EXHIBIT 10.17
BUSINESS LOAN AGREEMENT
This Agreement dated as of January 30, 2004 is between Bank of America,
N.A. (the "Bank") and Calavo Growers, Inc. (the "Borrower").
1. LINE OF CREDIT AMOUNT AND TERMS
1.1 Line of Credit Amount.
(a) During the availability period described below, the Bank will provide a
line of credit to the Borrower. The amount of the line of credit (the
"Commitment") is Twelve Million Dollars ($12,000,000).
(b) This is a revolving line of credit. During the availability period, the
Borrower may repay principal amounts and reborrow them.
(c) The Borrower agrees not to permit the principal balance outstanding to
exceed the Commitment. If the Borrower exceeds this limit, the Borrower
will immediately pay the excess to the Bank upon the Bank's demand.
1.2 Availability Period. The line of credit is available between the date of
this Agreement and April 1, 2006 or such earlier date as the availability may
terminate as provided in this Agreement (the "Expiration Date").
The availability period for this line of credit will be considered renewed if
and only if the Bank has sent to the Borrower a written notice of renewal
effective as of the Expiration Date for the line of credit (the "Renewal
Notice"). If this line of credit is renewed, it will continue to be subject to
all the terms and conditions set forth in this Agreement except as modified by
the Renewal Notice. The Borrower specifically understands and agrees that the
interest rate applicable to this line of credit may be increased upon renewal
and that the new interest rate will apply to the entire outstanding principal
balance of the line of credit. If this line of credit is renewed, the term
"Expiration Date" shall mean the date set forth in the Renewal Notice as the
Expiration Date and the same process for renewal will apply to any subsequent
renewal of this line of credit. A renewal fee may be charged at the Bank's
option. If so, the amount will be specified in the Renewal Notice.
1.3 Repayment Terms.
(a) The Borrower will pay interest on February 1, 2004 and then monthly
thereafter until payment in full of any principal outstanding under
this line of credit.
Any interest period for an optional interest rate (as described below)
shall expire no later than the Expiration Date.
(b) The Borrower will repay in full all principal and any unpaid interest
or other charges outstanding under this line of credit no later than
the Expiration Date.
1.4 Interest Rate.
(a) The interest rate is a rate per year equal to the Bank's Prime Rate.
(b) The Prime Rate is the rate of interest publicly announced from time to
time by the Bank as its Prime Rate. The Prime Rate is set by the Bank
based on various factors, including the Bank's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans. The Bank may price loans to its
customers at, above, or
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below the Prime Rate. Any change in the Prime Rate shall take effect at
the opening of business on the day specified in the public announcement
of a change in the Bank's Prime Rate.
1.5 Optional Interest Rates. Instead of the interest rate based on the rate
stated in the paragraph entitled "Interest Rate" above, the Borrower may elect
the optional interest rates listed below for this Commitment during interest
periods agreed to by the Bank and the Borrower. The optional interest rates
shall be subject to the terms and conditions described later in this Agreement.
Any principal amount bearing interest at an optional rate under this Agreement
is referred to as a "Portion." The following optional interest rates are
available:
(a) The LIBOR Rate plus one (1) percentage point(s).
(b) Short Term Fixed Rates.
1.6 The Overdraft Limit. The line of credit provided under the Commitment may be
used to pay overdrafts in the Borrower's checking accounts. The total amount of
all unreimbursed overdrafts outstanding at any one time may not exceed Five
Million Dollars ($5,000,000) (the "Overdraft Limit"). This portion of the
Commitment may only be accessed through this overdraft facility. The total
amount of all other credit outstanding at any time may not exceed the
Commitment, minus the Overdraft Limit.
(a) The Covered Accounts. The checking account (collectively referred to as
the "Account") which the Borrower may overdraw is 03724-02990.
(b) The Overdraft Interest Charge. As part of the monthly calculation of
service charges to be assessed against the Borrower's Account, the Bank
will include an interest charge calculated on the amount of
unreimbursed overdrafts outstanding in the Account. The interest will
be computed on the basis of a 360-day year and the actual number of
days the overdrafts have been outstanding. The Bank may, in its
discretion, calculate the amount of overdrafts and the interest rate on
a daily basis, or, alternatively, use the average monthly amount of
overdrafts and use an interest rate based on the weighted average
during the calculation period of the interest rate described below. The
interest rate will be a rate per year equal to the LIBOR Daily Floating
Rate plus the Applicable Margin for the LIBOR Rate as defined below.
The LIBOR Daily Floating Rate is a fluctuating rate of interest equal
to the average per annum interest rate (rounded upwards to the nearest
1/100 of one percent) at which U.S. dollar deposits would be offered
for one month by major banks in the London inter-bank market, as shown
on Telerate Page 3750 (or any successor page) as determined for each
banking day at approximately 11:00 a.m. London time two (2) London
Banking Days prior to the date in question, as adjusted from time to
time in the Bank's sole discretion for reserve requirements, deposit
insurance assessment rates and other regulatory costs. If such rate
does not appear on Telerate Page 3750 (or any successor page), the rate
will be determined by such alternate method as reasonably selected by
the Bank. A "London Banking Day" is a day on which the Bank's London
Banking Center is open for business and dealing in offshore dollars.
