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EXHIBIT 17(a)(2)
AMENDED AND RESTATED LOAN AGREEMENT
Among
UNITED FOODS, INC.,
as Borrower
NATIONAL BANK OF CANADA,
as a Lender
And
FIRST AMERICAN NATIONAL BANK,
Individually as a Lender and as Agent for the Lenders
Dated: June 30, 1999
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
1.1 Acceptable Account ............................................ 2
1.2 Acceptable Inventory .......................................... 3
1.3 Account Debtor ................................................ 3
1.4 Accounts Receivable ........................................... 3
1.5 Affiliates .................................................... 3
1.6 Agreement ..................................................... 4
1.7 Agent ......................................................... 4
1.8 Aggregate Commitment .......................................... 4
1.10 Borrowing Date ............................................... 4
1.11 Business Day ................................................. 4
1.12 Change in Law ................................................ 4
1.13 Closing Date ................................................. 4
1.14 Collateral ................................................... 4
1.15 Commitment ................................................... 4
1.16 Commitment Letter ............................................ 5
1.17 Eurodollar Loans ............................................. 5
1.18 Eurodollar Rate .............................................. 5
1.19 Event of Default ............................................. 5
1.20 Financing Statements ......................................... 5
1.21 FLSA ......................................................... 5
1.22 Foreign Receivable ........................................... 5
1.23 GAAP ......................................................... 5
1.24 Indebtedness ................................................. 5
1.25 Insolvent .................................................... 6
1.26 Interest Payment Date ........................................ 6
1.27 Interest Period .............................................. 6
1.28 Inventory .................................................... 7
1.29 L/C Application .............................................. 7
1.30 Lender(s) .................................................... 7
1.31 Lending Installation ......................................... 7
1.32 Letter of Credit ............................................. 7
1.33 Letter of Credit Obligations ................................. 7
1.34 Lien ......................................................... 7
1.35 Loan Documents ............................................... 7
1.36 Mushroom Collateral .......................................... 7
1.37 Notes ........................................................ 9
1.38 Operating Account ............................................ 9
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1.39 Percentage ................................................... 9
1.40 Permitted Exceptions ......................................... 9
1.41 Person ....................................................... 9
1.42 Plans ........................................................ 9
1.43 Prime Rate ................................................... 9
1.44 Prime Rate Loan .............................................. 9
1.45 Responsible Officer .......................................... 9
1.46 Revolving Credit Advances or Advances ........................ 9
1.47 Revolving Credit Loan Maturity Date .......................... 10
1.48 Revolving Credit Note ........................................ 10
1.49 Revolving Loan or Revolving Credit Loan ...................... 10
1.50 Security Agreement ........................................... 10
1.51 Standby L/C .................................................. 10
1.52 Swing Line Bank .............................................. 10
1.53 Swing Line Commitment ........................................ 10
1.54 Swing Line Loan .............................................. 10
1.55 Swing Line Note .............................................. 10
1.56 Total Exposure ............................................... 11
1.57 Trade L/C .................................................... 11
1.58 Unfunded Vested Accrued Benefit .............................. 11
1.59 United States Government Receivable .......................... 11
ARTICLE 2
REVOLVING LOAN DOCUMENTS
2.1 Loan Documents ................................................ 11
2.2 Other Closing Documents ....................................... 12
2.3 Delivery of Documents as Condition Precedent to Advances ...... 12
ARTICLE 3
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit ................................. 13
3.2 Procedure for Opening Letters of Credit ....................... 13
3.3 Payments in Respect of Letters of Credit ...................... 13
3.4 Letter of Credit Fees ......................................... 13
3.5 Letter of Credit Reserves ..................................... 14
3.6 Further Assurances ............................................ 15
3.7 Obligations Absolute .......................................... 15
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ARTICLE 4
COMMITMENT, FUNDING AND TERMS OF REVOLVING CREDIT LOAN
4.1 The Commitment ................................................ 16
4.2 Swing Line Loans .............................................. 16
(a) Making of Swing Line Loans ........................... 16
(b) Swing Line Request ................................... 16
(c) Swing Line Notes ..................................... 17
(d) Repayment of Swing Line Loans ........................ 17
4.3 Ratable Loans: Types of Advances .............................. 17
4.4 Procedure for Borrowing ....................................... 17
4.5 Interest Rates and Payment Dates .............................. 18
4.6 Computation of Interest and Fees .............................. 19
4.7 Conversion Options ............................................ 19
4.8 Prepayments or Termination of the Revolving Credit Loan ...... 19
4.9 Use of Proceeds ............................................... 20
4.10 Conditions to Funding ........................................ 20
4.11 Unused Facility Fee .......................................... 20
4.12 Inability to Determine Interest Rate ......................... 20
4.13 Illegality ................................................... 21
4.14 Indemnity .................................................... 21
4.15 Closing Costs ................................................ 22
4.16 Security ..................................................... 22
4.17 Conditions Precedent to All Revolving Credit Loan Advances ... 22
4.18 Lending Installations ........................................ 22
4.19 Non-Receipt of Funds by the Agent ............................ 22
4.20 Withholding Tax Exemption .................................... 23
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BORROWER
5.1 Validity of Loan Documents ..................................... 23
5.2 Corporate Status .............................................. 23
5.3 No Violation of Agreements .................................... 24
5.4 No Burdensome Agreements ...................................... 24
5.5 No Litigation ................................................. 24
5.6 Tax Liability ................................................. 24
5.7 Governmental Action ........................................... 24
5.8 Disclosure .................................................... 25
5.9 Financial Condition ........................................... 25
5.10 Title to Assets .............................................. 25
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5.11 Licenses and Permits ......................................... 25
5.12 Patents and Trademarks ....................................... 25
5.13 ERISA ........................................................ 25
5.14 Fiscal Year-End; Organizational Documents .................... 25
5.15 Inventory .................................................... 25
ARTICLE 6
COVENANTS OF BORROWER
6.1 Affirmative Covenants ......................................... 26
(a) Taxes and Other Liens .................................... 26
(b) Financial Reports of Borrower ............................ 26
(c) Certificates; Other Information .......................... 27
(d) Warehouse Agreements ..................................... 28
(e) Casualty, Condemnation or Governmental Action ............ 28
(f) Maintenance of Corporate Existence and Borrower's Business 28
(g) Inspection ............................................... 29
(h) Maintain Collateral ...................................... 29
(i) Notice of Default ........................................ 29
(j) Additional Information ................................... 29
(k) Notice of Adverse Change in Assets or Business .......... 29
(l) Working Capital Floor .................................... 29
(m) Tangible Net Worth ....................................... 29
(n) Debt to Equity Ratio ..................................... 30
(o) Coverage Ratio ........................................... 30
(p) Change in Fiscal Year-End ................................ 30
(q) Insurance ................................................ 30
(r) Inventory ................................................ 31
(s) Borrowing Base Certificate ............................... 31
(t) [RESERVED] ................................................ 32
(u) Collection of Receivables ................................ 32
(v) Over-Advances ............................................ 32
(w) Stock Repurchase ......................................... 32
6.2 Negative Covenants ............................................ 32
(a) Mortgages, Liens, Etc .................................... 32
(b) Sale of Collateral ....................................... 33
(c) Disposition of Assets; Cessation of Business ............. 33
(d) Loans and Guarantees ..................................... 33
(e) New Business ............................................. 33
(f) Consolidation or Merger; Acquisition of Assets ........... 33
(g) Amendment to Organizational Documents .................... 33
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(h) Change in Fiscal Year-End ............................ 33
(i) Transactions with Affiliates ......................... 33
(j) Sale of Accounts Receivable .......................... 33
6.3 Payment of Taxes .............................................. 34
6.4 Expenses ...................................................... 34
6.5 Further Assurances; Additional Documents ...................... 34
ARTICLE 7
EVENTS OF DEFAULT
7.1 Payment of Principal, Interest ................................ 35
7.2 Payment of Other Obligations by Borrower ...................... 35
7.3 Representation or Warranty .................................... 35
7.4 Covenants ..................................................... 35
7.5 Bankruptcy, Etc ............................................... 35
7.6 Concealment of Property, Etc .................................. 36
7.7 Loan Documents Terminated or Void ............................. 36
7.8 Judgments ..................................................... 36
7.9 Attachments, Etc .............................................. 36
7.10 Termination of Employee Benefit Plans, Etc ................... 37
7.11 Performance of Other Obligations ............................. 37
7.12 Suits by Borrower or Affiliates .............................. 37
7.13 Accounts Payable to Growers .................................. 37
7.14 Failure to Complete Settlement of Lawsuit .................... 37
ARTICLE 8
REMEDIES OF LENDERS
8.1 Default Constitutes Default Under Other Documents ............. 38
8.2 Rights of Lender Upon Default ................................. 38
8.3 Cumulative Remedies ........................................... 38
ARTICLE 9
THE ADMINISTRATIVE AGENT
9.1 Appointment; Nature of Relationship............................ 38
9.2 Powers ........................................................ 39
9.3 General Immunity ............................................. 39
9.4 No Responsibility for Loans, Recitals, etc .................... 39
9.5 Action on Instructions of Lenders ............................. 39
9.6 Employment of Agents and Counsel .............................. 40
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9.7 Reliance on Documents: Counsel ................................ 40
9.8 Agent's Reimbursement and Indemnification ..................... 40
9.9 Funding of Loan by Lenders .................................... 40
9.10 Notice of Default ............................................ 40
9.11 Rights as a Lender ........................................... 41
9.12 Lender Credit Decision ....................................... 41
9.13 Successor Agent .............................................. 41
ARTICLE 10
GENERAL CONDITIONS
10.1 Rights of Third Parties ...................................... 42
10.2 Evidence of Satisfaction of Conditions ....................... 42
10.3 All Matters Satisfactory to Agent ............................ 42
10.4 No Agency .................................................... 42
10.5 No Partnership or Joint Venture .............................. 42
10.6 Interest Limitations ......................................... 42
10.7 No Assignment by Borrower .................................... 43
10.8 Assignment by Lender ......................................... 43
10.9 Entire Agreement ............................................. 43
10.10 Notices ..................................................... 44
10.11 Successors and Assigns Included in Parties .................. 44
10.12 Headings .................................................... 45
10.13 Invalid Provisions to Affect No Others ...................... 45
10.14 Number and Gender ........................................... 45
10.15 Amendments .................................................. 45
10.16 Indemnification ............................................. 45
10.17 Execution in Counterparts ................................... 45
10.18 Time of Essence ............................................. 45
10.19 Governing Law ............................................... 45
10.20 Security Interest; Setoff ................................... 46
10.21 Consent to Jurisdiction and Venue ........................... 46
10.22 Agent/Lenders' Consent ...................................... 46
10.23 Waiver of Right to Trial by Jury ............................ 46
10.24 Conflict .................................................... 47
10.25 Ratable Payments ............................................ 47
10.26 Amended and Restated Loan Agreement ......................... 47
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SCHEDULES:
Locations of Inventory ...................................................... 5.15
EXHIBITS:
A Borrowing Base Certificate ............................................... A-1
A-1 Amended and Restated Revolving Credit Note ............................. A-1-1
A-2 Revolving Credit Note .................................................. A-2-1
A-3 Amended and Restated Swing Line Note ................................... X-0-0
X-0 Annual Non-Default Certificate ......................................... X-0-0
X-0 Quarterly Non-Default Certificate ...................................... X-0-0
X-0 Monthly Non-Default Certificate ........................................ B-3-1
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement"), made and
entered into this 30 day of June, 1999, by and among UNITED FOODS, INC., a
Delaware corporation having its principal place of business at Xxx Xxxxxxxxx
Xxxxx, Xxxxx, Xxxxxxxxx 00000-0000 ("Borrower"), FIRST AMERICAN NATIONAL BANK
("FANB"), a national banking association organized and existing under the
statutes of the United States of America, with an office in Memphis, Tennessee,
as Agent ("Agent") for itself as a lender and the other undersigned lender, and
NATIONAL BANK OF CANADA ("NBC"), a commercial banking institution organized and
existing under the laws of Canada, with a United States domestic branch office
located at 000 X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (FANB and
NBC hereinafter collectively referred to as "Lender");
W I T N E S S E T H:
WHEREAS, First American National Bank (sometimes also referred to
herein as "FANB") and Borrower executed a Loan Agreement dated as of April 7,
1993 (the "Original Loan Agreement"), pursuant to which FANB made a Twenty-Three
Million Dollar (U.S. $23,000,000.00) revolving credit loan to Borrower for the
purpose of providing working capital to Borrower (the "Original Revolving
Loan");
WHEREAS, FANB and Borrower amended the Original Revolving Loan by
amendments dated: June 2, 1994; June 1, 1995; September 1, 1995; February 6,
1997; May 15, 1997; June 17, 1997; and July 16, 1998 (collectively, the
"Amendments");
WHEREAS, Borrower has requested that FANB increase the Original
Revolving Loan, as amended by the Amendments, to Thirty-Five Million Dollars
(U.S. $35,000,000.00) and to make certain other modifications and changes to the
Original Revolving Loan, as amended by the Amendments; and
WHEREAS, FANB is willing to increase the amount of the Original
Revolving Loan, as amended by the Amendments, and has invited NBC to join as a
lender and FANB and NBC have agreed to make certain other modifications and
amendments to the credit facility, on the terms and subject to the conditions
herein set forth;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is agreed by the parties as follows:
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ARTICLE 1
DEFINITIONS
In addition to the other terms hereinafter defined, the following terms
shall have the meanings set forth in this Article 1:
1.1 Acceptable Account. "Acceptable Account" shall mean an Account
Receivable which meets all of the following requirements: (a) such Receivable is
owned by the Borrower and represents a complete bona fide transaction which
requires no further act under any circumstances on the part of the Borrower to
make such Receivable payable by the Account Debtor; (b) such Receivable is not
past due more than sixty (60) days, or ninety (90) days in the case of a United
States Government Receivable, from the date of the original invoice; (c) the
goods, the sale of which gave rise to such Receivable, were shipped or delivered
to the Account Debtor on an absolute sale basis and not on a xxxx and hold sale
basis, a consignment sale basis, a guaranteed sale basis, a sale or return
basis, or on the basis of any other similar understanding and no material part
of such goods has been returned or rejected; (d) such Receivable is not
evidenced by chattel paper or an "instrument" (as defined in Article IX of the
Tennessee Uniform Commercial Code) of any kind; (e) the Account Debtor with
respect to such Receivable is not Insolvent or the subject of any bankruptcy or
insolvency proceedings of any kind or of any other proceeding or action,
threatened or pending, which might have a materially adverse effect on such
Account Debtor and is not deemed ineligible for credit for other reasons; (f)
such Receivable is not owing by an Account Debtor having twenty-five percent
(25%) or more in face value of its then-existing accounts owing to the Borrower
past due more than sixty (60) days, or ninety (90) days in the case of a United
States Government Receivable, from the date of the original invoice; (g) such
Receivable is not owing by an Account Debtor whose then-existing accounts owing
to the Borrower exceed in face amount twenty percent (20%) of the Borrower's
total Acceptable Accounts; (h) if such Receivable arises from the performance of
services, such services have been fully rendered; (i) such Receivable is a
valid, legally enforceable obligation of the Account Debtor with respect thereto
and is not subject to any present, and no facts are known which are the basis
for any future, offset, deduction or counterclaim, dispute or other defense on
the part of such Account Debtor, other than allowances to the Account Debtor in
the ordinary course of the Borrower's business, which allowances shall reduce
the face amount of the Receivable for the purposes of determining its
eligibility; (j) except as provided in the last sentence of this Section 1.1
with respect to United States Government Receivables, such Receivable is subject
to a perfected security interest pursuant to the Security Agreement and is
subject to no other Lien whatsoever other than Permitted Exceptions; (k) such
Receivable is evidenced by an invoice or other documentation in form acceptable
to the Agent; (l) such Receivable does not arise out of any transaction with any
Affiliate of the Borrower; (m) the goods and services giving rise to such
Receivable were not, at the time of the sale or rendering thereof, subject to
any Lien, except the security interest granted hereunder and Permitted
Exceptions; (n) is not a Foreign Receivable; and (o) such Receivable does not
arise from the sale of goods or services to a military distributor. A United
States Government Receivable that otherwise satisfies the foregoing requirements
shall be an Acceptable Account notwithstanding the failure by the Agent or
Lenders and the Borrower to comply with the Federal Assignment of Claims Act of
1940, as amended; provided that the Agent,
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in its sole and absolute discretion, may notify the Borrower of the Agent's
determination to comply with such Act, and at the expiration of thirty (30) days
following such notice any United States Government Receivable will cease to be
an Acceptable Account unless and until all steps necessary under the Act to
complete an assignment of such United States Government Receivable to the Agent
have been taken.
