SCHEDULES TO THE CREDIT AGREEMENT, DATED NOVEMBER 18, 2015, AMONG THE COMPANY, WELLS FARGO BANK, NATIONAL ASSOCIATION, AND THE OTHER LENDERS AND BORROWERS PARTY THERETO Schedule A-1 Agents Account
Exhibit 10.26
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETED ASTERISKS [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
SCHEDULES TO THE CREDIT AGREEMENT, DATED NOVEMBER 18, 2015, AMONG THE COMPANY, WELLS FARGO BANK, NATIONAL ASSOCIATION, AND THE OTHER LENDERS AND BORROWERS PARTY THERETO
Schedule A-1
Agents Account
An account at a bank designated by Agent from time to time as the account into which Borrowers shall make all payments to Agent for the benefit of the Lender Group and into which the Lender Group shall make all payments to Agent under this Agreement and the other Loan Documents; unless and until Agent notifies Borrowers and the Lender Group to the contrary, Agents Account shall be that certain deposit account bearing account number [***], reference Inventure Foods, Inc., and maintained by Agent with Wells Fargo Bank, National Association, 420 Montgomery Street, San Francisco, CA, ABA #[***].
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Schedule A-2
Authorized Persons
1. Terry McDaniel
2. Steve Weinberger
3. Tara Kreizenbeck
Schedule C-1
Commitments
Lender |
| Revolver Commitment |
| |
Wells Fargo Bank, National Association |
| $ | 50,000,000 |
|
|
|
|
| |
|
|
|
| |
|
|
|
| |
All Lenders |
| $ | 50,000,000 |
|
Schedule D-1
Designated Account
Account Name: Inventure Foods Inc.
Email Contact: [***]
Account #: [***]
Routing - ABA #: [***]
SWIFT: [***]
Bank Name: U.S. Bank National Association
Bank Address: 101 N First Avenue, Phoenix
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Schedule E-1
Location of Inventory
(a) Owned properties containing inventory
|
| Entity of Record |
| Address |
1. |
| La Cometa Properties, Inc. |
| 3500 S. La Cometa Drive |
2. |
| Fresh Frozen Foods, Inc. |
| 1814 Washington Street |
3. |
| Fresh Frozen Foods, Inc. |
| 600 Cassidy Road |
4. |
| La Cometa Properties, Inc. |
| 705 W. Dustman Road |
(b) Leased properties containing inventory
|
| Tenant |
| Address |
1. |
| Inventure Foods, Inc. |
| 5415 E. High Street, Suite 350 |
2. |
| Inventure Foods, Inc. |
| 2994 82nd Avenue NE |
3. |
| Inventure Foods Inc. |
| Leased Agricultural Property - Approximately 42 acres of land situated in Whatcom County, WA |
4. |
| Rader Farms, Inc. |
| Leased Agricultural Property - Approximately 102.6 acres of land situated at 6757 Nooksack Road, Everson, Whatcom County, WA |
5. |
| Rader Farms, Inc. |
| Leased Agricultural Property - Approximately 696 acres of land situated in Whatcom County, WA |
6. |
| Inventure Foods, Inc. |
| 1955 W. Lancaster Street I |
7. |
| Inventure Foods, Inc. |
| 101 N. 104th Avenue |
8. |
| Inventure Foods, Inc. |
| 3001 N. 9th Avenue |
9. |
| Rader Farms, Inc. |
| 500 Orchard Drive |
10. |
| Willamette Valley Fruit Company |
| 1440 Salem Industrial Drive NE |
(c) Inventory stored pursuant to bailment, etc.