Interest will accrue on any non-banking day at the rate in effect on
the immediately preceding banking day.
(c) Other Terms and Conditions.
(i) If items are presented against an Account covered by this
overdraft facility which, if paid, would exceed the allocated
Overdraft Limit for that Account, the Bank will have no
obligation to pay those items, but may at its discretion pay
any or all of the items.
(ii) The Bank may, at its discretion, at any time upon ten (10)
days written notice to the Borrower, terminate this overdraft
facility and require repayment of all outstanding overdrafts.
The Borrower will in any event repay all outstanding
overdrafts no later than the Expiration Date.
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(iii) For the purposes of this Agreement, the amount of unreimbursed
overdrafts outstanding on any day will equal the daily net
collected balance of the Account on any day when such balance
is negative. In calculating the amount of interest accruing
under this facility, the daily net collected balance will not
include provisional credits for items in the process of
collection ("Uncollected Items") as determined under the
Bank's normal practices for the Borrower's Account. However,
in determining whether the Borrower has exceeded the Overdraft
Limit, the Commitment, or any other dollar limits on borrowing
established in this Agreement, the Borrower shall be given
credit for such Uncollected Items. The negative daily net
collected balance may include fees and charges that have been
posted to the Borrower's Account, including overdraft interest
charges. This may result in compounding of interest.
(iv) The Borrower agrees that overdraft interest charges and other
fees and charges relating to its Accounts may be directly
debited from its Account.
(v) The Bank may terminate this overdraft facility if a levy is
imposed on any Account covered by this facility.
2. OPTIONAL INTEREST RATES
2.1 Optional Rates. Each optional interest rate is a rate per year. Interest
will be paid on the first day of each month during the interest period. At the
end of any interest period, the interest rate will revert to the rate stated in
the paragraph(s) entitled "Interest Rate" above, unless the Borrower has
designated another optional interest rate for the Portion. No Portion will be
converted to a different interest rate during the applicable interest period.
Upon the occurrence of an event of default under this Agreement, the Bank may
terminate the availability of optional interest rates for interest periods
commencing after the default occurs.
2.2 LIBOR Rate. The election of LIBOR Rates shall be subject to the following
terms and requirements:
(a) The interest period during which the LIBOR Rate will be in effect will
be one or two weeks, or one, two, three, four, five, six, seven, eight,
nine, ten, eleven, or twelve months. The first day of the interest
period must be a day other than a Saturday or a Sunday on which the
Bank is open for business in New York and London and dealing in
offshore dollars (a "LIBOR Banking Day"). The last day of the interest
period and the actual number of days during the interest period will be
determined by the Bank using the practices of the London inter-bank
market.
(b) Each LIBOR Rate Portion will be for an amount not less than One Hundred
Thousand Dollars ($100,000).
(c) The "LIBOR Rate" means the interest rate determined by the following
formula, rounded upward to the nearest 1/100 of one percent. (All
amounts in the calculation will be determined by the Bank as of the
first day of the interest period.)
London Inter-Bank Offered Rate
LIBOR Rate = ------------------------------
(1.00 - Reserve Percentage)
Where,
(i) "London Inter-Bank Offered Rate" means the average per annum
interest rate at which U.S. dollar deposits would be offered
for the applicable interest period by major banks in the
London inter-bank market, as shown on the Telerate Page 3750
(or any successor page) at approximately 11:00 a.m. London
time two (2) London Banking Days before the commencement of
the interest period. If such rate does not appear on the
Telerate Page 3750 (or any successor page), the rate for that
interest period will be determined by such
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alternate method as reasonably selected by the Bank. A "London
Banking Day" is a day on which the Bank's London Banking
Center is open for business and dealing in offshore dollars.
(ii) "Reserve Percentage" means the total of the maximum reserve
percentages for determining the reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency
Liabilities, as defined in Federal Reserve Board Regulation D,
rounded upward to the nearest 1/100 of one percent. The
percentage will be expressed as a decimal, and will include,
but not be limited to, marginal, emergency, supplemental,
special, and other reserve percentages.
(d) The Borrower shall irrevocably request a LIBOR Rate Portion no later
than 12:00 noon California time on the LIBOR Banking Day preceding the
day on which the London Inter-Bank Offered Rate will be set, as
specified above. For example, if there are no intervening holidays or
weekend days in any of the relevant locations, the request must be made
at least three days before the LIBOR Rate takes effect.
(e) The Bank will have no obligation to accept an election for a LIBOR Rate
Portion if any of the following described events has occurred and is
continuing:
(i) Dollar deposits in the principal amount, and for periods equal
to the interest period, of a LIBOR Rate Portion are not
available in the London inter-bank market; or
(ii) the LIBOR Rate does not accurately reflect the cost of a LIBOR
Rate Portion.
