THIRD AMENDMENT TO
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AMENDED AND RESTATED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), is entered into as of the 30th day of May, 2003, by and among
NORTHLAND CRANBERRIES, INC. (the "Company"), U.S. BANK NATIONAL ASSOCIATION
("U.S. Bank"), and ST. FRANCIS BANK, F.S.B. ("St. Francis Bank"). U.S. Bank and
St. Francis Bank shall sometimes be referred to individually herein as the
"Signing Banks".
R E C I T A L S
The Company, the Banks and ARK CLO 2000-1 Limited ("ARK" and, collectively
with the Signing Banks, the "Banks") are parties to that certain Amended and
Restated Credit Agreement dated as of November 6, 2001, as amended on March 27,
2003 and May 22, 2003 (the "Credit Agreement"). Section 10.3 of the Credit
Agreement provides that the Company and Banks holding at least sixty six and
two-thirds percent (66 2/3%) of the Percentages may from time to time enter into
written amendments, supplements or modifications of the Credit Agreement for the
purpose of adding provisions to the Credit Agreement or for the purpose of
changing in any manner the rights of the Banks or of the Company thereunder. The
Signing Banks hold (73.384149%) of the Percentages and, therefore, constitute
"Required Banks" under the Credit Agreement. Accordingly, the Company and the
Signing Banks wish to amend the Credit Agreement as hereinafter described to
reflect modifications to the EBITDA covenant for the months of May and June,
2003.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Capitalized Terms. All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meaning given such terms in the Credit
Agreement.
2. Amendment to Section 7.10. Section 7.10 of the Credit Agreement shall be
amended to read in its entirety as follows:
"7.10 Minimum EBITDA. The Company shall maintain EBITDA of not less
than the required amount set forth in the following table for the
applicable period set forth opposite thereto:
Applicable Amount Applicable Period
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$ (987,028) For the 3 month period ending January 31, 2002
$ 386,998 For the 4 month period ending February 28, 2002
$ (373,332) For the 5 month period ending March 31, 2002
$ (317,848) For the 6 month period ending April 30, 2002
$ (322,906) For the 7 month period ending May 31, 2002
$ (623,186) For the 8 month period ending June 30, 2002
$ 940,486 For the 9 month period ending July 31, 2002
$ 1,919,009 For the 10 month period ending August 31, 2002
$ 2,198,273 For the 11 month period ending September 30, 2002
$ 2,663,940 For the 12 month period ending October 31, 2002
$ 2,544,056 For the 12 month period ending November 30, 2002
$ 5,123,200 For the 12 month period ending December 31, 2002
$ 6,100,983 For the 12 month period ending January 31, 2003
$ 5,849,227 For the 12 month period ending February 28, 2003
$ 7,689,471 For the 12 month period ending March 31, 2003
$ 8,576,212 For the 12 month period ending April 30, 2003
$ 8,000,000 For the 12 month period ending May 31, 2003
$ 9,000,000 For the 12 month period ending June 30, 2003
$10,993,723 For the 12 month period ending July 31, 2003
$11,260,402 For the 12 month period ending August 31, 2003
$12,518,959 For the12 month period ending September 30, 2003
$12,600,000 For the 12 month period ending October 31, 2003 and
each rolling twelve month period (measured at the end
of each fiscal month) thereafter
3. Representations and Warranties. To induce the Signing Banks to enter
into this Amendment, the Company represents and warrants to the Banks, which
representations and warranties shall survive the execution hereof, as follows:
(a) The execution, delivery and performance by the Company of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and do not and will not contravene or conflict
with any provision of law applicable to the Company, or any charter or
Bylaw provision of the Company or any order, judgment or decree of any
court or other agency of government or any indenture or material agreement
of or affecting the Company or to any of its Properties; and
(b) The Credit Agreement as amended as of the date hereof is the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms except as may be limited by (i)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws or judicial decisions for the relief of
debtors or the limitation of creditors' rights generally; and (ii) any
equitable principles relating to or limiting the rights of creditors
generally.
4. Conditions. The effectiveness of the provisions of this Amendment is
subject to there being no Default or Event of Default under the Credit Agreement
in existence as of the date hereof.
5. Miscellaneous.
(a) Costs and Expenses. As provided in Section 10.4 of the Credit
Agreement, the Company shall pay, on demand, all reasonable out-of-pocket
costs and expenses of the Agent and the Signing Banks in connection with
the negotiation, preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered in connection herewith,
including the fees and expenses of counsel for the Agent with respect to
all of the foregoing.
(b) Binding Nature. This Agreement shall be binding upon each of the
Company and its successors and assigns and shall inure to the benefit of
the Agent and each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of an interest in
the Term Notes.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
document.
(e) References. Any reference to the Credit Agreement contained in any
notice, request, certificate or other document executed concurrently with
or after the execution and delivery of this Amendment shall be deemed to
include this Amendment unless the context shall otherwise require.
(f) Breach. A breach of this Amendment shall constitute a breach of
the Credit Agreement and the Banks shall be entitled to all rights and
remedies thereunder.
(g) Continued Effectiveness. The Credit Agreement, as amended hereby,
and each of the other Loan Documents remains in full force and effect and
shall continue to govern the parties thereto.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date set forth above.
NORTHLAND CRANBERRIES, INC.
By: /s/ John Swendrowski
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John Swendrowski, CEO
U.S. BANK NATIONAL ASSOCIATION
By: /s/ John Stichnoth
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John Stichnoth, Vice President
ST. FRANCIS BANK, F.S.B
By: /s/ Paul W. Jelacic
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Paul W. Jelacic, Vice President