|
| Inventure Foods Entity |
| Address of Storage Facility |
1. |
| Inventure Foods, Inc. |
| 2120 E Washington Boulevard Suite B |
2. |
| Inventure Foods, Inc. |
| 1025 Osage Street |
3. |
| Inventure Foods, Inc. |
| 1150 North Main Street |
4. |
| Inventure Foods, Inc. |
| 1126 Raymond Bland Road |
5. |
| Willamette Valley Fruit Company |
| 4735 Brooklake Road NE |
6. |
| Willamette Valley Fruit Company |
| 4095 Portland Road NE |
7. |
| Willamette Valley Fruit Company |
| 1440 Silverton Road |
8. |
| Willamette Valley Fruit Company |
| 1440 Salem Industrial Drive NE |
9. |
| Willamette Valley Fruit Company |
| 17400 NE Sacramento Street |
10. |
| Willamette Valley Fruit Company |
| 4124 24th Avenue |
11. |
| Willamette Valley Fruit Company |
| 19450 NE San Rafael Street |
12. |
| Willamette Valley Fruit Company |
| 3815 Marion Street SE |
13. |
| Willamette Valley Fruit Company |
| 310 S Seneca Road |
14. |
| Inventure Foods, Inc. |
| 690 Heinberg Street |
15. |
| Rader Farms, Inc. |
| 2201 North Wind Parkway |
16. |
| Rader Farms, Inc. |
| 600 Orchard Drive |
17. |
| Rader Farms, Inc. |
| 3001 Athens Highway, |
18. |
| Rader Farms, Inc. |
| 4735 Brooklake Road NE |
19. |
| Rader Farms, Inc. |
| 31785 Marshall Road, R R #5 |
20. |
| Rader Farms, Inc. |
| 406 2nd Street, P.O. Box 709 |
21. |
| Rader Farms, Inc. |
| 11850 Center Road |
22. |
| Fresh Frozen Foods, Inc. |
| 3001 Athens Highway, |
23. |
| Fresh Frozen Foods, Inc. |
| 4231 Profit Drive |
24. |
| Fresh Frozen Foods, Inc. |
| 121 Roseway Drive |
|
| Inventure Foods Entity |
| Address of Storage Facility |
25. |
| Fresh Frozen Foods, Inc. |
| 1161 Candler Road |
26. |
| Fresh Frozen Foods, Inc. |
| 200 North FM 509 |
27. |
| Rader Farms, Inc. |
| 279 Marquette Drive |
28. |
| Rader Farms, Inc. |
| Farmland owned by Ebe Farms located in Whatcom County, Washington, pursuant to that certain Crop Rotation Agreement between Rader Farms, Inc. and Ebe Farms dated February 6, 2013. |
Schedule P-1
Permitted Investments
None.
Schedule P-2
Permitted Liens
|
| Debtor |
| Jurisdiction |
| Secured Party |
| Lien Type |
| Filing Info |
| Collateral Description |
1. |
| Inventure Foods, Inc. |
| Arizona Secretary of State |
| H&E Equipment Services Inc. |
| Standard |
| 2012-169-0621-0 |
| One 2007 Genie GS1930 Scissorlift s/n GS3007B-87906 |
2. |
| Inventure Foods, Inc. |
| Arizona Secretary of State |
| H&E Equipment Services Inc. |
| Standard |
| 2013-172-5515-8 |
| One 2007 Genie GS1930 Scissorlift (GS3007A-91794) |
3. |
| Fresh Frozen Foods, Inc. |
| Delaware Secretary of State |
| Wells Fargo Bank, NA |
| Standard |
| 201252823358 |
| Nissan forklift SCX30N (1S1-9X0446-449) |
4. |
| Inventure Foods, Inc. |
| Delaware Secretary of State |
| Toyota Motor Credit Corporation |
| Standard |
| 20131214049 |
| Toyota forklift model #7FBCU15 (62830), as equipped |
5. |
| Inventure Foods, Inc. |
| Delaware Secretary of State |
| Toyota Motor Credit Corporation |
| Standard |
| 20134385838 |
| Toyota forklifts model #7FBEU18 (26111, 26090, 26095, 26098, 26104, 26111, 261180), as equipped |
6. |
| Inventure Foods, Inc. |
| Delaware Secretary of State |
| Banc of America Leasing & Capital, LLC |
| Standard |
| 20153654067 |
| New kettle equipment |
7. |
| Poore Brothers Bluffton, Inc. |
| Delaware Secretary of State |
| Toyota Motor Credit Corporation |
| Standard |
| 20113598185 |
| Toyota lift truck model #SBRU18 (36474), as equipped |
8. |
| Rader Farms, Inc. |
| Delaware Secretary of State |
| Farm Credit Leasing Services Corporation |
| Standard |
| 20104258111 |
| New Holland T4050F Tractor 80 PTO (XAJD00519) |
9. |
| Rader Farms, Inc. |
| Delaware Secretary of State |
| Farm Credit Leasing Services Corporation |
| Standard |
| 20114266188 |
| 2011 Korvan 7420 Blueberry Harvester (542860600075) |