(f) Each prepayment of a LIBOR Rate Portion, whether voluntary, by reason
of acceleration or otherwise, will be accompanied by the amount of
accrued interest on the amount prepaid and a prepayment fee as
described below. A "prepayment" is a payment of an amount on a date
earlier than the scheduled payment date for such amount as required by
this Agreement.
(g) The prepayment fee shall be in an amount sufficient to compensate the
Bank for any loss, cost or expense incurred by it as a result of the
prepayment, including any loss of anticipated profits and any loss or
expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Portion or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also
pay any customary administrative fees charged by the Bank in connection
with the foregoing. For purposes of this paragraph, the Bank shall be
deemed to have funded each Portion by a matching deposit or other
borrowing in the applicable interbank market, whether or not such
Portion was in fact so funded.
2.3 Short Term Fixed Rate. The election of Short Term Fixed Rates shall be
subject to the following terms and requirements:
(a) The "Short Term Fixed Rate" means the fixed interest rate the Bank and
the Borrower agree will apply during the applicable interest period.
(b) The interest period during which the Short Term Fixed Rate will be in
effect will be no shorter than 30 days and no longer than one year.
(c) Each Short Term Fixed Rate Portion will be for an amount not less than
One Hundred Thousand Dollars ($100,000).
(d) Each prepayment of a Short Term Fixed Rate Portion, whether voluntary,
by reason of acceleration or otherwise, will be accompanied by the
amount of accrued interest on the amount prepaid, and a prepayment fee
as described below. A "prepayment" is a payment of an amount on a date
earlier than the scheduled payment date for such amount as required by
this Agreement.
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(e) The prepayment fee shall be in an amount sufficient to compensate the
Bank for any loss, cost or expense incurred by it as a result of the
prepayment, including any loss of anticipated profits and any loss or
expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Portion or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also
pay any customary administrative fees charged by the Bank in connection
with the foregoing. For purposes of this paragraph, the Bank shall be
deemed to have funded each Portion by a matching deposit or other
borrowing in the applicable interbank market, whether or not such
Portion was in fact so funded.
3. FEES AND EXPENSES
3.1 Fees.
(a) Unused Commitment Fee. The Borrower agrees to pay a fee on any
difference between the Commitment and the amount of credit it actually
uses, determined by the average of the daily amount of credit
outstanding during the specified period. The fee will be calculated at
0.25% per year if Borrower uses less than or equal to fifty percent
(50%) of the Commitment, calculated quarterly in arrears. The fee will
be calculated at 0.15% per year if Borrower uses more than fifty
percent (50%) of the Commitment, calculated quarterly in arrears.
This fee is due on the first day of the second month following each
calendar quarter commencing on March 1, 2004 and continuing until the
Expiration Date and on the Expiration Date.
(b) Waiver Fee. If the Bank, at its discretion, agrees to waive or amend
any terms of this Agreement, the Borrower will, at the Bank's option,
pay the Bank a fee for each waiver or amendment in an amount advised by
the Bank at the time the Borrower requests the waiver or amendment.
Nothing in this paragraph shall imply that the Bank is obligated to
agree to any waiver or amendment requested by the Borrower. The Bank
may impose additional requirements as a condition to any waiver or
amendment.
(c) Late Fee. To the extent permitted by law, the Borrower agrees to pay a
late fee in an amount not to exceed four percent (4%) of any payment
that is more than fifteen (15) days late. The imposition and payment of
a late fee shall not constitute a waiver of the Bank's rights with
respect to the default.
3.2 Expenses. The Borrower agrees to immediately repay the Bank for expenses
that include, but are not limited to, filing, recording and search fees,
appraisal fees, title report fees, and documentation fees.
3.3 Reimbursement Costs. The Borrower agrees to reimburse the Bank for any
expenses it incurs in the preparation of this Agreement and any agreement or
instrument required by this Agreement. Expenses include, but are not limited to,
reasonable attorneys' fees, including any allocated costs of the Bank's in-house
counsel to the extent permitted by applicable law.
4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 Disbursements and Payments.
(a) Each payment by the Borrower will be made in immediately available
funds by direct debit to a deposit account as specified below or by
mail to the address shown on the Borrower's statement or at one of the
Bank's banking centers in the United States.
(b) Each disbursement by the Bank and each payment by the Borrower will be
evidenced by records kept by the Bank. In addition, the Bank may, at
its discretion, require the Borrower to sign one or more promissory
notes.
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4.2 Telephone and Telefax Authorization.
(a) The Bank may honor telephone or telefax instructions for advances or
repayments given, or purported to be given, by any one of the
individuals authorized to sign loan agreements on behalf of the
Borrower, or any other individual designated by any one of such
authorized signers.
(b) Advances will be deposited in and repayments will be withdrawn from
account number 03724-02990 owned by the Borrower or such other of the
Borrower's accounts with the Bank as designated in writing by the
Borrower.
