SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
FIRSTAR BANK, N. A., as Agent
(formerly known as Firstar Bank Milwaukee, N. A.)
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, as amended as of May
1, 1999 (the "Credit Agreement"), among the Company, certain of the Banks and
Firstar Bank, N. A., as agent, to increase the amount of Revolving Credit
Commitment available to the Company and to permit the sale of certain tangible
and intangible assets related to the Company's "private label" juice business,
on the terms and conditions set forth below. Capitalized terms used herein and
not defined shall have the meanings assigned thereto in the Credit Agreement.
1. Amendment to Section 1.1. Section 1.1 of the Credit Agreement shall be
amended to read as follows:
Section 1.1. The Revolving Credit. Subject to all of the terms and
conditions hereof, each Bank, severally and for itself alone, agrees to
extend such Bank's Percentage of a revolving credit facility to the Company
which may be availed of by the Company in its discretion from time to time,
be repaid and used again, during the period from the date hereof to and
including the Revolving Credit Termination Date. The revolving credit
facility may be utilized by the Company in the form of (i) revolving credit
loans (individually a "Revolving Credit Loan" and collectively the
"Revolving Credit Loans") from the Banks according to their respective
Percentages, (ii) swing line loans (individually a "Swing Line Loan" and
collectively, the "Swing Line Loans") from the Swing Line Lender, pursuant
to Section 1.2 hereof, and (iii) L/Cs issued by the Issuer upon request of
the Company and in which each Bank shall have purchased a participation,
provided that the aggregate amount of the Revolving Credit Loans, Swing
Line Loans, Reimbursement Obligations and the maximum amount available to
be drawn under all L/Cs outstanding at any one time shall not exceed One
Hundred Fifty Five Million Dollars ($155,000,000) (the "Revolving Credit
Commitment"). All Revolving Credit Loans shall be evidenced by Revolving
Credit Notes of the Company (the "Revolving Credit Notes") payable to the
order of each of the Banks in the amounts of their respective Percentages
of the Revolving Credit Commitment, such Revolving Credit Notes to be in
substantially the form attached hereto as Exhibit 1.1. Without regard to
the face principal amounts of each of the Revolving Credit Notes, the
actual principal amount at any time outstanding and owing by the Company on
account thereof during the period ending on the Revolving Credit
Termination Date shall be the sum of all Revolving Credit Loans then or
theretofore made thereon less all principal payments actually received
thereon during such period.
2. Amendment to Section 3.3. Section 3.3 of the Credit Agreement shall be
amended by deleting the last sentence thereof in its entirety.
3. Amendment to Section 3.4. Section 3.4 of the Credit Agreement shall be
amended be deleting the third sentence thereof in its entirety.
4. Amendment to Section 4.1. Section 4.1 of the Credit Agreement shall be
amended by deleting the last sentence thereof in its entirety.
5. Amendment to Section 7.21. Section 7.21 of the Credit Agreement shall be
amended in its entirety to read as follows:
Section 7.21. [Intentionally left blank.]
6. Amendment to Section 9. Section 9 of the Credit Agreement shall be
amended by (a) deleting the definitions "Senior Notes" and "Terms Sheet" and (b)
amending the definition of Total Debt to read as follows:
"Total Debt" shall mean (without duplication) all consolidated
indebtedness for borrowed money of the Company and its Subsidiaries, and
shall include indebtedness for borrowed money created, assumed or
guaranteed by the Company either directly or indirectly, including all
amounts outstanding under this Agreement, including the aggregate principal
amount of Revolving Credit Loans and Swing Line Loans outstanding, the
aggregate face amount of outstanding L/Cs and the aggregate amount of
unreimbursed Reimbursement Obligations as of the date of determination.
7. Amendment to Schedule 1. Schedule 1 to the Credit Agreement (Bank
Percentages) shall be amended in its entirety to read as provided on Schedule 1
hereto.
8. Consent to Sale of Private Label Juice Business. Subject to the terms
and conditions of this Amendment, and notwithstanding the provisions of Section
7.14 (Sale of Property) and 7.13 (Investments, Loans, Advances and Acquisitions)
of the Credit Agreement, the undersigned Banks hereby consent to the sale by the
Company of certain inventory, trademarks, contracts and the goodwill of the
Company's private label juice business and, in payment of substantially all of
the purchase price therefor, acceptance of a promissory note of the buyer,
provided both the terms of the sale are substantially as outlined on Exhibit A
hereto and the Company pledges such note to the Banks, and delivers the original
note to the Agent, as additional collateral to support its obligations under the
Credit Agreement.