10. |
| Rader Farms, Inc. |
| Delaware Secretary of State |
| Farm Credit Leasing Services Corporation |
| Standard |
| 20114284207 |
| 2001 John Deere 7930 Tractor Row Crop (1RW7930DH6D036080) |
11. |
| Rader Farms, Inc. |
| Delaware Secretary of State |
| Farm Credit Leasing Services Corporation |
| Standard |
| 20114285121 |
| 2911 Yanmar T80B Tractor Row Crop (010181) |
12. |
| Rader Farms, Inc. |
| Delaware Secretary of State |
| Farm Credit Leasing Services Corporation |
| Standard |
| 20130359977 |
| 2012 Oxbo 7420 Blueberry Harvester (542870600111) |
13. |
| Rader Farms, Inc., Willamette Valley Fruit Company |
| Delaware Secretary of State |
| Banc of America Leasing & Capital, LLC |
| Standard |
| 20143450095 |
| Octofrost, Model 9/2 Tunnel Expansion Project, including all listed equipment, components, and accessories |
14. |
| Rader Farms, Inc., Willamette Valley Fruit Company |
| Delaware Secretary of State |
| Banc of America Leasing & Capital, LLC |
| Standard |
| 20143450160 |
| Octofrost, Model 9/2 Tunnel Expansion Project, including all listed equipment, components, and accessories |
15. |
| The Inventure Group, Inc. |
| Delaware Secretary of State |
| Air Liquide Industrial U.S. LP |
| Standard |
| 20141895390 |
| Floxal membrane unit, membrane skid, sullair compressor, dryer, vaporizer |
16. |
| Inventure Foods, Inc. |
| Delaware Secretary of State |
| Tamco Capital Corporation |
| Standard |
| 20155075212 |
| Telephone equipment and licenses located in Goodyear, AZ and in Phoenix, AZ |
Schedule R-1
Real Property Collateral
|
| Entity of Record |
| Address |
| Legal Description |
1. |
| La Cometa Properties, Inc. |
| 3500 S. La Cometa Drive |
| See Exhibit R-1 |
2. |
| Fresh Frozen Foods, Inc. |
| 1814 Washington Street |
| See Exhibit R-2 |
3. |
| Fresh Frozen Foods, Inc. |
| 600 Cassidy Road |
| See Exhibit R-3 |
4. |
| La Cometa Properties, Inc. |
| 705 W. Dustman Road |
| See Exhibit R-4 |
Schedule 3.6
(a) For a period of 90 days after the Closing Date, the Loan Parties shall use commercially reasonable efforts to deliver to Agent (i) Collateral Access Agreements for each of the properties identified under the heading (b) on Schedule 4.23 of the Agreement and (ii) bailee waivers for each of the properties identified under the heading (c) on Schedule 4.23 of the Agreement, in each case, duly executed and delivered by each party thereto.
(b) On or before the date that is 120 days after the Closing Date (or such later date as agreed to by Agent in writing in its sole discretion), the Loan Parties will deliver an aged inventory report for their Fresh Frozen segment to Agent, in form and substance reasonably acceptable to Agent.
(c) On or before the date that is 30 calendar days after the Closing Date (or such later date as agreed to by Agent in writing in its sole discretion), the Loan Parties shall establish their primary depository and treasury management relationships with Wells Fargo or one or more of its Affiliates and will maintain such depository and treasury management relationships at all times during the term of the Agreement.
(d) On or before the date that is 30 calendar days after the Closing Date (or such later date as agreed to by Agent in writing in its sole discretion), the Loan Parties shall deliver or cause to be delivered to Agent Control Agreements with respect to the Deposit Accounts and Securities Accounts maintained by any Loan Party with Wells Fargo or one or more of its Affiliates, (except to the extent excused by Section 7(k)(iv) of the Guaranty and Security Agreement), in each case in form and substance satisfactory to Agent in its Permitted Discretion, duly executed and delivered by the parties thereto, and each such agreement shall be in full force and effect.