(c) The Borrower will indemnify and hold the Bank harmless from all
liability, loss, and costs in connection with any act resulting from
telephone or telefax instructions the Bank reasonably believes are made
by any individual authorized by the Borrower to give such instructions.
This paragraph will survive this Agreement's termination, and will
benefit the Bank and its officers, employees, and agents.
4.3 Direct Debit.
(a) The Borrower agrees that interest and principal payments and any fees
will be deducted automatically on the due date from account number
03724-02990 owned by Borrower, or such other of the Borrower's accounts
with the Bank as designated in writing by the Borrower.
(b) The Borrower will maintain sufficient funds in the account on the dates
the Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date the Bank enters any debit
authorized by this Agreement, the Bank may reverse the debit.
4.4 Banking Days. Unless otherwise provided in this Agreement, a banking day is
a day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close, or are in fact closed, in the state where the Bank's
lending office is located, and, if such day relates to amounts bearing interest
at an offshore rate (if any), means any such day on which dealings in dollar
deposits are conducted among banks in the offshore dollar interbank market. All
payments and disbursements which would be due on a day which is not a banking
day will be due on the next banking day. All payments received on a day which is
not a banking day will be applied to the credit on the next banking day.
4.5 Interest Calculation. Except as otherwise stated in this Agreement, all
interest and fees, if any, will be computed on the basis of a 360-day year and
the actual number of days elapsed. This results in more interest or a higher fee
than if a 365-day year is used. Installments of principal which are not paid
when due under this Agreement shall continue to bear interest until paid.
4.6 Default Rate. Upon the occurrence of any default under this Agreement, all
amounts outstanding under this Agreement, including any interest, fees, or costs
which are not paid when due, will at the option of the Bank bear interest at a
rate which is 2.0 percentage point(s) higher than the rate of interest otherwise
provided under this Agreement. This may result in compounding of interest. This
will not constitute a waiver of any default.
5. CONDITIONS
The Bank must receive the following items, in form and content acceptable to the
Bank, before it is required to extend any credit to the Borrower under this
Agreement:
5.1 Conditions to First Extension of Credit. Before the first extension of
credit:
(a) Authorizations. If the Borrower or any guarantor is anything other than a
natural person, evidence that the execution, delivery and performance by such
Borrower and/or such guarantor of this Agreement and any instrument or agreement
required under this Agreement have been duly authorized.
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(b) Governing Documents. If required by the Bank, a copy of the Borrower's
organizational documents.
(c) Payment of Fees. Payment of all accrued and unpaid expenses incurred by the
Bank as required by the paragraph entitled "Reimbursement Costs."
6. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is repaid in full,
the Borrower makes the following representations and warranties. Each request
for an extension of credit constitutes a renewal of these representations and
warranties as of the date of the request:
6.1 Formation. If the Borrower is anything other than a natural person, it is
duly formed and existing under the laws of the state where organized.
6.2 Authorization. This Agreement, and any instrument or agreement required
hereunder, are within the Borrower's powers, have been duly authorized, and do
not conflict with any of its organizational papers.
6.3 Enforceable Agreement. This Agreement is a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, and any instrument or agreement required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable.
6.4 Good Standing. In each state in which the Borrower does business, it is
properly licensed, in good standing, and, where required, in compliance with
fictitious name statutes.
6.5 No Conflicts. This Agreement does not conflict with any law, agreement, or
obligation by which the Borrower is bound.
6.6 Financial Information. All financial and other information that has been or
will be supplied to the Bank is sufficiently complete to give the Bank accurate
knowledge of the Borrower's (and any guarantor's) financial condition, including
all material contingent liabilities. Since the date of the most recent financial
statement provided to the Bank, there has been no material adverse change in the
business condition (financial or otherwise), operations, properties or prospects
of the Borrower (or any guarantor).
6.7 Permits, Franchises. The Borrower possesses all permits, memberships,
franchises, contracts and licenses required and all trademark rights, trade name
rights, patent rights and fictitious name rights necessary to enable it to
conduct the business in which it is now engaged.
6.8 Other Obligations. The Borrower is not in default on any obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation, except as have been disclosed in
writing to the Bank.
6.9 Tax Matters. The Borrower has no knowledge of any pending assessments or
adjustments of its income tax for any year and all taxes due have been paid,
except as have been disclosed in writing to the Bank.
6.10 No Event of Default. There is no event which is, or with notice or lapse of
time or both would be, a default under this Agreement.
6.11 Insurance. The Borrower has obtained, and maintained in effect, the
insurance coverage required in the "Covenants" section of this Agreement.
6.12 Location of Borrower. The Borrower's place of business (or, if the Borrower
has more than one place of business, its chief executive office) is located at
the address listed under the Borrower's signature on this Agreement.
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7. COVENANTS
The Borrower agrees, so long as credit is available under this Agreement and
until the Bank is repaid in full:
7.1 Use of Proceeds. To use the proceeds of the Commitment only for general
corporate purposes.
