FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT
FIRSTAR BANK MILWAUKEE, N. A., as Agent
Milwaukee, Wisconsin
and The Financial Institutions Identified Herein
Gentlemen:
The undersigned, NORTHLAND CRANBERRIES, INC., a Wisconsin corporation (the
"Company") hereby requests that the undersigned financial institutions (together
with their respective successors and assigns, collectively, the "Banks") agree
to amend the Credit Agreement dated as of March 15, 1999 (the "Credit
Agreement"), among the Company, the Banks and Firstar Bank Milwaukee, N.A., as
agent, to permit the transfer of certain trademarks and tradenames and a
Trademark License Agreement (the "License Agreement") dated December 29, 1998
between the Company and SENECA FOODS CORPORATION ("Seneca") to NCI Foods, LLC, a
newly formed limited liability company of which the Company is the sole member
and owner, on the terms and conditions set forth below. The Company further
requests that the Banks consent to the sale of a portion of one of its Juneau
County, Wisconsin marshes. Capitalized terms used herein and not defined shall
have the meanings assigned thereto in the Credit Agreement.
1. Amendment to Section 4.1. Section 4.1 of the Credit Agreement shall be
amended so that clauses (vi) and (vii) thereof read as follows:
(vi) the Minot Guaranty and the NCI Guaranty; and (vii)
Grants of Security Interests in Trademarks, to be executed
by the Company, Minot and NCI, respectively, in favor of the
Agent for itself and for the benefit of the Banks
(collectively, the "IP Grants").
2. Amendment to Section 5.2. Section 5.2 of the Credit Agreement shall be
amended to read as follows:
Section 5.2. Subsidiaries. The Company has no Subsidiaries
except Wildhawk, Inc., a Wisconsin corporation, W.S.C. Water
Management Corp., a Wisconsin corporation, Northland
Cranberries Foreign Sales Corp., a Virgin Islands
corporation, Minot, NCI, Northland Insurance Center Inc., a
Wisconsin corporation, and PFVA Acquisition Corp., a
Virginia corporation (the "Acquisition Subsidiary").
3. Amendment to Section 9. Section 9 of the Credit Agreement shall be
amended by adding the following definitions:
"NCI" shall mean NCI Foods, LLC, a Wisconsin limited
liability company.
"NCI Guaranty" shall mean that certain Guaranty dated as of
May 1, 1999 executed by NCI for the benefit of the Agent and
the Banks.
4. Consent to Transfers. Subject to the terms and conditions of this
Amendment, and notwithstanding the provisions of Section 7.14 of the Credit
Agreement, the undersigned Banks hereby consent to (i) the transfer by the
Company to NCI of all of (a) its right, title and interest in and to the
trademarks and tradenames described on Exhibit A attached hereto and (b) the
License Agreement and all the rights granted to the Company by Seneca
thereunder, and (ii) the sale by the Company of an approximately twenty (20)
acre portion of one of its Juneau County, Wisconsin marshes.
5. Effectiveness. This Amendment shall become effective upon the Agent's
receipt of a copy of this Amendment duly executed by the Company and the
Required Banks, together with the following:
(a) the NCI Guaranty duly executed by NCI;
(b) a Grant of Security Interest in Trademarks duly executed by NCI;
(c) a Notice of Grant of Security Interest in Trademarks duly executed
by NCI and the Agent;
(d) such financing statements duly executed by NCI as the Agent may
reasonably require;
(e) a certificate of the member of NCI as to the attached Articles of
Organization of NCI, the Operating Agreement of NCI and resolutions
authorizing those documents required from NCI hereunder; and
(f) a certificate of the Secretary of the Company as to the continued
effectiveness, without amendment, of the Articles of Incorporation and
Bylaws of the Company delivered to the Agent on March 14, 1999 and the
attached resolution authorizing the transactions.
When this Amendment has become effective, the Agent will deliver to the Company
such partial releases of UCC financing statements and mortgages recorded by the
Agent as are necessary to complete the sale of the Juneau County, Wisconsin
parcel referred to herein.
6. Representations and Warranties of the Company. In order to induce the
Banks to enter into this Amendment and in recognition of the fact that the Banks
are acting in reliance thereupon, the Company represents and warrants to the
Banks as follows:
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(a) The Company has the corporate power and authority to enter into,
deliver and issue this Amendment and to continue to borrow under the Credit
Agreement, as amended hereby. Each of the Credit Agreement, as amended
hereby, and this Amendment when duly executed on behalf of the Company,
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
(b) The execution and delivery of this Amendment and the prospective
borrowing and performance by the Company of its obligations under the
Credit Agreement, as amended hereby, have been authorized by all necessary
action on the part of the Company.
(c) The representations and warranties of the Company contained in the
Credit Agreement, as amended hereby, are true and correct in all material
respects as of the date of this Amendment as though made on and as of the
date of this Amendment.
(d) As of the date of this Amendment no Event of Default, or default
which with the passage of time would constitute an Event of Default under
the Credit Agreement, has occurred and is continuing.
7. Negative Covenant. The Company agrees for itself and on behalf of NCI
that, so long as any credit is available to or in use by the Company under the
Credit Agreement, NCI's sole business is and will be to own the trademarks and
tradenames described on Exhibit A and to hold the License Agreement and that at
no time will NCI own any tangible or other intangible assets without the prior
written consent of the Agent.
8. Counterparts. This Amendment may be executed in any number of
counterparts, and by different parties hereto on separate counterparts, and all
such counterparts taken together shall be deemed to constitute one and the same
instrument.
9. Miscellaneous.
(a) Each reference in the Credit Agreement to "this Agreement" shall
be deemed a reference to the Credit Agreement as amended by this Amendment.
(b) In accordance with Section 10.4 of the Credit Agreement, the
Company shall pay or reimburse the Agent for all of its expenses, including
reasonable attorneys' fees and expenses, incurred in connection with this
Amendment, for the preparation, examination and approval of documents in
connection herewith, the preparation hereof and expenses incurred in
connection herewith.
(c) This Amendment is being delivered and is intended to be performed
in the State of Wisconsin and shall be construed and enforced in accordance
with the laws of that state without regard for the principals of conflicts
of laws.
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(d) Except as expressly modified or amended herein, the Credit
Agreement shall continue in effect and shall continue to bind the parties
hereto. This Amendment is limited to the terms and conditions hereof and
shall not constitute a modification, acceptance or waiver of any other
provision of the Credit Agreement.
If this First Amendment to Credit Agreement and Consent is satisfactory to
you, please sign the form of acceptance below. Dated and effective as of the 1st
day of May, 1999.
Very truly yours,
NORTHLAND CRANBERRIES, INC.
By: /s/ John A. Pazurek
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John A. Pazurek, Chief Financial Officer,
Vice President, Finance and Treasurer
Accepted and agreed to as of the day and year last above written.
FIRSTAR BANK MILWAUKEE, N. A.
By: /s/
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Its:Lending Officer
NORWEST BANK MINNESOTA, N.A.
By: /s/ Kenneth E. LaChance
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Its:Officer
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/
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Its:Asst. Vice President
[Signatures continued on following page.]
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U.S. BANK NATIONAL ASSOCIATION
By: /s/
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Its:Vice President
BANK OF AMERICA, NATIONAL TRUST
& SAVINGS ASSOCIATION
By: /s/ Barton. A. Francour
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Its:Barton. A. Francour - Sr. Vice President
ST. FRANCIS BANK, F.S.B.
By: /s/
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Its:V.P.
M&I MARSHALL & ILSLEY BANK
By: /s/
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Its:Vice President
BANKBOSTON, N.A.
By: /s/
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Its:Vice President
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