UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------
FORM 10-K/A
AMENDMENT NO. 1
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____ TO ____
------------------------------
COMMISSION FILE NUMBER 000-24124
FRESH AMERICA CORP.
(Exact name of registrant as specified in its charter)
TEXAS 76-0281274
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6600 LBJ FREEWAY, SUITE 180, DALLAS, TEXAS 75240
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (972) 774-0575
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered:
Common Stock, $.01 Par Value Nasdaq Stock Market
Securities registered pursuant to Section 12(g) of the Act: NONE.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Based on the closing price reported on the Nasdaq National Market on March
24, 2000, the aggregate market value of the voting stock held by non-affiliates
of the registrant as of such date was $20,974,000.
Indicated below is the number of shares outstanding of each class of the
registrant's Common Stock, as of March 24, 2000:
TITLE OF EACH CLASS OF COMMON STOCK NUMBER OF OUTSTANDING
Common Stock, $.01 par value 5,243,404
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The following table sets forth certain information concerning the
executive officers and directors of the Company as of March 24, 2000.
NAME AGE POSITION WITH THE COMPANY
- ---------- --- -------------------------------
David I. Sheinfeld 45 Chairman of the Board and President
Colon Washburn 54 Chief Executive Officer and Director
John H. Gray 50 Executive Vice President and Chief
Gary D. Wiener 48 Financial Officer Executive Vice President
and Chief Operating Officer
Thomas M. Hubbard 57 Director
Sheldon I. Stein 46 Director
Lawrence V. Jackson 46 Director
DAVID I. SHEINFELD. Mr. Sheinfeld joined the Company in June 1990 and
joined its Board of Directors in March 1991. In 1992, Mr. Sheinfeld became
Chairman of the Board and Chief Executive Officer (CEO) of the Company. In
October 1999, Mr. Sheinfeld relinquished the CEO position to Mr. Washburn and
was appointed President in March 2000. From 1980 to 1990, Mr. Sheinfeld was a
practicing attorney and involved in real estate development. Mr. Sheinfeld
sought Title 11 bankruptcy protection in February 2000 as a precautionary
measure because of an individual's alleged claims, arising from a real estate
transaction occuring prior to Mr. Sheinfeld's association with the Company. The
validity and enforceability of such allegations are presently being contested.
COLON WASHBURN. In October 1999, Mr. Washburn was appointed CEO of the
company. Mr. Washburn has been a director of the Company since July 1993. From
1971 until January 1993, Mr. Washburn was employed by Wal-Mart Stores, Inc.
("Wal-Mart"), where he served most recently as Executive Vice President of Sam's
Wholesale Club, a division of Wal-Mart, and also as Senior Vice President of
Wal-Mart. Since February 1993, Mr. Washburn has been President of Beau Chene
Farms, a real estate development company. Additionally, Mr. Washburn serves as a
director of Tandycrafts, Inc.
JOHN H. GRAY. Mr. Gray joined the Company in September 1998 as Executive
Vice President and Chief Financial Officer. From 1981 until September 1998, Mr.
Gray was employed by Club Corporation International ("CCI"), a privately held
company, where he served most recently as Chief Accounting Officer and Chief
Administrative Officer. Mr. Gray also served on CCI's Board of Directors. Prior
to joining CCI, Mr. Gray was the Controller/Treasurer for USLife Title Insurance
Company and Supervising Senior Accountant with KPMG Peat Marwick.
GARY D. WIENER. Mr. Wiener joined the company in 1993. In March 2000, Mr.
Wiener was appointed Executive Vice President and Chief Operating Officer. From
1996 to 1999, Mr. Wiener served as the Corporate Vice President of Operations.
Mr. Wiener served the Company in many capacities between 1993 and 1995 including
Regional Director of Operations.
THOMAS M. HUBBARD. Mr. Hubbard, a founder of the Company, has been a
director since 1989 and served as the Company's President until April 1992. Mr.
Hubbard has worked in the produce industry for more than 30 years and is an
active investor in a number of produce companies.
SHELDON I. STEIN. Mr. Stein has been a director of the Company since
December 1992. Mr. Stein is a Senior Managing Director of Bear, Stearns & Co.
Inc. and heads the firm's southwestern investment banking operations. Mr. Stein
serves as a director of four other companies with publicly traded securities,
namely The Mens Wearhouse, Tandycrafts, Inc., Home Interiors & Gifts, Inc. and
Precept Business Services, Inc.
LAWRENCE V. JACKSON. Mr. Jackson has been a director of the Company since
September 1997. Mr. Jackson is a Senior Vice President with Safeway, Inc. Prior
to joining Safeway, Mr. Jackson was a Senior
2
<PAGE>
Vice President with PepsiCo, Inc. During Mr. Jackson's 17 years with PepsiCo, he
held a number of positions with the beverage and food service sectors, including
that of Senior Vice President of Worldwide Operations.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act of 1934, as amended (the "Exchange
Act"), requires the Company's executive officers and directors and persons who
own more than ten percent (10%) of a registered class of the Company's equity
securities (collectively, the "Reporting Persons") to file reports of ownership
and changes in ownership with the Securities and Exchange Commission and to
furnish the Company with copies of these reports. The Company believes that all
filings required to be made by the Reporting Persons during the fiscal year
ended December 31, 1999 were made on a timely basis.
ITEM 11. EXECUTIVE COMPENSATION.
SUMMARY COMPENSATION TABLE
The following table sets forth certain information regarding compensation
paid during each of the last three fiscal years to the Company's chief executive
officer and each of the Company's other executive officers (the "named executive
officers").
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
------------
ANNUAL COMPENSATION SHARES
NAME AND ----------------------------- UNDERLYING ALL OTHER
PRINCIPAL POSITION YEAR SALARY BONUS OTHER OPTIONS COMPENSATION(1)
- --------------------------- ---- -------- -------- -------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
David I. Sheinfeld ..................................... 1999 $302,874 $ -- $ -- -- $ 4,800
Chairman of the Board and 1998 298,819 50,000 -- 20,000 4,800
President 1997 250,230 90,000 -- -- 4,750
Colon Washburn(4) ...................................... 1999 $ 56,308 $ -- $ 4,940 5,000 $ --
Chief Executive Officer 1998 -- -- -- -- --
1997 -- -- -- -- --
John H. Gray ........................................... 1999 $165,000 $ -- $ -- -- $ 1,333
Executive Vice President and 1998 33,635 5,000 -- -- --
Chief Financial Officer 1997 -- -- -- -- --
Gary D. Wiener ......................................... 1999 $113,473 $ -- $ -- -- $ 1,777
Executive Vice President and 1998 112,936 5,000 -- -- 1,949
Chief Operating Officer 1997 96,923 17,000 -- -- 1,731
Steven R. Grinstead(3) ................................. 1999 $126,923 $ -- $237,491(2) -- $ 4,800
Former President and Chief 1998 194,327 25,000 -- 12,500 4,800
Operating Officer 1997 175,000 45,000 -- -- 4,750
Ed Sabin(5) ............................................ 1999 $119,231 $ -- $200,000(2) -- $ 4,800
Former Executive Vice 1998 188,077 5,000 -- -- 3,000
President 1997 107,692 45,000 -- 7,500 --
</TABLE>
3
<PAGE>
- ------------
(1) These amounts consist of contributions by the Company to a 401(k) plan on
behalf of the named executive.
