Exhibit 4
FOURTH AMENDMENT TO CREDIT AGREEMENT
AND LIMITED WAIVER
FIRSTAR BANK, N. A., as Agent
(formerly known as Firstar Bank Milwaukee, N. A.)
Milwaukee, Wisconsin
and The Financial Institutions Identified Herein
Ladies and 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 further amend the Credit Agreement dated as of March 15, 1999, as amended as
of May 1, 1999, December 29, 1999 and April 13, 2000 (the "Credit Agreement"),
among the Company, certain of the Banks and Firstar Bank, N. A., as agent, and
to waive certain defaults, all 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. The second sentence of Section 1.1 of the
Credit Agreement shall be amended to read as follows:
The revolving credit facility may be utilized by the Company in the form of
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, but only to the extent such Swing
Line Loans have been made prior to July 14, 2000, and (iii) L/Cs issued by
the Issuer prior to July 14, 2000, 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), which amount shall be reduced by Five Million
Dollars ($5,000,000) on the last day of each of the first and third fiscal
quarters of the Company commencing with the fiscal quarters ending November
30, 2000 and May 31, 2001 and continuing thereafter until the Revolving
Credit Termination Date (as so reduced at any time, the "Revolving Credit
Commitment").
2. Amendment to Section 1.2. Section 1.2 of the Credit Agreement shall be
amended to add the following sentences at the end of such Section:
Notwithstanding anything to the contrary contained herein, no Swing
Line Loans shall be made on or after July 14, 2000, and each of the
Banks shall make a
Revolving Credit Loan in an amount equal to its Percentage of the
outstanding Swing Line Loans, if any, as of such date, together with
all accrued and unpaid interest thereon, the proceeds of which
Revolving Credit Loans will be paid to the Agent for the account of
the Swing Line Lender to pay such outstanding Swing Line Loans.
Effective on the days such Revolving Credit Loans are made, the
portion of the Swing Line Loans so paid shall no longer be outstanding
as Swing Line Loans and shall no longer be due under the Swing Line
Note.
3. Amendment to Section 1.5. Section 1.5 of the Credit Agreement shall be
amended to add the following sentence at the end of such Section:
Notwithstanding anything to the contrary contained herein, no further
L/Cs shall be issued hereunder on or after July 14, 2000.
4. Amendment to Section 2.1. Section 2.1 of the Credit Agreement shall be
amended to add the following sentence at the end of such Section:
Notwithstanding anything to the contrary contained herein, on and
after July 14, 2000, (i) the Company may no longer select a LIBOR
Portion for any new Revolving Credit Loans or convert any outstanding
Domestic Rate Portions into LIBOR Portions and (ii) all outstanding
LIBOR Portions shall automatically be converted to Domestic Rate
Portions at the end of their respective Interest Rate Periods.
5. Amendment to Section 2.2. Section 2.2 of the Credit Agreement shall be
amended by amending the first sentence to read as follows:
The Domestic Rate Portion shall bear interest (which the Company
promises to pay at the times herein provided), at the rate per annum
equal to the Domestic Rate as in effect from time to time plus one and
one quarter percent (1.25%), provided that if the Domestic Rate
Portion is not paid when due, after giving effect to any grace periods
(whether by lapse of time, acceleration or otherwise), such Portion
shall bear interest (which the Company promises to pay at the times
hereinafter provided), whether before or after judgment, for the
period from the date such Portion became due and until payment in full
thereof, at the rate per annum determined by adding two percent (2%)
to the interest rate which would otherwise be applicable thereto from
time to time.
6. Amendment to Section 2.6. Section 2.6 of the Credit Agreement shall be
amended to read as follows:
Section 2.6. INTENTIONALLY LEFT BLANK.
7. Amendment to Section 7.4. Section 7.4 of the Credit Agreement shall be
amended by deleting the word "and" at the end of subsection (f) and deleting the
period at the end of subsection (g) and inserting in lieu thereof ";" and adding
the following:
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(h) as soon as available, and in any event within five (5) days
of the end of each month, commencing with the month ending July 31,
2000, a copy of the Company's accounts receivable aging and accounts
payable aging reports for the month then ended, in form reasonably
satisfactory to the Agent; and
(i) commencing on July 21, 2000, and each Friday thereafter, a
report of the collected balances in the Company's accounts at Wood
County Bank (or any other bank or financial institution with which it
maintains deposit accounts), in form reasonably satisfactory to the
Agent.
8. Amendment to Section 7.8. Section 7.8 of the Credit Agreement shall be
amended to read as follows:
Section 7.8. Minimum Tangible Net Worth. The Company will continuously
maintain Tangible Net Worth (i) as of June 30, 2000 and through July 30,
2000, of not less than One Dollar ($1.00) plus the Company's Tangible Net
Worth as of May 31, 2000, (ii) as of July 31, 2000 and through August 30,
2000, of not less than One Dollar ($1.00) plus the Company's Tangible Net
Worth as of June 30, 2000, and (iii) as of August 31, 2000 and thereafter
of not less than One Hundred Twenty Five Million Dollars ($125,000,000).