(e) Within 60 days after the Closing Date (or such longer period as the Agent may determine in its sole discretion), Agent shall have received a second priority Mortgage (subject only to the Liens of the Term Loan Agent with respect to the Term Priority Collateral, securing the Term Loan Obligations in accordance with the terms of the Intercreditor Agreement) and all items required by Section 5.12 on each leasehold interest in Real Property (other than any such Real Property that is encumbered by a Permitted Lien) owned by the Borrowers as of the Closing Date.
(f) On or before the date that is 90 calendar days after the Closing Date (or such later date as agreed to by Agent in writing in its sole discretion), the Loan Parties shall deliver or cause to be delivered to Agent a duly executed second lien mortgage for the property located at 600 Cassidy Road, Thomasville, GA 31792, together with a fixture filing for such property, all in form and content reasonably acceptable to Agent.
(g) On or before the date that is 90 calendar days after the Closing Date (or such later date as agreed to by Agent in writing in its sole discretion), the Loan Parties shall deliver or cause to be delivered to Agent in respect of the Real Property Collateral: (i) second lien mortgages together with a fixture filing for each such property; (ii) title insurances; (iii) surveys; and (iv) flood insurances and comply with Section 5.6 of the Agreement in respect thereof.
(h) At its first annual meeting of shareholders following the Closing Date, the Parent Borrower shall amend its certificate of incorporation in a manner reasonable acceptable to Agent.
(i) Deliver to Term Loan Agent such documents and at such times as required by Schedule 8.16 of the Term Loan Credit Agreement.
(j) To the extent delivered in connection with the Term Loan Credit Agreement, leasehold mortgages on leasehold interest (unless waived by Agent).
Schedule 4.1(b)
Capitalization of Borrowers
(i) Parent Borrower
Type of Equity Interest |
| Issued & Outstanding |
|
Preferred Stock, par value $100 per share |
| None |
|
Common Stock, par value $0.01 per share |
| 19,609,788 |
|
Options |
| 645,652 |
|
Restricted Stock Units |
| 302,113 |
|
Restricted Stock Awards |
| 88,166 |
|
(ii) Other Borrowers
Borrower |
| Type of Equity Interest |
| Issued & |
|
La Cometa Properties, Inc. |
| Common Stock, no par value |
| 1,000 |
|
Poore Brothers Bluffton, LLC |
| LLC Interest |
| N/A |
|
Tejas PB Distributing, Inc. |
| Common Stock, no par value |
| 1,000 |
|
Boulder Natural Foods, Inc. |
| Common Stock, par value $0.01 per share |
| 1,000 |
|
BN Foods, Inc. |
| Common Stock, no par value |
| 1,000 |
|
Rader Farms, Inc. |
| Common Stock, par value $0.001 per share |
| 1,000 |
|
Willamette Valley Fruit Company |
| Common Stock, par value $0.001 per share |
| 1,000 |
|
Fresh Frozen Foods, Inc. |
| Common Stock, par value $0.001 per share |
| 1,000 |
|
Schedule 4.1(c)
Capitalization of Borrowers Subsidiaries
Subsidiary |
| Type of Equity |
| Authorized |
| Issued & |
| Interest |
|
La Cometa Properties, Inc. |
| Common Stock |
| 100,000 |
| 1,000 |
| 100 | % |
Poore Brothers Bluffton, LLC |
| LLC Interest |
| N/A |
| N/A |
| 100 | % |
Tejas PB Distributing, Inc. |
| Common Stock |
| 100,000 |
| 1,000 |
| 100 | % |
Boulder Natural Foods, Inc. |
| Common Stock |
| 100,000 |
| 1,000 |
| 100 | % |
BN Foods, Inc. |
| Common Stock |
| 1,000 |
| 1,000 |
| 100 | % |
Rader Farms, Inc. |
| Common Stock |
| 1,000 |
| 1,000 |
| 100 | % |
Willamette Valley Fruit Company |
| Common Stock |
| 1,000 |
| 1,000 |
| 100 | % |
Fresh Frozen Foods, Inc. |
| Common Stock |
| 1,000 |
| 1,000 |
| 100 | % |
Schedule 4.1(d)
Subscriptions, Options, Warrants, Calls
Entity |
| Type of Security |
| Issued & Outstanding |
|
Inventure Foods, Inc. |
| Options |
| 645,652 |
|
Inventure Foods, Inc. |
| Restricted Stock Units |
| 302,113 |
|
Schedule 4.6
Litigation
None.
