FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
---------------------------
as of April 29, 2003
FOOTHILL CAPITAL CORPORATION, as Agent
2450 Colorado Avenue
Suite 3000 West
Santa Monica, California 90404
Ladies and Gentlemen:
Foothill Capital Corporation, as Administrative Agent ("Agent") and Lender
("Foothill"), Ableco Finance LLC ("Ableco"; and together with Foothill,
"Lenders") and Northland Cranberries, Inc., a Wisconsin corporation,
("Borrower") have entered into certain financing arrangements pursuant to the
Loan and Security Agreement dated November 6, 2001 among Agent, Lenders and
Borrower (as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement") and
all other Loan Documents at any time executed and/or delivered in connection
therewith or related thereto. All capitalized terms used herein shall have the
meaning assigned thereto in the Loan Agreement, unless otherwise defined herein.
Borrower has advised Agent and Lenders that Borrower desires to amend the
covenants concerning Minimum EBITDA for certain periods and Loan Agreement
Schedules designating where Borrower stores its inventory and that Borrower
intends to store inventory at certain additional locations.
Borrower has requested that Agent and Lenders consent to (a) amend the
Minimum EBITDA covenants set forth in Section 7.20(a) of the Loan Agreement and
(b) amend Loan Agreement Schedule E-1 Eligible Inventory Locations and Loan
Agreement Schedule 5.5(a) Bailee, Warehousemen Locations and make certain other
amendments to the Loan Agreement; and Agent and Lenders are willing to agree to
the foregoing, on and subject to the terms and conditions contained in this
First Amendment to Loan and Security Agreement (this "Amendment").
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereto hereby agree as follows:
1. Amendments to Loan Agreement. In order to effectuate the changes to the
Minimum EBITDA covenant, amend Schedule E-1 Eligible Inventory Locations and
amend Schedule 5.5(a) Bailee, Warehousemen Locations and certain other
amendments of the Loan Agreement agreed to among Agent, Lenders and Borrower in
connection therewith, the Loan Agreement is hereby amended as follows:
(a) Minimum EBITDA. Section 7.20(a) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"(a) Minimum EBITDA. Fail to maintain EBITDA, measured on a fiscal
month-end basis, of not less than the required amount set forth in the following
table for the applicable period set forth opposite thereto;
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Applicable Amount Applicable Period
----------------------- ----------------------------------------
$7,000,000 For the 12 month period ending April
30, 2003
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$7,000,000 For the 12 month period ending May 31,
2003
----------------------- ----------------------------------------
$7,000,000 For the 12 month period ending June
30, 2003
----------------------- ----------------------------------------
$8,000,000 For the 12 month period ending July
31, 2003
----------------------- ----------------------------------------
$8,000,000 For the 12 month period ending August
31, 2003
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$8,000,000 For the 12 month period ending
September 30, 2003 and each rolling
twelve month period (measured at the
end of each fiscal month) thereafter"
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(b) Eligible Inventory Locations. Schedule E-1 Eligible Inventory Locations
to the Loan Agreement is hereby amended and restated in its entirety to read as
set forth in Exhibit A hereto.
(c) Bailee, Warehouse Locations. Schedule 5.5(a) Bailee, Warehousemen
Locations to the Loan Agreement is hereby amended and restated in its entirety
to read as set forth in Exhibit B hereto.
2. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrower and Guarantors to Agent and Lenders pursuant to the Loan Agreement and
the other Loan Documents, Borrower hereby represents, warrants and covenants
with and to Agent and Lenders as follows (which representations, warranties and
covenants are continuing and shall survive the execution and delivery hereof and
shall be incorporated into and made a part of the Loan Documents):
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(a) No Event of Default exists on the date of this Amendment (after giving
effect to the amendments to the Loan Agreement set forth herein); and
(b) This Amendment has been duly executed and delivered by Borrower and
each Guarantor and is in full force and effect as of the date hereof, and the
agreements and obligations of Borrower and each Guarantor contained herein
constitute its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof.
3. Conditions Precedent. The effectiveness of the amendments to the Loan
Agreement contained in this Amendment shall be subject to the following, the
satisfaction of which shall be determined by Agent in its sole judgment:
(a) the receipt by Agent of (i) the amendment fee set forth in Section 4(a)
and (ii) an original or faxed executed copy of this Amendment, duly authorized,
executed and delivered by Borrower, each Guarantor, Agent and each Lender; and
(b) after giving effect to the amendments to the Loan Agreement contained
herein, no Default or Event of Default shall have occurred and be continuing.
4. Amendment Fee. In consideration of the amendments to the Loan Agreement
contained in this Amendment, Borrower shall pay to Agent, for the ratable
benefit of Lenders, (a) a fee in the amount of $25,000, which fee is earned in
full on the date hereof and shall be payable in full to Agent for the ratable
benefit of Lenders on the date hereof, and (b) on June 30, 2003, unless Borrower
has received payment of certain litigation and other settlement proceeds from
Cliffstar Corporation of not less than $19,397,377.54 and Agent has received
from such proceeds, for application to the Obligations, an amount equal to the
greater of (i) $4,125,000, and (ii) the then-outstanding balance of Term Loan B,
a fee in the amount of $50,000, which fee shall be earned in full on June 30,
2003, and shall be payable in full to Agent for the ratable benefit of Lenders
on June 30, 2003. Such fee is in addition to all other fees, interest, costs and
expenses payable in connection with the Loan Documents and may be charged by
Agent to any account of Borrower maintained by Agent. The fee shall be fully
earned by Agent notwithstanding any failure by Borrower to comply with any other
terms of this Amendment.
5. Effect of this Amendment. Except as modified pursuant hereto, no other
changes or modifications to the Loan Agreement and the other Loan Documents are
intended or implied and in all other respects the Loan Agreement and the other
Loan Documents are hereby specifically ratified, restated and confirmed by all
parties hereto as of the effective date hereof. To the extent of any conflict
between the terms of this Amendment and any of the Loan Documents, the terms of
this Amendment shall control. The Loan Agreement, as amended hereby, the other
Loan Documents and this Amendment shall be read and be construed as one
agreement.
6. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional actions as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
7. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT AND ANY DISPUTE ARISING OUT OF THE
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RELATIONSHIP BETWEEN THE PARTIES HERETO, WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
8. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts when executed shall together
constitute but one and the same agreement. In making proof of this Amendment, it
shall not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto.
[SIGNATURE PAGES FOLLOW]
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Very truly yours,
BORROWER:
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Northland Cranberries, Inc.
By: /s/ John Swendrowski
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Title: Chairman and CEO
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ACKNOWLEDGED AND AGREED TO
BY THE GUARANTORS:
NCI Foods LLC
By: /s/ John Swendrowski
--------------------------------
Title: Chairman and CEO of Northland
Cranberries, Inc., Member
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Northland Insurance Center, Inc.
By: /s/
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Title: President
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Wildhawk, Inc.
By: /s/
--------------------------------
Title: President
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGREED:
Foothill Capital Corporation, as Agent and Lender
By: /s/
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Title: Vice President
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Ableco Finance LLC, a Delaware limited liability company,
as a Lender, on behalf of itself and its affiliate assigns
By: /s/
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Title: Chief Credit Officer
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