(2) This amount relates to severance compensation provided upon termination
from the Company.
(3) Effective August 1999, Mr. Grinstead resigned as President and Chief
Operating Officer (COO). In March 2000, Mr. Sheinfeld assumed the role of
President and Mr. Wiener assumed the role of COO.
(4) Effective October 1999, Mr. Washburn was appointed CEO of the Company. Mr.
Washburn's annual base compensation is $240,000.
(5) Effective July 1999, Mr. Sabin resigned his position as an Executive Vice
President of the Company.
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth certain information concerning options to
purchase Common Stock by the named executive officers during the 1999 fiscal
year under the 1996 Fresh America Corp. Stock Option and Award Plan as amended
and restated effective May 22, 1998 (the "1996 Plan").
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUE
NUMBER OF PERCENT OF AT ASSUMED ANNUAL RATE OF
SECURITIES TOTAL OPTIONS STOCK PRICE APPRECIATION
UNDERLYING GRANTED TO FOR OPTION TERM (A)
OPTIONS EMPLOYEES EXERCISE EXPIRATION -------------------------
NAME GRANTED IN 1999 PRICE DATE 5% 10%
---- -------------------- ---------------- -------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Colon Washburn 5,000 100% $4.50 11/8/2009 $14,150 $35,850
</TABLE>
(a) The "Potential Realizable Value" portion of the table illustrates value
that might be realized upon the exercise of the options immediately prior
to the expiration of their term, assuming the specified compounded rates
of appreciation of the Common Stock over the term of the options.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
There were no options exercised by the named executive officers during the
1999 fiscal year.
COMPENSATION OF DIRECTORS
The Company's non-employee directors receive cash compensation of $10,000
per year for serving on the Board of Directors and are reimbursed for expenses
reasonably incurred in connection with their services as directors.
Each director is eligible to receive stock options and awards under the
1996 Plan. Pursuant to the 1996 Plan, options to purchase 5,000 shares are
automatically granted annually to each director who is not an officer or
employee of the Company. Such automatic option grants are exercisable at fair
market value on the date of grant. Pursuant to this provision, on November 9,
1999, each of Messrs. Hubbard, Stein, Washburn and Jackson received options to
purchase 5,000 shares of Common Stock at $4.50 per share.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Messrs. Stein and Washburn serve on the Compensation Committee of the
Board of Directors. No Compensation Committee interlocks existed in fiscal 1999,
and no insiders participated in Compensation Committee decisions in fiscal 1999.
4
<PAGE>
COMPENSATION COMMITTEE'S REPORT ON EXECUTIVE COMPENSATION
The Compensation Committee was formed in April 1994 in anticipation of the
Company's initial public offering. Prior to the establishment of the
Compensation Committee, the entire Board of Directors was responsible for
determining executive compensation. Since its formation, the Compensation
Committee has been responsible for recommending bonuses and any increase in base
salaries for the Company's executive officers.
The Compensation Committee believes that, in order for the Company to
succeed, it must be able to attract and retain qualified executive officers. In
determining the type and amount of executive officer compensation, the
objectives of the Compensation Committee are to provide levels of base
compensation, bonuses and long-term incentives (in the form of stock options or
other plans) that will attract and retain talented executive officers and align
their interests with the success of the Company. The Company's executive officer
compensation program currently is comprised of base salary, bonus plan,
long-term incentive compensation (in the form of stock options) and various
benefits generally available to employees of the Company (such as health and
disability insurance). Under the supervision of the Compensation Committee and
the Board of Directors, the Company has developed and implemented compensation
policies, plans and programs that seek to enhance the profitability of the
Company and increase shareholder value.
BASE SALARIES
The Company's policy is to maintain base salaries competitive with
salaries paid to similarly situated executive officers of companies of similar
size in comparable industries. Although neither the Board of Directors nor the
Compensation Committee has conducted a formal review of base salaries paid to
similarly situated executive officers, the Company believes that the base
salaries payable to its executive officers are comparable to those paid by
similar companies located in the Company's geographical area and engaged in
industries comparable to the Company's. The Compensation Committee anticipates
that adjustments to base compensation will generally be made based upon assigned
responsibility and performance and successful attainment of specific goals and
objectives of the Company and individual employees.
BONUSES
Year-end cash bonuses are designed to motivate the Company's executive
officers to achieve specific annual financial goals and to achieve favorable
returns for the Company's shareholders. At the end of each fiscal year, the
Compensation Committee will assess each executive's contributions to the Company
as well as the degree to which specific annual financial, strategic, and
operating objectives were met by the Company.
LONG-TERM INCENTIVES
Stock option grants under the Company's stock option plans form the basis
of the Company's long-term incentive compensation for executive officers and
employees. The specific objective of the Company's stock option plans is to
align the long-term interests of the Company's executive officers and employees
with those of shareholders by creating a strong link between executive pay and
shareholder returns. The Company encourages its executive officers and employees
to develop and maintain a significant, long-term stock ownership position in the
Company's Common Stock. Stock options are awarded to executive officers and
employees in order to encourage future management actions aimed at improving the
Company's sales efforts, product quality and profitability. The Company believes
that success in these endeavors will increase the value of the Company's Common
Stock for shareholders.
5
<PAGE>
Recipients of options will have the opportunity to share in the increased value
that results from their efforts. The Plan Administration Committee makes
specific awards of options based on an individual's ability to impact
Company-wide performance and in light of the total compensation appropriate for
the individual's position. The Compensation Committee and the Plan
Administration Committee may also consider other bonus or long-term incentives
at their discretion.