9. Transfer of Mercantile Bank National Association Interests. By their
execution hereof, each of the parties hereto acknowledges and agrees that all
interests of Mercantile Bank National Association ("Mercantile") in this credit
facility have been assumed by Firstar Bank,
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N. A. ("Firstar") in connection with the merger of Mercantile and Firstar on
September 20, 1999.
10. Effectiveness. This Amendment shall become effective as of December 29,
1999 upon the Agent's receipt of a copy of this Amendment duly executed by the
Company and the Banks, together with the following:
(a) the Revolving Credit Notes, copies of which are attached hereto as
Exhibit B, which shall replace the notes executed as of March 15, 1999; and
(b) 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, the
signatures of officers of the Company authorized to execute this Amendment
and the Revolving Credit Notes and the attached resolutions authorizing the
transactions contemplated by this Amendment.
After this Amendment has become effective, the Agent agrees to deliver to the
Company when necessary such partial releases of UCC financing statements
recorded by the Agent as are necessary to complete the sale of the Company's
private label juice business referred to herein.
11. 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:
(a) The Company has the corporate power and authority to enter into,
deliver and issue this Amendment and the replacement Revolving Credit Notes
and to continue to borrow under the Credit Agreement, as amended hereby.
Each of the Credit Agreement, as amended hereby, this Amendment and the
replacement Revolving Credit Notes 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 replacement
Revolving Credit Notes 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.
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(e) The Company is liable, without offset, counterclaim or other
defense, for all obligations of the Company to the Banks.
(f) No information, financial statement, exhibit or report furnished
by the Company to the Agent in connection with the negotiation of, or
pursuant to, this Amendment, contains any material misstatement of fact, or
omits to state a material fact, or omits any fact necessary to make the
statements contained therein, in light of the circumstances in which they
were made, not misleading.
12. 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.
13. 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.
Each reference in the Credit Agreement to the "Revolving Credit Notes"
shall be deemed a reference to the Revolving Credit Notes issued in
connection with 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.
(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.
(e) The Company agrees to hereafter execute such amendments to the
existing mortgages given by the Company to the Banks requested by the Banks
to evidence the increase in the Revolving Credit Commitment pursuant
hereto.
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If this Second Amendment to Credit Agreement and Consent is satisfactory to
you, please sign the form of acceptance below. Dated and effective as of the
29th day of December, 1999.
Very truly yours,
NORTHLAND CRANBERRIES, INC.
By: /s/
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Its:Assistant Vice President of Finance and
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Acting Chief Financial Officer
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Accepted and agreed to as of the day and year last above written.
FIRSTAR BANK, N. A.
By: /s/
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Its:Assistant Vice President
Address:
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Randall D. Olver,
Senior Vice President
NORWEST BANK MINNESOTA, N. A.
By /s/ Kenneth E. LaChance
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Its:Officer
Address:
Sixth Street and Marquette Avenue
MAC N9305-l14
Minneapolis, Minnesota 55479-0091
Attention: Kenneth E. LaChance, Officer
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U.S. BANK NATIONAL ASSOCIATION
By /s/ Michael Fordney
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Its:SVP
Address:
201 West Wisconsin Avenue
Milwaukee, Wisconsin 53259-0911
Attention: Michael Fordney,
Senior Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION
By /s/ Edward L. Cooper, III
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Its:SVP
Address:
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Edward L. Cooper III,
Vice President
ST. FRANCIS BANK, F.S.B.
By /s/ John C. Tans
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Its:VP
Address:
13400 Bishops Lane, Suite 190
Brookfield, Wisconsin 53005-6203
Attention: John Tans, Vice President/
Commercial Banking
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M&I MARSHALL & ILSLEY BANK
By /s/ Dennis D. Finnigan
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Its:VP
By: /s/
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Its:Vice President
Address:
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Dennis D. Finnigan, Vice President
FLEET CAPITAL CORPORATION
By /s/ Edward M. Bartkowski
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Its:Senior Vice President
Address:
20800 Swenson Drive, Suite 350
Post Office Box 1641
Waukesha, Wisconsin 53187
Attention: Edward M. Bartkowski,
Vice President
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BANK ONE, NA
By /s/ A. F. Maggiore
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Its:Managing Director
Address:
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Anthony F. Maggiore,
Managing Director
LaSALLE BANK NATIONAL ASSOCIATION
By /s/ James A. Meyer
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Its:First Vice President
Address:
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: James A. Meyer,
First Vice President
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