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EXHIBIT 10.3
[FIRST NATIONAL BANK LOGO]
CHANGE IN TERMS AGREEMENT
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BORROWER: AGRICULTURE SUPPLY, INC., LENDER: FIRST NATIONAL BANK
A DELAWARE CORPORATION ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇
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PRINCIPAL AMOUNT: $6,500,000.00 DATE OF AGREEMENT: JUNE 1, 2000
INITIAL RATE: 11.000%
DESCRIPTION OF EXISTING INDEBTEDNESS.
Promissory Note dated June 30, 1999 in the original amount of $5,000,000.00
originally maturing on June 30, 2001 as modified by a change in Terms Agreement
dated November 15, 1999.
DESCRIPTION OF COLLATERAL.
Commercial Security Agreement dated June 30, 1999 against all business assets
as perfected by UCC-1 Financing Statement filed with California Secretary of
State on July 7, 1999 as file #9919560655; UCC-1 Financing Statement filed with
Arizona Secretary of State on July 12, 1999 as file #01075799 and UCC-1
Financing Statement filed with New Mexico Secretary of State on July 12, 1999
as file #990712062.
Commercial Pledge and Security Agreement dated June 30, 1999 granting Lender a
security interest in the following stock: Agricultural Supply de Mexico, S.A.
de C.V., Sistemas Y Equipos Agricolas, S.A. de C.V., Agro Mex Inc., and Yuma
Acquisition Sub, Inc., as perfected by UCC-1 Financing Statement filed with
California Secretary of State on July 7, 1999, as file #9919560655; UCC-1
Financing Statement filed with Arizona Secretary of State on July 12, 1999 as
file #10175799 and UCC-1 Financing Statement filed with New Mexico Secretary of
State on July 12, 1999 as file #990712062.
Commercial Pledge and Security Agreement dated June 30, 1999, executed by Eco
Soil Systems, Inc., granting Lender a security interest in the following stock:
Agricultural Supply, Inc. and Agricultural Supply de Mexico, S.A. de C.V. as
perfected by UCC-1 Financing Statement filed with California Secretary of State
on July 7, 1999 as file #9919560625 and UCC-1 Financing Statement filed with
Nebraska Secretary of State on July 19, 1999 as file #820246.
DESCRIPTION OF CHANGE IN TERMS.
1. Notwithstanding the Borrowing Base as stated in the Loan Agreement dated
June 30, 1999, Lender shall advance to Borrower additional funds up to
$2,000,000.00 in excess of the combined Domestic and Foreign Borrowing Base or
up to $6,500,000.00, whichever is less.
2. The Loan Agreement dated June 30, 1999 is modified as follows:
a) The "Guaranties" provision shall include the following Guarantors:
Guarantors Amount
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $2,000,000.00
b) The "Upstreaming Payments" provision is modified to include the following:
Lender shall allow a maximum amount of $1,000,000.00 from the new availability
(up to $2,000,000.00 advance) to be upstreamed to Eco Soil Systems, Inc., as
partial repayment of amounts owed to Eco Soil Systems, Inc., by Agricultural
Supply, Inc.
3. The Note terms are modified as follows:
a) The Maturity date is changed to December 31, 2000.
b) The "Interest Rate Options" Provision is modified to eliminate item (B) the
"Libor Option".
The interest rate is modified from Prime (the "Index") plus .25 percentage
points to Prime plus 1.50 percentage points over the Index as further described
below.
4. Commercial Security Agreement dated June 1, 2000 executed by Eco Soil
Systems, Inc., as Grantor granting Lender a security interest in specific
collateral as perfected by UCC-1 to be filed concurrent with this Agreement.
All other terms and conditions as stated in the Loan Agreement and Related
Documents remain the same.
PROMISE TO PAY. AGRICULTURAL SUPPLY, INC., A DELAWARE CORPORATION ("BORROWER")
PROMISES TO PAY TO FIRST NATIONAL BANK ("LENDER"), OR ORDER, IN LAWFUL MONEY OF
THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF SIX MILLION FIVE HUNDRED
THOUSAND & 00/100 DOLLARS ($6,500,000.000) OR SO MUCH AS MAY BE OUTSTANDING,
TOGETHER WITH INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL BALANCE OF EACH
ADVANCE. INTEREST SHALL BE CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL
REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING
PRINCIPAL PLUS ALL ACCRUED UNPAID INTEREST ON DECEMBER 31, 2000. IN ADDITION,
BORROWER WILL PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE
AS OF EACH PAYMENT DATE, BEGINNING JULY 1, 2000, WITH ALL SUBSEQUENT INTEREST
PAYMENTS TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. INTEREST ON THIS
AGREEMENT IS COMPUTED ON A 365/360 SIMPLE INTEREST BASIS; THAT IS, BY APPLYING
THE RATIO OF THE ANNUAL INTEREST RATE OVER A YEAR OF 360 DAYS, MULTIPLIED BY
THE OUTSTANDING PRINCIPAL BALANCE, MULTIPLIED BY THE ACTUAL NUMBER OF DAYS THE
PRINCIPAL BALANCE IS OUTSTANDING. Borrower will pay Lender at Lender's address
shown above or at such other place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change
from time to time based on changes in an index which is Lender's Prime Rate (the
"Index"). This is the rate Lender charges, or would charge, on 90-day unsecured
loans to the most creditworthy corporate customers. This rate may or may not be
the lowest rate available from Lender at any given time. Lender will tell
Borrower the current Index rate upon Borrower's request. The interest rate
change will not occur more often than each Day. Borrower understands that Lender
may make loans based on other rates as well. THE INDEX CURRENTLY IS 9.500% PER
ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID BALANCE OF THE NOTE WILL BE
AT A RATE OF 1.500 PERCENTAGE POINTS OVER THE INDEX RESULTING IN AN INITIAL RATE
OF 11% PER ANNUM. NOTICE: Under no circumstances will the interest rate on the
Note be more than the maximum rate allowed by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance
charges are earned fully as of the date of the loan and will not be subject to
refund upon early payment (whether voluntary or as a result of default), except
as otherwise required by law. Except for the foregoing, Borrower may pay
without penalty all or a portion of the amount owed earlier than it is due.