1.2 Acceptable Inventory. "Acceptable Inventory" shall mean Inventory
of Borrower's frozen food division which meets all of the following
requirements: (a) such Inventory is owned by the Borrower, is subject to a
perfected security interest pursuant to the Security Agreement and is subject to
no other Lien whatsoever other than a lien for unpaid taxes which are not yet
due and payable and Permitted Exceptions; (b) such Inventory excludes the cost
of all freight and shipping subsequent to final packaging; (c) such Inventory is
calculated at the lower of current year anticipated cost or market value; (d)
such Inventory is in good condition and meets all standards imposed by any
governmental agency, or department or division thereof, having regulatory
authority over such goods, their processing, use or sale; (e) such Inventory can
currently be used or marketed in the normal course of the Borrower's business;
(f) such Inventory has been processed and frozen and (i) can pass without
objection in the trade, (ii) is of fair average quality throughout, and runs,
within reasonable variations, of even kind, quality and quantity within each
unit and among all units involved, (iii) is fit for the ordinary purposes for
which it is intended to be used, and (iv) is adequately contained, preserved,
packaged and labeled as required by applicable law or custom and usage, if
appropriate; (g) such Inventory is located at one of the locations set forth in
the most recent SCHEDULE 5.15; (h) such Inventory shall not have been held by or
on behalf of the Borrower as Inventory for a period in excess of twenty-four
(24) months; and (i) such Inventory is not held, processed or otherwise
maintained by the Borrower on a consignment basis or under a contract or
arrangement whereby the goods are to be held or sold on behalf of a Person other
than the Borrower.
1.3 Account Debtor. "Account Debtor" shall mean any Person which is now
or hereafter obligated or indebted to Borrower on any Account Receivable.
1.4 Accounts Receivable. "Accounts Receivable" or "Receivable" shall
mean all amounts owed to the Borrower on account of sales, leases or rentals of
goods or services rendered in the ordinary course of the Borrower's trade or
business, other than Mushroom Receivables, net of deposits and advance payments
made by Account Debtors (including, but not limited to, items listed on
Borrower's financial statement as Deferred Sales).
1.5 Affiliates. With respect to any entity, any Person that (i)
directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with such entity, (ii) directly or
indirectly beneficially owns or holds ten percent (10%) or more of any class of
voting stock of such entity, or (iii) ten percent (10%) or more of the voting
stock of which is directly or indirectly beneficially owned or held by such
entity; and the term "control"
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means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
1.6 Agreement. This Amended and Restated Loan Agreement and all
exhibits and schedules attached hereto or made a part hereof, as the same may be
amended from time to time hereafter.
1.7 Agent. First American National Bank in its capacity as agent for
the Lenders pursuant to Article 9, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article 9.
1.8 Aggregate Commitment. The aggregate of the Commitments of all the
Lenders.
1.9 Borrowing Base. The limitation on the aggregate Total Exposure
which may be outstanding at any time during the term of this Agreement. The
Borrowing Base is the sum of (a) eighty-five percent (85%) of Acceptable
Accounts, such amounts to be decreased by an amount equal to (i) One Hundred
Twenty Thousand Dollars ($120,000.00) plus (ii) all amounts due on accounts
payable to growers of agricultural commodities that are outstanding for more
than thirty (30) days from due date, plus (b) sixty percent (60%) of Acceptable
Inventory, less (c) the amount of the then outstanding Swing Line Loan.
1.10 Borrowing Date. Any Business Day specified in a notice pursuant to
Section 4.4 of this Agreement as a date on which a Lender makes a Revolving
Credit Advance hereunder.
1.11 Business Day. A day other than a Saturday, Sunday or other day on
which commercial banks in Memphis, Tennessee are authorized or required by law
to close.
1.12 Change in Law. The adoption of any law, regulation, policy,
guideline or directive (whether or not having the force of law) or any change
therein or in the interpretation or application thereof by an governmental
authority having jurisdiction over a Lender, after the date hereof.
1.13 Closing Date. The date on which all conditions to funding set
forth in Section 4.10 have been satisfied or waived by Agent and Lenders make
the initial Revolving Credit Advance pursuant to this Agreement.
1.14 Collateral. The Accounts Receivable and the Inventory.
1.15 Commitment. For each Lender, the obligation of such Lender to make
Revolving Loans as provided herein, not exceeding the amount set forth opposite
its signature below, as such amount may be modified from time to time pursuant
to the terms hereof.
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1.16 Commitment Letter. The commitment letter dated March 5, 1999,
including the Summary of Terms appended thereto, which commitment letter was
issued by Agent and acknowledged and accepted by Borrower on April 28, 1999.
1.17 Eurodollar Loans. Revolving Loans at such time as they are made
and/or being maintained at a rate of interest based upon a Eurodollar Rate.
1.18 Eurodollar Rate. With respect to any Interest Period for any
Eurodollar Loan, (a) the rate per annum equal to the applicable London interbank
offered rate for U.S. Dollar deposits appearing on Telerate Page 3750 as of
11:00 a.m. London time two Business Days prior to the first day of such Interest
Period (and if no London interbank offered rate of such maturity then appears on
Telerate Page 3750, then the Eurodollar Rate shall be equal to the London
interbank offered rate for U.S. Dollar deposits maturing immediately before or
immediately after such maturity, whichever is higher, as determined by the Agent
from Telerate Page 3750) for the number of days during such Interest Period
divided by (b) a number equal to 1.00 minus the aggregate (without duplication)
of the rates (expressed as a decimal fraction) of reserve requirements current
on the date two (2) Business Days prior to the beginning of such Interest Period
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other governmental authority having jurisdiction with respect
thereto), as now and from time to time hereafter in effect, dealing with reserve
requirements prescribed for Eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of such Board) maintained by a member
bank of such System (each Eurodollar Rate to be rounded upwards, if necessary,
to the next higher 1/100 of one percent), plus (c) one and one-half percent
(1 1/2%) per annum.
1.19 Event of Default. "Event of Default" is defined in Article 7 of
this Agreement.
1.20 Financing Statements. The UCC-1 Financing Statements and/or UCC-3
Amendments executed by Borrower of even date herewith in favor of Agent to
perfect Agent's security interest in the Accounts Receivable and Inventory
created by the Security Agreement and to evidence the agent-bank relationship
created hereunder.
1.21 FLSA. The Fair Labor Standards Act of 1938, as amended.
1.22 Foreign Receivable. Any Receivable arising out of a sale or
shipment of Inventory to a destination outside the United States of America.
1.23 GAAP. Generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board (or any successor boards), consistently
applied.
1.24 Indebtedness. All indebtedness and obligations evidenced by, and
all costs, fees, charges, expenses and advances incurred or made by Lenders
pursuant to this Agreement, the Notes, or any of the other Loan Documents,
including any amounts owing to Lenders or Agent pursuant to the provisions of
Section 10.16 hereof.
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1.25 Insolvent. When used with respect to any particular Person,
"Insolvent" shall mean that (A) such Person's liabilities exceed its assets, in
each case determined according to GAAP, or (B) such Person is unable to pay its
debts as they become due in the ordinary course of its business.
1.26 Interest Payment Date. In the case of Prime Rate Loans, the 15th
day of each June, September, December and March commencing on September 15, 1999
and the date of payment (including prepayment) in full of the Revolving Loans,
and, in the case of Eurodollar Loans, the last day of each Interest Period.
1.27 Interest Period. With respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case may be,
the Borrowing Date or conversion date with respect to such Eurodollar
Loan and ending one, two or three months thereafter as selected by the
Company in its notice of borrowing as provided in Section 4.4 or its
notice of conversion as provided in Section 4.7; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two or three months thereafter as selected by the Company
by irrevocable notice to the Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect
to such Eurodollar Loan:
provided that the foregoing provisions relating to Interest
Periods are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day, unless the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period that would otherwise extend
beyond the Revolving Credit Loan Maturity Date, shall end on
such Revolving Credit Loan Maturity Date, or if such Revolving
Credit Loan Maturity Date shall not be a Business Day, on the
immediately preceding Business Day;
(C) if the Company shall fail to give notice as
provided above in clause (b), it shall be deemed to have
selected a conversion of a Eurodollar Loan into a Prime Rate
Loan (which conversion shall occur automatically and without
need for compliance with the conditions for conversion set
forth in Section 4.7);
(D) any Interest Period that begins on the last day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar
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month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
(E) the Company shall select Interest Periods so that
no part of an Interest Period coincides with any part of a
Clean-Up Period.
1.28 Inventory. Goods and products held for sale or furnished or to be
furnished under contracts of service, or raw materials, work-in-process,
finished goods or materials to be used or consumed in business, including
without limitation packaging materials, accessions to such raw materials,
products and goods, and documents therefor, excluding, however, the Mushroom
Inventory.
1.29 L/C Application. "L/C Application" is defined in Section 3.1.
1.30 Lender(s). The lending institution(s) listed on the signature
pages of this Agreement and their respective successors and assigns.
1.31 Lending Installation. With respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
1.32 Letter of Credit. A Standby L/C or a Trade L/C.
1.33 Letter of Credit Obligations. The obligations of the Borrower to
reimburse FANB for any payments made by FANB under any Standby L/C or Trade L/C
that have not been reimbursed by the Borrower pursuant to Section 3.4(a).
1.34 Lien. Any interest in real or personal property securing an
obligation owed to, or a claim by, a Person other than the owner of such real or
personal property, whether such interest is based upon the common law, statute
or contract, and including but not limited to the security interest or lien
arising from a deed of trust, mortgage, encumbrance, pledge, conditional sale,
or trust receipt or a lease, consignment or bailment for security purposes.
1.35 Loan Documents. Collectively, this Agreement, the Notes, the
Security Agreement, and any other documents executed pursuant to or in
connection with this Agreement, including, without limitation, the documents
specified in Article 2 hereof.
1.36. Mushroom Collateral. All of the Borrower's right, title and
interest in and to each of the following assets, but only to the extent such
assets are used in connection with or arise out of, the Borrower's division
known as Pictsweet Mushroom Farms (the "Mushroom Division"):
(a) all inventory in all of its forms, wherever located, now
or hereafter existing including, but not limited to, (i) all mature
mushrooms, growing crops of mushrooms, packaging materials, raw
materials and work in process therefor, finished goods thereof, and
materials used or consumed in the manufacture or production thereof,
(ii) goods in which the Borrower has an interest in mass or a joint or
other interest or right of any kind
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(including, without limitation, goods in which the Borrower has an
interest or right as consignee), (iii) goods which are returned to or
repossessed by the Borrower, and (iv) all accessions thereto and
products thereof and documents therefor (any and all such inventory,
accessions, products and documents being hereinafter called the
"Mushroom Inventory");
(b) all farm products in all of their respective forms,
wherever located, now or hereafter existing, including, but not limited
to, (i) all straw, compost, bedding materials, spawn and the products
thereof used in the Mushroom Division, and (ii) all agricultural
supplies used or consumed in the operations of the Mushroom Division,
including without limitation all chemicals used in maintaining,
growing, preserving or producing any such farm products, and (iii) all
accessions to and products of and documents for any of the foregoing
(any and all such farm products, accessions, products and documents
being hereinafter called the "Mushroom Farm Products");
(c) all accounts, accounts receivable, contract rights,
chattel paper, instruments, general intangibles and other obligations
of any kind owing to the Borrower with respect to or arising out of the
operations of the Mushroom Division (including, without limitation,
payment-in-kind certificates, rights to any government subsidy, set
aside, diversion, deficiency or disaster payment, and payments in
kind), now or hereafter existing, whether or not arising out of or in
connection with the sale of goods or the rendering of services, and all
rights now or hereafter existing in and to all security agreements,
leases, and other contracts securing or otherwise relating to any such
accounts, contract rights, chattel paper, instruments, general
intangibles or obligations (any and all such accounts, contract rights,
chattel paper, instruments, general intangible and obligations being
hereinafter called the "Mushroom Receivables", and any and all such
leases, security agreements and other contracts being hereinafter
called the "Related Contracts");
(d) all future contracts and funds, margin accounts and other
property of any kind relating to such futures contracts, funds and
margin accounts, including, without limitation, any balance credited to
any margin account upon closing;
(e) all mortgages, deeds to secure debt and deeds of trust on
real or personal property, guaranties, leases, security agreements, and
other agreements and property which secure or relate to the Mushroom
Receivables or other Mushroom Collateral, or are acquired for the
purpose of securing and enforcing any item thereof;
(f) all documents of title, instruments, policies and
certificates of insurance, securities, chattel paper, and other
documents and instruments evidencing or pertaining to any and all items
of Mushroom Collateral;
(g) all books, records, files, correspondence, computer
programs, tapes, discs and related data processing software which
contain information identifying or pertaining to any of the Mushroom
Receivables or any account debtor, or showing the amounts thereof
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or payments thereon or otherwise necessary or helpful in the
realization thereon or the collection thereof, but only to the extent
they pertain to the Mushroom Receivables;
(h) all cash related to or arising out of the operations of
the Mushroom Division; and
(i) all proceeds of any and all of the foregoing Mushroom
Collateral (including, without limitation, proceeds which constitute
property of the types described in clauses (a) through (h)), and, to
the extent not otherwise included, all payments under insurance, or any
indemnity, warranty or guaranty, payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Mushroom Collateral.
1.37 Notes. Each of the Revolving Credit Notes and Swing Line Notes.
1.38 Operating Account. Borrower's checking and depository account
established with the Swing Line Bank which is used by the Borrower for working
capital purposes.
1.39 Percentage. For any Lender, one hundred percent (100%) times a
fraction (a) the numerator of which is such Lender's Commitment, and (b) the
denominator of which is the Aggregate Commitment.
1.40 Permitted Exceptions. Liens and other exceptions to title listed
in Section 6.2(a).
1.41 Person. Person shall mean an individual, corporation, partnership,
trust, limited liability company, association, joint venture, unincorporated
organization or government, or any agency or political subdivision thereof, or
any business or other legal entity.
1.42 Plans. Employee benefit plans maintained for employees of the
Borrower governed by Title IV of the Employment Retirement Income Security Act
of 1974 ("ERISA"), including such Plans as may be established after the Closing
Date.
1.43 Prime Rate. The reference or base rate of interest publicly
announced from time to time by the Lender as its prime or base lending rate
minus one-half percent (1/2%) per annum.
1.44 Prime Rate Loan. The Revolving Loan (or applicable portion
thereof) at such time as it is made and/or being maintained at a rate of
interest based upon the Prime Rate.
1.45 Responsible Officer. The Chief Financial Officer or some other
executive officer of Borrower.
1.46 Revolving Credit Advances or Advances. Advances of principal on
the Revolving Credit Loan by a Lender under the terms of this Agreement to the
Borrower during the term of the Revolving Credit Loan pursuant to Section 4.1
hereof.
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1.47 Revolving Credit Loan Maturity Date. June 1, 2002, provided,
however, that the Revolving Credit Loan Maturity Date may be extended by Agent,
at the request of the Borrower but in Agent's sole and absolute discretion, for
one additional year on each anniversary date of this Agreement.
1.48 Revolving Credit Note. With respect to Agent as Lender, an Amended
and Restated Revolving Credit Note, in substantially the form of EXHIBIT "A-1,"
attached hereto, duly executed by Borrower and payable to the order of FANB in
the amount of its Commitment, including any amendment, modification,
restatement, renewal or replacement of the Amended and Restated Promissory Note.
"Revolving Credit Note" means, with respect to NBC as Lender, a Revolving Credit
Note in substantially the form of EXHIBIT "A-2," attached hereto, duly executed
by Borrower and payable to the order of NBC in the amount of its Commitment,
including any amendment, modification, restatement, renewal or replacement of
the Revolving Credit Note.
1.49 Revolving Loan or Revolving Credit Loan. With respect to a Lender,
such Lender's loan made pursuant to Section 4.1 (or any portion thereof),
and/or, in the case of FANB, pursuant to Section 4.2 (or any portion thereof).
1.50 Security Agreement. That certain Amended and Restated Security
Agreement of even date herewith pursuant to which the Borrower grants to Agent,
on behalf of Lenders, a valid security interest in the Accounts Receivable and
Inventory.
