SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Seventh Amendment to Loan and Security Agreement (this “Seventh Amendment”) made and entered into as of the 28th day of October, 2022, is by and among S&W Seed Company, a Nevada corporation (“S&W Seed”), Seed Holding, LLC, a Nevada limited liability company (“Seed Holding”), and Stevia California, LLC, a California limited liability company (“Stevia CA”; S&W Seed, Seed Holding and Stevia CA are each individually a “Borrower” and collectively referred to as “Borrowers”), the other Loan Parties hereto, the financial institutions that are or may from time to time become parties hereto (together with their respective successors and assigns, the “Lenders”), and CIBC BANK USA (in its individual capacity, “CIBC”), as administrative agent for the Lenders (“Administrative Agent”).
W I T N E S S E T H:
WHEREAS, prior hereto, Lenders provided loans, extensions of credit and other financial accommodations to Borrowers pursuant to (a) that certain Loan and Security Agreement dated as of December 26, 2019, as amended by that certain First Amendment to Loan and Security Agreement dated as of September 22, 2020, that certain Second Amendment to Loan and Security Agreement dated as of December 30, 2020, that certain Third Amendment to Loan and Security Agreement dated as of May 13, 2021, that certain Fourth Amendment to Loan and Security Agreement dated as of September 24, 2021, that certain Fifth Amendment to Loan and Security Agreement dated as of May 13, 2022, and that certain Sixth Amendment to Loan and Security Agreement dated as of September 22, 2022, each by and among Lenders, Borrowers, the other Loan Parties thereto and Administrative Agent (collectively, the “Loan Agreement”), and (b) the other documents, agreements and instruments referenced in the Loan Agreement or executed and delivered pursuant thereto;
WHEREAS, Borrowers desire Administrative Agent and Lenders to, (a) among other things, increase the Total Revolving Loan Commitment from $18,000,000 to $21,000,000, and (b) modify the Eligible Inventory Sublimit (collectively, the “Additional Financial Accommodations”); and
WHEREAS, Administrative Agent and Lenders are willing to provide the Additional Financial Accommodations, but solely on the terms and subject to the provisions set forth in this Seventh Amendment and the other agreements, documents and instruments referenced herein or executed and delivered pursuant hereto.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and understandings of the parties hereto set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Administrative Agent, Lenders, Borrowers and the other Loan Parties hereto hereby agree as set forth in this Seventh Amendment.
Eligible Inventory Sublimit shall mean, as of the Seventh Amendment Effective Date, $12,000,000.00, or such higher or lower number as may be determined by Administrative Agent in its sole and absolute discretion; provided that (a) the Eligible Inventory Sublimit shall automatically decrease by the amount of the proceeds of the Specified Letter of Credit received by Administrative Agent and applied to the Revolving Loans in accordance with Section 2.3.3(c) effective upon Administrative Agent’s receipt of such proceeds, and (b) for so long as the Specified Letter of Credit
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is outstanding, Administrative Agent shall not decrease the Eligible Inventory Sublimit to an amount that is less than the proceeds available to be drawn under the Specified Letter of Credit.
Maximum Loan Amount shall mean Twenty-One Million and No/100 Dollars ($21,000,000.00).
MFP Loan Agreement shall mean that certain Subordinate Loan and Security Agreement, dated as of September 22, 2022, by and between MFP and S&W Seed, as amended by that First Amendment to Subordinate Loan and Security Agreement, dated as of the Seventh Amendment Effective Date, as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, in each case in form and substance satisfactory to Administrative Agent in its sole discretion.
Specified Letter of Credit shall mean that certain Letter of Credit No. NUSCG044349 issued by JPMorgan Chase Bank, N.A., for the account of MFP, in the original face amount of $9,000,000, as amended on or before the Seventh Amendment Effective Date increasing the face amount to $12,000,000, as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, in each case in form and substance satisfactory to Administrative Agent in its sole discretion.
Total Revolving Loan Commitment shall mean an amount equal to Twenty-One Million and No/100 Dollars ($21,000,000.00) except as such amount may be increased or, upon the occurrence and at all times during the continuance of an Event of Default, decreased by Required Lenders in their sole discretion.
Seventh Amendment Effective Date shall mean October 28, 2022.
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[signature pages follow]
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In Witness Whereof, Administrative Agent, Lenders, Borrowers and each other Loan Party have caused this Seventh Amendment to be executed and delivered by their duly authorized officers as of the date first set forth above.
BORROWERS: |
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S&W SEED COMPANY, |
| SEED HOLDING, LLC | ||
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By: | /s/ Betsy Horton |
| By: | /s/ Betsy Horton |
| Betsy Horton, Chief Financial Officer |
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| Betsy Horton, Manager |
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STEVIA CALIFORNIA, LLC, |
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By: | /s/ Betsy Horton |
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| Betsy Horton, Manager |
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[Signature page to Seventh Amendment to Loan and Security Agreement]
CIBC BANK USA,
as Administrative Agent and as a Lender
By: /s/ Jennifer Kempton
Name: Jennifer Kempton
Title: Managing Director
[Signature page to Seventh Amendment to Loan and Security Agreement]
ANNEX 1 – COMMITMENTS
Lender | Revolving Loan Commitment | Percentage |
CIBC BANK USA | $21,000,000.00 | 100.000000000 |
Total | $21,000,000.00 | 100.000000000 |