Exhibit 10.6


 


AMENDMENT NO. 2

TO

LOAN AND SECURITY AGREEMENT AND CONSENT


 


THIS AMENDMENT NO. 2 TO LOAN AND SECURITY
AGREEMENT AND CONSENT (this “Amendment No. 2”), dated as of July 27,
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”,
Amendment No. 1 to Loan and Security Agreement, dated as of March 2,
2009, by and among Lender, Borrowers and Guarantors, 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. 2,
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. 2” shall mean Amendment No. 2
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      Eligible Inventory.


 


(a)   The definition of “Eligible Inventory” in Section 1.34 of the
Loan Agreement is hereby amended by deleting clause (f)(iii)(A) thereof in
its entirety and substituting the following therefor:


 


“(A) as
to locations which are leased by any Borrower, if Lender shall have received a
Collateral Access Agreement from the owner and lessor of such location, duly
authorized, executed and delivered by such owner and lessor or, if Lender shall
not have received such Collateral Access Agreement (or Lender shall determine
to accept a Collateral Access Agreement that does not include all required
provisions or provisions in the form otherwise required by Lender), Lender may,
at its option, nevertheless consider Inventory at such location to be Eligible
Inventory to the extent Lender shall have established such Reserves in respect
of amounts at any time payable by such Borrower to the owner and lessor thereof
as Lender shall determine in good faith,”


 


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.     Additional Representations, Warranties and Covenants.  Borrowers and Guarantors represent, warrant
and covenant with and to Lender as follows, which representations, warranties
and covenants, together with the representations, warranties and covenants in
the other Financing Agreements, are continuing and shall survive the execution
and delivery hereof, and the truth and accuracy of, or compliance with each,
being a continuing condition of the making of Loans by Lender to Borrowers:


 


2.1      No action of, or filing with, or consent of any Governmental
Authority, and no approval or consent of any other Person, is or will be
required to authorize, or is or will be otherwise required in connection with,
the execution, delivery and performance by Borrowers and Guarantors of this
Amendment No. 2.


 


2.2      This Amendment No. 2 and each other agreement, document or
instrument to be executed and delivered by any Borrower or Guarantor in
connection therewith or herewith has been duly authorized, executed and
delivered by all necessary action on the part of such Borrower or Guarantor,
and Amendment No. 2 and each other agreement, document or instrument to be
executed and delivered by Borrowers and Guarantors in connection therewith or
herewith is in full force and effect as of the date of Amendment No. 2 and
the agreements and obligations of Borrowers and Guarantors contained herein and
therein constitute legal, valid and binding obligations of Borrowers and
Guarantors enforceable against Borrowers and Guarantors in accordance with
their respective terms.


 


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2.3      Neither the execution and delivery of this Amendment No. 2
or the documents, agreements or instruments executed or delivered in connection
therewith or related thereto, nor the consummation of the transactions herein
or therein contemplated, nor compliance with the provisions hereof or thereof
is in contravention of any law or regulation or any order or decree of any
court or Governmental Authority applicable to Borrowers and Guarantors in any
respect, or conflicts with or result in the breach of, or constitutes a default
in any respect under any mortgage, deed of trust, security agreement, agreement
or instrument to which any Borrower or Guarantor is a party or may be bound, or
violates any provision of the formation or other organizational documents of
any Borrower or Guarantor.


 


2.4      After giving effect to this Amendment No. 2, no Event of
Default or act, condition or event which with notice or passage of time or both
would constitute an Event of Default exists or has occurred and is continuing
on the date of Amendment No. 2.


 


3.     Conditions Precedent. 
The effectiveness of the amendments and consents contained herein shall
be subject to the receipt by Lender of each of the following, in form and
substance satisfactory to Lender:


 


3.1      an original of this Amendment No. 2, duly authorized,
executed and delivered by the parties hereto;


 


3.2      a true and correct copy of any consent, waiver or approval to
or of this Amendment No. 2, which any Borrower or Guarantor is required to
obtain from any other Person; and


 


3.3      after giving effect to this Amendment No. 2, no Event of
Default or act, condition or event which with notice or passage of time or both
would constitute an Event of Default exists or has occurred and is continuing
on the date of this Amendment No. 2.


