Better Choice Co Inc.
EX-10.3
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>4
<FILENAME>oldplankwintrusthalofirs.htm
<DESCRIPTION>EX-10.3
<TEXT>
<HTML>
<HEAD><!-- Document generated by Workiva Inc -->
<TITLE>oldplankwintrusthalofirs</TITLE>
</HEAD>
<BODY bgcolor="white">
<DIV align="center">
<DIV style="margin-left:1em;width:1055;"><!-- oldplankwintrusthalofirs001.jpg -->
<DIV style="padding-top:2em;">
<IMG src="oldplankwintrusthalofirs001.jpg" title="slide1" width="1055" height="1365">
<DIV><FONT size="1" style="font-size:1pt;color:white">FIRST AMENDMENT TO DEPOSIT ACCOUNT PLEDGE AGREEMENT THIS FIRST AMENDMENT TO DEPOSIT ACCOUNT PLEDGE AGREEMENT (this  &#8220;First Amendment&#8221;) is made and entered into as of October 24, 2022, by and between HALO, PURELY FOR PETS, INC., a Delaware corporation (&#8220;Pledgor&#8221;), and OLD PLANK TRAIL  COMMUNITY BANK, N.A., a national banking association (&#8220;Lender&#8221;).   W I T N E S S E T H: WHEREAS, prior hereto, Lender provided certain loans, extensions of credit and other  financial accommodations to Pledgor pursuant to (a) that certain Loan and Security Agreement  dated as of January 6, 2021, as amended by that certain First Amendment to Loan and Security  Agreement dated as of August 13, 2021, that certain Second Amendment to Loan and Security  Agreement dated as of March 25, 2022, and that certain Third Amendment to Loan and Security  Agreement of even date herewith (the &#8220;Third Amendment to Loan Agreement&#8221;), each by and  between Lender and Pledgor, as may be further amended or restated from time to time  (collectively, the &#8220;Loan Agreement&#8221;), (b) that certain Deposit Account Pledge Agreement dated  as of August 13, 2021, by and between Pledgor and Lender (the &#8220;Pledge Agreement&#8221;), and (c)  the other documents, agreements and instruments referenced in the Loan Agreement or executed  and delivered pursuant thereto;   WHEREAS, Pledgor has requested that Lender provide certain additional financial  accommodations to Pledgor pursuant to the Third Amendment to Loan Agreement (the  &#8220;Additional Financial Accommodations&#8221;); and WHEREAS, Lender is willing to provide the Additional Financial Accommodations, but  solely on the terms and subject to the provisions set forth in the Third Amendment to Loan  Agreement, this First Amendment and the other agreements, documents and instruments  referenced therein or executed and delivered pursuant thereto.   NOW, THEREFORE, in consideration of the foregoing, the mutual promises and  understandings of the parties hereto set forth herein and other good and valuable consideration,  the receipt and sufficiency of which is hereby acknowledged, Lender and Pledgor hereby agree  to amend the Pledge Agreement on the terms set forth in this First Amendment.  I. Definitions.  Except as expressly set forth in this First Amendment, all terms which have  an initial capital letter where not required by the rules of grammar are defined in Loan  Agreement or the Pledge Agreement.  II. Amendment to Pledge Agreement.    A. Effective as of the date of this First Amendment, the fourth paragraph of the  Pledge Agreement which is titled &#8220;Required Pledge Amount&#8221; is hereby amended by deleting  such paragraph in its entirety and substituting therefor the following:  &#8220;Required Pledge Amount. The term &#8220;Required Pledge Amount&#8221; in this  </FONT></DIV>
<P><HR noshade><P>
<DIV style="page-break-before:always;">&nbsp;</DIV>
</DIV>
<!-- oldplankwintrusthalofirs002.jpg -->
<DIV style="padding-top:2em;">
<IMG src="oldplankwintrusthalofirs002.jpg" title="slide2" width="1055" height="1365">
<DIV><FONT size="1" style="font-size:1pt;color:white">-2- Agreement means an amount equal to $6,300,000.00.  Pledgor covenants and agrees to  deposit or otherwise maintain in the Account at all times the Required Pledge Amount.&#8221;  III. Conditions Precedent. Lender&#8217;s obligation to provide the Additional Financial  Accommodations to Pledgor is subject to the full and timely performance and satisfaction of the  following covenants and conditions:  A. Pledgor executing and delivering, or causing to be executed and delivered to  Lender, the following documents, each of which shall be in form and substance acceptable to  Lender:  (i) this First Amendment; and  (ii) such other agreements, documents and instruments as the Lender may  reasonably request.  B. No Event of Default or Unmatured Event of Default exists under the Loan  Agreement or the Pledge Agreement, as amended by this First Amendment.  IV. Conflict.  If, and to the extent, the terms and provisions of this First Amendment  contradict or conflict with the terms and provisions of the Pledge Agreement, the terms and  provisions of this First Amendment shall govern and control; provided, however, to the extent  the terms and provisions of this First Amendment do not contradict or conflict with the terms and  provisions of the Pledge Agreement, the Pledge Agreement, as amended by this First  Amendment, shall remain in and have its intended full force and effect, and Lender and Pledgor  each hereby affirms, confirms and ratifies the same.  