Compliance with the provisions of this Section will be determined without
regard to any write ups in the value of the Company's assets or write downs
of its liabilities or any other adjustments made which are not in
conformity with generally accepted accounting principals, applied on a
basis consistent with previous fiscal periods of the Company, unless
otherwise agreed to in writing by the Required Banks.
9. Defaults and Limited Waiver. The Company hereby acknowledges and agrees
that prior to giving any effect to the amendments to the Credit Agreement
contained herein, certain Events of Default have occurred under the Credit
Agreement on account of the Borrower's failure to comply with the provisions of
Sections 7.8, 7.9 and 7.10 for the fiscal periods ending March 31, April 30 and
May 31, 2000. Upon the effectiveness of this Amendment in accordance with
Paragraph 13, below, the Banks agree to waive the Events of Default described
above as of May 31, 2000. This waiver shall not apply to any other Events of
Default under the Credit Agreement whether now existing or occurring after the
date hereof.
10. Consent to Sale of Certain Real Estate. The Company has previously
requested that the Banks provide their consent to the sale of certain parcels of
real estate, more particularly described on Exhibit A hereto (the "Subject Real
Estate") and in connection with such consent that the Agent provide to the
Company, any necessary mortgage satisfactions and UCC releases for the same.
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 the sale by the Company of the Subject Real Estate.
11. Additional Conditions. The agreements of the Banks contained herein
have been made with the understanding that the Company will hereafter take
certain actions requested by the Banks. Accordingly, the Company agrees to
comply with the following additional conditions
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and any failure on the part of the Company to do so shall be deemed an Event of
Default hereunder and the Banks shall have all of their rights and remedies in
connection with any such Event of Default:
(a) In addition to the requirement to provide audited financial
statements for the fiscal year ending August 31, 2000 (as provided in
Section 7.4 of the Credit Agreement), in the event such audited financial
statements are not available by October 15, 2000, the Company shall provide
to the Banks by no later than October 15, 2000, either its accountants'
draft of the year end financial statements, if available, or internally
prepared financial statements for such fiscal year, together with a comfort
letter from the Company's auditors to the effect that such internally
prepared statements have been prepared in accordance with generally
accepted accounting principles, applied on a basis consistent with previous
statements provided to the Banks, and that there have been no unusual
accounting write ups or write downs. The Company acknowledges that
compliance with the financial covenants set forth in the Credit Agreement,
as amended hereby, shall be determined by the Agent based on those
statements which have been provided in compliance with this Section 11(a).
(b) A collateral field audit of the Company shall be commenced by no
later than September 8, 2000, and the Company shall cooperate with the
parties conducting such audit. The Company acknowledges that it shall be
responsible for payment of the cost of such audit.
(c) The Company shall immediately proceed to retain a turnaround
consultant acceptable to the Banks, provided that the Banks' consent to the
consultant selected by the Company shall not be unreasonably withheld. Such
consultant must be at the Company's headquarters and working with the
Company within fifteen (15) days of the date hereof.
(d) The Company shall arrange for a meeting, either in person or by
teleconference, among the Agent, the Banks and the investment bankers
retained by the Company, which meeting shall occur within fifteen (15) days
of the date hereof and shall cause the investment bankers to provide the
Banks with scheduled bi-weekly updates as to the status of their efforts.
(e) The Company shall immediately endorse to the Agent any tax refunds
received by the Company for pro-rata application to the Company's
obligations to the Banks, unless the Banks otherwise permit use of such
funds by the Company.
(f) The Company shall pay to Chicago Title Insurance Company by no
later than August 11, 2000, Seventy Five Thousand Eight Hundred Seventy Six
and 80/100 Dollars ($75,876.80) due to Chicago Title for recording fees and
the title insurance purchased for the Banks in connection with the March,
1999, closing of the credit facility.
(g) The Company shall provide to the Agent within thirty (30) days of
the date hereof a list of all owned and leased properties of the Company,
including a brief
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description of the use of the property as well as a full legal description
for each of the same. Further, the Company shall provide to the Agent
within fifteen (15) days of the date hereof complete copies of all credit
and collateral documentation between the Company and Equitable Life
Assurance Society of the United States (the "Equitable Documents"). The
Company acknowledges that if the Equitable Documents do not prohibit the
granting of a junior lien on the property covered thereby, the Company
shall execute and deliver to the Agent, for the benefit of the Banks, such
mortgages on such properties as may be requested by the Agent.