 


4.     Effect of this Amendment. 
Except as expressly set forth herein, no other amendments, consents,
changes or modifications to the Financing Agreements are intended or implied,
and in all other respects the Financing Agreements are hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective date
hereof and Borrowers and Guarantors shall not be entitled to any other or
further amendment or consent by virtue of the provisions of this Amendment No. 2
or with respect to the subject matter of this Amendment No. 2.  To the extent of conflict between the terms
of this Amendment No. 2 and the other Financing Agreements, the terms of
this Amendment No. 2 shall control. 
The Loan Agreement and this Amendment No. 2 shall be read and
construed as one agreement.


 


5.     Further Assurances. 
The parties hereto shall execute and deliver such additional documents
and take such additional action as may be necessary or desirable to effectuate
the provisions and purposes of this Amendment No. 2.


 


6.     Governing Law.  The
validity, interpretation and enforcement of this Amendment No. 2 and the
other Financing Agreements and any dispute arising out of the relationship
between the parties hereto whether in contract, tort, equity or otherwise,
shall be governed by the internal laws of the State of California but excluding
any principles of conflict of laws or other rule of 


 


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law that would cause the application of the
law of any jurisdiction other than the laws of the State of California.


 


7.     Waiver, Modification, Etc.  No provision or term hereof may be modified,
altered, waived, discharged or terminated orally, but only by an instrument in
writing executed by the party against whom such modification, alteration,
waiver, discharge or termination is sought to be enforced.


 


8.     Entire Agreement. 
This Amendment No. 2 represents the entire agreement and
understanding concerning the subject matter hereof among the parties hereto,
and supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.


 


9.     Binding Effect. 
This Amendment No. 2 shall be binding upon and inure to the benefit
of each of the parties hereto and their respective successors and assigns.


 


10.   Severability.  Any
provision of this Agreement held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement and the effect thereof shall be confirmed to the provision so held to
be invalid or unenforceable.


 


11.   Headings.  The
headings listed herein are for convenience only and do not constitute matters
to be construed in interpreting this Amendment No. 2.


 


12.   Counterparts.  This
Amendment No. 2 may be executed in any number of counterparts, each of
which shall be an original, but all of which taken together shall constitute
one and-the same agreement.  Delivery of
an executed counterpart of this Amendment No. 2 by telefacsimile or other
electronic method of transmission shall have the same force and effect as the
delivery of an original executed counterpart of this Amendment No. 2.  Any party delivering an executed counterpart
of this Amendment No. 2 by telefacsimile or other electronic method of
transmission shall also deliver an original executed counterpart of this
Amendment No. 2, but the failure to do so shall not affect the validity,
enforceability or binding effect of such agreement.


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment No. 2 to be duly executed and delivered by their
authorized officers as of the day and year first above written.


 


	
  LENDER

  	
   

  	
  BORROWERS

  
	
   

  	
   

  	
   

  
	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION 

  	
   

  	
  FARMER
  BROS. CO. 

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Gary Whitaker 

  	
   

  	
  By:
  

  	
  /s/
  John E. Simmons 

  
	
  Name:

  	
  Gary
  Whitaker 

  	
   

  	
  Name:
  

  	
  John
  E. Simmons 

  
	
  Title:

  	
  Director

  	
   

  	
  Title:
  

  	
  Treasurer
  and CFO

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  COFFEE
  BEAN INTERNATIONAL, INC. 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:
  

  	
  /s/
  John E. Simmons 

  
	
   

  	
   

  	
   

  	
   

  	
  Name:
  

  	
  John
  E. Simmons 

  
	
   

  	
   

  	
   

  	
   

  	
  Title:
  

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GUARANTORS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COFFEE
  BEAN HOLDING CO., INC. 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  John E. Simmons 

  	
   

  	
   

  	
   

  
	
  Name:
  

  	
  John
  E. Simmons 

  	
   

  	
   

  	
   

  
	
  Title:
  

  	
  Treasurer
  and CFO

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FBC
  FINANCE COMPANY 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  John E. Simmons 

  	
   

  	
   

  	
   

  
	
  Name:
  

  	
  John
  E. Simmons 

  	
   

  	
   

  	
   

  
	
  Title:
  

  	
  Director

  	
   

  	
   

  	
   

  



 


[Amendment
No. 2 to Loan and Security Agreement]