V. Severability.  Wherever possible, each provision of this First Amendment shall be  interpreted in such manner as to be valid and enforceable under applicable law, but if any  provision of this First Amendment is held to be invalid or unenforceable by a court of competent  jurisdiction, such provision shall be severed herefrom and such invalidity or unenforceability  shall not affect any other provision of this First Amendment, the balance of which shall remain  in and have its intended full force and effect.  Provided, however, if such provision may be  modified so as to be valid and enforceable as a matter of law, such provision shall be deemed to  be modified so as to be valid and enforceable to the maximum extent permitted by law.  VI. Reaffirmation.  Pledgor hereby reaffirms and remakes all of the representations,  warranties, covenants, duties, obligations and liabilities contained in the Pledge Agreement, as  amended hereby.    </FONT></DIV>
<P><HR noshade><P>
<DIV style="page-break-before:always;">&nbsp;</DIV>
</DIV>
<!-- oldplankwintrusthalofirs003.jpg -->
<DIV style="padding-top:2em;">
<IMG src="oldplankwintrusthalofirs003.jpg" title="slide3" width="1055" height="1365">
<DIV><FONT size="1" style="font-size:1pt;color:white">-3- VII. Fees, Costs and Expenses.  Pledgor agrees to pay, upon demand, all fees, costs and  expenses of Lender, including, but not limited to, a loan fee and reasonable attorneys&#8217; fees, in  connection with the Additional Financial Accommodations provided hereunder and the  preparation, execution, delivery and administration of this First Amendment and the other  agreements, documents and instruments executed and delivered in connection herewith or  pursuant hereto.  VIII. Choice of Law.  This First Amendment has been delivered and accepted in Chicago,  Illinois, and shall be governed by and construed in accordance with the laws of the State of  Illinois, regardless of the laws that might otherwise govern under applicable principles of  conflicts of law as to all matters, including matters of validity, construction, effect, performance  and remedies.  IX. Counterparts.  This First Amendment may be executed in two or more counterparts,  each of which will be deemed an original, but all of which together will constitute one and the  same instrument.   A facsimile or email transmitted executed counterpart to this First  Amendment and the other agreements, documents and instruments executed in connection  herewith will be deemed an acceptable original for purposes of consummating this First  Amendment and such other agreements, documents and instruments; provided, however, Pledgor  shall be required to deliver to Lender original executed signature pages in substitution for said  facsimile or email transmitted signature pages upon Lender&#8217;s request therefor.    X. Waiver of Jury Trial.  PLEDGOR AND LENDER EACH HEREBY WAIVE THEIR  RESPECTIVE RIGHT TO TRIAL BY JURY.  XI. Waiver of Claims.  IN CONSIDERATION OF THE LENDER&#8217;S EXECUTION AND  DELIVERY OF THIS FIRST AMENDMENT, AND EXCEPTING CAUSES OF ACTION OR  CLAIMS FOR LENDER&#8217;S WILLFUL MISCONDUCT, PLEDGOR HEREBY WAIVES,  RELEASES AND FOREVER DISCHARGES THE LENDER, ITS PREDECESSORS,  PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OFFICERS,  DIRECTORS, SHAREHOLDERS, ATTORNEYS, LEGAL REPRESENTATIVES,  SUCCESSORS AND ASSIGNS, AND EACH OF THEM, OF AND FROM ANY AND ALL  CLAIMS, DEMANDS, COUNTERCLAIMS, SET-OFFS, DEFENSES, DEBTS,  OBLIGATIONS, COSTS, EXPENSES, ACTIONS, CAUSES OF ACTION AND DAMAGES  OF EVERY KIND, NATURE AND DESCRIPTION WHATSOEVER, KNOWN OR  UNKNOWN, FORESEEABLE OR UNFORESEEABLE, LIQUIDATED OR  UNLIQUIDATED, AND INSURED OR UNINSURED, WHICH PLEDGOR HERETOFORE,  NOW OR FROM TIME TO TIME HEREAFTER OWNS, HOLDS OR HAS BY REASON OF  ANY MATTER, CAUSE OR THING WHATSOEVER, ARISING ON OR BEFORE THE  DATE OF THIS FIRST AMENDMENT FROM, RELATING TO OR IN CONNECTION  WITH THE PLEDGE AGREEMENT AS AMENDED HEREBY, THE LOANS, ANY OF THE  OTHER LOAN DOCUMENTS, THE LIABILITIES, ANY COLLATERAL FOR THE  LIABILITIES AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT EVIDENCING  ANY OF THE FOREGOING.  [signature page follows]  </FONT></DIV>
<P><HR noshade><P>
<DIV style="page-break-before:always;">&nbsp;</DIV>
</DIV>
<!-- oldplankwintrusthalofirs004.jpg -->
<DIV style="padding-top:2em;">
<IMG src="oldplankwintrusthalofirs004.jpg" title="slide4" width="1055" height="1365">
<DIV><FONT size="1" style="font-size:1pt;color:white"> </FONT></DIV>
<P><HR noshade><P>
<DIV style="page-break-before:always;">&nbsp;</DIV>
</DIV>
<!-- oldplankwintrusthalofirs005.jpg -->
<DIV style="padding-top:2em;">
<IMG src="oldplankwintrusthalofirs005.jpg" title="slide5" width="1055" height="1365">
<DIV><FONT size="1" style="font-size:1pt;color:white"> </FONT></DIV>
<P><HR noshade><P>
<DIV style="page-break-before:always;">&nbsp;</DIV>
</DIV>
</DIV>
</DIV>
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