Early payments will not, unless agreed to by Lender in writing, relieve
Borrower of Borrower's obligation to continue to make payments of accrued
unpaid interest. Rather, early payments will reduce the principal balance due.
Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. If Borrower sends such a payment,
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Lender may accept it without losing any of Lender's rights under this Agreement,
and Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or
other payment instrument that indicates that the payment constitutes "payment
in full" of the amount owed or that is tendered with other conditions or
limitations or as full satisfaction of a disputed amount must be mailed or
delivered to: First National Bank, ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇
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LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED PAYMENT OR $10.00,
WHICHEVER IS GREATER.
INTEREST AFTER DEFAULT. Upon Borrower's failure to pay all amounts declared due
pursuant to this section, including failure to pay upon final maturity, Lender,
at its option, may, if permitted under applicable law, increase the variable
interest rate on this Agreement to 6.500 percentage points over the Index.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement.
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
indebtedness.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in
any of the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the indebtedness. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
EVENTS AFFECTING GUARANTOR.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
the indebtedness if impaired.
CURE PROVISIONS. If any default, other than a default in payment, is
curable and if Borrower has not been given a notice of breach of the same
provision of this Agreement within the preceding twelve (12) months, it
may be cured (and no event of default will have occurred) if Borrower,
after receiving written notice from Lender demanding cure of such default:
(1) cures the default within ten (10) days; or (2) if the cure requires
more than ten (10) days, immediately initiates steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Agreement and all accrued unpaid interest immediately due, and
then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
the indebtedness if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's
attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit,
including attorneys' fees, expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), and appeals.
Borrower also will pay any court costs, in addition to all other sums provided
by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in
any action, proceeding, or counterclaim brought by either Lender or Borrower
against the other.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF CALIFORNIA. THIS
AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF CALIFORNIA.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request
to submit to the jurisdiction of the courts of San Diego County, State of
California.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $6.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement may be requested either orally or in writing by Borrower
or by an authorized person. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender's
office shown above. Borrower agrees to be liable for all sums either: (A)
advanced in accordance with the instructions of an authorized person or (B)
credited to any of Borrower's accounts with Lender. The unpaid principal
balance owing on this Agreement at any time may be evidenced by endorsements on
this Agreement or by Lender's internal records, including daily computer
print-outs. Lender will have no obligation to advance funds under this
Agreement if: (A) Borrower or any guarantor is in default under the terms of
this Agreement or any agreement that Borrower or any guarantor has with Lender,
including any agreement made in connection with the signing of this Agreement;
(B) Borrower or any guarantor ceases doing business or is insolvent; (C) any
guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
guarantor's guarantee of this Agreement or any other loan with Lender; or (D)
Borrower has applied funds provided pursuant to this Agreement for purposes
other than those authorized by Lender.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms
of the original obligation or obligations, including all agreements evidenced
or securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender to retain as
liable parties all makers and endorsers of the original obligation(s),
including accommodation parties, unless a party is expressly released by Lender
in writing. Any maker or endorser, including accommodation makers, will not be
released by virtue of this Agreement. If any person who signed the original
obligation does not sign this Agreement below, then all persons signing below
acknowledge that this Agreement is given conditionally, based on the
representation to Lender that the non-signing party consents to the changes and
provisions of this Agreement or otherwise will not be released by it. This
waiver applies not only to any initial extension, modification or
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release, but also to all such subsequent actions.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on
transfer of Borrower's interest, this Agreement shall be binding upon and inure
to the benefit of the parties, their successors and assigns. If ownership of
the Collateral becomes vested in a person other than Borrower, Lender, without
notice to Borrower, may deal with Borrower's successors with reference to this
Agreement and the indebtedness by way of forbearance or extension without
releasing Borrower from the obligations of this Agreement of liability under
the Indebtedness.
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its
rights or remedies under this Agreement without losing them. Borrower and any
other person who signs, guarantees or endorses this Agreement, to the extent
allowed by law, waive any applicable statute of limitations, presentment,
demand for payment, and notice of dishonor. Upon any change in the terms of
this Agreement, and unless otherwise expressly stated in writing, no party who
signs this Agreement, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or
release any party or guarantor or collateral; or impair, fail to realize upon
or perfect Lender's security interest in the collateral; and take any other
action deemed necessary by Lender without the consent of or notice to anyone.
All such parties also agree that Lender may modify this loan without the
consent of or notice to anyone other than the party with whom the modification
is made. The obligations under this Agreement are joint and several.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE AGREEMENT.
BORROWER:
AGRICULTURAL SUPPLY, INC., A DELAWARE CORPORATION
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CHAIRMAN/CEO OF AGRICULTURAL
SUPPLY, INC., A DELAWARE CORPORATION