Schedule 4.11
Environmental Matters
None.
Schedule 4.14
Permitted Indebtedness
|
| Entity |
| Issuer |
| Type |
| Amount |
| Maturity Date |
| |
1. |
| Inventure Foods, Inc. |
| Bank of America |
| Equipment term loan |
| $ | 1,924,735 |
| December 2020 |
|
2. |
| Rader Farms, Inc. |
| Bank of America |
| Equipment term loan |
| $ | 2,013,436 |
| August 2019 |
|
3. |
| Willamette Valley Fruit Company |
| Bank of America |
| Equipment term loan |
| $ | 1,494,636 |
| August 2019 |
|
4. |
| Rader Farms, Inc. |
| Great America |
| Equipment term loan |
| $ | 13,536 |
| May 2020 |
|
5. |
| Inventure Foods, Inc. |
| Toyotalift of Arizona |
| Equipment term loan |
| $ | 7,824 |
| February 2018 |
|
6. |
| Inventure Foods, Inc. |
| ShoreTel |
| Capital lease |
| $ | 7,360 |
| March 2016 |
|
Schedule 4.23
Location of Inventory
(a) Owned properties containing inventory
|
| Entity of Record |
| Address |
1. |
| La Cometa Properties, Inc. |
| 3500 S. La Cometa Drive |
2. |
| Fresh Frozen Foods, Inc. |
| 1814 Washington Street |
3. |
| Fresh Frozen Foods, Inc. |
| 600 Cassidy Road |
4. |
| La Cometa Properties, Inc. |
| 705 W. Dustman Road |
(b) Leased properties containing inventory
|
| Tenant |
| Address |
1. |
| Inventure Foods, Inc. |
| 5415 E. High Street, Suite 350 |
2. |
| Inventure Foods, Inc. |
| 2994 82nd Avenue NE |
3. |
| Inventure Foods Inc. |
| Leased Agricultural Property - Approximately 42 acres of land situated in Whatcom County, WA |
4. |
| Rader Farms, Inc. |
| Leased Agricultural Property - Approximately 102.6 acres of land situated at 6757 Nooksack Road, Everson, Whatcom County, WA |
5. |
| Rader Farms, Inc. |
| Leased Agricultural Property - Approximately 696 acres of land situated in Whatcom County, WA |
6. |
| Inventure Foods, Inc. |
| 1955 W. Lancaster Street I |
7. |
| Inventure Foods, Inc. |
| 101 N. 104th Avenue |
8. |
| Inventure Foods, Inc. |
| 3001 N. 9th Avenue |
9. |
| Rader Farms, Inc. |
| 500 Orchard Drive |
10. |
| Willamette Valley Fruit Company |
| 1440 Salem Industrial Drive NE |
(c) Inventory stored pursuant to bailment, etc.