CHIEF EXECUTIVE OFFICER COMPENSATION
In approving Mr. Washburn's compensation, the Board of Directors evaluated
and compared Mr. Washburn's duties, responsibilities and performance results,
and the overall results of the Company, to industry norms to determine the
minimum level of base compensation required. The compensation committee did not
recommend a cash bonus for fiscal 1999.
This Report is submitted by the members of the Compensation Committee of
the Board of Directors.
Sheldon I. Stein
Colon Washburn
THIS REPORT WILL NOT BE DEEMED TO BE INCORPORATED BY REFERENCE IN ANY
FILING BY THE COMPANY UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE EXCHANGE ACT, EXCEPT TO THE EXTENT THAT THE COMPANY
SPECIFICALLY INCORPORATES THIS REPORT BY REFERENCE.
CORPORATE PERFORMANCE GRAPH
The following graph compares the cumulative total return of the Company's
Common Stock during the 5 year period ending December 31, 1999, with the Nasdaq
Market Index and an index of companies within the Standard Industrial Code for
Groceries and Related Products (the "Peer Index").
6
<PAGE>
The graph depicts the results of investing $100 in the Company's Common
Stock, the Nasdaq Market Index and the Peer Index at closing prices on December
31, 1999. The graph assumes that all dividends were reinvested.
[LINEAR GRAPH PLOTTED FROM DATA IN TABLE BELOW]
- --------------------------------------------------------------------------------
12/30/94 1/5/96 1/3/97 1/2/98 12/31/98 12/31/99
-------- ------ ------ ------ -------- --------
Fresh America Corp. 100.00 136.13 223.53 269.75 225.21 65.55
SIC Code Index 100.00 129.80 132.03 176.35 198.85 222.73
Nasdaq Market Index 100.00 129.71 161.18 197.16 278.08 490.46
- --------------------------------------------------------------------------------
THE STOCK PRICE PERFORMANCE DEPICTED IN THE CORPORATE PERFORMANCE GRAPH IS
NOT NECESSARILY INDICATIVE OF FUTURE PRICE PERFORMANCE. THE CORPORATE
PERFORMANCE GRAPH WILL NOT BE DEEMED TO BE INCORPORATED BY REFERENCE IN ANY
FILING BY THE COMPANY UNDER THE SECURITIES ACT OR THE EXCHANGE ACT.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information believed by the Company
to be accurate based on information provided to it concerning the beneficial
ownership of Common Stock by (a) each shareholder who is known by the Company to
own beneficially in excess of 5% of the outstanding Common Stock, (b) each
director, (c) the Company's Chief Executive Officer, (d) each of the Company's
other named executive officers and (e) all executive officers and directors as a
group, as of March 24, 2000.
7
<PAGE>
NUMBER OF SHARES PERCENT OF
BENEFICIAL OWNER OF COMMON STOCK(1) CLASS(2)
---------------- ---------------- --------
David I. Sheinfeld (3)(4)............. 513,697 9.71%
Thomas M. Hubbard (3)(5).............. 414,432 7.86%
Colon Washburn (3)(6)................. 45,035 *
Sheldon I. Stein (3)(7)............... 37,813 *
Lawrence V. Jackson (3)(8)............ 11,000 *
Gary D. Wiener (9).................... 10,600 *
John H. Gray (10).................... 5,000 *
Gruber & McBaine Capital Management (11) 725,300 13.83%
DiMare Homestead, Inc. (12)........... 342,100 6.52%
All directors and executive officers
as a group (7 persons) (13)........ 1,207,180 22.28%
------------------
* less than one percent
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. Except as indicated in the footnotes
to this table and subject to community property laws, where applicable,
each of the shareholders named in this table has sole voting and
investment power with respect to the shares shown as beneficially owned,
unless otherwise indicated.
(2) Percentages are based on the total number of shares outstanding at March
24, 2000, plus the total number of outstanding options held by each such
person that are exercisable within 60 days of such date and securities
exchangeable into Common Stock within 60 days of such date. Shares
issuable upon exercise of outstanding options or through the conversion of
securities exchangeable into Common Stock, however, are not deemed
outstanding for purposes of computing the percentage ownership of any
other person.
(3) Director of the Company.
(4) Consists of 338,037 shares held of record by David I. Sheinfeld, as
trustee of the Sheinfeld Family Trust, 120,100 shares held of record by
the Sheinfeld Family Partnership, 10,023 shares held of record by Mr.
Sheinfeld and 45,537 shares subject to options issued to Mr. Sheinfeld
under the Company's stock option plans that are exercisable within 60
days. Mr. Sheinfeld's address is c/o Fresh America Corp. at 6600 LBJ
Freeway, Suite 180, Dallas, Texas 75240.
(5) Includes 30,000 shares subject to options issued to Mr. Hubbard under the
Company's stock option plans that are exercisable within 60 days. Mr.
Hubbard's address is 740 Airport Blvd., Salinas, California 93912.
(6) Includes 35,753 shares subject to options issued to Mr. Washburn under the
Company's stock option plans that are exercisable within 60 days.
(7) Includes 37,813 shares subject to options issued to Mr. Stein under the
Company's stock option plans that are exercisable within 60 days.
(8) Includes 10,000 shares subject to options issued to Mr. Jackson under the
Company's stock option plans that are exercisable within 60 days.
8
<PAGE>
(9) Includes 10,500 shares subject to options issued to Mr. Wiener under the
Company's stock option plans that are exercisable within 60 days.
(10) Includes 5,000 shares subject to options issued to Mr. Gray under the
Company's stock option plans that are exercisable within 60 days.
(11) Based on information provided by Gruber & McBaine Capital Management, LLC
("GMCM"), Jon D. Gruber ("Gruber"), J. Patterson McBaine ("McBaine"), and
Thomas O. Lloyd-Butler ("Lloyd-Butler"). GMCM's address is 50 Osgood
Place, San Francisco, California 94133. This group reported that it had
total ownership of 725,300 shares, and that the voting and dispositive
power among such group's members is as follows:
VOTING AND DISPOSITIVE
POWER
----------------------
NAME SOLE SHARED
---- ------- --------
GMCM......................... -- 601,100
Gruber....................... 77,500 601,100
McBaine...................... 46,700 601,100
Lloyd-Butler................. -- 601,100
(12) Based on information set forth in Schedule 13D, dated March 27, 2000,
filed with the Securities and Exchange Commission (the "Commission") by
DiMare Homestead, Inc. ("DiMare"). DiMare has sole voting power with
regards to the 342,100 shares. DiMare's address is 258 NW 1st Avenue,
Florida City, Florida 33034.