1.51 Standby L/C. An irrevocable letter of credit under which FANB
agrees to make payments for the account of the Borrower, on behalf of the
Borrower in respect of obligations of the Borrower incurred pursuant to
contracts made or performances undertaken or to be undertaken or matters as to
which the Borrower is or proposes to become a party in the ordinary course of
the Borrower's business, including, without limitation, for insurance purposes
or in respect of advance payments or bid or performance bonds.
1.52 Swing Line Bank. FANB or any other Lender as a successor Swing
Line Bank.
1.53 Swing Line Commitment. The obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum of Five Million Dollars (U.S.
$5,000,000.00) at any one time outstanding.
1.54 Swing Line Loan. A Revolving Credit Loan made available to the
Borrower by the Swing Line Bank pursuant to Section 4.2 hereof.
1.55 Swing Line Note. A Revolving Credit Note, in substantially the
form of EXHIBIT "A-3," attached hereto, duly executed by the Borrower and
payable to the order of the Swing Line Bank in the amount of its Swing Line
Commitment, including any amendment, modification, restatement, renewal or
replacement of such note and evidencing such Lender's Swing Line Loans.
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1.56 Total Exposure. The aggregate of (a) all Revolving Credit Advances
outstanding at any time, plus (b) the face amount of all outstanding Standby
L/C's and Trade L/C's, plus (c) the aggregate of outstanding Swing Line Loans.
1.57 Trade L/C. A commercial documentary letter of credit issued by
FANB for the account of the Borrower, payable in U.S. dollars, for the purchase
of materials, goods or services in the ordinary course of the Borrower's
business.
1.58 Unfunded Vested Accrued Benefit. With respect to any Plan at any
time, the amount, if any, by which (x) the present value of all vested
nonforfeitable benefits under such Plan exceeds (y) the fair market value of all
Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan.
1.59 United States Government Receivable. Any Account Receivable for
which the Account Debtor is the federal government of the United States of
America, or any department, agency or instrumentality thereof.
All accounting terms not specifically defined in this Agreement shall
have the meaning ascribed by, and be construed in accordance with, generally
accepted accounting principles, consistently applied. Whenever in this Agreement
the singular number is used, it shall include the plural where appropriate and
vice versa, and words of any gender shall include each other gender where
appropriate.
ARTICLE 2
REVOLVING LOAN DOCUMENTS
2.1 Loan Documents. At the closing of the Revolving Loan (the
"Closing") on the Closing Date, Borrower shall duly authorize, execute and
deliver to Agent (or cause to be delivered to Agent) this Agreement and the
following documents to evidence and secure the Revolving Loan, in form and
substance satisfactory to Agent:
(a) Amended and Restated Revolving Credit Note executed by
Borrower in the original principal amount not to exceed Thirteen
Million Dollars (U.S. $13,000,000.00), payable to the order of FANB in
accordance with the terms hereof and thereof;
(b) Revolving Credit Note executed by Borrower in the original
principal amount not to exceed Seventeen Million Dollars (U.S.
$17,000,000.00), payable to the order of NBC in accordance with the
terms hereof and thereof;
(c) Swing Line Note executed by Borrower in the original
principal amount not to exceed Five Million Dollars (U.S.
$5,000,000.00), payable to the order of FANB in accordance with the
terms hereof and thereof;
(d) Security Agreement;
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(e) Financing Statements; and
(f) L/C Applications.
2.2 Other Closing Documents. At the Closing, Borrower shall also
provide Agent with the following additional documents or copies thereof, in form
and substance satisfactory to Agent:
(a) certified corporate resolutions of the Borrower, and
certificates of existence or good standing, as the case may be, for
Borrower from the State of Delaware, and a certificate of authority to
transact business from the State of Tennessee, together with certified
copies of the charter and bylaws of the Borrower;
(b) to the extent requested by Agent, certificates of
authority to transact business and/or good standing from each
additional state in which the Borrower's ownership of assets or the
nature of its operations requires it to be qualified to do business as
a foreign corporation;
(c) an audited financial statement of the Borrower for the
fiscal year ending February 28, 1999 (the "1999 Audited Statement"),
together with an interim financial statement (consisting of a current
balance sheet and profit and loss statement) for the Borrower as of May
31, 1999 (the "Interim Financial Statement"), the accuracy of which is
certified to Agent by the Chief Financial Officer of Borrower;
(d) lien searches of Borrower in the states identified in
SCHEDULE 5.15 hereto;
(e) evidence that all warehouses in which Inventory may be
stored are adequately insured or bonded;
(f) a legal opinion executed by Borrower's counsel in form and
substance acceptable to Agent and Agent's counsel; and
(g) such other documents as Agent may reasonably require.
2.3 Delivery of Documents as Condition Precedent to Advances. If any of
the Loan Documents or other documents set forth in Section 2.2 are not delivered
to Agent concurrently with the execution hereof, the delivery of the remainder
of the Loan Documents and such other documents in form and substance acceptable
to Agent shall be an express condition precedent to Lenders' obligation to make
any disbursement of funds under the Revolving Loans. Agent may waive this
condition and thereby cause Lenders to advance loan proceeds to pay the costs of
closing the Revolving Loans; provided, however, the making of any such advance
or any future advance shall not be considered a waiver of this condition
precedent to its obligation to make any other advance, unless Agent specifically
so agrees in writing.
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ARTICLE 3
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit. (a) Subject to the terms and
conditions hereof, FANB agrees to issue for the account of the Borrower, from
time to time during the term of this Agreement, Letters of Credit. Borrower may
from time to time request FANB to issue a Letter of Credit by delivering to FANB
at its address specified herein an application in FANB's customary form for
Standby L/C's or Trade L/C's, as applicable (an "L/C Application") completed to
the satisfaction of FANB, together with such other certificates, documents and
other papers and information as FANB may reasonably request.
(b) Each Letter of Credit issued hereunder shall, among other things,
be in such form requested by the Borrower as shall be acceptable to FANB in its
(i) reasonable discretion, and (ii) have an expiry date in no event later than
the Revolving Credit Loan Maturity Date and, in the case of Trade L/C's, no
later than 120 days following the date of issuance thereof. Each L/C Application
and each Letter of Credit shall be subject to the Uniform Customs and Practice
for Documentary Credit (1983 Revisions), International Chamber of Commerce
Publication No. 400 and subsequent revisions thereof approved by a Congress of
such Chamber, and if requested by FANB, Article V of the Tennessee Uniform
Commercial Code and, to the extent not inconsistent therewith, the laws of the
State of Tennessee.
3.2 Procedure for Opening Letters of Credit. Upon receipt of any L/C
Application from the Borrower, FANB will process such L/C Application, and the
other certificates, documents and other papers delivered to FANB in connection
therewith, in accordance with its customary procedures and, subject to the terms
and conditions hereof, shall promptly open such Letter of Credit by issuing the
original of such Letter of Credit to the beneficiary thereof and by furnishing a
copy thereof to the Borrower, provided that no such Letter of Credit shall be
issued if issuance thereof would cause the Total Exposure to exceed the
Commitment amount under Section 4.1.
3.3 Payments in Respect of Letters of Credit. The Borrower agrees
forthwith upon demand by FANB and otherwise in accordance with the terms of the
L/C Application relating thereto, (i) to reimburse FANB for any payment made by
FANB under any Letter of Credit and (ii) to pay interest on any unreimbursed
portion of any such payment from the date of such payment until reimbursement in
full thereof at a rate per annum equal to (A) prior to the date which is one
Business Day after the day on which FANB demands reimbursement from the Borrower
for such payment, at the current rate for Prime Rate Loans and (B) on such date
and thereafter, three percent (3%) above the Prime Rate; provided, however, that
at the Borrower's request the amount of FANB's payment under such Letter of
Credit may be treated as a Revolving Credit Advance.
3.4 Letter of Credit Fees. In lieu of any Letter of Credit commissions
and fees provided for in any L/C Application relating to Standby L/C (other than
standard issuance, amendment and negotiation fees customarily charged by FANB),
the Borrower agrees to pay FANB with respect to each Standby L/C, a Standby L/C
fee of one and one-quarter percent
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(1.25%) per annum on the amount available to be drawn under each Standby L/C
payable, in advance, on the date of issuance or renewal and calculated on the
basis of a 360-day year for actual days elapsed from such date of issuance to
the expiration date of such Standby L/C.
(b) With respect to each Trade L/C, the Borrower agrees to pay FANB a
document examination fee equal to three-eights of one percent (3/8%) of the
amount available to be drawn under such Trade L/C, payable only if a drawing is
made thereunder and at the time of such drawing, and such other fees in amounts
and at the times required under FANB's standard policies respecting documentary
letters of credit in effect from time to time.
(c) For purposes of any payment of fees required pursuant to this
Section 3.4, FANB agrees to provide to the Borrower a statement of any such fees
to be so paid; provided that the failure by FANB to provide the Borrower with
any such invoice shall not relieve the Borrower to pay such fees.
3.5 Letter of Credit Reserves. (a) If any Change in Law shall either
(i) impose, modify, deem or make applicable any reserve, special deposit,
assessment or similar requirement against letters of credit issued by FANB or
(ii) impose on FANB any other condition regarding this Agreement or any Letter
of Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost of FANB issuing or maintaining any Letter of
Credit (which increase in cost shall be the result of FANB's reasonable
allocation of the aggregate of such cost increases resulting from such events),
then, upon demand by FANB, the Borrower shall immediately pay to FANB, from time
to time as specified by FANB, additional amounts which shall be sufficient to
compensate FANB for such increased cost, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the Prime Rate. A certificate, setting forth in reasonable detail the
calculation of the amounts involved, submitted by FANB to the Borrower
concurrently with any such demand by FANB, shall be conclusive, absent manifest
error, as to the amount thereof.
(b) In the event that any Change in Law with respect to FANB shall, in
the opinion of FANB, require that any obligation under any Letter of Credit be
treated as an asset or otherwise be included for purposes of calculating the
appropriate amount of capital to be maintained by FANB or any corporation
controlling FANB, and such Change in Law shall have the effect of reducing the
rate of return on FANB's or such corporation's capital, as the case may be, as a
consequence of FANB's obligations under such Letter of Credit to a level below
that which FANB or such corporation, as the case may be, could have achieved but
for such Change in Law (taking into account FANB's or such corporation's
policies, as the case may be, with respect to capital adequacy) by an amount
deemed by FANB to be material, then from time to time following notice by FANB
to the Borrower of such Change in Law, within fifteen (15) days after demand by
FANB, the Borrower shall pay to FANB such additional amount or amounts as will
compensate FANB or such corporation, as the case may be, for such reduction. The
FANB agrees that, upon the occurrence of any event giving rise to the operation
of paragraph (a) or (b) of this Section 3.5 with respect to such FANB, it will,
if requested by the Borrower and to the extent permitted by law or by the
relevant governmental authority, endeavor in good faith to avoid or minimize the
increase in costs or reduction in payments resulting from such event;
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provided, however, that such avoidance or minimization can be made in such a
manner that FANB, in its sole determination, suffers no economic, legal or
regulatory disadvantage. If FANB becomes entitled to claim any additional
amounts pursuant to this Section 3.5(b), it shall promptly notify the Borrower
of the event by reason of which it has become so entitled. A certificate, in
reasonable detail setting forth the calculation of the amounts involved,
submitted by FANB to the Borrower concurrently with any such demand by FANB,
shall be conclusive, absent manifest error, as to the amount thereof.
3.6 Further Assurances. The Borrower hereby agrees, from time to time,
to do and perform any and all acts and to execute any and all further
instruments reasonably requested by FANB more fully to effect the purposes of
this Agreement and the issuance of Letters of Credit.
3.7 Obligations Absolute. The payment obligations of the Borrower under
this Agreement with respect to the Letters of Credit shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(a) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any beneficiary,
or any transferee, of any Standby Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), or any
other Person except FANB, whether in connection with this Agreement,
the Loan Documents, the transactions contemplated herein, or any
unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent or invalid or any
statement therein being untrue or inaccurate in any respect, except for
any such circumstances or happening constituting gross negligence or
wilful misconduct on the part of FANB;
(c) payment by FANB under any Letter of Credit against
presentation of a draft or certificate which exactly or substantially
complies with the terms of such Letter of Credit or as to which the
Borrower, having had the opportunity to examine such draft, certificate
or other related documents, has not promptly alleged that the same do
not comply with the terms of the Letter of Credit, except where such
payment constitutes gross negligence or wilful misconduct on the part
of FANB; or
(d) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except for any such
circumstances or happening constituting gross negligence or wilful
misconduct on the part of FANB.
In the event that FANB refuses to honor any drawing under a Letter of Credit
based upon the Borrower's having alleged a discrepancy between the documents
presented in connection with such drawing and the requirements of the Letter of
Credit, the Borrower will indemnify FANB and hold FANB harmless from and against
all claims, causes of action, damages, liabilities, costs and expenses
(including court costs and reasonable attorney's fees) which FANB may incur as a
result of such dishonor.
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ARTICLE 4
COMMITMENT, FUNDING AND TERMS OF
REVOLVING CREDIT LOAN
4.1 The Commitment. Subject to the terms and conditions herein set out
and prior to the Revolving Credit Loan Maturity Date, each Lender severally
agrees and commits to make Revolving Credit Loans to the Borrower from time to
time in amounts not to exceed in the aggregate at any one time outstanding the
amount of its Commitment, in an aggregate amount of Total Exposure not to
exceed, at any one time outstanding, the lesser of (a) Thirty-Five Million
Dollars (U.S. $35,000,000.00), or (b) the Borrower's Borrowing Base, as defined
in Article 1, minus (c) amounts outstanding under any Letters of Credit.
4.2 Swing Line Loans. In addition to Revolving Credit Loans pursuant to
Section 4.1, but subject to the terms and conditions of this Agreement
(including, but not limited to, those limitations set forth in Section 4.1), the
Swing Line Bank agrees to make the Swing Line Loans to Borrower in accordance
with this Section 4.2 up to the amount of the Swing Line Commitment. Amounts
borrowed under this Section 4.2 may be borrowed, repaid and reborrowed to, but
not including, the Revolving Credit Loan Maturity Date. All outstanding Swing
Line Loans shall be paid in full on the Revolving Credit Loan Maturity Date. All
outstanding Swing Line Loans shall be made as Prime Rate Loans.
(a) Making of Swing Line Loans. Swing Line Loans shall be made
available to the Borrower by the Swing Line Bank's crediting the Operating
Account of the Borrower. Said crediting shall be made automatically as the
Borrower's Operating Account falls below a zero (-0-) balance (the "Zero Account
Balance"). Any funds in the Operating Account in excess of the Zero Account
Balance shall be applied first, to repay any outstanding principal on the Swing
Line Loans and second, to prepay any outstanding interest under the Swing Line
Loans. Notwithstanding the foregoing, the Swing Line Bank shall have the right,
in its reasonable discretion and upon written notice to the Borrower, to
terminate the automatic feature of the borrowings under the Swing Line Loans and
to require the Borrower to thereafter provide notice to the Swing Line Bank
prior to such borrowings in the manner provided by Section 4.2(b) below. The
Swing Line Bank is permitted to make any requested Swing Line Loan, in its sole
and absolute discretion, regardless of the availability established by the
Borrowing Base.
(b) Swing Line Request. If the Swing Line Bank requires notice as
provided in the penultimate sentence of Section 4.2(a) above, then Borrower may
request a Swing Line Loan from the Swing Line Bank on any Business Day before
the Revolving Credit Loan Maturity Date by giving the Agent and the Swing Line
Bank notice by 1:00 p.m. (Memphis time) on such Borrowing Date specifying the
aggregate amount of such Swing Line Loan, which shall be an amount not less than
Fifty Thousand Dollars (U.S. $50,000.00).
(c) Swing Line Notes. The Swing Line Loans shall be evidenced by the
Swing Line Notes and each Swing Line Loan shall be paid in full by the Borrower
on or before the Revolving Credit Loan Maturity Date.