|
| Inventure Foods Entity |
| Address of Storage Facility |
1. |
| Inventure Foods, Inc. |
| 2120 E Washington Boulevard Suite B |
2. |
| Inventure Foods, Inc. |
| 1025 Osage Street |
3. |
| Inventure Foods, Inc. |
| 1150 North Main Street |
4. |
| Inventure Foods, Inc. |
| 1126 Raymond Bland Road |
5. |
| Willamette Valley Fruit Company |
| 4735 Brooklake Road NE |
6. |
| Willamette Valley Fruit Company |
| 4095 Portland Road NE |
7. |
| Willamette Valley Fruit Company |
| 1440 Silverton Road |
8. |
| Willamette Valley Fruit Company |
| 1440 Salem Industrial Drive NE |
9. |
| Willamette Valley Fruit Company |
| 17400 NE Sacramento Street |
10. |
| Willamette Valley Fruit Company |
| 4124 24th Avenue |
11. |
| Willamette Valley Fruit Company |
| 19450 NE San Rafael Street |
12. |
| Willamette Valley Fruit Company |
| 3815 Marion Street SE |
13. |
| Willamette Valley Fruit Company |
| 310 S Seneca Road |
14. |
| Inventure Foods, Inc. |
| 690 Heinberg Street |
15. |
| Rader Farms, Inc. |
| 2201 North Wind Parkway |
16. |
| Rader Farms, Inc. |
| 600 Orchard Drive |
17. |
| Rader Farms, Inc. |
| 3001 Athens Highway, |
18. |
| Rader Farms, Inc. |
| 4735 Brooklake Road NE |
19. |
| Rader Farms, Inc. |
| 31785 Marshall Road, R R #5 |
20. |
| Rader Farms, Inc. |
| 406 2nd Street, P.O. Box 709 |
21. |
| Rader Farms, Inc. |
| 11850 Center Road |
22. |
| Fresh Frozen Foods, Inc. |
| 3001 Athens Highway, |
23. |
| Fresh Frozen Foods, Inc. |
| 4231 Profit Drive |
24. |
| Fresh Frozen Foods, Inc. |
| 121 Roseway Drive |
|
| Inventure Foods Entity |
| Address of Storage Facility |
25. |
| Fresh Frozen Foods, Inc. |
| 1161 Candler Road |
26. |
| Fresh Frozen Foods, Inc. |
| 200 North FM 509 |
27. |
| Rader Farms, Inc. |
| 279 Marquette Drive |
28. |
| Rader Farms, Inc. |
| Farmland owned by Ebe Farms located in Whatcom County, Washington, pursuant to that certain Crop Rotation Agreement between Rader Farms, Inc. and Ebe Farms dated February 6, 2013. |
Schedule 4.26
Material Contracts
(a) Agreements over $10,000,000
1. None.
(b) Food product grower arrangements
1. None.
(c) License agreements
1. License Agreement, effective March 31, 2014, between the Parent Borrower and TGI Fridays of Minnesota, Inc.
2. License Agreement, effective January 5, 2011, by and between the Parent Borrower and Nathans Famous Systems, Inc.
3. License Agreement, effective June 28, 2012, by and between the Parent Borrower and Vidalia Brands, Inc.
4. Trademark Licensing, Supply and Distribution Agreement, effective November 30, 2013, by and between the Parent Borrower and Seattles Best Coffee, LLC.
5. Product License Agreement, effective July 23, 2009, between Parent Borrower and Jamba Juice Company.
6. Intellectual Property Agreement, dated August 24, 2006, between Parent Borrower and Miles Willard Technologies, LLP.
(d) All other agreements
1. Agricultural Ground Lease, dated as of May 17, 2007, by and among Lyle Rader, Sue Rader, Brad Rader, Julie Newell and Rader Farms Acquisition Corp., as amended by that certain Lease Extension Agreement, dated as of October 12, 2012, by and between the Parent Borrowers subsidiary Rader Farms, Inc. as lessee, and Uptrail Group I, LLC, Uptrail Group II, LLC and Uptrail Group III, LLC, collectively as lessor.