(13) Includes 164,603 shares subject to options issued to certain directors and
executive officers of the Company that are exercisable within 60 days.
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company entered into a six-month consulting agreement with Mr. Thomas
Hubbard effective October 1, 1999. The agreement paid Mr. Hubbard $8,000 per
month. The agreement calls for Mr. Hubbard to provide managerial oversight of
King's Onion House, a wholly owned subsidiary of Fresh America. The agreement
was extended for an additional twelve-month period beginning April 1, 2000.
In December 1999, the Company made an unsecured loan in the principal
amount of $175,000 to Mr. Sheinfeld. At such time, the Company also extended an
existing $125,000 unsecured loan made to Mr. Sheinfeld in December, 1994. The
$125,000 loan was to have been forgiven under the FreshPoint Merger Agreement if
it had been completed. The extended note and the new note both bear interest at
the Bank of America, N.A. prime rate and are due and payable in December, 2001.
9
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
10.14 Tenth Amendment to the Restated Business Loan Agreement between Fresh
America Corp. and Bank of America Texas, N.A. dated as of March 31, 2000.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FRESH AMERICA CORP.
Date: April 28, 2000 By:/S/ JOHN H. GRAY
John H. Gray
Executive Vice President and Chief Financial
Officer (Principal Financial Officer)
EXHIBIT 10.14
TENTH AMENDMENT TO RESTATED
BUSINESS LOAN AGREEMENT AND WAIVER
THIS TENTH AMENDMENT TO RESTATED BUSINESS LOAN AGREEMENT AND WAIVER (the
"Amendment") is entered into as of March 31, 2000, 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
PARAGRAPHS 2 AND 6 below and the other Loan Documents as provided herein, and
provide certain waivers as provided in PARAGRAPH 3 below, and Bank has, upon and
subject to the terms of this Amendment, agreed to those amendments and waivers.
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 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 MARCH
31, 2000, THROUGH JUNE 29, 2000, $21,000,000, FROM JUNE 30, 2000,
THROUGH SEPTEMBER 29, 2000, $20,000,000, FROM SEPTEMBER 30, 2000,
THROUGH DECEMBER 30, 2000, $18,000,000, AND, THEREAFTER,
$16,000,000. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10.25(D),
ALL REVOLVING FACILITY COMMITMENT REDUCTIONS PROVIDED FOR
ELSEWHERE IN THIS AGREEMENT SHALL BE IN ADDITION TO THE REVOLVING
FACILITY COMMITMENT REDUCTIONS CONTEMPLATED BY THIS SECTION
2.1(A).
(B) SECTION 2.1(C) is entirely amended as follows:
INTENTIONALLY OMITTED.
(C) SECTIONS 2.4(B) AND (E) are entirely amended to read as follows:
(B) ANY AMOUNT BEARING INTEREST AT THE EURODOLLAR RATE (AS
DESCRIBED BELOW) WILL BE REPAID AT THE END OF EACH
APPLICABLE INTEREST PERIOD, PROVIDED THAT (I) NO INTEREST
PERIOD MAY END AFTER THE EXPIRATION DATE, AND (II) IF ANY
INTEREST PERIOD IS GREATER THAN ONE MONTH, THEN ACCRUED
INTEREST IS ALSO DUE AND PAYABLE ON THE DATE ONE MONTH AFTER
THE COMMENCEMENT OF THE APPLICABLE INTEREST PERIOD.
PROVIDED, HOWEVER, THAT EFFECTIVE MARCH 31, 2000, THE
BORROWER MAY NO LONGER ELECT THE EURODOLLAR RATE.
(e) THE BORROWER WILL PAY ON MARCH 15, 2000, MARCH 30, 2000,
JUNE 30, 2000, SEPTEMBER 30, 2000, AND DECEMBER 31, 2000,
PRINCIPAL OUTSTANDING UNDER THE REVOLVING NOTE TO THE EXTENT
THAT THE PRINCIPAL AMOUNT THEREOF OUTSTANDING ON SUCH DATES
PLUS THE OUTSTANDING AMOUNTS OF ANY LETTERS OF CREDIT ON
SUCH DATES (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 REVOLVING
FACILITY COMMITMENT ON SUCH DATES.
1
<PAGE>
(C) 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 REVOLVING FACILITY 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 THREE PERCENT (3%).
(D) SECTIONS 6.2(C) AND (D) are entirely amended as follows:
(C) SIXTY-FIVE PERCENT (65%) OF THE PRESENT AND FUTURE ISSUED
AND OUTSTANDING CAPITAL STOCK AND OTHER EQUITY SECURITIES
ISSUED BY ALL FOREIGN SUBSIDIARIES OF ANY COMPANY, PURSUANT
TO THE SECURITY AGREEMENT OR OTHER SECURITY DOCUMENTS IN
FORM AND SUBSTANCE SATISFACTORY TO THE BANK; AND
(D) FEE SIMPLE INTERESTS OF ANY PRESENT AND FUTURE COMPANY IN
ANY REAL PROPERTY (INCLUDING THE REAL PROPERTY OWNED BY
BORROWER IN WHICH BANK ONE, TEXAS, N.A. HAS A FIRST LIEN,
HEREIN THE "AUSTIN PROPERTY,") PURSUANT TO MORTGAGES OR
DEEDS OF TRUST, AS THE CASE MAY BE, IN FORM AND SUBSTANCE
ACCEPTABLE TO THE BANK. PROVIDED THAT THE DEED OF TRUST LIEN
UPON THE AUSTIN PROPERTY SHALL NOT BE FILED OF RECORD UNTIL
THE PRIOR CONSENT OF THE FIRST LIENHOLDER ON SUCH PROPERTY
HAS BEEN OBTAINED, WHICH CONSENT THE BORROWER AGREES TO USE
ITS GOOD FAITH BEST EFFORTS TO OBTAIN; PROVIDED FURTHER THAT
UPON OBTAINING SUCH CONSENT, THE BANK IS HEREBY AUTHORIZED
TO FILE SUCH DEED OF TRUST, AND THE BORROWER AGREES TO
PROMPTLY PROVIDE TO THE BANK A MORTGAGEE POLICY OF TITLE
INSURANCE INSURING THE PRIORITY OF THE BANK'S LIEN ON SUCH
PROPERTY IN AN AMOUNT, ISSUED BY A TITLE COMPANY, AND
SHOWING A STATE OF TITLE AND EXCEPTIONS THERETO SATISFACTORY
TO THE BANK.