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(d) Repayment of Swing Line Loans. Subject to the terms of Section
4.2(a) regarding funds in the Operating Account in excess of the Zero Account
Balance, Borrower may at any time pay, without penalty or premium, all
outstanding Swing Line Loans, or, in a minimum amount of Fifty Thousand Dollars
(U.S. $50,000.00) any portion of the outstanding Swing Line Loans upon notice to
the Agent and the Swing Line Bank received by 1:00 p.m. (Memphis time) on such
payment date. In addition, the Agent (i) may at any time in its sole discretion
or (ii) shall on the Revolving Credit Loan Maturity Date, require the Lenders
(including the Swing Line Bank) to make a Prime Rate Loan in an amount equal to
such Lender's Percentage of the unreimbursed Swing Line Loans outstanding on
such date for the purpose of repaying Swing Line Loans (to the extent that there
is availability under the Commitment). The Lenders shall deliver the proceeds of
such Advance to the Agent by 2:00 p.m. (Memphis time) on the applicable
Borrowing Date for application to the Swing Line Bank's outstanding Swing Line
Loans. Each Lender's obligation to make available its Percentage of the Advance
referred to in this Section shall be absolute and unconditional and shall not be
affected by any circumstances, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Bank, or anyone else, (ii) the occurrence or continuance
of an Event of Default, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, or (iv) any other circumstances, happening or event
whatsoever. If for any reason a Lender does not make available its Percentage of
the foregoing Advance, such Lender shall be deemed to have unconditionally and
irrevocably purchased from the Swing Line Bank, without recourse or warranty, an
undivided interest and participation in each Swing Line Loan then being repaid,
equal to its Percentage of all such Swing Line Loans being repaid, so long as
such purchase would not cause such Lender to exceed its Commitment. If any
portion of any amount paid (or deemed paid) to the Agent should be recovered by
or on behalf of the Borrower from the Agent in bankruptcy or otherwise, the loss
of the amount so recovered shall be shared ratably among all Lenders.
4.3 Ratable Loans: Types of Advances. Each Advance hereunder (excluding
Swing Line Loans) shall consist of Revolving Credit Loans made from the Lenders
ratably in proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The Advances may be Prime Rate Loans or Eurodollar Loans
selected by the Borrower in accordance with Section 4.4
4.4 Procedure for Borrowing. (a) Borrower may borrow under the
Commitment on any Business Day, provided that, with respect to any borrowings,
Borrower shall give Agent irrevocable notice (which notice must be received by
the Agent prior to 10:00 a.m., Memphis, Tennessee time), (i) three (3) Business
Days prior to the requested Borrowing Date if all or any part of the Revolving
Loan is to be a Eurodollar Loan and (ii) on or before the requested Borrowing
Date or Closing Date if the borrowing is to be solely of a Prime Rate Loan and
specifying (A) the amount of the borrowing, (B) whether such Revolving Loan is
initially to be Eurodollar Loan or a Prime Rate Loan or a combination thereof,
and (C) if the borrowing is to be entirely or partly a Eurodollar Loan, the
length of the Interest Period for such Eurodollar Loan. Revolving Loan proceeds
shall be made available to the Borrower by the Agent's crediting the operating
account of the Borrower at the office of the Agent, with the aggregate amount of
such borrowing.
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(b) Any borrowing or continuation of, or conversion to or from,
Eurodollar Loans hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (i) the aggregate principal
amount of each Eurodollar Loan shall not be less than Five Hundred Thousand
Dollars (U.S. $500,000.00) for each Interest Period or a whole multiple of
$500,000 in excess thereof for each Interest Period and (ii) no more than three
(3) Interest Periods shall be in effect at any one time.
(c) All or any part of the outstanding Revolving Loan may be converted
in accordance with Section 4.7, provided that each partial conversion of a Prime
Rate Loan as to any Interest Period shall be in the aggregate principal amount
of Five Hundred Thousand Dollars (U.S. $500,000.00) or a whole multiple of
$500,000 in excess thereof and the aggregate principal amount of the resulting
Eurodollar Loan outstanding in respect of any one Interest Period shall be at
least Five Hundred Thousand Dollars (U.S. $500,000.00) or a whole multiple of
$500,000 in excess thereof.
4.5 Interest Rates and Payment Dates. (a) Eurodollar Loans shall bear
interest for each Interest Period applicable thereto, commencing on the first
day of such Interest Period to, but excluding, the last day of such Interest
Period, on the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period.
(b) Prime Rate Loans shall bear interest for the period from and
including the date such Prime Rate Loans are made to, but excluding, the
maturity date thereof, or to, but excluding, the conversion date if such Prime
Rate Loans are earlier converted into Eurodollar Loans, on the unpaid principal
amount thereof at a rate per annum equal to the Prime Rate.
(c) If all or a portion of the principal amount of any of the Revolving
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise) such Revolving Loan, if a Eurodollar Loan, shall be
converted into a Prime Rate Loan at the end of the then-current Interest Period
for said Eurodollar Loan (which conversion shall occur automatically), and any
such overdue principal amount shall, without limiting the rights of the Lender
under Section 7, bear interest at a rate per annum which is three percent (3%)
above the Prime Rate from the date of such non-payment until paid in full
(including interest after judgment as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date.
All payments due under the Notes shall be made by Borrower to Agent for the
account of each Lender. The Agent will promptly thereafter cause to be
distributed to each Lender such payments of interest, and principal, in the
proportion of each Lender's Advances to which the payment applies.
4.6 Computation of Interest and Fees. (a) Interest and fees shall be
calculated on the basis of a three hundred sixty (360) day year, as applicable
for the actual days elapsed. The Agent shall as soon as practicable notify the
Borrower of each determination of a Eurodollar Rate. Any change in the interest
rate on the Prime Rate Loans resulting from a change in the Prime Rate shall
become effective, without notice, as of the opening of business on the day on
which such change in the Prime Rate shall become effective.
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(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
4.7 Conversion Options. The Borrower may elect from time to time to
convert Eurodollar Loans into Prime Rate Loans, provided that any such
conversion of Eurodollar Loans shall only be made on the last day of an Interest
Period with respect thereto. The Borrower shall notify the Agent not less than
three (3) Business Days prior to the end of each Interest Period if the Borrower
elects to continue the related Revolving Loan as a Eurodollar Loan (in which
case the notice shall also specify the next Interest Period), which notification
shall be irrevocable, and in the absence of such notification the entire
Eurodollar Loan shall automatically be converted into a Prime Rate Loan. The
Borrower may elect from time to time to convert all or a permissible portion of
the Prime Rate Loans then outstanding to Eurodollar Loans by giving the Agent
irrevocable notice of such election, to be received by the Agent prior to 10:00
a.m., Memphis, Tennessee time, at least three Business Days prior to the
proposed conversion date, specifying the amount thereof and the Interest Period
selected therefor, and, if no Default or Event of Default has occurred and is
continuing, such conversion shall be made on the requested conversion date or,
if such requested conversion date is not a Business Day, on the next succeeding
Business Day. Swing Line Loans are Prime Rate Loans and may not be converted to
Eurodollar Loans.
4.8 Prepayments or Termination of the Revolving Credit Loan. The
Borrower may, at its option, from time to time, subject to the terms and
conditions hereof, without penalty, borrow, repay and reborrow amounts of any
Prime Rate Loan and, on the last day of any Interest Rate Period, the Borrower
may repay and subsequently reborrow the amount of the related Eurodollar Loan.
By notice to the Agent in writing, Borrower shall be entitled to reduce the
amount of the maximum Commitment provided in Section 4.1, which reduction shall
be irrevocable, or to terminate the Lenders' commitment to make further advances
on the Revolving Credit Loan and to issue additional Letters of Credit. In the
case of any such termination, provided that the Revolving Credit Loan, all
interest thereon and all other costs and expenses due hereunder or under any
other Loan Documents shall have been paid in full, and that either (a) no
Letters of Credit remain outstanding or (b) the aggregate full amount of all
outstanding Letters of Credit has been fully cash collateralized, Agent shall
thereupon at Borrower's request release Lenders' security interest in all of
Borrower's Accounts Receivable and Inventory. With respect to Letters of Credit,
"fully cash collateralized" shall mean that the contingent obligation of the
Borrower to reimburse FANB for any subsequent drawings shall be fully secured
beforehand by cash collateral specifically held by FANB for such purposes in an
amount equal to the undrawn amount of such Letters of Credit or otherwise
secured in a manner acceptable to FANB.
4.9 Use of Proceeds. Advances under the Revolving Credit Loan shall be
used by Borrower for its working capital, or to reimburse the Lender for amounts
paid by the Lender pursuant to Letter of Credit drawings. Advances under the
Swing Line Loan shall be used to facilitate daily advances and cash management.
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4.10 Conditions to Funding. Agent shall not be required to cause
Lenders to disburse the Revolving Loan proceeds on or after the Closing Date
unless all of the following conditions are satisfied:
(i) All of the Loan Documents provided for herein in form and
substance satisfactory to Agent to evidence and secure the Revolving
Loans must have been executed and delivered to Agent, and all other
documents required hereunder shall have been delivered to Agent.
(ii) All warranties and representations made in the Loan
Documents, including the representations and warranties set forth in
Article 5 hereof, must be true and correct as of the date the funds are
advanced.
(iii) All covenants made in the Loan Documents must have been
fulfilled as of the date of the disbursement of the loan proceeds.
(iv) Borrower must not otherwise be in default hereunder or
under any other Loan Document.
4.11 Unused Facility Fee. Borrower shall pay Agent an unused facility
fee, payable quarterly in arrears on each June 15, September 15, December 15 and
March 15, and on the Revolving Credit Loan Maturity Date, equal to one-eighth of
one percent (1/8%) per year, calculated on the amount as to each such calendar
quarter by which (a) the average daily amount of the Commitment during the three
(3) months then ended exceeds (b) the average daily Total Exposure during such
period. Within a reasonable time of its receipt of each quarterly payment of the
unused facility fee, Agent shall remit to each Lender a portion of the unused
facility fee equal to each Lender's Percentage. Borrower agrees that this unused
facility fee is fair and reasonable considering the condition of the money
market, the creditworthiness of Borrower, the interest rate to be paid, and the
nature of the security for the Revolving Loans.
4.12 Inability to Determine Interest Rate. In the event that the Agent
shall have determined (which determination shall be conclusive and binding upon
the Borrower) that (a) by reason of circumstances affecting the interbank
eurodollar market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for any Interest Period with respect to (i) proposed
Revolving Loans that the Borrower has requested be made as Eurodollar Loans,
(ii) any Eurodollar Loans that will result from the requested conversion of all
or part of the Prime Rate Loans into Eurodollar Loans or (iii) the continuation
of any Eurodollar Loan as such for an additional Interest Period; or (b) dollar
deposits in the relevant amount and for the relevant period with respect to any
such Eurodollar Loan are not generally available to the Lenders in their
interbank eurodollar markets, the Agent shall forthwith give telex or telecopy
notice of such determination, confirmed in writing, to the Borrower at least one
(1) Business Day prior to, as the case may be, the requested Borrowing Date, the
conversion date or the last day of such Interest Period. If such notice is given
(i) any requested Eurodollar Loans shall be made as Prime Rate Loans, (ii) any
Prime Rate Loans that were to have been converted to Eurodollar Loans shall be
continued as Prime Rate Loans, and (iii) any outstanding Eurodollar Loans shall
be converted, on
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the last day of the then current Interest Period applicable thereto, into Prime
Rate Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made.
4.13 Illegality. Notwithstanding any other provisions herein, if any
Change in Law occurring after the date hereof, shall make it unlawful for
Lenders to make or maintain Eurodollar Loans as contemplated by this Agreement,
the commitment of Lenders hereunder to make Eurodollar Loans or to convert all
or a portion of Prime Rate Loans into Eurodollar Loans shall forthwith be
canceled and Lenders' Revolving Credit Loans then outstanding as Eurodollar
Loans, if any, shall, if required by law, be converted automatically to Prime
Rate Loans. To the extent that such affected Eurodollar Loans are converted into
Prime Rate Loans, all payments of principal which would otherwise be applied to
such Eurodollar Loans shall be applied instead to Prime Rate Loans. The Borrower
hereby agrees promptly to pay Agent, upon its demand, any additional amounts
necessary to compensate Lenders for any costs incurred by Lenders in making any
conversion in accordance with this Section 4.13 including, but not limited to,
any interest or fees payable by Lenders and/or Agent to lenders of funds
obtained by them in order to maintain their Eurodollar Loans hereunder (Agent's
notice of such costs, as certified in reasonable detail as to such amounts to
the Borrower, to be conclusive absent manifest error).
4.14 Indemnity. The Borrower agrees to indemnify Lenders and Agent and
to hold Lenders and Agent harmless from any loss or expense which they may
sustain or incur as a consequence of (a) default by the Borrower in payment of
the principal amount of or interest on any Eurodollar Loans, including, but not
limited to, any such loss or expense arising from interest or fees payable by
Agent and/or Lenders to lenders of funds obtained by them in order to make or
maintain its Eurodollar Loans hereunder, (b) default by the Borrower in making a
borrowing after the Borrower has given a notice in accordance with Section 4.4
or in making a conversion of Prime Rate Loans to Eurodollar Loans after the
Borrower has given notice in accordance with Section 4.7, or (c) a payment or
prepayment of a Eurodollar Loan or conversion of any Eurodollar Loan into a
Prime Rate Loan, in either case on a day which is not the last day of an
Interest Period with respect thereto, including, but not limited to, any such
loss or expense arising from interest or fees payable by Agent and/or Lenders to
lenders of funds obtained by them in order to maintain their Eurodollar Loans
hereunder. Borrower further agrees to pay to Agent and/or Lender an amount equal
to the excess, if any, of (i) the amount of interest which otherwise would have
accrued on the principal amount paid, prepaid, converted or not borrowed for (A)
the period from the date of such payment or prepayment to the last day of the
Interest Period applicable to such Eurodollar Loan or (B) in the case of a
failure to borrow or to convert to a Eurodollar Loan, the Interest Period
applicable to such Eurodollar Loan which would have commenced on the date
specified for such borrowing or conversion, at the applicable rate of interest
for such Eurodollar Loan provided for herein minus (ii) the interest component
of the amount Agent and/or Lenders would have bid in the London interbank
market. This covenant shall survive termination of this Agreement and payment of
the outstanding Notes.
4.15 Closing Costs. On or before the Closing Date, Borrower shall pay
all costs incurred by Borrower and Agent and/or Lenders as a result of this
transaction, including Agent's and/or Lenders' reasonable counsel fees and
expenses.
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4.16 Security. The Revolving Loans, the Swing Line Loans, and any and
all expenses, liabilities or obligations of Borrower to Agent and/or Lenders
arising therefrom or associated therewith, whether now existing or hereafter
arising, including any indebtednesses or obligations created or arising under
any other Loan Document, shall be secured by the security interest in the
Accounts Receivable and Inventory created under the Security Agreement.
4.17 Conditions Precedent to All Revolving Credit Loan Advances. The
obligation of Lenders to make Revolving Credit Advances pursuant hereto
(including the initial advance at the Closing Date) shall be subject to the
following additional conditions precedent:
(a) The Borrower shall have furnished to Agent each of the
items referred to in Sections 2.1 and 2.2 hereof, all of which shall
remain in full force and effect as of the date of such Revolving Credit
Advance (notwithstanding that Agent may not have required any such item
to be furnished prior to the Closing Date).
(b) The Borrower shall not be in default of any of the terms
and provisions hereof or of any instrument or document now or at any
time hereafter evidencing or securing all or any part of the Revolving
Credit Loan indebtednesses. Each of the warranties and representations
of the Borrower, as set out in Article 5 hereof, shall remain true and
correct in all material respects as of the date of such Revolving
Credit Loan Advance.
(c) On the Closing Date and not later than the 15th day of
each calendar month thereafter, Borrower shall furnish to the Agent a
Borrowing Base Certificate and on the dates specified in Section 6.1(b)
Borrower shall furnish Agent a Non-Default Certificate executed by a
Responsible Officer of Borrower, in the form of EXHIBITS "A" and "B-1"
THROUGH "B-3," respectively, attached hereto.
4.18 Lending Installations. Each Lender may book its Revolving Credit
Loans at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation and the Notes shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by written
or telex notice to the Agent and the Borrower, designate a Lending Installation
through which Revolving Credit Loans will be made by it and for whose account
Revolving Credit Loan payments are to be made.
4.19 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Revolving Credit Loan or (ii) in the case of the Borrower, a
payment of principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so
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made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to (i) in the case of payment by a Lender, the Prime Rate
for such day or (ii) in the case of payment by the Borrower, the interest rate
applicable to the relevant Revolving Credit Loan.