Schedule 5.1
Financial Statements, Reports, Certificates
Deliver to Agent (and if so requested by Agent, with copies for each Lender) each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Agent:
if a Financial Covenant Triggering Event exists, as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of Parent Borrowers fiscal quarters) after the end of each month during each of Borrowers fiscal years, |
| (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow and statement of shareholders equity covering Parent Borrowers and its Subsidiaries operations during such period and compared to the prior period and plan, together with a corresponding discussion and analysis of results from management,
(b) a Compliance Certificate along with the underlying calculations, including the calculations to arrive at EBITDA to the extent applicable,
(c) a calculation of the Fixed Charge Coverage Ratio that is required to be delivered under the Agreement, and
(d) any compliance certificate delivered under the Term Loan Credit Agreement. |
|
|
|
as soon as available, but in any event within 45 days after the end of each quarter during each of Borrowers fiscal years, |
| (e) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow and statement of shareholders equity covering Parent Borrowers and its Subsidiaries operations during such period and compared to the prior period and plan, prepared in accordance with GAAP as well as on an internally-determined mark-to-market basis, together with a corresponding discussion and analysis of results from management,
(f) a Compliance Certificate along with the underlying calculations, including the calculations to arrive at EBITDA to the extent applicable,
(g) a calculation of the Fixed Charge Coverage Ratio that is required to be delivered under the Agreement,
(h) a certification of compliance with all applicable United States Department of Agriculture and the Food and Drug Administration rules and policies and rules and policies of any other Governmental Authority relating to Food Security Laws, including, if requested by Agent, a third-party expert certification audit or Food and Drug Administration inspection of the Loan Parties quality system, and
(i) any compliance certificate delivered under the Term Loan Credit Agreement. |
as soon as available, but in any event within 90 days after the end of each of Parent Borrowers fiscal years, |
| (j) consolidated and consolidating financial statements of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications (including any (A) going concern or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with Article 7 of the Agreement (other than any qualification or exception attributable solely to the occurrence of the stated maturity of any Revolving Loans within 12 months after the date of such opinion)), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of shareholders equity, and, if prepared, such accountants letter to management), as well as on an internally-determined mark-to-market basis,
(k) a Compliance Certificate along with the underlying calculations, including the calculations to arrive at EBITDA to the extent applicable,
(l) a calculation of the Fixed Charge Coverage Ratio that is required to be delivered under the Agreement, and
(m) any compliance certificate delivered under the Term Loan Credit Agreement. |
|
|
|
as soon as available, but in any event within 15 days after the start of each of Parent Borrowers fiscal years, |
| (n) copies of Parent Borrowers Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its Permitted Discretion, for the forthcoming 3 years, certified by the chief financial officer of Parent Borrower as being such officers good faith estimate of the financial performance of Parent Borrower during the period covered thereby. |
|
|
|
if and when filed by Parent Borrower, |
| (o) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports (if any when requested by Agent),
(p) any other filings made by Parent Borrower with the SEC, and
(q) any other information that is provided by Parent Borrower to its shareholders generally. |
|
|
|
promptly, but in any event within 5 days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, |
| (r) notice of such event or condition and a statement of the curative action that Borrower proposes to take with respect thereto. |
|
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promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Parent Borrower or any of its Subsidiaries, |
| (s) notice of all actions, suits, or proceedings brought by or against Parent Borrower or any of its Subsidiaries before any Governmental Authority which reasonably could be expected to result in a Material Adverse Effect. |
upon the request of Agent, |
| (t) any other information reasonably requested relating to the financial condition of Parent Borrower or its Subsidiaries. |
Schedule 5.2
Collateral Reporting
Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the documents set forth below at the following times in form satisfactory to Agent:
No later than November 25, 2015 |
| (a) an executed Borrowing Base Certificate for the month ended October 31, 2015 |
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Monthly (no later than the 15th day of each month) (or, during any Cash Dominion Period, Weekly (no later than the Wednesday of the following week)) |
| (b) an executed Borrowing Base Certificate,
(c) a detailed aging, by total, of each Borrowers Accounts, together with a reconciliation and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format),
(d) a monthly Account roll-forward, in a format acceptable to Agent in its discretion, tied to the beginning and ending account receivable balances of Borrowers general ledger,
(e) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrowers Accounts,
(f) Inventory system/perpetual reports specifying the cost and the wholesale market value of each Borrowers inventory, raw materials and farm products, by category, with additional detail showing additions to and deletions therefrom, together with a reconciliation to Borrowers general ledger (delivered electronically in an acceptable format),
(g) a detailed calculation of inventory, raw materials and farm products categories that are not eligible for the Borrowing Base, if Borrowers have not implemented electronic reporting,
(h) royalty reserve report for related royalties paid,
(i) any Food Products Notices received by any Loan Party or their respective Subsidiaries,
(j) a summary aging, by vendor, of each Loan Partys accounts payable and any book overdraft (delivered electronically in an acceptable format) and an aging, by vendor, of any held checks, and a detailed accrued liabilities report identifying any Food Products Payables per general ledger accounts [***],(1) [***], and [***], and any other (x) related report necessary to calculate Foods Products Payables and (y) accounts payable listing of Food Products Payables,
(k) a detailed report regarding each Loan Partys and its Subsidiaries cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash, |
(1) All numerical general ledger account references are to the Loan Parties general ledger account number(s) as reflected in the Loan Parties general ledger trial balance. To the extent from and after the date of the Agreement, there is a change in the general ledger account number, reporting shall be deemed for such changed/substituted account number for the same category of account as reflected in this Schedule 5.2.