7.2 Financial Information. To provide the following financial information and
statements in form and content acceptable to the Bank, and such additional
information as requested by the Bank from time to time:
(a) Within 90 days of the fiscal year end, the annual financial statements
of the Borrower, certified and dated by an authorized financial
officer. These financial statements must be audited (with an opinion
satisfactory to the Bank) by a Certified Public Accountant acceptable
to the Bank. The statements shall be prepared on a consolidating and
consolidated basis.
(b) Within 45 days of the period's end (including the last period in each
fiscal year), quarterly financial statements of the Borrower, certified
and dated by an authorized financial officer. These financial
statements may be company-prepared. The statements shall be prepared on
a consolidated basis.
7.3 Other Debts. Not to have outstanding or incur any direct or contingent
liabilities or capital lease obligations (other than those to the Bank), or
become liable for the liabilities of others, without the Bank's written consent.
This does not prohibit:
(a) Acquiring goods, supplies, or merchandise on normal trade credit.
(b) Endorsing negotiable instruments received in the usual course of
business.
(c) Obtaining surety bonds in the usual course of business.
(d) Liabilities, lines of credit and leases in existence on the date of
this Agreement disclosed in writing to the Bank, including that certain
Twelve Million Dollar ($12,000,000) line of credit with Cooperative
Bank, which line of credit shall be on terms no more restrictive than
the terms of this Agreement.
(e) Additional debts for the acquisition of assets, to the extent permitted
elsewhere in this Agreement.
7.4 Other Liens. Not to create, assume, or allow any security interest or lien
(including judicial liens) on property the Borrower now or later owns, except:
(a) Liens and security interests in favor of the Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement disclosed in writing to
the Bank.
(d) Additional purchase money security interests in assets acquired after
the date of this Agreement, if the total principal amount of debts
secured by such liens does not exceed Five Hundred Thousand Dollars
($500,000).
(e) Liens arising by operation of law and in the ordinary course of the
Borrower's business securing amounts the Borrower owes to growers of
agricultural products purchased by the Borrower for resale, processing,
or use in producing the Borrower's inventory, provided such obligations
are not past due.
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7.5 Maintenance of Assets.
(a) Not to sell, assign, lease, transfer or otherwise dispose of any part
of the Borrower's business or the Borrower's assets except in the
ordinary course of the Borrower's business.
(b) Not to sell, assign, lease, transfer or otherwise dispose of any assets
for less than fair market value, or enter into any agreement to do so.
(c) Not to enter into any sale and leaseback agreement covering any of its
fixed assets.
(d) To maintain and preserve all rights, privileges, and franchises the
Borrower now has.
(e) To make any repairs, renewals, or replacements to keep the Borrower's
properties in good working condition.
7.6 Investments. Not to have any existing, or make any new, investments in any
individual or entity, or make any capital contributions or other transfers of
assets to any individual or entity, except for:
(a) Existing investments disclosed to the Bank in writing.
(b) Investments in the Borrower's current subsidiaries.
(c) Investments in any of the following:
(i) certificates of deposit;
(ii) U.S. treasury bills and other obligations of the federal
government; and
(iii) readily marketable securities (including commercial paper, but
excluding restricted stock and stock subject to the provisions
of Rule 144 of the Securities and Exchange Commission).
7.7 Loans. Not to make any loans, advances or other extensions of credit to any
individual or entity, except for:
(a) Existing extensions of credit disclosed to the Bank in writing.
(b) Extensions of credit to the Borrower's current subsidiaries.
(c) Extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the
ordinary course of business to non-affiliated entities.
(d) Extensions of credit to the Borrower's officers, employees and
directors under the terms and conditions of the Borrower's Stock
Purchase Award Plan and Director's Stock Option Plan, as each is in
effect as of the date of this Agreement.
(e) Extensions of credit to growers of agricultural products in an
aggregate amount not to exceed Seven Million Dollars ($7,000,000).
7.8 [Intentionally left blank.]
7.9 [Intentionally left blank.]
7.10 Additional Negative Covenants. Not to, without the Bank's written consent:
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(a) (i) Enter into any consolidation, merger, or other combination, or (ii)
become a partner in a partnership, a member of a joint venture, or a
member of a limited liability company where the aggregate amount
invested exceeds One Million Dollars ($1,000,000).
(b) Acquire or purchase a business or its assets.
(c) Engage in any business activities substantially different from the
Borrower's present business.
(d) Liquidate or dissolve the Borrower's business.
7.11 Notices to Bank. To promptly notify the Bank in writing of:
(a) Any lawsuit over One Million Dollars ($1,000,000) against the Borrower
(or any guarantor).
(b) Any substantial dispute between any governmental authority and the
Borrower (or any guarantor).
(c) Any event of default under this Agreement, or any event which, with
notice or lapse of time or both, would constitute an event of default.
(d) Any material adverse change in the Borrower's (or any guarantor's)
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit.
(e) Any change in the Borrower's name, legal structure, place of business,
or chief executive office if the Borrower has more than one place of
business.