(E) SECTIONS 10.3(E) AND 10.3(F) are entirely amended as follows:
(E) MONTHLY WITHIN THIRTY (30) DAYS AFTER THE LAST AND FIFTEENTH
(15TH) DAY OF THE APPLICABLE MONTH, A BORROWING BASE REPORT
SETTING FORTH THE RESPECTIVE AMOUNTS OF ACCEPTABLE
RECEIVABLES, ACCEPTABLE GROWER CONTRACT RECEIVABLES, AND
ACCEPTABLE INVENTORY AS OF THE LAST DAY OF EACH CALENDAR
MONTH OR ANY MORE RECENT DATE FOR WHICH SUCH INFORMATION MAY
BE AVAILABLE, TOGETHER WITH THE CALCULATION OF THE ADJUSTED
BORROWING BASE. THE REPORT PROVIDED AS OF THE FIFTEENTH
(15TH) DAY OF EACH MONTH MAY INCLUDE ESTIMATES BASED ON
HISTORICAL INFORMATION AS RESPECTS PACA AND COMPARABLE STATE
LAW CLAIMANTS' CLAIMS. ANY BORROWING BASE REPORT WHICH HAS
BEEN TIMELY DELIVERED SHALL REMAIN IN EFFECT UNTIL THE NEXT
BORROWING BASE REPORT IS TIMELY DELIVERED.
(f) Concurrently with the delivery of the financial statements
pursuant to Section 10.3(a), (B), AND (C), A COMPLIANCE
CERTIFICATE FROM THE BORROWER, CERTIFYING AS TO THE
COMPANIES' COMPLIANCE WITH THE TERMS, COVENANTS, AND OTHER
AGREEMENTS CONTAINED IN THE LOAN DOCUMENTS.
(F) SECTIONS 10.4, 10.5, 10.6, 10.7, AND 10.8 are hereby entirely
amended as follows:
10.4 MINIMUM EBITDA. THE COMPANIES SHALL MAINTAIN A MINIMUM
EBITDA CALCULATED FOR THE THREE MONTHS ENDED JUNE 30, 2000,
AND THEREAFTER ON A CUMULATIVE MONTHLY BASIS (BUILDING TO A
12 MONTH ROLLING CALCULATION), IN THE MINIMUM AMOUNTS AS OF
THE FOLLOWING DATES:
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MINIMUM EBITDA DATE
-------------- ----
$5,028,000 June 30, 2000
$5,783,000 July 31, 2000
$6,080,000 August 31, 2000
$6,532,000 September 30, 2000
$7,066,000 October 31, 2000
$8,297,000 November 30, 2000
$9,071,000 December 31, 2000
"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 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.
"EBITDA" FOR ANY PERIOD MEANS:
(A) THE SUM (WITHOUT DUPLICATION) OF THE FOLLOWING FOR THE
COMPANIES ON A CONSOLIDATED BASIS AND FOR THAT PERIOD
TAKEN AS A SINGLE-ACCOUNTING PERIOD: (I) NET INCOME;
MINUS (II) EXTRAORDINARY GAINS; MINUS (III) INCOME
ATTRIBUTABLE TO MINORITY INTERESTS; PLUS (IV) CASH
DIVIDENDS OR DISTRIBUTIONS ATTRIBUTABLE TO MINORITY
INTERESTS, MINUS (V) INCOME FROM SUBSIDIARIES, JOINT
VENTURES AND INVESTMENTS RECOGNIZED ON A CONSOLIDATED
BASIS WHICH (A) THE SUBSIDIARY, JOINT VENTURE OR
INVESTMENT IS RESTRICTED BY AUTHORITY, CONTRACT OR LAW
FROM PAYING TO THE COMPANY IN THE FORM OF A DIVIDEND OR
OTHER DISTRIBUTION, AND (B) THE COMPANY HAS NOT RECEIVED
IN THE FORM OF A CASH DIVIDEND OR OTHER CASH
DISTRIBUTION, PLUS (VI) NON-CASH EXTRAORDINARY LOSSES;
PLUS (VII) TO THE EXTENT INCLUDED IN DETERMINING NET
INCOME (A) INCOME TAXES, (B) INTEREST EXPENSE, (C)
DEPRECIATION, AND (D) AMORTIZATION; AND
(B) UNLESS OTHERWISE SPECIFIED, IS DETERMINED (I) FOR A
PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS OF THAT
PERSON TAKEN AS A SINGLE ACCOUNTING PERIOD, (II)
EXCLUSIVE OF THE EBITDA OF ANY ENTITY (A) BEFORE IT
BECAME A SUBSIDIARY OF A COMPANY OR TRANSFERRED
SUBSTANTIALLY ALL OF ITS ASSETS TO A COMPANY OTHER THAN
ANY ENTITY ACQUIRED BY ANY COMPANY WITHIN SUCH PERIOD,
WHICH WILL BE ACCOUNTED FOR AS A "POOLING OF INTERESTS,"
THEN THE MOST RECENT FOUR FISCAL QUARTERS PERFORMANCE OF
SUCH ENTITY WILL BE USED IN SUCH CALCULATION, REGARDLESS
OF THE DATE OF ITS ACQUISITION BY A COMPANY, (B) AFTER
IT IS DIRECTLY OR INDIRECTLY DISPOSED OF BY A COMPANY,
AND (III) FOR PURPOSES OF CALCULATING EBITDA FOR ANY
FISCAL QUARTER DURING THE FISCAL YEAR ENDING DECEMBER
31, 1998, EBITDA SHALL INCLUDE THE HISTORICAL EBITDA (AS
ADJUSTED IN A MANNER ACCEPTABLE TO BANK) DURING SUCH
PERIOD FOR ANY ENTITY PRIOR TO THE DATE IT BECAME A
SUBSIDIARY OF A COMPANY, OR TRANSFERRED SUBSTANTIALLY
ALL OF ITS ASSETS TO A COMPANY.
10.5 INTENTIONALLY OMITTED.
10.6 INTENTIONALLY OMITTED.
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10.7 INTENTIONALLY OMITTED.