4.20 Withholding Tax Exemption. At least five (5) Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
each of the Borrower and the Agent two (2) duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such form
(or a successor form) on or before the date that such form expires [currently,
three (3) successive calendar years for Form 1001 and one (1) calendar year for
Form 4224] or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Borrower
or the Agent, in each case certifying that such Lender is entitled to receive
payments under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes, unless an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants to Agent and Lenders as
follows:
5.1 Validity of Loan Documents. The execution, delivery and performance
of the Loan Documents have been duly authorized by all requisite action of the
Borrower, and the Loan Documents are in all respects legal, valid, binding and
enforceable in accordance with their respective terms.
5.2 Corporate Status. Borrower is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and is
qualified to do business in the State of Tennessee. Borrower has the power and
authority to own and operate its properties and to transact the business in
which it is engaged or presently proposes to engage. Borrower is duly qualified
as a foreign entity and in good standing in each other state where the nature of
its business or the ownership or use of its property requires such qualification
and where the failure to so qualify would have a material adverse effect on the
conduct of the Borrower's business.
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5.3 No Violation of Agreements. The Borrower is not in material default
under any indenture, mortgage, deed of trust, agreement or other instrument to
which it is a party or by which it may be bound. Neither the execution and
delivery of this Agreement, the Notes, or any of the other Loan Documents, nor
the consummation of the transactions herein and therein contemplated, nor
compliance with the provisions hereof or thereof will violate any law or
regulation or any order or decree of any court or governmental instrumentality
in any material respect, or conflict with, result in the material breach of, or
constitute a material default under, any indenture, mortgage, deed of trust,
agreement or other instrument to which Borrower is a party or by which it may be
bound, or result in the creation or imposition of any lien, charge or
encumbrance upon any property of the Borrower, or violate any provision of the
charter or bylaws or any preferred stock provisions of Borrower.
5.4 No Burdensome Agreements. Borrower is not a party to any agreement
or instrument or subject to any restriction (including any restriction set forth
in Borrower's organizational documents) which could materially adversely affect
the operations, businesses, properties, or financial condition of Borrower, none
of which are presently in default or subject to a condition of default.
5.5 No Litigation. There are no actions, suits or proceedings pending,
or to the knowledge of Borrower, threatened, against or affecting Borrower
before any court, arbitrator or governmental or administrative body or agency
which might materially affect the Collateral or result in any material adverse
change in the business, operations or financial condition of the Borrower,
except matters fully covered by insurance or previously disclosed to Agent and
Lenders in writing and adequately reserved against on the financial books of
Borrower. Borrower is not in default in any material respect under any
applicable statute, rule, order, decree or regulation of any court, arbitrator
or governmental body or agency having jurisdiction over the Borrower.
5.6 Tax Liability. Borrower has filed all tax returns which are
required to be filed, and has paid all taxes which have become due pursuant to
such returns or pursuant to any assessments received by Borrower.
5.7 Governmental Action. No action of, or filing with, any governmental
or public body or authority is required to authorize, or is otherwise required
in connection with, the execution, delivery and performance of this Agreement or
any of the instruments or documents to be delivered pursuant to this Agreement
or to transact the business of Borrower in the manner and in each state
contemplated hereby, except such actions or filings in various states, including
the State of Tennessee, heretofore undertaken by Borrower, such actions and
filings as may be required under the Federal Assignment of Claims Act of 1940,
as amended, with respect to United States Government Receivables, and such
actions and filings required periodically in accordance with applicable state
law, rules or regulations.
5.8 Disclosure. Neither this Agreement, the financial statements
referred to in Section 6.1(b) hereof, nor any certificate, statement, report or
other document furnished or to be furnished to Agent and/or Lenders by Borrower
in connection herewith or in connection with any
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transaction contemplated hereby contains, or at the time furnished, will
contain, any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements contained therein or herein not
misleading.
5.9 Financial Condition. (a) The 1999 Audited Statement of Borrower and
the Interim Financial Statement of Borrower, copies of each of which have been
furnished to Agent, together with any explanatory notes therein referred to and
attached thereto, are correct and complete and fairly present the financial
condition of Borrower as of the date of said financial statements and the
results of the operations of Borrower for the periods covered thereby. All such
financial statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis maintained through
the period involved.
(b) There has been no material adverse change in the business,
properties or condition, financial or otherwise, of Borrower since May 31, 1999,
the date of the Interim Financial Statement.
5.10 Title to Assets. Borrower has good and marketable title to all of
its properties and assets reflected on the financial statements referred to in
Section 5.9 hereof, including the Collateral, and none of the Collateral is
presently leased from any Person or otherwise subject to any conditional sales
contract or other form of acquisition financing or other Lien, except for
Permitted Exceptions.
5.11 Licenses and Permits. Borrower possesses all necessary licenses,
permits and other governmental or regulatory approvals necessary to the conduct
of its business, except where the failure to have any such license, permit or
approval will not materially adversely affect the conduct of its business.
5.12 Patents and Trademarks. Borrower possesses all necessary patents,
trademarks, trade names, copyrights, and licenses necessary to the conduct of
its businesses.
5.13 ERISA. The Borrower is in substantial compliance with all
applicable provisions of ERISA and all other laws, state or federal, applicable
to any employees' retirement plan maintained or established by Borrower.
5.14 Fiscal Year-End; Organizational Documents. Except as provided in
Section 6.1(w), Borrower does not presently contemplate changing its fiscal
year-end or amending its Articles of Incorporation or Bylaws.
5.15 Inventory. All Inventory that Borrower has produced has been
produced in compliance with the minimum wage and overtime pay provisions of the
FLSA. The Inventory (other than Inventory in transit or in temporary storage as
provided in Section 6.1(r)) is stored only at the Borrower's own manufacturing
and production facilities or the locations identified on SCHEDULE 5.15 hereto,
which accurately identifies (a) the location of each warehouse or other facility
at which inventory is stored, and (b) the owner and operator of such facility.
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ARTICLE 6
COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Agent and Lenders as follows:
6.1 Affirmative Covenants. Unless waived by Agent in writing, Borrower
covenants and agrees that from and after the date hereof until payment in full
of the Indebtedness, including the principal of, and interest on, the Revolving
Loans, the Swing Line Loan, and all other costs and expenses due and owing on
account of any of the Loan Documents:
(a) Taxes and Other Liens. Borrower will duly pay and discharge all
taxes, assessments, and governmental charges levied or assessed upon Borrower or
the Collateral, prior to the date on which penalties are attached thereto, and
shall pay all claims for labor, supplies, rent, and other obligations which, if
unpaid, might become a lien against the Collateral; provided, however, that to
the extent that any of the same shall be contested in good faith by appropriate
proceedings satisfactory to Agent and adequate reserves are set aside to pay the
tax or assessment and any interest charges or penalties associated therewith,
Borrower shall not be obligated to pay any of the foregoing unless and until any
of the aforementioned taxes, assessments, charges or claims shall finally be
resolved and become a lien against the Collateral.
(b) Financial Reports of Borrower. Borrower shall furnish to Agent:
(i) as soon as available, but in any event within ninety (90)
days after the end of each fiscal year of the Borrower, a copy of the
audited balance sheets of the Borrower as at the end of such fiscal
year, and the related statements of common stockholders' equity and
cash flows and the statement of income and retained earnings of the
Borrower for such fiscal year, setting forth in each case, in
comparative form the corresponding figures for the previous year or
portion thereof, all in reasonable detail and with Inventory calculated
on a first-in, first-out basis, certified for all fiscal years
commencing with the fiscal year ending February 29, 2000, without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by the accounting firm, BDO
Xxxxxxx, L.L.P., or some other independent certified public accountants
of nationally recognized standing acceptable to the Agent (such
accountants being called herein the "Reporting Accountants"), together
with (A) a letter from the Reporting Accountants stating that, in
making the examination necessary to express their opinion on such
financial statements, no knowledge was obtained of any Default or Event
of Default under subsections (l) through (o) hereof, except as
specified in such letter, and (B) a certificate signed by a Responsible
Officer in the form of EXHIBIT "B-1" hereto;
(ii) as soon as available, but in any event within forty-five
(45) days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, or if an extension has been granted
by the Securities and Exchange Commission (the "Commission") for the
filing by the Borrower of its quarterly report on Form 10-Q, then by
the earlier of the date such Form 10-Q is actually filed and the last
day of such
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extended time period, a copy of the unaudited balance sheets of the
Borrower as at the end of each such quarter and the related unaudited
statements of stockholders' equity and cash flows and the statement of
operations and retained earnings of the Borrower for such quarterly
period and the portion of the fiscal year through such date, setting
forth in each case in comparative form the figures for the previous
year, certified by the Responsible Officer (subject to normal year-end
audit adjustments), which certificate shall be in the form of EXHIBIT
"B-2" hereto;
(iii) as soon as available, but in any event within twenty
(20) days after the end of each month (other than months which coincide
with the end of a fiscal year or quarter), a copy of the unaudited
balance sheets of the Borrower as at the end of the preceding month and
the related unaudited statements of stockholders' equity and cash flows
and the statement of operations and retained earnings of the Borrower
for such monthly period and the portion of the fiscal year through such
date, setting forth in each case in comparative form the figures for
the previous year, certified by the Responsible Officer (subject to
normal year-end audit and quarterly adjustments) which certificate
shall be in the form of "EXHIBIT B-3" hereto; and
(iv) as soon as available, but in any event within forty-five
(45) days of the Borrower's fiscal year end, a copy of the preliminary
balance sheets of the Borrower as of the end of such fiscal year and
the related preliminary statements of stockholders' equity and cash
flows and the preliminary statements of operations and retained
earnings for such fiscal year.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal year-end audit
and quarterly adjustments) and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein (except as concurred in by such Reporting Accountants or Responsible
Officer, as the case may be, and disclosed therein).
(c) Certificates; Other Information. Borrower shall furnish to Agent:
(i) promptly upon receipt thereof, copies of all final reports
submitted to the Borrower by Reporting Accountants or other independent
certified public accountants in connection with each annual, interim or
special financial audit of the books of the Borrower made by such
accountants, including, without limitation, any final comment letter
submitted by such accountants to management in connection with their
annual audit;
(ii) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent by the
Borrower to their security holders (or, if made available generally by
the Borrower to their security holders, Borrower shall make such
statements, reports and notices available to Agent on the same basis)
and shall furnish to Agent copies of all regular and periodic reports
and all final registration statements and final prospectuses, if any,
filed by the Borrower with any securities
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exchange or with the Commission or any governmental authority
succeeding to any of its functions;
(iii) unless such information is already contained in the
financial statements provided to Agent pursuant to subsections (b)(i),
(b)(ii) and (b)(iii) above or the reports and other information filed
with the Commission (copies of which are provided to Agent pursuant to
subsection (c)(ii) above), concurrently with the delivery of the
financial statements of the Borrower referred to in subsections (b)(i),
(b)(ii) and (b)(iii): (a) a summary of divisional sales for the month
or quarter, as applicable, and for the period from the beginning of the
fiscal year through the last month being reported on, with comparisons
for the corresponding periods in the preceding fiscal year; and (b)
with respect to annual and quarterly financial statements, the
Borrower's management's discussion of operations for the relevant
quarterly and annual results; and
(iv) promptly, such additional financial and other information
(including, without limitation, more frequent cash flow projections) as
Agent may from time to time reasonably request.
(d) Warehouse Agreements. Borrower shall not at any time be in
substantial default under any warehousing agreements pursuant to which Inventory
is stored or allow any material default by any other party thereto, and Borrower
shall take such action as reasonably necessary to maintain the warehouse
agreements without default and to protect Agent's security interest in the
Inventory therein.
(e) Casualty, Condemnation or Governmental Action. Within fifteen (15)
days of Borrower's receipt of any notice of any (i) casualty, (ii) condemnation
or (iii) inquiry, action, suit or proceeding by any federal, state or municipal
body, agency or instrumentality ("Governmental Action") affecting or otherwise
relating to (x) the Collateral or (y) any other asset of Borrower [but, in the
case of any asset other than the Collateral, only if the effect thereof could
adversely financially impact Borrower by more than Three Million Dollars (U.S.
$3,000,000)], Borrower shall notify Agent of such casualty, condemnation or
Governmental Action, the nature and scope of such matter and Borrower's intended
action to address such casualty, condemnation or Governmental Action.
(f) Maintenance of Corporate Existence and Borrower's Business. Unless
it shall be necessary to alter or change its legal existence in connection with
a change or alteration by Borrower of its present corporate structure, Borrower
shall maintain its legal existence and good standing in all states in which it
conducts business, and keep in full force and effect its existence, rights and
franchises, comply with all laws applicable to it and continue to conduct and
operate its business substantially as conducted and operated during the present
and preceding calendar years.
(g) Inspection. Borrower shall (i) admit to its business premises
representatives of Agent (at Agent's cost and expense prior to an Event of
Default) at all reasonable hours for the purpose of examining its business
operations, and the books and records pertaining thereto, and (ii) cause
representatives of Agent to be admitted to all warehouses at which Inventory is
stored at reasonable times and intervals as requested by Agent (at Borrower's
cost and expense to the
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extent of one visit to each company-controlled warehouse per year or following
an Event of Default, and otherwise at Agent's sole cost and expense).
(h) Maintain Collateral. Except for sales of Inventory in the ordinary
course of Borrower's business, Borrower shall maintain, preserve and protect all
of the Collateral in accordance with Borrower's customary business practice.
(i) Notice of Default. At the time of its first knowledge or notice,
Borrower shall furnish the Agent with written notice of the occurrence of any
event or the existence of any condition which constitutes or, upon written
notice or lapse of time or both, would constitute an Event of Default under the
terms of this Agreement or any of the Loan Documents.
(j) Additional Information. Borrower shall furnish such other
information regarding the operations, business affairs and financial condition
of Borrower and (to the extent reasonably available) its Account Debtors, and
regarding the condition of the Collateral, as Agent may reasonably request,
including, but not limited to, true and exact copies of Borrower's books of
account and tax returns, and all information furnished to the shareholders of
Borrower or to or from any governmental authority on account of Borrower;
provided, however, that Agent covenants and agrees that it will hold all such
information confidential, as required pursuant to the Tennessee Financial
Records Privacy Act, in effect from time to time and any similar federal
legislation.
(k) Notice of Adverse Change in Assets or Business. At the time of
Borrower's first knowledge or notice, Borrower shall immediately notify Agent of
any information that may adversely affect, in any material manner, the assets or
operations of the Borrower.
(l) Working Capital Floor. At the end of each fiscal year of Borrower,
Borrower's current assets minus current liabilities shall never be less than
Twenty-Five Million Dollars (U.S. $25,000,000.00).
(m) Tangible Net Worth. Borrower shall maintain on a consolidated basis
as of the last day of each fiscal quarter a Tangible Net Worth of not less than
Forty Two Million Dollars (U.S. $42,000,000.00), adjusted upward by fifty
percent (50%) of its net earnings, and adjusted downward by fifty percent (50%)
of its net losses, in each case on a cumulative basis during the term of the
Revolving Loan; provided that the adjustment required hereby as a result of
fifty percent (50%) of net losses shall never reduce the Tangible Net Worth
requirement below U.S. $42,000,000.00. The Tangible Net Worth requirement in
this covenant will be reduced by the amount of any additional liability
recognized by the Borrower as a result of the application of FASB 109 to the
Borrower's books and records, but this reduction shall not reduce the
requirement below U.S. $42,000,000.00. As used herein, the term "Tangible Net
Worth" means the remainder of (i) all assets of Borrower, other than intangible
assets (including, without limitation, patents, copyrights, licenses,
franchises, goodwill, trade names, trade secrets and leases other than leases
required to be capitalized under generally accepted accounting principles),
minus (ii) Borrower's Debt. The term "Borrower's Debt" means all liabilities and
similar balance sheet items of Borrower. Notwithstanding the foregoing, in the
event that the Stock Re-Purchase
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Transaction described in Section 6.1(w) closes on or before July 1, 2000, then
the required minimum Tangible Net Worth required pursuant hereto shall decrease
to Twenty-Seven Million Five Hundred Thousand Dollars (U.S. $27,500,000.00),
subject to adjustments for net income or net losses as noted above.
(n) Debt to Equity Ratio. At the end of each fiscal year of Borrower,
the ratio of Borrower's Debt to Borrower's Tangible Net Worth shall not be more
than 2.0 to 1.0; provided, however, that in the event the Stock Re-Purchase
Transaction described in Section 6.1(w) closes on or before July 1, 2000, then
the required Debt to Equity Ratio shall be revised to 3.5 to 1.0.