(f) Any actual contingent liabilities of the Borrower (or any guarantor),
and any such contingent liabilities which are reasonably foreseeable,
in each case in excess of One Million Dollars ($1,000,000).
7.12 Insurance.
(a) General Business Insurance. To maintain insurance as is usual for the
business it is in.
(b) Evidence of Insurance. Upon the request of the Bank, to deliver to the
Bank a copy of each insurance policy, or, if permitted by the Bank, a
certificate of insurance listing all insurance in force.
7.13 Compliance with Laws. To comply with the laws (including any fictitious
name statute), regulations, and orders of any government body with authority
over the Borrower's business.
7.14 ERISA Plans. Promptly during each year, to pay and cause any subsidiaries
to pay contributions adequate to meet at least the minimum funding standards
under ERISA with respect to each and every Plan; file each annual report
required to be filed pursuant to ERISA in connection with each Plan for each
year; and notify the Bank within ten (10) days of the occurrence of any
Reportable Event that might constitute grounds for termination of any capital
Plan by the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer any Plan.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time. Capitalized terms in this paragraph shall have the meanings
defined within ERISA.
7.15 Books and Records. To maintain adequate books and records.
7.16 Audits. To allow the Bank and its agents to inspect the Borrower's
properties and examine, audit, and make copies of books and records at any
reasonable time. If any of the Borrower's properties, books or records are in
the possession of a third party, the Borrower authorizes that third party to
permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests
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for information concerning such properties, books and records.
7.17 Cooperation. To take any action reasonably requested by the Bank to carry
out the intent of this Agreement.
7.18 Working Capital. To maintain on a consolidated basis current assets in
excess of current liabilities of at least Fifteen Million Dollars ($15,000,000),
measured on a quarterly basis.
7.19 Tangible Net Worth. To maintain on a consolidated basis Tangible Net Worth
equal to at least Thirty-Two Million Five Hundred Thousand Dollars
($32,500,000), measured on a quarterly basis.
"Tangible Net Worth" means the value of total assets (including
leaseholds and leasehold improvements and reserves against assets but
excluding goodwill, patents, trademarks, trade names, organization
expense, unamortized debt discount and expense, capitalized or deferred
research and development costs, deferred marketing expenses, and other
like intangibles, and monies due from affiliates, officers, directors,
employees, shareholders, members or managers) less total liabilities,
including but not limited to accrued and deferred income taxes, but
excluding the non-current portion of Subordinated Liabilities.
"Subordinated Liabilities" means liabilities subordinated to the
Borrower's obligations to the Bank in a manner acceptable to the Bank
in its sole discretion.
7.20 Out of Debt Period. To reduce the amount of advances outstanding under this
any and all revolving lines of credit between Borrower and any third party to
not more than Five Million Dollars ($5,000,000) for a period of at least thirty
(30) consecutive days in each Line-Year. "Line-Year" means the period between
the date of this Agreement and January __, 2005, and each subsequent one-year
period (if any).
7.21 EBITDA. To maintain EBITDA of at least Seven Million Five Hundred Thousand
Dollars ($7,500,000). "EBITDA" means net income, less income or plus loss from
discontinued operations and extraordinary items, plus income taxes, plus
interest expense, plus depreciation, depletion, and amortization. This covenant
will be calculated at the end of each reporting period for which the Bank
requires financial statements, using the results of the twelve-month period
ending with that reporting period. The current portion of long-term liabilities
will be measured as of the last day of the calculation period.
7.22 Other Agreements. Borrower shall not enter into any agreement (other than
this Agreement) that contains terms more restrictive than those contained
herein.
8. DEFAULT AND REMEDIES
If any of the following events of default occurs, the Bank may do one or more of
the following: declare the Borrower in default, stop making any additional
credit available to the Borrower, and require the Borrower to repay its entire
debt immediately and without prior notice. In addition, if any event of default
occurs, the Bank shall have all rights, powers and remedies available under any
instruments and agreements required by or executed in connection with this
Agreement, as well as all rights and remedies available at law or in equity. If
an event of default occurs under the paragraph entitled "Bankruptcy," below,
with respect to the Borrower, then the entire debt outstanding under this
Agreement will automatically be due immediately.
8.1 Failure to Pay. The Borrower fails to make a payment under this Agreement
when due.
8.2 Other Bank Agreements. The Borrower (or any Obligor) or any of the
Borrower's related entities or affiliates fails to meet the conditions of, or
fails to perform any obligation under any other agreement the Borrower (or any
Obligor) or any of the Borrower's related entities or affiliates has with the
Bank or any
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affiliate of the Bank. For purposes of this Agreement, "Obligor" shall mean any
guarantor, any party pledging collateral to the Bank.
8.3 Cross-default. Any default occurs under any agreement in connection with any
credit the Borrower (or any Obligor) or any of the Borrower's related entities
or affiliates has obtained from anyone else or which the Borrower (or any
Obligor) or any of the Borrower's related entities or affiliates has guaranteed.