10.8 INTENTIONALLY OMITTED.
(G) SECTION 10.11 is entirely amended as follows:
CAPITAL EXPENDITURES. NO COMPANY SHALL MAKE CAPITAL EXPENDITURES
OTHER THAN PERMITTED CAPITAL EXPENDITURES. "PERMITTED CAPITAL
EXPENDITURES" MEANS FOR ANY CALENDAR QUARTER, COMMENCING WITH THE
QUARTER BEGINNING APRIL 1, 2000, A TOTAL AMOUNT OF CAPITAL
EXPENDITURES THAT DOES NOT EXCEED $300,000 PER QUARTER, AND IN
THE AGGREGATE THE SUM OF $700,000 FROM APRIL 1, 2000, THROUGH THE
EXPIRATION DATE. 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 A COMPARISON
OF SUCH CAPITAL EXPENDITURES ACTUALLY INCURRED TO CAPITAL
EXPENDITURES BUDGETED TO OCCUR IN SUCH CALENDAR MONTH AND FOR
SUCH PERIOD OF TIME, COMMENCING WITH THE MONTH ENDING APRIL 30,
2000.
(H) SECTION 10.17(A) is entirely amended as follows:
(A) PROMPTLY UPON THE BORROWER BECOMING AWARE OF ANY PENDING OR
THREATENED LITIGATION WHERE THE AMOUNT CLAIMED EXCEEDS
$100,000, THE BORROWER SHALL REPORT SUCH PENDING OR
THREATENED LITIGATION TO THE BANK IN WRITING AND SHALL
FURTHERMORE REPORT TO THE BANK IN WRITING PROMPTLY ALL
SETTLEMENTS THEREOF.
(I) SECTION 10.25(D) is entirely amended and new subsections (N) and
(O) are added to SECTION 10.25 to read as follows:
(D) SALE, ASSIGN, LEASE, TRANSFER, OR OTHERWISE DISPOSE OF ANY
OF ITS ASSETS (INCLUDING, WITHOUT LIMITATION, EQUITY
INTERESTS IN ANY REPORTING COMPANY) EXCEPT, WITHOUT
DUPLICATION (I) SALES AND DISPOSITIONS OF INVENTORY IN THE
ORDINARY COURSE OF BUSINESS, (II) SALES OF ASSETS WHICH ARE
OBSOLETE OR ARE NO LONGER IN USE AND WHICH ARE NOT
SIGNIFICANT TO THE CONTINUATION OF THAT COMPANY'S BUSINESS,
(III) SALES OF ASSETS (A) OBTAINED AS THE RESULT OF MERGERS
AND CONSOLIDATIONS PERMITTED UNDER THIS AGREEMENT AND
PERMITTED ACQUISITIONS AND (B) WHICH ARE UNNECESSARY TO THAT
COMPANY'S BUSINESS OPERATIONS, (IV) SALES AND DISPOSITIONS
FROM ANY COMPANY TO ANY OTHER COMPANY, (V) DISPOSITIONS OF
ASSETS WHERE SUBSTANTIALLY SIMILAR ASSETS HAVE BEEN OR ARE
SIMULTANEOUSLY BEING ACQUIRED, (VI) ARMS-LENGTH SALES AND
DISPOSITIONS FROM ANY COMPANY TO ANY UNRESTRICTED SUBSIDIARY
IN THE ORDINARY COURSE OF BUSINESS ON CUSTOMARY TRADE TERMS,
AND (VII) DISPOSITIONS OF ASSETS ON OR PRIOR TO NOVEMBER 15,
1999, THE NET PROCEEDS OF WHICH DO NOT EXCEED $500,000 IN
ANY FISCAL YEAR. PROVIDED, HOWEVER, WITH RESPECT TO ANY
SALES OTHER THAN SALES OF INVENTORY IN THE ORDINARY COURSE
OF BUSINESS THE BANK SHALL RECEIVE AT LEAST FIVE (5) BANKING
DAYS PRIOR WRITTEN NOTICE, AND WITH RESPECT TO SUBSECTIONS
(II), (III), AND (VI), THE PROCEEDS OF ALL SUCH SALES (OTHER
THAN THE SALE OF CERTAIN ASSETS IN LOUISIANA FOR
APPROXIMATELY $350,000 AND THE SALE OF CERTAIN ASSETS IN
AUSTIN, TEXAS, FOR APPROXIMATELY $400,000 WHICH SALES CLOSED
IN NOVEMBER 1999), EXCLUSIVE OF REASONABLE EXPENSES OF
SELLING, SHALL BE IMMEDIATELY APPLIED TOWARDS THE REPAYMENT
OF THE OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING NOTE,
AND THE AMOUNT OF SUCH PROCEEDS SHALL ALSO CONSTITUTE A
PERMANENT REDUCTION IN THE REVOLVING FACILITY COMMITMENT.
SEVENTY-FIVE PERCENT (75%) OF THE PAYMENTS REQUIRED PURSUANT
TO THE FOREGOING SENTENCE SHALL BE CREDITED TO THE SCHEDULED
REDUCTIONS IN THE REVOLVING FACILITY COMMITMENT DUE ON
DECEMBER 31, 2000, AND TWENTY-FIVE PERCENT (25%) OF SUCH
PAYMENTS SHALL BE CREDITED TO THE SCHEDULED REDUCTION NEXT
FOLLOWING THE DATE WHEN SUCH PAYMENT AND REDUCTION IS MADE.
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<PAGE>
(N) ADDITIONALLY, THE REVOLVING FACILITY COMMITMENT SHALL BE
REDUCED BY ONE HUNDRED PERCENT (100%) OF ANY ALL TAX REFUNDS
RECEIVED BY THE BORROWER, ALL OF WHICH SHALL BE APPLIED TO
THE PRINCIPAL OWING TO THE BANK IMMEDIATELY UPON RECEIPT
THEREOF BY THE BORROWER AND SHALL CONSTITUTE PERMANENT
REDUCTIONS IN THE REVOLVING FACILITY COMMITMENT.
(O) ADDITIONALLY, THE REVOLVING FACILITY COMMITMENT SHALL BE
REDUCED BY THE GREATER OF (I) FIFTY PERCENT (50%) 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) OR (II) THE AMOUNT OF SUCH NET PROCEEDS REQUIRED TO
REDUCE THE REVOLVING FACILITY COMMITMENT TO AN AMOUNT NOT IN
EXCESS OF THE ADJUSTED BORROWING BASE MOST RECENTLY REPORTED
TO THE BANK.
(J) SECTION 10.25(L) is hereby amended to read as follows:
(L) CONSENT TO OR PERMIT TO EXIST ANY AMENDMENT TO OR
RESCISSION OF THAT CERTAIN WAIVER TO NOTE PURCHASE AGREEMENT
DATED AS OF APRIL 13, 2000, AMONG THE HOLDERS OF THE
SUBORDINATED NOTES AND THE BORROWER, OR MAKE ANY PAYMENTS OF
ACCRUED AND UNPAID INTEREST UNDER THE SUBORDINATED NOTES AT
A TIME WHEN FAILURE TO MAKE SUCH PAYMENTS WILL NOT CAUSE A
DEFAULT UNDER SUCH SUBORDINATED NOTES.