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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| (l) a detailed general ledger trial balance account numbers [***] (accrued advertising and promotions), [***] (accrued slotting), [***] (accrued customer discounts) and [***] (accrued FSI coupons),
(m) a report that provides detail to: excess inventory, raw materials and farm products greater than a 12 months supply (including the supporting calculations), expired inventory, raw materials and farm products (inventory, raw materials and farm products within 90 days of expiration date), and inventory, raw materials and farm products on hold (by January 15th for the December 2015 Borrowing Base, or such date as Agent may agree) (provided that in respect of the Fresh Frozen segment such report shall be provided commencing from and after April 1, 2016 (or such other date as Agent may agree); provided, further, that until such time, the Fresh Frozen segment shall provide a perpetual inventory report and inventory, raw materials and farm products aging analysis as currently presented/prepared by it),
(n) a detailed report including short pay general ledger account [***] or other related general ledger entries, and
(o) a detailed report including unapplied cash under general ledger account [***] or other related general ledger entries. |
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No later than 30 days after the end of each month and each year, respectively |
| (o) a reconciliation of Accounts, accounts payable, and inventory, raw materials and farm products of Borrowers general ledger to its monthly financial statements including any book reserves related to each category. |
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Quarterly (no later than the last day of the month following the end of each fiscal quarter) |
| (p) a report regarding Parent Borrowers and its Subsidiaries accrued, but unpaid, ad valorem taxes, and
(q) updated information (including bring down search results and intellectual property searches) in respect of previously delivered Perfection Certificate, |
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No later than 90 days after the end of each fiscal year |
| (r) a detailed list of each Loan Partys and its Subsidiaries customers, with address and contact information.
(s) a Perfection Certificate or a supplement to the Perfection Certificate. |
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Upon receipt thereof by any Loan Party or any of its Subsidiaries |
| (t) Food Products Notices, including in respect of Food Products Payables, and
(u) notices (including any notice of inspection and notice of action) from the U.S. Department of Agriculture, the FDA, or any other Governmental Authority relating to compliance or non-compliance with Food Laws. |
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Upon request by Agent |
| (v) copies of purchase orders and invoices for inventory, raw materials and farm products acquired by any Loan Party or its Subsidiaries,
(w) copies of invoices together with corresponding shipping and delivery documents, and credit memos together with corresponding supporting documentation, with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Agent, from time to time, and |
[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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| (x) such other reports as to the Collateral of any Loan Party and its Subsidiaries, as Agent may reasonably request including status reports for outstanding Food Products Notices or notices received from the U.S. Department of Agriculture, the U.S. Food and Drug Administration, or any other Governmental Authority relating to compliance or non-compliance with Food Security Laws. |
Schedule 6.5
Nature of Business
Parent Borrower is a leading marketer and manufacturer of healthy/natural and indulgent specialty snack food brands. We operate in two segments: (1) frozen products and (2) snack products. The frozen products segment includes frozen fruits, vegetables, beverages, blends, and frozen desserts for sale primarily to groceries, club stores and mass merchandisers. All products sold under our frozen products segment are considered part of the healthy/natural food category. The snack products segment includes potato chips, kettle chips, potato crisps, potato skins, pellet snacks, sheeted dough products, cereal, popcorn, and extruded products for sale primarily to snack food distributors and retailers. The products sold under our snack products segment includes products considered part of the indulgent specialty snack food category, as well as products considered part of the healthy/natural food category. We also manufacture private label snacks for certain grocery retail chains and co-pack products for other snack and cereal manufacturers.