(o) Coverage Ratio. At the end of any fiscal year of Borrower in which
Borrower sustains a net loss of more than Three Million Dollars (U.S.
$3,000,000.00), the ratio of (i) Net Income for such fiscal year plus interest
expense for such fiscal year plus depreciation expense for such fiscal year to
(ii) such fiscal year's current maturities of long-term debt (excluding
principal payments on any revolving credit facilities) plus interest expense for
such fiscal year shall not be less than 1.2 to 1.0. For purposes hereof, the
term "Net Income" shall mean for the applicable period, Borrower's earnings,
less normal and customary business expenses and the payment of any state or
federal income taxes.
(p) Change in Fiscal Year-End. In the event Borrower shall change its
fiscal year-end, Lender shall have the option, at its sole discretion, of
determining the twelve (12) month period or other applicable periods against
which the financial covenants set forth in Subsections 6.1(l), (m), (n) and (o)
above shall be measured for purposes of determining Borrower's compliance
therewith.
(q) Insurance. Borrower will keep or cause to be kept the Inventory
adequately insured by its present insurers or other financially sound and
reputable insurers acceptable to Agent, in amounts and under policies acceptable
to the Agent. Any insurance policies covering the Collateral or any portion
thereof shall be endorsed (i) to provide for payment of losses to Agent as its
interests may appear, (ii) to provide that such policies may not be cancelled,
reduced or affected in any manner for any reason without ten (10) days prior
notice to Agent, (iii) to provide that no such insurance shall be affected by
any act or neglect of the insured or owner of the property described in such
policy, and (iv) to provide for insurance against fire, theft, burglary,
pilferage, loss in transit and such other hazards as the Agent shall reasonably
specify. Borrower shall at all times maintain adequate insurance against its
liability for injury to persons or property, which insurance shall be by
financially sound and reputable insurers and shall name Agent as additional
insured. Such policies shall provide deductible or co-insurance levels
commensurate with those currently in effect.
All premiums for all insurance policies shall be paid as and when due
by Borrower, and copies of the insurance policies and all amendments and
endorsements thereto shall be delivered by Borrower to Agent. Borrower shall
immediately notify Agent of any casualty or other claim in excess of Fifty
Thousand Dollars (U.S. $50,000.00) under any insurance policy relating to the
Collateral (or as otherwise required pursuant to subsection (e) above), and,
after an Event of Default, Agent is hereby authorized and empowered, at its
option, to adjust or compromise any
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loss under any of the insurance policies required hereby and all insurance
proceeds payable under any such insurance policies relating to the Collateral or
as otherwise required hereby shall be paid to Agent (subject to any superior
rights of any lender of Borrower under any loan existing as of the Closing
Date), which shall have the right to either apply the proceeds received
therefrom to the Revolving Loans or any other cost, expense or obligation
arising therefrom or otherwise related thereto or allow Borrower to apply all or
a portion of the insurance proceeds to the casualty loss for which the claim was
paid. However, if there shall be then no continuing Event of Default, Borrower
shall have the right to use the insurance proceeds as (A) a reduction of the
amount of Revolving Loans outstanding, to the extent such outstanding amount
exceeds the Borrowing Base, and (B) otherwise to meet its working capital needs
in the ordinary course of business.
(r) Inventory. Borrower shall cause all of the Inventory that Borrower
produces to be produced in compliance with the FLSA. Except for inventory in
transit and temporary storage to meet unanticipated warehousing needs or
conditions, all of Borrower's Inventory shall be kept and maintained at
Borrower's own facilities or at the warehouses identified on SCHEDULE 5.15
hereto, as it may be supplemented from time to time. Borrower shall supplement
such SCHEDULE 5.15 as provided in Section 6.1(s) by giving the Agent written
notice of each location not included therein at which the Borrower has commenced
to store Inventory, not later than the fifteenth (15th) day of the calendar
month following the date on which Borrower commenced using such new warehouse
facility.
(s) Borrowing Base Certificate. Borrower shall furnish to Agent on the
fifteenth (15th) day of each calendar month a Borrowing Base Certificate
substantially in the form of EXHIBIT "A" attached hereto, executed by a
Responsible Officer of Borrower stating the Borrowing Base as of the last day of
the immediately preceding calendar month, and having attached thereto an
inventory report, an accounts receivable aging report and a listing of accounts
receivable, listing each account, and an accounts payable summary aging report,
with a detail listing of those accounts payable due to growers of agricultural
commodities, all to be as of the last day of the immediately preceding calendar
month, certified by the Responsible Officer of Borrower. The inventory report
shall specify the location of all Acceptable Inventory, and shall report the
value of such Inventory at the lower of current year's anticipated cost or
market value. The accounts receivable aging report shall report Borrower's total
accounts receivable and shall segregate such accounts receivable into
categories, according to whether such accounts receivable remain unpaid for no
more than sixty (60) days from the date of invoice, or for more than sixty (60)
days, but no more than ninety (90) days from the date of invoice, or more than
ninety (90) days from the date of invoice, and according to whether the account
debtor is a department, agency or other instrumentality of the federal
government of the United States.
(t) [RESERVED]
(u) Collection of Receivables. Borrower shall cause all checks and
other items that it may receive in payment of Accounts Receivable to be
deposited in accounts that do not contain any proceeds of Mushroom Receivables
securing the Rabobank Indebtedness, and Borrower shall take
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such other actions as may be necessary to assure that no portion of the Accounts
Receivables (or proceeds thereof) is commingled with the Mushroom Receivables
(or proceeds thereof).
(v) Over-Advances. In the event the Total Exposure shall at any time
exceed the Lenders' Aggregate Commitment under Section 4.1, the Borrower shall,
within three (3) Business Days thereof, make a principal payment the effect of
which shall be to reduce the Total Exposure to not more than the Aggregate
Commitment.
(w) Stock Repurchase. Notwithstanding any other provision of this
Agreement to the contrary, Borrower shall be permitted to repurchase up to
Fifteen Million Dollars (U.S. $15,000,000.00) of its own shares through July 1,
2000. Agent and Lenders acknowledge that Borrower has notified them that
Borrower intends to convert from a publicly-traded company to a privately-held
company via this stock repurchase. Agent and Lenders have consented to the
proposed transaction, provided that it close on or before the date listed above,
and further provided that the final structure of the Borrower following the
transaction and the terms of the transaction do not materially differ from those
set out in the Agreement and Plan of Merger dated May 14, 1999 among Borrower,
Pictsweet LLC and UF Acquisition Corp., a copy of which has been provided to
Lenders.
6.2 Negative Covenants. Unless Borrower shall first obtain the prior
written consent of Agent (which consent shall not be unreasonably withheld),
from and after the date hereof until final payment in full of the principal of,
and interest on, the Revolving Loans and all other costs and expenses due and
owing on account of any of the Loan Documents, Borrower agrees that it will not,
either directly or indirectly:
(a) Mortgages, Liens, Etc. Create, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on
the Collateral, except for:
(i) Liens in favor of Agent and/or Lenders securing payment of
the Revolving Loan;
(ii) Liens for taxes not yet due and payable, provided that
adequate reserves with respect thereto are maintained on the books of
Borrower, in conformity with GAAP;
(iii) landlord's, mechanics', materialmen's, repairmen's,
warehousemen's, carriers' or other similar Liens (including Liens
created by creditors of Persons engaged in farming operations to the
extent that such Liens continue in farm products that are purchased by
the Borrower and become part of the Collateral) arising in the ordinary
course of Borrower's business, provided such liens are immediately
discharged in the event that steps are instituted to enforce such liens
unless the underlying obligations are being contested in good faith,
and an adequate reserve is maintained on the books of Borrower in
conformity with GAAP; or
(iv) judgment liens which do not otherwise constitute an Event
of Default.
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(b) Sale of Collateral. Sell, lease, transfer or dispose (other than in
the normal course of business) of all or a substantial part of the Collateral.
(c) Disposition of Assets; Cessation of Business. Dispose of a
substantial part of its assets except in the ordinary course of business, cease
its business operations or otherwise liquidate or dissolve.
(d) Loans and Guarantees. Loan or advance any funds to officers,
directors or other Affiliates or loan or advance or be or become liable with
respect to any guaranty of any obligation of any Person, which at any time
during the term of the Revolving Credit Loan, singly or in the aggregate,
exceeds Five Million Dollars (U.S. $5,000,000.00).
(e) New Business. Expand, acquire or enter into any business which is
substantially different than those businesses in which the Borrower is presently
engaged.
(f) Consolidation or Merger; Acquisition of Assets. Except with respect
to the Stock Re-Purchase Transaction described in Section 6.1(w), enter into any
transaction of merger or consolidation, acquire any other business or
corporation, or acquire all or substantially all of the property or assets of
any other Person or entity, (i) the result of which in any of the foregoing
transactions is to have acquired the assets of any Person which are not
primarily used in connection with a business which is agribusiness in nature or
(ii) the result of which is a surviving entity which is not primarily in a
business which is agribusiness in nature [for purposes of this Section 6.2(f),
the term "agribusiness" shall mean a business the principal product of which is
food or fiber-related], or (iii) which results in a Person, other than Borrower,
being the surviving entity.
(g) Amendment to Organizational Documents. Without the prior written
consent of the Lenders, which will not be unreasonably withheld, amend the
Articles of Incorporation and/or Bylaws of Borrower.
(h) Change in Fiscal Year-End. Change Borrower's fiscal year-end.
(i) Transactions with Affiliates. Enter into or otherwise effect any
transaction with any Affiliate on a basis less favorable to Borrower than would
be the case if such transaction had been effected with a Person who is not an
Affiliate.
(j) Sale of Accounts Receivable. Sell, factor or otherwise dispose of
any of its Accounts Receivable or any promissory note or obligation acquired by
it in satisfaction or settlement of an Account Receivable, with or without
recourse.
6.3 Payment of Taxes. If any documentary or recording tax should be
assessed or the affixing of any stamps be required in connection with the
borrowing hereunder or any security therefor by federal, state or local
governments, Borrower will pay all such taxes and the cost of any such stamps
and any other recording expenses and transfer taxes related thereto.
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In the event of passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date hereof, in
any manner changing or modifying the laws now in force governing the taxation of
security agreements or debts secured thereby (excluding, however, any tax on or
measured by the income of Agent/Lenders received as a result of this
transaction), or the manner of collecting such taxes, so as to adversely affect
Agent/Lenders or their expected return on their investment in the Revolving
Loan, Borrower will pay any such tax on or before the due date thereof.
6.4 Expenses. Borrower shall pay all reasonable costs of closing the
Revolving Loan and all reasonable expenses of Agent and Lenders with respect
thereto and all reasonable expenses of Agent and Lenders thereafter incurred on
account of the Revolving Loan, including, but not limited to, all legal fees and
expenses, advances, recording expenses, documentary stamp fees, intangible
taxes, note taxes, mortgage taxes, transfer taxes, expenses of private or public
sale, repossession or foreclosure costs and expenses (including trustees' and
attorneys' fees) and all other similar items. In addition, Borrower shall pay
all reasonable costs of Agent as provided in Section 6.1(g) and after an Event
of Default, in inspecting the Borrower's business operations, books or records.
Borrower agrees that all Closing papers, Loan Documents and other legal
instruments and matters will be subject to the prior approval of Agent's and
Lenders' attorneys.
6.5 Further Assurances; Additional Documents. Borrower shall:
(a) furnish to Agent all instruments, documents, certificates,
insurance reports and agreements, and each and every other document and
instrument required to be furnished by the terms of the Loan Documents,
all at Borrower's expense;
(b) execute and deliver to Agent such documents, instruments,
assignments and other writings, and do such other acts necessary or
desirable to further evidence the obligations provided herein, as Agent
may reasonably require from time to time; and
(c) do and execute all and such further lawful and reasonable
acts, conveyances and assurances, including, but not limited to,
assignments and notices of assignments of United States Government
Receivables, as contemplated under the Federal Assignment of Claims Act
of 1940, as amended, for the better and more effective carrying out of
the intents and purposes of this Agreement as Agent shall reasonably
require from time to time.
ARTICLE 7
EVENTS OF DEFAULT
An Event of Default shall be deemed to have occurred hereunder if:
7.1 Payment of Principal, Interest. (i) Borrower defaults in the prompt
payment as and when due of principal or interest on the Revolving Credit Loan
pursuant to the Revolving Credit Note or any other Indebtedness due under this
Agreement or any of the other Loan Documents,
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(ii) Borrower defaults in the prompt payment as and when due of principal or
interest on the Swing Line Note and/or Swing Line Loan, or (iii) Borrower fails
to pay any other obligations to Agent and/or Lenders when due, and in any such
event such default is not cured within ten (10) days of the date such payment is
due; or
7.2 Payment of Other Obligations by Borrower. Unless, but only so long
as, the existence of any such default is being contested by the Borrower in good
faith by appropriate proceedings and adequate reserves in respect thereof have
been established on the books of the Borrower, (a) Borrower shall fail to pay
when due and payable in accordance with Borrower's normal cash management
practices the principal of or interest on any loan, debt, lease obligation or
guaranty (other than the Revolving Indebtedness or amounts due under the Swing
Line Note) which, in the aggregate, shall exceed at any time Five Hundred
Thousand Dollars (U.S. $500,000.00) (collectively, the "Other Obligations"); or
(b) the maturity of any such Other Obligation shall have (i) been accelerated in
accordance with the provisions of any indenture, contract or instrument
providing for the creation of or concerning such Other Obligation or (ii) been
required to be prepaid prior to the stated maturity thereof; or (c) any event
shall have occurred and be continuing which would permit any holder or holders
of such Other Obligation, any trustee or agent acting on behalf of such holder
or holders or any other Person so to accelerate such maturity; or
7.3 Representation or Warranty. Any representation or warranty made by
Borrower herein, or in any report, certificate, financial statement or other
writing furnished or to be furnished in connection with or pursuant to this
Agreement shall prove to be false, misleading or incomplete in any material
respect; or
7.4 Covenants. Borrower defaults in the performance or observance of
any covenant, condition, agreement or undertaking on its part to be performed or
observed in accordance with the terms hereof or the Notes or any other Loan
Document or pursuant to any instrument or document which now or hereafter
evidences or secures all or any part of the Revolving Loan and such default
shall continue uncured for a period of thirty (30) days after (unless as a
result of one or more of the provisions of this Article VII, different "cure
periods" are required, in which event the "cure period" required for the
particular provision shall control); or
7.5 Bankruptcy, Etc. (i) Borrower (a) commences a voluntary case under
the federal bankruptcy laws (as now or hereafter in effect); (b) files a
petition seeking to take advantage of any other laws, domestic or foreign
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts; (c) consents to or fails to contest in a timely and
appropriate manner any petition filed against Borrower in an involuntary case
under such bankruptcy laws or other laws; (d) applies for or consents to, or
fails to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of
Borrower or of a substantial part of its property, domestic or foreign; (e)
admits in writing its inability to pay its debts as they become due; (f) makes a
general assignment for the benefit of creditors; or (g) takes any formal
corporate action for the purpose of effecting any of the foregoing; or (ii) (x)
a case or other proceeding is commenced against Borrower in any court of
competent jurisdiction seeking relief under the federal bankruptcy laws (as now
or
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hereafter in effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts; or
(y) the appointment of a trustee, receiver, custodian, liquidator or the like of
the Borrower or of all or any substantial part of the assets, domestic or
foreign, of the Borrower, and, with respect to clauses (x) and (y) hereof, such
case, proceeding or appointment shall continue undismissed or unstayed for a
period of sixty (60) consecutive calendar days, or (iii) an order granting the
relief requested in the case, proceeding or appointment referred to in clauses
(ii)(x) and (ii)(y) above (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered; or
7.6 Concealment of Property, Etc. Borrower shall have concealed,
removed, or permitted to be concealed or removed, any part of its properties,
with the intent to hinder, delay or defraud its creditors or any of them, or
made or suffered a transfer of any of its properties which may be fraudulent
under any bankruptcy, fraudulent conveyance or similar law; or shall have made
any transfer of its properties to or for the benefit of a creditor at a time
when other creditors similarly situated have not been paid, or shall have
suffered or permitted, while insolvent, any creditor to obtain a lien upon any
of its properties through legal proceedings or distraint which is not vacated
within thirty (30) days from the date thereof; or
7.7 Loan Documents Terminated or Void. Any of Agent's/Lenders' liens,
mortgages or assignments, including the security interest and liens created
under the Loan Documents, are invalidated for any reason other than the
negligence on the part of Agent/Lenders, and Borrower shall fail to have the
security interest and/or liens reinstated to the extent originally contemplated
by this Agreement and the Loan Documents or provide other security or collateral
of equal or greater value acceptable to Agent, in either case within thirty (30)
days of Borrower's receipt of any notice regarding the invalidation of any
security interest or lien created by the Loan Documents in favor of
Agent/Lenders; or Borrower shall deny that it has any further liability under
this Agreement, the Notes or any other Loan Document; or
7.8 Judgments. Excluding the Settlement (defined in Section 7.14
below), there shall be entered by any court any judgment or order for the
payment of money which individually or in the aggregate exceeds Five Hundred
Thousand Dollars (U.S. $500,000.00) in amount at any time, and such judgment(s)
or order(s) shall continue undischarged or unstayed for a period of thirty (30)
days; or
7.9 Attachments, Etc. A judgment, lien, warrant or writ of attachment
or execution or similar process shall be issued against (i) any of the
Collateral or (ii) any other property of Borrower which individually or in the
aggregate exceeds Five Hundred Thousand Dollars (U.S. $500,000.00) at any time
in value and, in either case, such warrant or process shall continue
undischarged or unstayed for thirty (30) days; or
7.10 Termination of Employee Benefit Plans, Etc. (i) Any "Termination
Event" under a Plan (as determined by the Plan and applicable law, rules and
regulations relating thereto) shall occur that results in an Unfunded Vested
Accrued Benefit; or (ii) any Plan shall incur an "accumulating funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) for
which a waiver has not been obtained in accordance with the applicable
provisions of
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the Code and ERISA; or (iii) Borrower is in "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a multi-employer Plan resulting
from Borrower's complete or partial withdrawal (as described in Section 4203 or
4206 of ERISA) from such Plan; or
7.11 Performance of Other Obligations. Borrower shall default in the
payment when due, or in the performance or observance, of any obligation or
condition of any contract or lease (other than one of the Loan Documents or one
relating to Revolving Indebtedness) which default shall have a materially
adverse effect on Borrower, unless, but only as long as, the existence of any
such default is being contested by Borrower in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of Borrower; or
7.12 Suits by Borrower or Affiliates. Except for good faith disputes
regarding the interpretation of this Agreement and any provisions contained in
the Loan Documents, Borrower or any Affiliate shall challenge or contest in any
action, suit or proceeding in any court or before any arbitrator or governmental
body the validity or enforceability of this Agreement, or the perfection or
priority of the security interest or any lien granted to Agent/Lenders under any
Loan Document; or
7.13 Accounts Payable to Growers. Any account payable to a grower of
agricultural commodities shall be outstanding and unpaid for more than sixty
(60) days from the due date of invoice to Borrower, except for good faith
disputes with growers that Borrower is actively attempting to resolve; or
7.14 Failure to Complete Settlement of Lawsuits. Borrower shall fail to
complete the settlement (the "Settlement") of those certain lawsuits styled
Xxxxx Xxxxxx v. United Foods, Inc., et al, Chancery Court of the State of
Delaware (Newcastle County)(C.A. 17006 NC), filed March 8, 1999 as a Class
Action Complaint and Xxxxxx X. Xxxxxxx v. Xxxxx X. Xxxxxxxxxx et. al., Chancery
Court of the State of Delaware (Newcastle County)(C.A. 17137 NC), filed May 3,
1999 as a Class Action Complaint, materially in accordance with the terms of the
settlement agreements reached between the parties to the lawsuits as of the date
of this Agreement; provided, however, that Borrower's failure to settle,
regardless of the reason or cause, shall not be an Event of Default so long as
the Settlement shall not result in a material adverse effect on Borrower's
business or financial condition.
