NORTHLAND CRANBERRIES, INC.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDMENT TO
REVOLVING CREDIT NOTE
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60690
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of October 3, 1997 as previously amended and currently in
effect (the "Credit Agreement"), between Northland Cranberries, Inc., a
Wisconsin corporation (the "Company"), and you (the "Bank"). All capitalized
terms used herein without definition shall have the same meanings herein as such
terms have in the Credit Agreement.
The Company has requested that the Bank increase the amount of the
Revolving Credit Commitment from $75,000,000 to $95,000,000 and make certain
other amendments to the Credit Agreement and the Bank is willing to do so under
the terms and conditions set forth in this agreement (herein, this "Amendment").
1. AMENDMENTS TO CREDIT AGREEMENT.
Upon the satisfaction of the conditions precedent set forth in Section 3
of this Amendment, the Credit Agreement shall be and hereby is further amended
as follows:
(a) Section 1.1(a) of the Credit Agreement shall be amended by striking
the amount "$75,000,000" appearing therein and substituting therefor the amount
"$95,000,000".
(b) Section 7.16 of the Credit Agreement shall be amended and restated in
its entirety to read as follows:
"Section 7.16. Distributions. The Company will not, nor will it
permit any Material Subsidiary to, directly or indirectly, (a)
declare, make or incur any liability to pay any dividend on or make
any other distribution in respect of any class or series of its
capital stock (other than dividends payable solely in its capital
stock) or (b) purchase, repurchase or otherwise acquire or retire
any of its capital stock; provided, however, that so long as no
Default or Event of Default shall have occurred and be continuing
the Company may (i) repurchase its capital stock provided the
aggregate amount expended for such repurchases does not exceed
$2,000,000, (ii) declare and pay dividends in an amount not to
exceed $0.04 per share with respect to the Company's earnings during
each fiscal quarter of the Company's fiscal years ending August 31,
1997 and August 31, 1998 and during the first fiscal quarter of the
Company's 1999 fiscal year (it being understood that such dividend
may be declared and paid in the second fiscal quarter of the
Company's 1999 fiscal year), and (iii) during each fiscal quarter of
the Company ending after November 30, 1998, declare and pay
dividends in an amount not to exceed 50% of the Company's Net Income
for the period beginning September 1, 1998 and ending on the last
day of the most recent fiscal quarter."
(c) Exhibit A to the Credit Agreement and the Revolving Credit Note shall
each be amended by (i) replacing the amount "$75,000,000" appearing in the upper
left corner thereof with the amount "$95,000,000" and (ii) replacing the phrase
"Seventy-Five Million Dollars ($75,000,000)" appearing in the first paragraph
thereof with the phrase "Ninety-Five Million Dollars ($95,000,000)".
(d) The Bank shall type the following legend on Revolving Credit Note:
"This Note has been amended by a Second Amendment to Amended and
Restated Credit Agreement and Amendment to Revolving Credit Note
dated as of November 20, 1998 between the Company and the Bank,
including a change in the principal amount hereof, to which
Amendment reference is hereby made for a statement of the terms
thereof."
2. SENECA JUICE ACQUISITION AND WAIVER.
The Company has informed the Bank that it intends to acquire substantially
all of the assets of the juice division of Seneca Foods Corporation and has
requested that the Bank consent to such acquisition. Section 7.22 of the Credit
Agreement prohibits the Company from expending more than $6,000,000 for capital
expenditures in any fiscal year. Upon the execution of this Agreement by the
Bank, the Participants and the Company in the space provided for that purpose
below, the Bank hereby (i) consents to the Company's acquisition of
substantially all of the assets of the juice division of Seneca Foods
Corporation for approximately $35,000,000 (the "Acquisition") with the Company
financing the Acquisition with the proceeds of Revolving Credit Loans and with
the Acquisition otherwise occurring on terms and conditions substantially
identical to those heretofore disclosed to the Bank and (ii) waives Section 7.22
to the extent necessary to permit the Acquisition.
3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
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(a) The Company and the Bank shall have executed and delivered this
Amendment and the Participants shall have consented to this Amendment in
the space provided for that purpose below.
(b) The Bank shall have received the following (each to be properly
executed and completed) and the same shall have been approved as to form
and substance by the Bank:
(i) supplements to the existing Collateral Documents to
confirm and assure that the same secure the various obligations of
the Company under the Credit Agreement as amended hereby;
(ii) endorsements (or binding commitments therefor) to each
existing policy of title insurance insuring the liens of those
existing Collateral Documents creating liens on real property to
confirm that such policy insures that such Collateral Documents, as
supplemented and contemplated by this Amendment, secure the various
obligations of the Company under the Credit Agreement as amended
hereby.
(c) Minot Food Packers, Inc. ("Minot") shall have executed and
delivered to the Bank a Security Agreement Re: Inventory, Farm Products
and Receivables in form and substance satisfactory to the Bank, along with
such Uniform Commercial Code financing statements as the Bank may require.
(d) The Bank shall have received copies (executed or certified, as
may be appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Amendment and the other
instruments and documents contemplated hereby to the extent the Bank or
its counsel may reasonably request, including without limitation, copies
of resolutions adopted by the board of directors of the Company and of
Minot (certified by the secretary or assistant secretary of each such
corporation) authorizing the execution and delivery of the instruments and
documents contemplated hereby.
(e) Legal matters incident to the execution and delivery of this
Amendment and the other instruments and documents contemplated hereby
shall be satisfactory to the Bank and its counsel and the Bank shall have
received the favorable written opinion of counsel for the Company and
Minot in form and substance satisfactory to the Bank.
(f) The Participants and the Bank shall have executed and delivered
a First Amendment to Second Amended and Restated Participation Agreement
and the Company shall have consented thereto.
In the event that all of the foregoing conditions are satisfied except for
condition (b)(i) with respect to Collateral Documents creating liens on real
property and condition (b)(ii), then in that event, this Amendment shall become
effective but the Company shall, not later than
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January 29, 1999, provide to the Bank the supplements to Collateral Documents
creating liens on real property and the endorsements which will satisfy such
conditions.
4. REPRESENTATIONS.
In order to induce the Bank to execute and deliver this Amendment, the
Company hereby represents to the Bank that as of the date hereof, the
representations and warranties set forth in Section 5 of the Credit Agreement
are and shall be and remain true and correct in all material respects (except
that the representations contained in Section 5.3 shall be deemed to refer to
the most recent financial statements of the Company delivered to the Bank) and
no Default or Event of Default has occurred and is continuing under the Credit
Agreement or shall result after giving effect to this Amendment.
5. MISCELLANEOUS.
(a) Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made pursuant to or
with respect to the Credit Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
(b) The Company agrees to pay on demand all costs and expenses of or
incurred by the Bank in connection with the negotiation, preparation, execution
and delivery of this Amendment, including the fees and expenses of counsel for
the Bank.
(c) This Amendment may be executed in any number of counterparts, and by
the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
[Signature Pages Follow]
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Dated as of this 20th day of November, 1998.
NORTHLAND CRANBERRIES, INC.
By
Its
Accepted and agreed to in Chicago, Illinois as of the date and year last
above written.
HARRIS TRUST AND SAVINGS BANK
By
Its Vice President
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Consented and agreed to as of the date and year last above written.
MERCANTILE BANK NATIONAL ASSOCIATION
By
Its
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By
Its
FIRSTAR BANK MILWAUKEE, N.A.
By
Its
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
Its
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