8.4 False Information. The Borrower or any Obligor has given the Bank false or
misleading information or representations.
8.5 Bankruptcy. The Borrower, any Obligor, or any general partner of the
Borrower or of any Obligor files a bankruptcy petition, a bankruptcy petition is
filed against any of the foregoing parties, or the Borrower, any Obligor, or any
general partner of the Borrower or of any Obligor makes a general assignment for
the benefit of creditors.
8.6 Receivers. A receiver or similar official is appointed for a substantial
portion of the Borrower's or any Obligor's business, or the business is
terminated, or, if any Obligor is anything other than a natural person, such
Obligor is liquidated or dissolved.
8.7 Lawsuits. Any lawsuit or lawsuits are filed on behalf of one or more trade
creditors against the Borrower or any Obligor in an aggregate amount of One
Million Dollars ($1,000,000) or more in excess of any insurance coverage.
8.8 Judgments. Any judgments or arbitration awards are entered against the
Borrower or any Obligor, or the Borrower or any Obligor enters into any
settlement agreements with respect to any litigation or arbitration, in an
aggregate amount of One Million Dollars ($1,000,000) or more in excess of any
insurance coverage.
8.9 Material Adverse Change. A material adverse change occurs, or is reasonably
likely to occur, in the Borrower's (or any Obligor's) business condition
(financial or otherwise), operations, properties or prospects, or ability to
repay the credit.
8.10 Government Action. Any government authority takes action that the Bank
believes materially adversely affects the Borrower's or any Obligor's financial
condition or ability to repay.
8.11 Default under Related Documents. Any default occurs under any guaranty,
subordination agreement, security agreement, deed of trust, mortgage, or other
document required by or delivered in connection with this Agreement or any such
document is no longer in effect, or any guarantor purports to revoke or disavow
the guaranty.
8.12 ERISA Plans. Any one or more of the following events occurs with respect to
a Plan of the Borrower subject to Title IV of ERISA, provided such event or
events could reasonably be expected, in the judgment of the Bank, to subject the
Borrower to any tax, penalty or liability (or any combination of the foregoing)
which, in the aggregate, could have a material adverse effect on the financial
condition of the Borrower:
(a) A reportable event shall occur under Section 4043(c) of ERISA with
respect to a Plan.
(b) Any Plan termination (or commencement of proceedings to terminate a
Plan) or the full or partial withdrawal from a Plan by the Borrower or
any ERISA Affiliate.
8.13 Other Breach Under Agreement. The Borrower fails to meet the conditions of,
or fails to perform any obligation under, any term of this Agreement not
specifically referred to in this Article. This includes any failure or
anticipated failure by the Borrower to comply with any financial covenants set
forth in this Agreement, whether such failure is evidenced by financial
statements delivered to the Bank or is
12
otherwise known to the Borrower or the Bank.
8.14 Breach Under Other Agreements. The Borrower fails to meet the conditions
of, or fails to perform any obligation under, any terms of any agreement between
the Borrower and any third party.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to the Bank and all financial covenants will be made under
generally accepted accounting principles, consistently applied.
9.2 California Law. This Agreement is governed by California law.
9.3 Successors and Assigns. This Agreement is binding on the Borrower's and the
Bank's successors and assignees. The Borrower agrees that it may not assign this
Agreement without the Bank's prior consent. The Bank may sell participations in
or assign this loan, and may exchange financial information about the Borrower
with actual or potential participants or assignees. If a participation is sold
or the loan is assigned, the purchaser will have the right of set-off against
the Borrower.
9.4 Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any controversies or claims
between the parties, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of
or relate to: (i) this agreement (including any renewals, extensions or
modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration
provision only, the term "parties" shall include any parent
corporation, subsidiary or affiliate of the Bank involved in the
servicing, management or administration of any obligation described or
evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal
Arbitration Act (Title 9, U.S. Code) (the "Act"). The Act will apply
even though this agreement provides that it is governed by the law of a
specified state.
(c) Arbitration proceedings will be determined in accordance with the Act,
the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this
paragraph. In the event of any inconsistency, the terms of this
paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted, unless
otherwise required by law, in any U.S. state where real or tangible
personal property collateral for this credit is located or if there is
no such collateral, in the state specified in the governing law section
of this agreement. All Claims shall be determined by one arbitrator;
however, if Claims exceed Five Million Dollars ($5,000,000), upon the
request of any party, the Claims shall be decided by three arbitrators.
All arbitration hearings shall commence within ninety (90) days of the
demand for arbitration and close within ninety (90) days of
commencement and the award of the arbitrator(s) shall be issued within
thirty (30) days of the close of the hearing. However, the
arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional sixty (60) days.