ARTICLE 8
REMEDIES OF LENDERS
8.1 Default Constitutes Default Under Other Documents. Borrower agrees
that the occurrence of an Event of Default hereunder shall constitute a default
under each of the other Loan Documents, and the Notes, thereby entitling Agent,
on behalf of Lenders, cumulatively to exercise any of the various remedies
herein or therein provided, and to exercise all other rights, options,
privileges and remedies provided by law or in equity.
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8.2 Rights of Lender Upon Default. Upon the occurrence of any one or
more of the Events of Default set out in Article 7 hereof which is not otherwise
waived by Agent, and at any time thereafter, Agent, at its option and in
addition to and not in lieu of the remedies provided for in the other Loan
Documents, without demand, notice or presentment (except the notice and cure
provisions required to be given pursuant to the provisions of Article 7 hereof),
may (i) declare all Revolving Indebtedness to be immediately due and payable for
all purposes and may proceed to exercise all rights and remedies available to it
under this Agreement, the Revolving Credit Note and any other Loan Document, or
available at law or in equity, including the rights and remedies set forth in
Part 5, Article 9 of the Uniform Commercial Code, and (ii) charge interest on
the full amount of the Revolving Indebtedness then outstanding at a default rate
equal to three percent (3%) plus the Agent's Prime Rate.
8.3 Cumulative Remedies. All such rights and remedies are cumulative
and not exclusive of any other remedies that may be available to Agent under any
other Loan Document or at law or in equity, and may be exercised by Agent
concurrently or sequentially in such order as Agent may choose.
ARTICLE 9
THE ADMINISTRATIVE AGENT
9.1 Appointment; Nature of Relationship. FANB is hereby appointed by
the Lenders as the Agent herein and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
9. Notwithstanding the use of the defined term "Agent" it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders contractual
representative, the Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code, and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
9.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto,
including the right to receive all payments, notices and other deliveries and
communications to be given Lenders or Agent under this Agreement or any other
Loan Document; provided, however, that Agent shall not, absent the prior
approval of all Lenders, waive any default under the Loan Documents or amend any
terms set out in the Loan Documents. The Agent shall have no implied duties to
the Lenders, or any
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obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
9.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
for its or their own gross negligence or willful misconduct.
9.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article 4, except
receipt of items required to be delivered to the Agent; (iv) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; or (v) the
value, sufficiency, creation, perfection or priority of any interest in any
collateral security. The Agent shall have no duty to disclose to the Lenders,
unless requested, information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in their capacity as Agent or in their individual
capacity).
9.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and on all holders of Notes. The
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Lenders. The Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
9.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
9.7 Reliance on Documents: Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or
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persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Agent, which counsel may be employees of the Agent.
9.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan Documents or
any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this Section 9.8
shall survive payment of the Indebtedness and termination of this Agreement.
9.9 Funding of Loan by Lenders. Following receipt of notice from Agent
that Borrower has requested or Agent has made an advance under the Loan, and
provided that all conditions to funding are believed to have been satisfied,
each Lender shall transfer its pro rata share of the requested funding in the
time and manner which follow: (i) in the event that Agent gives such notice to
Lenders by telephone or facsimile by 1:00 p.m., Memphis time, each Lender shall
fund its interest in the Loan by making cash payments in immediately available
funds to Agent, not later than 3:00 p.m., Memphis time, on the date of such
notice in an amount equal to the Percentage of such Lender's Commitment; or (ii)
in the event that Agent shall give the Lenders such notice of an advance after
1:00 p.m., Memphis time, each Lender shall fund its interest therein in the
manner described in the foregoing subsection not later than 3:00 p.m., Memphis
time, on the next business day following the date of such notice.
9.10 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Event of Default hereunder unless the Agent
has received written notice from a Lender or the Borrower referring to this
Agreement describing such Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders.
9.11 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent, is
a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
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9.12 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
9.13 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor new
Agent has been appointed, forty-five (45) days after the retiring Agent gives
notice of its intention to resign. Upon any such resignation, the Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders and with
the consent of the Borrower (which shall not be unreasonably withheld), a
successor Agent. If the Agent has resigned and no successor Agent has been
appointed, the Lenders may perform all the duties of the Agent hereunder and the
Borrower shall make all payments in respect of the Indebtedness to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least Fifty Million
Dollars (U.S. $50,000,000.00). Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent, the
resigning Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an
Agent, the provisions of this Article 9 shall continue in effect for the benefit
of such Agent in respect of any actions taken or omitted to be taken by it while
it was acting as the Agent hereunder and under the other Loan Documents.
ARTICLE 10
GENERAL CONDITIONS
The following conditions shall be applicable throughout the term of
this Agreement:
10.1 Rights of Third Parties. All conditions of the obligations of
Agent and Lenders hereunder, including the obligation to disburse funds in
accordance with the terms hereof, are imposed solely and exclusively for the
benefit of Agent and Lenders and their respective successors and assigns, and no
other person or entity shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Agent
and/or Lenders will refuse to make a disbursement in the absence of strict
compliance with any or all thereof, and no other person or entity shall, under
any circumstances, be deemed to be a beneficiary of such conditions, any and all
of which may be freely waived in whole or in part by Agent and/or Lenders at any
time if in its or their sole discretion it or they deems it desirable to do so.
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10.2 Evidence of Satisfaction of Conditions. Any condition of this
Agreement which requires the submission of evidence of the existence or
non-existence of a specified fact or facts implies as a condition the existence
or non-existence, as the case may be, of such fact or facts, and Agent shall, at
all times, be free independently to establish to its satisfaction and in its
reasonable discretion such existence or non-existence.
10.3 All Matters Satisfactory to Agent. All proceedings taken in
connection with the transactions provided for herein, all documents required or
contemplated by this Agreement or any of the Loan Documents, and the persons
responsible for the execution and preparation thereof, shall be satisfactory to
Agent, and Agent's counsel shall receive copies (or certified copies where
appropriate in Agent's counsel's judgment) of all documents which it may request
in connection therewith.
10.4 No Agency. Agent is not the agent or representative of Borrower,
and Borrower is not the agent or representative of Agent or Lenders, and nothing
in this Agreement shall be construed to make Agent liable to anyone for debts or
claims accruing against Borrower.
10.5 No Partnership or Joint Venture. Nothing herein nor the acts of
the parties hereto shall be construed to create a partnership or joint venture
among Borrower, Agent and Lenders.
10.6 Interest Limitations. (a) The Revolving Credit Loans and the Notes
evidencing the Revolving Credit Loans, including any renewals or extensions
thereof, may provide for the payment of any interest rate (i) permissible at the
time the contract to make the Revolving Credit Loans is executed, (ii)
permissible at the time the Revolving Credit Loans were made or any advance
thereunder is made, or (iii) permissible at the time of any renewal or extension
of the Revolving Credit Loans or Notes evidencing the Revolving Credit Loans.
(b) It is the intention of Agent, Lenders and Borrower to comply
strictly with applicable usury laws; and, accordingly, in no event and upon no
contingency shall Lenders ever be entitled to receive, collect, or apply as
interest any interest, fees, charges or other payments equivalent to interest,
in excess of the maximum rate which Lenders may lawfully charge under applicable
statutes and laws from time to time in effect; and in the event that the holder
of the Notes ever receives, collects, or applies as interest any such excess,
such amount which, but for this provision, would be excessive interest, shall be
applied to the reduction of the principal amount of the indebtedness thereby
evidenced; and if the principal amount of the indebtedness evidenced thereby,
and all lawful interest thereon, is paid in full, any remaining excess shall
forthwith be paid to Borrower, or any other party lawfully entitled thereto. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the highest rate which Lenders may lawfully charge under
applicable law from time to time in effect, Borrower and Lenders shall, to the
maximum extent permitted under applicable law, characterize any non-principal
payment as a reasonable loan charge, rather than as interest. Any provision
hereof or of any other agreement between Lenders and Borrower that operates to
bind, obligate, or compel Borrower to pay interest in excess of such maximum
rate shall be construed to require the payment of the maximum rate only. The
provisions of this paragraph shall be given precedence over any other
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provision contained herein or in any other agreement between Lenders and
Borrower that is in conflict with the provisions of this paragraph.
The Notes shall be governed and construed according to the statutes and
laws of the State of Tennessee from time to time in effect, except to the extent
that Section 85 of Title 12 of the United States Code (or other applicable
federal statute) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether the state or federal,
from time to time in effect, which permit the charging of a higher rate of
interest, shall govern and control; provided, always, however, that in no event
and under no circumstances shall the Borrower be liable for the payment of
interest in excess of the maximum rate permitted by such applicable law, from
time to time in effect.
10.7 No Assignment by Borrower. This Agreement may not be assigned by
Borrower without the prior written consent of Agent.
10.8 Assignment by Lender. The Notes, this Agreement and any other Loan
Document may not be endorsed, assigned, or transferred in whole or in part by
Agent without the prior written approval of Borrower, which approval shall not
be unreasonably withheld, provided that Borrower agrees Agent and/or Lenders
shall have the right to sell a participation in the Notes, this Agreement and
the other Loan Documents to any other Person, as long as the exclusive right to
manage the relationship with Borrower (after consultation, in Agent's
discretion, with any such participant) shall remain solely with Agent.
10.9 Entire Agreement. The Commitment Letter and this Agreement contain
the entire terms of the agreements between Borrower and Lender covering the
disbursement of the Revolving Loan by Lender and the use of the Revolving Loan
and Swing Line Loan by Borrower. To the extent any conflicts exist between
provisions contained in the Commitment Letter and provisions contained in this
Agreement, the provisions contained herein shall control.
10.10 Notices. Any and all notices, elections or demands permitted or
required to be made under this Agreement shall be in writing, signed by the
party giving such notice, election or demand and shall be delivered personally
or by an inner-city or overnight courier service, as the case may be, or sent by
registered or certified mail, to the other party at the address set forth below,
or at such other address as may be supplied in writing. All notices to Lenders
may be satisfied by delivering notice to Agent. The date of personal delivery or
the date such courier service delivers such notice or the date of mailing, as
the case may be, shall be the effective date of such notice, election or demand.
For the purposes of this Agreement:
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The address of
Borrower is: United Foods, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attn: X.X. Xxxxxxxxxx, XX, Senior Vice President
With a copy to: United Foods, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attn: Xxxxxxxxxxx Xxxxx, Corporate Attorney
The address of
Agent is: First American National Bank
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Tutor, Vice-President
with a copy to: Baker, Donelson, Bearman & Xxxxxxxx
2000 First Tennessee Building
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx-Xxxx
The address of NBC is: National Bank of Canada
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
10.11 Successors and Assigns Included in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the legal
representatives, successors, and assigns of such parties shall be included, and
all covenants and agreements contained in this Agreement by or on behalf of
Borrower or by or on behalf of Agent or Lenders shall bind and inure to the
benefit of their respective legal representatives, successors, and assigns,
whether so expressed or not.
10.12 Headings. The headings of the Articles, paragraphs and
subparagraphs of this Agreement are for convenience of reference only, and are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof.
10.13 Invalid Provisions to Affect No Others. If fulfillment of any
provision hereof or any transaction related hereto at the time performance of
such provisions shall be due, shall involve transcending the limit of validity
presently prescribed by law, with regard to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision herein contained operates
or would prospectively operate to invalidate this Agreement in whole or in part,
then such clause or
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provision only shall be held for naught, as though not herein contained, and the
remainder of this Agreement shall remain operative and in full force and effect.
10.14 Number and Gender. Whenever the singular or plural number, or the
masculine, feminine or neuter gender is used herein, it shall equally include
the other.
10.15 Amendments. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
10.16 Indemnification. Borrower shall, and it does hereby agree to
indemnify, defend and hold Agent and/or Lenders harmless from and against any
claim, liability, cause of action, cost or expense, including attorneys' fees
and expenses and other costs of investigation, discovery and/or litigation,
which (i) Agent and/or Lenders or their respective agents may incur arising out
of or related to Borrower's businesses, involving any claim of any third party
against Borrower and/or Agent and/or Lenders (to the extent such relates to
Borrower), or (ii) Agent and/or Lenders may incur in connection with Agent
and/or Lenders' enforcing any of their respective rights and remedies under any
instrument executed in connection with the Loans and this Agreement, excepting
however, in each such case, those claims, liabilities, causes of action, or
costs or expenses arising out of Agent and/or Lenders' gross negligence or
willful misconduct. This indemnification shall survive the full payment and
performance of the Revolving Indebtedness, and is in addition to any other
indemnification provided for herein.
10.17 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument.
10.18 Time of Essence. Time is of the essence of this Agreement, the
Notes, and the other instruments and documents executed and delivered in
connection herewith.
