Exhibit 10.5
[EXECUTION]
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT AND
CONSENT
THIS AMENDMENT NO. 1 TO LOAN AND
SECURITY AGREEMENT AND CONSENT (this “Amendment
No. 1”), dated as of March 2, 2009, is by and among
Wachovia Bank, National Association, a national banking association
(“Lender”), Farmer Bros. Co., a Delaware corporation
(as surviving corporation of the merger with FBC Realty, LLC
formerly known as SL Realty, LLC, a Delaware limited liability
company, “Farmer”) and Coffee Bean
International, Inc., an Oregon corporation (“CBI”
and together with Farmer, each individually a
“Borrower” and collectively, “Borrowers”),
Coffee Bean Holding Co., Inc., a Delaware corporation
(“Coffee Holding”), FBC Finance Company, a California
corporation (“Finance” and together with Coffee
Holding, each individually a “Guarantor” and
collectively, “Guarantors”).
W I T N
E S S E
T H :
WHEREAS, Lender, Borrowers and
Guarantors have entered into financing arrangements pursuant to
which Lender has made, and may make, loans and advances and provide
other financial accommodations to Borrowers as set forth in the
Loan and Security Agreement, dated as of March 2, 2009, by and
among Lender, Borrowers and Guarantors, the “Loan
Agreement”, and together with all agreements, documents and
instruments at any time executed or delivered in connection
therewith or related thereto, as from time to time amended and
supplemented, collectively, the “Financing
Agreements”);
WHEREAS, Borrowers and Guarantors
have requested that Lender agree to make certain amendments to the
Loan Agreement and agree to certain consents under the Loan
Agreement, and Lender is willing to agree, subject to the terms and
conditions set forth herein, to make such amendments and agree to
such consents, as more specifically set forth herein;
and
WHEREAS, by this Amendment
No. 1, Lender, Borrowers and Guarantors desire and intend to
evidence such amendments and consents.
NOW THEREFORE, in consideration of
the foregoing and the mutual agreements and covenants contained
herein, the parties hereto agree as follows:
1. Definitions .
1.1 Additional
Definition . As used herein, the term “Amendment
No. 1” shall mean Amendment No. 1 to Loan and
Security Agreement and Consent, by and between Lender and Borrower,
as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, and the Loan
Agreement and the other Financing Agreements shall be deemed and
are hereby amended to include, in addition and not in limitation,
such definition.
1.2 Amendment to
Definitions .
(a) The definition of
“Preferred Stock Portfolio” in Section 1.104 of
the Loan Agreement is hereby amended by deleting the reference to
“Finance” and replacing it with
“Parent”.
(b) The definition of
“Security Provisions” in Section 1.120 of the Loan
Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“1.120 ‘Security
Provisions’ shall mean the following provisions of the
Financing Agreements (as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced): (a) Section 1(a) of the Guarantee, dated
even date herewith, by Guarantors in favor of Lender;
(b) Section 2 of each Pledge and Security Agreement,
dated even date herewith, by Farmer in favor of Lender;
(c) Section 2 of the Pledge and Security Agreement, dated
even date herewith, by Coffee Holding in favor of Lender;
(d) Section 2 of the Collateral Assignment of Acquisition
Agreements, dated of even date herewith, by Farmer in favor of
Lender; (e) Section 2 of the Copyright Collateral
Assignment and Security Agreement, dated even date herewith, by
Farmer in favor of Lender; (f) Section 2 of the Trademark
Collateral Assignment and Security Agreement, dated even date
herewith, by Farmer in favor of Lender; (g) Section 2 of the
Trademark Collateral Assignment and Security Agreement, dated even
date herewith, by CBI in favor of Lender; (h) Section 2
of the Trademark Collateral Assignment and Security Agreement,
dated even date herewith, by Finance in favor of Lender;
(i) Section 2 of the Investment Property Pledge and
Security Agreement, dated March 6, 2009 by Finance in favor of
Lender; and (j) such other sections of such other Financing
Agreements as Lender may from time to time designate as a Security
Provision in a writing delivered by Lender to Administrative
Borrower.”
(c) The definition of
“Specified Investment Account” in Section 1.123 of
the Loan Agreement is hereby amended by deleting the reference to
“Finance” and replacing it with
“Parent”.
1.3 Interpretation .
All capitalized terms used herein shall have the meanings assigned
thereto in the other Financing Agreements, unless otherwise defined
herein. All references to the plural herein shall also mean the
singular and all references to the singular herein shall also mean
the plural, in each case unless otherwise required by the context
of the use thereof.
2. Consent . Subject
to the terms and conditions hereof and notwithstanding anything to
the contrary contained in Section 9.7(b) or Section 9.22 of
the Loan Agreement, Lender hereby consents to the transfer
of
