection
therewith and any repatriation costs if such
amount is paid by a non-U.S. taxing
authority, all of which shall be applied to
the principal owing to the Bank immediately
upon receipt thereof by the Borrower. Such
amounts shall be applied to the next
maturing installments due under the Term
Note.
(o) Additionally, the outstanding principal
balance of the Term Note shall be reduced by
seventy-five percent (75%) of the cash
proceeds, net of reasonable expenses of
issuance, of any equity issued by any
Company (other than the $5,000,000 in
preferred stock to be issued by the Borrower
on April 30, 2000, as described in the Tenth
Amendment to Restated Business Loan
Agreement and Waiver dated as of March 31,
2000, and the shares issued pursuant to that
certain Securities Exchange and Purchase
Agreement (the "Securities Agreement") dated
as of August 14, 2001, among North Texas
Opportunity Fund LP, ▇▇▇▇ ▇▇▇▇▇▇▇ Life
Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable
Life Insurance Company, Signature 1A
(Cayman), Ltd., Signature 3 Limited,
Investors Partner Life Insurance Company,
and the Borrower, the terms of which shall
not be amended without the prior written
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consent of the Bank). Such amounts shall be
applied to the next maturing installments
due under the Term Note.
3. CONDITIONS PRECEDENT. This Amendment will not become effective until
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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 January 2, 2002:
(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 an amendment fee in the
principal amount of $25,000, plus all accrued and unpaid
interest due under the Term Loan through December 31,
2001.
(f) The Bank shall have received (i) a true and correct copy
of any and all agreements between the Borrower and ▇▇▇▇▇
▇▇▇▇▇▇ upon terms and conditions satisfactory to the Bank
addressing payment of amounts due to ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant
to that certain Stock Purchase Agreement dated December
19, 1997, between the Borrower, ▇▇▇▇▇ ▇▇▇▇▇▇ and Hereford
Haven, Inc., and (ii) a true and correct copy of any and
all agreements between the Borrower and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, upon terms and conditions satisfactory to the
Bank.
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4. RELEASE. In consideration of the Bank's agreements herein and
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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,
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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
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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
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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
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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
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accordance with the laws of the State of Texas.
10. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to
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all provisions of the Loan Agreement applicable to Loan Documents, all of which
are
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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.
ENDEAVOUR, LLC, assignee of Bank of FRESH AMERICA CORP., as Borrower
America, N.A. (formerly Bank of
America NT & SA, successor in
interest by merger with Bank of
America, N.A., formerly NationsBank,
N.A.), as Bank
By: PPM America, Inc.,
its Attorney-in-Fact
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: EVP - CFO
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Title:Managing Director
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CONSENT AND AGREEMENT
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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, (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 FLORIDA, INC.,
FRANCISCO ACQUISITION CORP.,
ALLIED-PERRICONE, INC., f/k/a
▇▇▇ ▇▇▇▇▇▇▇▇▇ CITRUS CO.,
each as a Subsidiary/Debtor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Financial Officer
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