12. Amendment and Waiver Fee. In the event any Event of Default has
occurred and is continuing as of August 31, 2000, and the Banks agree to waive
such Event or Events of Default, then in consideration of the Banks providing
such waivers, the Company shall pay to the Agent for the pro rata account of the
Banks a fully earned, non-refundable fee in the amount of One Hundred Thousand
Dollars ($100,000), which fee shall be immediately due and payable as of such
date, but no other fee or increase in interest rates shall be implemented if
such waivers are given. The provisions in this Amendment for payment of such fee
shall not constitute or imply an agreement by the Banks to any such waiver.
13. Effectiveness. This Amendment shall become effective as of July 17,
2000, 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) Mortgage executed by the Company with respect to the Company's
headquarters at 800 First Avenue South, Wisconsin Rapids, Wisconsin (the
"Headquarters Mortgage");
(b) a certificate of the Secretary of the Company as to (i) the
continued effectiveness, without amendment, of the Articles of
Incorporation and Bylaws of the Company delivered to the Agent on March 14,
1999, (ii) the signatures of officers of the Company authorized to execute
this Amendment and the Headquarters Mortgage, and (iii) the attached
resolutions authorizing the transactions contemplated by this Amendment;
and
(c) A copy of Ocean Spray's annual report or financial statements.
Notwithstanding delivery of the Headquarters Mortgage hereunder, the Banks agree
that such mortgage shall not be recorded until after July 24, 2000, or such
earlier date as the Banks meet with the Company to discuss the Company's
performance and other matters addressed herein.
14. 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 Headquarters Mortgage and to continue
to borrow under the Credit Agreement, as amended hereby. Each of the Credit
Agreement, as
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amended hereby, this Amendment and the Headquarters Mortgage 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; and
(b) The execution and delivery of this Amendment and the Headquarters
Mortgage 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; and
(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; and
(d) Except as provided in Paragraph 9, above, 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; and
(e) The Company is liable, without offset, counterclaim or other
defense, for all obligations of the Company to the Banks; and
(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 as of the date when made.
15. 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.
16. 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 Fourth Amendment to Credit Agreement and Limited Waiver is
satisfactory to you, please sign the form of acceptance below. Dated and
effective as of the 17th day of July, 2000.
Very truly yours,
NORTHLAND CRANBERRIES, INC.
By:/s/ John Swendrowski
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Its: Chairman and Chief Executive
Officer
Accepted and agreed to as of the day and year last above written.
FIRSTAR BANK, N. A.
By:/s/ Ronald Shapiro
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Its: Vice President
Address:
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Ronald Shapiro, Vice
President
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WELLS FARGO BANK MINNESOTA, N.A.
(formerly known as Norwest
Bank Minnesota, N. A.)
By:
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Its:
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Address:
Sixth Street and Marquette Avenue
MAC N9305-114
Minneapolis, Minnesota 55479
Attention: Gary Lechko, Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Michael M. Fordney
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Michael M. Fordney
Its: Senior Vice President
Address:
201 West Wisconsin Avenue
Milwaukee, Wisconsin 53259-0911
Attention: Michael Fordney, Senior
Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION
By: /s/ Ariste Reno
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Ariste Reno
Its: Senior Vice President
Address:
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Edward L. Cooper III,
Senior Vice President
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ST. FRANCIS BANK, F.S.B.
By: /s/ John C. Tans
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Its: Vice President
Address:
13400 Bishops Lane, Suite 190
Brookfield, Wisconsin 53005-6203
Attention: John Tans, Vice President/
Commercial Banking
M&I MARSHALL & ILSLEY BANK
By: /s/ Robert Nielsen
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Its: Vice President
By: /s/ Ann M. Benschoter
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Its: Vice President
Address:
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Robert Nielson, Vice
President
FLEET CAPITAL CORPORATION
By:
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Its:
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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/ Jack Bastian
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Its: Vice President
Address:
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Jack Bastian, Vice
President
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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Exhibit A
Parcels of land for sale by Northland Cranberries, Inc. located in:
Village of Jackson, Washington County, Wisconsin:
* Two parcels divided as Parcel A and Parcel A1, to be used for roadway
expansion by the Village. The parcels extend along the East Side of
Jackson Drive and abut the North Side of Hickory Lane in the Village
of Jackson.
Buyer: Village of Jackson
* 150-acre vacant parcel located several miles east of the Northland
Cranberries, Inc. plant in Jackson, Wisconsin.
Buyer: Wisconsin Department of Natural Resources
Town of Manitowish Waters, Vilas County, Wisconsin:
* 11-acre abandoned parcel of non-contiguous land, which includes an old
sandpit and storage shed.
Buyer: Care Takers, LLC, a Wisconsin corporation
Two of Pembroke, Plymouth County, Massachusetts:
* Parcel is a non-producing parcel known as Bog 11.