(K) A new SECTION 10.31 is hereby added to the Loan Agreement to
read as follows:
10.31 FILING OF TAX RETURN. ON OR BEFORE APRIL 17, 2000, THE
BORROWER SHALL FILE THE NECESSARY TAX RETURN FOR ITS
PENDING TAX REFUND IN THE ESTIMATED AMOUNT OF
$3,600,000 WITH THE UNITED STATES INTERNAL REVENUE
SERVICE, AND SHALL PROMPTLY PROVIDE A COPY OF SUCH TAX
RETURN TO THE BANK.
(L) SECTION 12.1 is hereby amended to read as follows:
12.1 FAILURE TO PAY. THE BORROWER FAILS TO MAKE A PAYMENT
UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE
PAYMENTS REQUIRED UNDER SECTIONS 2.4(E), 10.25(D),
10.25(N), AND 10.25(O), AND WITH RESPECT SOLELY TO
INTEREST PAYMENTS, SUCH FAILURE CONTINUES FOR FIVE
DAYS AFTER THE DATE WHEN DUE.
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)
February 2, 2001. As used herein, "SPECIFIED DEFAULTS" shall mean the existence
of an Event of Default under Section 12.12 as a result of the Borrower's failure
to pay amounts due in October and November 1999 to Sam Perricone Citrus
Co.-related Persons and to Preston and Connie Thompson exceeding $750,000 in the
aggregate. 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
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 April 17, 2000:
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<PAGE>
(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 had 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 a facility fee in the amount of
$47,500.
(f) Borrower shall have executed and delivered to the Bank, or cause
to be executed and delivered to the Bank, the following documents
and other items, each satisfactory to the Bank:
i. The Borrower shall deliver to the Bank, to be attached to
this Amendment as Schedule 2 hereto, an updated listing of
any and all payments of principal, interest, earn-out,
contingency payment, or other obligation owed by any Company
to any Person which were incurred in connection with the
acquisition by Company of substantially all of the business
(or part of a business) or shares of a Person, whether
pursuant to an asset acquisition or a stock purchase,
including the amount of such payment, the date on which such
payment is due, the Person to whom such payment is owed, and
any grace period currently available with respect to such
payment.
(a) The Borrower shall simultaneously receive an audit
opinion without a going concern modification and shall
have deliver a copy thereof to the Bank.
(b) The Borrower shall execute and deliver or cause to be
executed and delivered to the Bank, in form and
substance reasonably satisfactory to the Bank and its
counsel, the items delineated on Schedule 1 hereto.
5. FURTHER AMENDMENTS UPON SATISFACTION OF CONDITIONS SUBSEQUENT. If the
Borrower provides to the Bank on or before 2:00 p.m., Dallas, Texas time on
April 30, 2000, satisfactory evidence that it has received on or after March 31,
2000, and on or before 2:00 p.m., Dallas, Texas time on April 30, 2000, proceeds
of the issuance of preferred stock of the Borrower in an amount not less than
$5,000,000 net of reasonable expenses of issuance and upon terms and conditions
satisfactory to the Bank, the Loan Agreement shall, effective April 30, 2000, be
further amended as follows so long as no Default then exists:
(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 MARCH
31, 2000, THROUGH MAY 30, 2000, $21,000,000, FROM MAY 31, 2000,
THROUGH JUNE 29, 2000, $20,000,000, FROM JUNE 30, 2000, THROUGH
JULY 30, 2000, $19,000,000, FROM JULY 31,
6
<PAGE>
2000, THROUGH AUGUST 30, 2000, $18,000,000, FROM AUGUST 31, 2000,
THROUGH SEPTEMBER 29, 2000, $17,000,000, FROM SEPTEMBER 30, 2000,
THROUGH OCTOBER 30, 2000, $16,000,000, FROM OCTOBER 31, 2000,
THROUGH DECEMBER 30, 2000, $15,750,000, AND, THEREAFTER,
$14,500,000. PROVIDED, HOWEVER, THAT SHOULD THE BORROWER RECEIVE
AND PAY TO THE BANK THE TAX REFUND CONTEMPLATED BY SECTION 10.31
OF THIS AGREEMENT ON OR BEFORE OCTOBER 31, 2000, THE $250,000
REDUCTION OF THE REVOLVING FACILITY COMMITMENT SCHEDULED FOR
OCTOBER 31, 2000, SHALL NOT BE REQUIRED AND THE REVOLVING
FACILITY COMMITMENT FROM SEPTEMBER 30, 2000, THROUGH DECEMBER 30,
2000, SHALL BE $16,000,000, AND THE REVOLVING FACILITY COMMITMENT
FROM DECEMBER 31, 2000, AND THEREAFTER SHALL BE $14,500,000.
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10.25(D), ALL
REVOLVING FACILITY COMMITMENT REDUCTIONS PROVIDED FOR ELSEWHERE
IN THIS AGREEMENT SHALL BE IN ADDITION TO THE REVOLVING FACILITY
COMMITMENT REDUCTIONS CONTEMPLATED BY THIS SECTION 2.1(A).
(B) SECTIONS 2.4(E) is entirely amended to read as follows:
(E) THE BORROWER WILL PAY ON MARCH 15, 2000, MARCH 30, 2000, MAY
31, 2000, JUNE 30, 2000, JULY 31, 2000, AUGUST 31, 2000,
SEPTEMBER 30, 2000, OCTOBER 31, 2000, AND DECEMBER 31, 2000,
PRINCIPAL OUTSTANDING UNDER THE REVOLVING NOTE TO THE EXTENT
THAT THE PRINCIPAL AMOUNT THEREOF OUTSTANDING ON SUCH DATES
PLUS THE OUTSTANDING AMOUNTS OF ANY LETTERS OF CREDIT ON
SUCH DATES (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 REVOLVING
FACILITY COMMITMENT ON SUCH DATES.
(C) SECTION 10.4 is hereby entirely amended as follows:
10.4 MAXIMUM ADJUSTED BORROWING BASE SHORTFALL. IF AT ANY TIME
THE REVOLVING FACILITY COMMITMENT MINUS THE ADJUSTED
BORROWING BASE (CALCULATED AS OF THE END OF THE MOST
RECENTLY PRECEDING CALENDAR MONTH) EXCEEDS THE AMOUNTS SET
FORTH BELOW ON OR AFTER EACH DATE SET FORTH BELOW UNTIL THE
DAY BEFORE THE NEXT SUCH DATE, THE COMPANY SHALL IMMEDIATELY
PAY TO THE BANK ANY SUCH SHORTFALL.