The arbitrator(s) shall provide a concise written statement of reasons
for the award. The arbitration award may be submitted to any court
having jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any Claim
is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the
statute of limitations, the service on JAMS under applicable JAMS rules
of a notice of Claim is the equivalent of the filing of a lawsuit. Any
dispute concerning this arbitration provision or whether a Claim is
arbitrable shall be determined by the arbitrator(s). The arbitrator(s)
shall have the power
13
to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise
self-help remedies, such as but not limited to, setoff; (ii) initiate
judicial or non-judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale
rights, or (iv) act in a court of law to obtain an interim remedy, such
as but not limited to, injunctive relief, writ of possession or
appointment of a receiver, or additional or supplementary remedies.
(g) The procedure described above will not apply if the Claim, at the time
of the proposed submission to arbitration, arises from or relates to an
obligation to the Bank secured by real property. In this case, all of
the parties to this agreement must consent to submission of the Claim
to arbitration. If both parties do not consent to arbitration, the
Claim will be resolved as follows: The parties will designate a referee
(or a panel of referees) selected under the auspices of JAMS in the
same manner as arbitrators are selected in JAMS administered
proceedings. The designated referee(s) will be appointed by a court as
provided in California Code of Civil Procedure Section 638 and the
following related sections. The referee (or presiding referee of the
panel) will be an active attorney or a retired judge. The award that
results from the decision of the referee(s) will be entered as a
judgment in the court that appointed the referee, in accordance with
the provisions of California Code of Civil Procedure Sections 644 and
645.
(h) The filing of a court action is not intended to constitute a waiver of
the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(i) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect
of any Claim. Furthermore, without intending in any way to limit this
agreement to arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a
trial by jury in respect of such Claim. This provision is a material
inducement for the parties entering into this agreement.
9.5 Severability; Waivers. If any part of this Agreement is not enforceable, the
rest of the Agreement may be enforced. The Bank retains all rights, even if it
makes a loan after default. If the Bank waives a default, it may enforce a later
default. Any consent or waiver under this Agreement must be in writing.
9.6 Attorneys' Fees. The Borrower shall reimburse the Bank for any reasonable
costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. As used in this paragraph,
"attorneys' fees" includes the allocated costs of the Bank's in-house counsel.
9.7 One Agreement. This Agreement and any related security or other agreements
required by this Agreement, collectively:
(a) represent the sum of the understandings and agreements between the Bank
and the Borrower concerning this credit;
(b) replace any prior oral or written agreements between the Bank and the
Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the final, complete and
exclusive statement of
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the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail. Any reference in any
related document to a "promissory note" or a "note" executed by the Borrower and
dated as of the date of this Agreement shall be deemed to refer to this
Agreement, as now in effect or as hereafter amended, renewed, or restated.
9.8 Indemnification. The Borrower will indemnify and hold the Bank harmless from
any loss, liability, damages, judgments, and costs of any kind relating to or
arising directly or indirectly out of (a) this Agreement or any document
required hereunder, (b) any credit extended or committed by the Bank to the
Borrower hereunder, and (c) any litigation or proceeding related to or arising
out of this Agreement, any such document, or any such credit. This indemnity
includes but is not limited to attorneys' fees (including the allocated cost of
in-house counsel). This indemnity extends to the Bank, its parent, subsidiaries
and all of their directors, officers, employees, agents, successors, attorneys,
and assigns. This indemnity will survive repayment of the Borrower's obligations
to the Bank. All sums due to the Bank hereunder shall be obligations of the
Borrower, due and payable immediately without demand.
9.9 Notices. Unless otherwise provided in this Agreement or in another agreement
between the Bank and the Borrower, all notices required under this Agreement
shall be personally delivered or sent by first class mail, postage prepaid, or
by overnight courier, to the addresses on the signature page of this Agreement,
or sent by facsimile to the fax numbers listed on the signature page, or to such
other addresses as the Bank and the Borrower may specify from time to time in
writing. Notices and other communications shall be effective (i) if mailed, upon
the earlier of receipt or five (5) days after deposit in the U.S. mail, first
class, postage prepaid, (ii) if telecopied, when transmitted, or (iii) if
hand-delivered, by courier or otherwise (including telegram, lettergram or
mailgram), when delivered.
9.10 Headings. Article and paragraph headings are for reference only and shall
not affect the interpretation or meaning of any provisions of this Agreement.
9.11 Counterparts. This Agreement may be executed in as many counterparts as
necessary or convenient, and by the different parties on separate counterparts
each of which, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same agreement.
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This Agreement is executed as of the date stated at the top of the first page.
Bank of America, N.A. Calavo Growers, Inc.
By /s/ Robert L. Munn, Jr. By /s/ Arthur J. Bruno
------------------------------------------ ---------------------------
Robert L. Munn, Jr., Senior Vice President Typed Name Arthur J. Bruno
Title Chief Financial Officer
Typed Name Arthur J. Bruno
Title Chief Financial Officer
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
555 Capitol Mall, Suite 150 2530 Red Hill Avenue
Sacramento, CA 95814 Santa Ana, CA 92705
Facsimile: 916.321.4632 Telephone:_______________________
Facsimile:_______________________
Borrower's place of business (or
chief executive office, if more
than one place of business), if
different from address listed
above:
_________________________________
_________________________________
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