AMOUNT DATE
------ ----
$9,000,000 May 31, 2000
$8,000,000 August 31, 2000
$7,500,000 September 30, 2000
$5,000,000 October 31, 2000
$4,500,000 November 30, 2000
$4,000,000 December 31, 2000
PROVIDED, HOWEVER, TO THE EXTENT THAT THE REVOLVING FACILITY
COMMITMENT REDUCTION REQUIRED BY SECTION 10.25(N) HEREOF HAS
NOT OCCURRED ON OR PRIOR TO NOVEMBER 30, 2000, THE AMOUNT
SET FORTH ABOVE FOR OCTOBER 31, 2000 SHALL BE $7,000,000
UNTIL THE EARLIER OF THE TIME THAT SUCH REVOLVING FACILITY
COMMITMENT REDUCTION OCCURS OR NOVEMBER 30, 2000.
"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 DATE, (IV) WHOSE
7
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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.
(D) SECTION 10.12 is hereby amended to read as follows:
10.12 DIVIDENDS. THE BORROWER SHALL NOT DECLARE OR PAY ANY
DIVIDENDS ON ANY OF ITS SHARES EXCEPT DIVIDENDS PAYABLE IN
CAPITAL STOCK OF THE BORROWER, AND THE BORROWER SHALL NOT
PURCHASE, REDEEM OR OTHERWISE ACQUIRE FOR VALUE ANY OF ITS
SHARES, OR CREATE ANY SINKING FUND IN RELATION THERETO;
PROVIDED, HOWEVER, THAT SO LONG AS PRIOR TO THE TIME OF
SUCH PAYMENT THE REVOLVING FACILITY COMMITMENT HAS BEEN
REDUCED AS CONTEMPLATED BY SECTION 10.25(N) HEREOF AND NO
DEFAULT THEN EXISTS OR WILL RESULT THEREFROM, THE BORROWER
MAY PAY CASH DIVIDENDS IN AN AMOUNT NOT TO EXCEED $300,000
ON A DATE NOT BEFORE NOVEMBER 1, 2000, WITH RESPECT TO ITS
PREFERRED STOCK ISSUED ON OR ABOUT APRIL 30, 2000.
(E) SECTION 10.25(N) is hereby amended to read as follows:
(N) ADDITIONALLY, THE REVOLVING FACILITY COMMITMENT SHALL BE
REDUCED ON OR BEFORE NOVEMBER 30, 2000, BY THE GREATER OF
$3,600,000 OR ONE HUNDRED PERCENT (100%) OF ANY ALL TAX
REFUNDS RECEIVED BY THE BORROWER, ALL OF WHICH SHALL BE
APPLIED TO THE PRINCIPAL OWING TO THE BANK IMMEDIATELY UPON
RECEIPT THEREOF BY THE BORROWER AND SHALL CONSTITUTE
PERMANENT REDUCTIONS IN THE REVOLVING FACILITY COMMITMENT.
(F) SECTION 12.1 is hereby amended to read as follows:
12.1 FAILURE TO PAY. THE BORROWER FAILS TO MAKE A PAYMENT UNDER
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PAYMENTS
REQUIRED UNDER SECTION 2.4(E), SECTIONS 10.4, 10.25(D),
10.25(N), AND 10.25(O), AND WITH RESPECT SOLELY TO INTEREST
PAYMENTS, SUCH FAILURE CONTINUES FOR FIVE DAYS AFTER THE
DATE WHEN DUE.
6. 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.
7. 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.
8
<PAGE>
8. 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.
9. 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.
10. 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.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
12. 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 /S/ WILLIAM E. LIVINGSTONE, IV By /S/ JOHN H. GRAY,
------------------------------ -----------------
Managing Director 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.
COLUMBIA MARKETING SERVICES, INC.,
JNC ACQUISITION CORP.,
FRESH AMERICA ARIZONA, INC.,
FRESH AMERICA CALIFORNIA, INC.,
ELEANOR CORPORATION,
TORONTO CORPORATION,
FRESH AMERICA LOUISIANA, INC.,
FRESH AMERICA GEORGIA, INC.,
FRESH AMERICA FLORIDA, INC.,
HEREFORD HAVEN, INC.,
FRANCISCO ACQUISITION CORP.,
ALLIED-PERRICONE, INC., F/K/A SAM PERRICONE CITRUS CO.,
each as a SUBSIDIARY/DEBTOR
By John H. Gray, Vice President of each of the above companies
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SCHEDULE 1
ADDITIONAL CONDITIONS PRECEDENT
1. The Borrower shall execute and deliver or cause to be executed and
delivered to the Bank mortgages or deeds of trust, as appropriate, in form
and substance satisfactory to the Bank, granting to Bank a priority
(except for certain customary permitted encumbrances as delineated on
title reports delivered to the Bank and including zoning restrictions,
easements, licenses, or other minor irregularities of title which do not
in the aggregate materially detract from the value of the property or
materially impair the use thereof) lien upon all real property owned by
the Borrower and the Subsidiary/Debtors other than the Unrestricted
Subsidiaries (the "Deeds of Trust"), as security for the payment and
performance of all now existing and hereafter owing obligations,
indebtedness and liabilities owed by the Borrower to the Bank, and all
renewals, extensions and modifications thereof, which real property Bank
currently does not have a lien upon, together with such UCC-1 financing
statements as the Bank may require to confirm the perfection of its
security interest in the Collateral, which lien shall be prior to all
liens other than an existing lien in favor of Bank One, Texas, N.A. Such
Deed of Trust lien upon the Austin Property shall be held and filed only
in accordance with Section 6.2(d) of the Loan Agreement.
2. The Borrower shall cause 1277649 Ontario Limited and Sarfog, Inc. to
deliver to the Bank an Additional Subsidiaries Supplement to the Security
Agreement, granting to the Bank a first priority perfected security
interest in sixty-five percent (65%) of the present and future issued and
outstanding capital stock and other equity securities issued by all
foreign Subsidiaries of any Company upon which the Bank does not currently
have a lien, and evidence of corporate authority with respect to such
security interests.
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SCHEDULE 2
ACQUISITION PAYMENTS
DATE ANY AVAILABLE
OBLIGOR AMOUNT PAYEE DUE GRACE PERIOD
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