10.19 Governing Law. This Agreement has been negotiated, executed and
delivered in, and shall be governed by and construed in accordance with the laws
of the State of Tennessee, except (a) that the provisions hereof which relate to
the payment of interest shall be governed by (i) the laws of the United States
or (ii) the laws of the State of Tennessee, whichever permits the Lenders to
charge the higher rate, as more particularly set out in the Notes, and (b) to
the extent that the liens in favor of the Lenders, the perfection thereof, and
the rights and remedies of the Lenders with respect thereto, under mandatory
provisions of law, are governed by the laws of a state other than Tennessee.
10.20 Security Interest; Setoff. In order to further secure the payment
of the Revolving Indebtedness, Borrower hereby grants to Agent a security
interest and right of setoff against all of Borrower's presently owned or
hereafter acquired moneys, items, credits, deposits and instruments (including
certificates of deposit) presently or hereafter in the possession of Agent. By
maintaining any such accounts or property at Agent's, Borrower acknowledges that
it voluntarily subjects such accounts or property to Agent's rights hereunder,
and agrees that Agent
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shall not be liable for the dishonor of any instrument resulting from Agent's
proper exercise of its rights hereunder.
10.21 Consent to Jurisdiction and Venue. Borrower, Agent and Lenders
hereby irrevocably consent to the jurisdiction of the United States District
Court for the Western District of Tennessee, and of all Tennessee state courts
sitting in Shelby County, Tennessee, for the purpose of any litigation to which
Agent and/or Lenders may be a party and which concerns the Revolving
Indebtedness, provided that nothing herein shall preclude Agent and/or Lenders
from initiating suit against Borrower in any other proper jurisdiction.
10.22 Agent/Lenders' Consent. Except as otherwise expressly provided
herein, in any instance hereunder where Agent and/or Lenders' approval or
consent is required, the granting or denial of such approval or consent and the
exercise of such judgment shall be within the reasonable discretion of Agent
and/or Lenders, and Agent and/or Lenders shall not, for any reason or to any
extent, be required to grant such approval or consent or exercise such judgment.
Agent and/or Lenders may consult with counsel, and the written advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
10.23 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.24 Conflict. In the event of any conflict between the provisions
hereof and the provisions of the Security Agreement, during the continuance of
this Agreement the provisions of this Agreement shall control.
10.25 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Revolving Credit Loans (other than payments
received pursuant to Section 3.1, 3.2 or 3.4 and other payments received by the
Swing Line Bank with respect to the Swing Line Loan) in a greater proportion
than that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Revolving Credit Loans held by the
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other Lenders so that after such purchase each Lender will hold its ratable
proportion of Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Indebtedness or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in proportion
to their Revolving Credit Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
10.26 Amended and Restated Loan Agreement. This Amended and Restated
Loan Agreement amends, restates and replaces, in its entirety, the Original Loan
Agreement as amended by the Amendments. Nothing herein contained shall, however,
constitute a novation of the Original Revolving Loan, it being intended that the
Original Revolving Loan shall continue in full force and effect and shall
continue to be evidenced by the Notes. All references in the Notes or any other
Loan Document to the Original Loan Agreement, as amended, shall henceforth be
deemed to mean and constitute references to this Amended and Restated Loan
Agreement, as the same may be further amended, modified or restated hereafter.
IN WITNESS WHEREOF, Borrower, Agent and Lenders have caused this Loan
Agreement to be executed by their duly authorized officers on the date first
above written.
UNITED FOODS, INC. UNITED FOODS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx, XX
---------------------------------- ---------------------------------
Xxxxxx Xxxxxxx X.X. Xxxxxxxxxx, XX, Senior Vice
Senior Vice-President - Administration President
Commitment: FIRST AMERICAN NATIONAL BANK,
Individually as a Lender and
as Agent
$18,000,000.00
By: /s/ Xxxxx X. May
----------------------------------
Xxxxx X. May
Title: Executive Vice President
-------------------------------------
Commitment: NATIONAL BANK OF CANADA, Individually
as a Lender
$17,000,000.00
By: /s/ Xxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
By: /s/ Xxx Xxxxxxx
-------------------------------------
Title: Assistant Vice President
-------------------------------------
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SCHEDULE 5.15
Locations of Inventory
Schedule 5.15 - 1
57
SCHEDULE 5.15
LOCATIONS OF INVENTORY
02 PICTSWEET FROZEN FOODS PLANT MGR. XXXXX XXXXX
TEN PICTSWEET DR. WHSE. MGR. XXXXX XXXXXX
XXXXX, XX 00000 APPOINTMENTS XXXXXX XXXXXXX
PHONE: 000-000-0000
000-000-0000 COUNTY XXXXXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
06 PICTSWEET FROZEN FOODS PLANT MGR. XXXX XXXXXX
1277 WEST 2350 NORTH OFF. MGR. XXXXX XXXXXXXX
X.X. XXX 0000 XXXXXXX XXXX XXXXXXX
XXXXX, XX 00000 WHSE. MGR. XXXX XXXXXX
PHONE: 000-000-0000 COUNTY XXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
07 XXXXXX COLD STORAGE PRES. XXXXX X. XXXX
FRUIT & PRODUCE CO. INC. WHSE. MGR. XXXXXXX XXXXXXXX
00000 XXXXXX XXXX SECRETARY XXXXX XXXX
X.X. XXX 000 OFF. MGR. XXXX XXXXXXXX
XXXXXX, XX 00000
PHONE: 000-000-0000 COUNTY ORLEANS
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
08 PICTSWEET FROZEN FOODS PLANT MGR. XXX XXXXXXXX
000 X. XXXXXX XXX OFF. MGR. XXXXXXX XXXXXXXX
XXXXX XXXXX, XX 00000 WHSE. MGR. XXXXX XXXXXXX
APPOINTMENTS XXXXXX XXXXXXX
NIGHT WHSE. XXXXX XXXXXX
SUPERVISOR
PHONE: 000-000-0000 COUNTY SANTA XXXXXXX
FAX: 000-000-0000
FAX: 000-000-0000/DIRECT TO XXX XXXXXXX
--------------------------------------------------------------------------------------------------------
Page 1 of 9
58
SCHEDULE 5.15
LOCATIONS OF INVENTORY
11 FROSTYAIRE FOR FROZEN PRES. XXX XXXXXX, JR
FOODS, INC. PLANT MGR. XXXXX XXXXXX
000 XXXXXXXXX XX XXXXXXXXXXXX XXXXX XXXXXX
XXXXXX, XX 00000 OFF. MGR. XXXXXXXX XXXXXX
SALES MGR. XXX XXXX
VP OPERATIONS H. XXXX XXXXXX
PHONE; 000-000-0000 COUNTY WHITE
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
12 U.S. COLD STORAGE, INC. V.P. XXXXXX XXXXX
000 XXXXXX XXXXXXXXXX XXXX. OF. MGR. XXXX XXXXXXXX
XXXXXX, XX 00000 CONTACT XXXX XXXXXXXX
XXXXX XXXX
PHONE: 000-000-0000 COUNTY XXXXXXXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
13 TWIN CITY FOODS, INC. DIV. MGR. XXX XXXXXXX
0000 XXXXXXX XXXXXX XXX. MGR. XXX XXXXXX
XXXX XXXXXX, XX 00000 WHSE. MGR. XXXX XXXXXX
CONTACT XXXXX XXXXXXX
PHONE: 000-000-0000 COUNTY IONIA
FAX: 000-000-0000
SERVICED BY CSX RAILROAD
--------------------------------------------------------------------------------------------------------
15 ROCHELLE LOGISTICS CENTER MGR. XXXXX XXXXXXXXX
DIVISION TOTAL LOGISTICS OF. MGR. XXXXX XXXXX
CONTROL, LLC
000 XXXXX XXXXX XXXX XXXX. MGR. XXX XXXXXXX
XXXXXXXX, XX 00000 CONTACT XXXXXXX OR XXXXXX
PHONE: 000-000-0000 COUNTY RICHLAND
FAX: 000-000-0000
SERVICED BY CNW RAILROAD
--------------------------------------------------------------------------------------------------------
Page 2 of 9
59
SCHEDULE 5.15
LOCATIONS OF INVENTORY
20 FREEPORT COLD STORAGE, INC. VP/GEN.MGR. XXXXXX X. XXXXX
000 XXXXX XXXX XXXXXX SHP/REC. XXXXX XXXXXX
CLEARFIELD, UT 84015 CONTACT XXXXXX XXXXXX
PHONE: 000-000-0000 COUNTY XXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
21 CS INTEGRATED, LLC DIST. MGR. XXXXX XXXXXXX/000-000-0000
ONE ENTERPRISE AVENUE TRANSP. MGR. XXX XXXXX/000-000-0000
XXXXXXXX, XX 00000 OP. MGR. XXXXX XXXXXX/000-000-0000
CUST. SERV. XXX X'XXXXX/000-000-0000
PHONE: 000-000-0000 COUNTY XXXXXX
FAX: 000-000-0000 (SHIPPING & RECEIVING)
--------------------------------------------------------------------------------------------------------
23 CS INTEGRATED, LLC DIR SALES MGR. XXXX XXXXXXXXXXX
00000 XXXXXX XXXXXX WHSE. MGR. XXXX XXXXXXXX
XXXXX XX XXXXXXX, XX 00000 OF MGR. XXXXX XXXXXXX
TRAFFIC MGR. XXXXX XXXXXX
PHONE. 000-000-0000 COUNTY LOS ANGELES
FAX: 000-000-0000
0000 XXXXXXX XXX. WHSE. SUPERV. XXXXXXX XXXXXXXX
XXXXXXX, XX 00000
(ORANGE COUNTY)
PHONE: 000-000-0000
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
34 SOUTHLAND REFRIGERATED LOGISTICS/CHIEF MGR. XXXX X. XXXXXXXXXX
00000 XXXX XXXXXX XXX. PRES./ XXXXXXX X. XXXXXX
XXXXXXXXX, XX 00000 VICE PRES. XXXXX XXXXX
LOGISTICS MGR. XXXX XXXXXX
PHONE: 000-000-0000 COUNTY SHELBY
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
Page 3 of 9
60
SCHEDULE 5.15
LOCATIONS OF INVENTORY
36 UNITED STATES COLD STG., INC. VP/MGR XXXXXXX X. XXXX
POLAR DIVISION OFF. MGR. XXXX XXXXXXXX
000 00xx XXX. XXXXX XXXXXXX XXXXXXX XXXXXX
INDUSTRIAL BLVD. CONTACT XXXXX XXXX
XXXXXXXXX, XX 00000 SUPERINTENDENT XX XXXXX
PHONE: 000-000-0000 COUNTY DAVIDSON
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
39 CS INTEGRATED, LLC V.P. GEN. MGR. XXXX XXXXXXXXXX
000 X. XXXXXXXX XX. OP. MGR. XXXXX XXXXXX
P.O. BOX 2330 CUST. SERV. XXXXX XXXXXX
XXXXX XXXX, XX 00000 CONTROLLER XXX XXXXXXX
PHONE: 000-000-0000 COUNTY HILLSBOROUGH
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
41 MISCELLANEOUS (USED FOR CORRECTIONS BY XXXXX XXXXXX)
--------------------------------------------------------------------------------------------------------
42 UNITED STATES COLD STORAGE, INC. V.P. MGR. XXXXXXX XXXX
PENGUIN DIVISION OFF. MGR. XXXX XXXXXXXX
000 0xx XXX. XXXXX XXXXXXX XXXXXXX XXXXXX
XXXXXXXXX, XX 00000 CONTACT XXXXX XXXX
SUPERINTENDENT XX XXXXX
PHONE: 000-000-0000 COUNTY DAVIDSON
FAX: 000-000-0000
ALL INFORMATION, EXCEPT ADDRESS, SAME AS FOR POLAR WAREHOUSE
--------------------------------------------------------------------------------------------------------
45, SOUTHLAND REFRIGERATED
LOGISTICS,INC. PRES. XXXXXXX X. XXXXXX
0000-0 XXXXXXXX XXXX
XXXXXXX, XX 00000
PHONE: 000-000-0000 COUNTY SHELBY
--------------------------------------------------------------------------------------------------------
Page 4 of 9
61
SCHEDULE 5.15
LOCATIONS OF INVENTORY
47 ATLAS COLD STORAGE SVP XXXXX XXXXXX
0000 XXXX XXXXXXX OP. MGR. XXXXX XXXXX
XXXXXXXX, XX 00000 CONTROLLER XXXXXX BAULTMAN
CONTACT XXXXXX XXXXXXXX
CONTACT XXXXX XXXXX
PHONE: 000-000-0000 COUNTY XXXXX
920-468-8311/XXXXX XXXXXX
FAX: 000-000 0000
--------------------------------------------------------------------------------------------------------
48 CENTRAL STORAGE & WAREHOUSE CO/ PLT. MGR. XXXX XXXXXXXXXX
0000 0xx XXXXXX OFF. CLERK XXX XXXXXXX
X.X. XXX 0 OFF. CLERK XXX XXXXXXXX
XXX XXXXXX, XX 00000
PHONE: 000-000-0000 COUNTY EAU CLAIRE
FAX: 000-000-0000
CORPORATE: EX. V.P. XXX XXXXXXXXXX
CENTRAL STORAGE & WAREHOUSE CO.
4309 COTTAGE GROVE V.P. OP. XXXX X. XXXXX
XXXXXXX, XX 00000-0000
PHONE: 000-000-0000
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
56 XXXXXX COLD STORAGE CO. WHSE. MGR. XXXX X. XXXXXXX
P.O. BOX 98
00000 XXX XXXXX XXXXXXX XXXX
XXXXXXXX, XX 00000
PHONE: 000-000-0000 COUNTY VAN BUREN
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
Page 5 of 9
62
SCHEDULE 5.15
LOCATIONS OF INVENTORY
58 AMERICOLD LOGISTICS, INC. GEN. MGR. XXXX XXXXXXXXX
SYRACUSE INDUSTRIAL PARK ADM. MGR. XXXX XXXXXXX
XXXXXXX XXXX/X.X. XXX 0000 XXXXXXX XXX. XXX XXXXX
XXXXXXXX, XXX XXXX 00000 SALES MGR. XXXXXX XXXXXXX
PHONE: 000-000-0000 COUNTY XXXXXXXX
FAX: 000-000-0000
SERVICED BY CONRAIL RAILROAD
--------------------------------------------------------------------------------------------------------
60 AMERICOLD LOGISTICS, INC. REG. V.P. XXXXX XXXXX
0000 X. XXXXXXX X. GEN. MGR. XXXX XXXXXX
XXXXXXX, XX 00000-0000 OP. MGR. XXXX XXXXXXX
OFF. MGR. XXXX XXXXX
PHONE: 000-000-0000 COUNTY SHELBY
FAX: 000-000-0000
SERVICED BY ICG RAILROAD
--------------------------------------------------------------------------------------------------------
66 AMERICOLD LOGISTICS, INC. GEN. MGR. XXX XXXXXXXXX
000 XXXX XXXXXXXXX XX. OFF. MGR. XXX XXXXX
P.O. BOX 1835 CONTACT XXXXX XXXX
XXXXXXXXXXX, XX 00000 CONTACT XXX XXXXXXXX
PHONE 000-000-0000
PHONE: 000-000-0000 COUNTY SANTA XXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
67 UNITED STATES COLD STORAGE, INC. PLT. MGR. XXXX XXXXXXX
INTERCHANGE CITY PLANT OF. MGR. XXXX XXXXXXXX
1727 X. X. XXXXXXXX DRIVE OF. SUPERV. XXX XXXXXXX
XXXXXXXX, XX 00000
PHONE: 000-000-0000 COUNTY XXXXXXXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
Page 6 of 9
63
SCHEDULE 5.15
LOCATIONS OF INVENTORY
68 EAST COAST REFRIGERATED SERVICES GEN. MGR. XXXX XXXXXX
SERVICES, CORP ADM. MGR. XXXXXX XXXXXXXX
000 XXXXX XXXX XXXX XXXX. MGR. XXXXXX XXXXXX
VINELAND, NEW JERSEY 08360 TRAFFIC MGR. XXXX XXXXXX
PHONE: 000-000-0000 COUNTY CUMBERLAND
FAX: 000-000-0000
XXXXX: EXTENSION 212
--------------------------------------------------------------------------------------------------------
71 FROZSUN FOODS, INC. GEN. MGR. XXXXX XXXXXX
0000 X. XXXXXXX XX. OFF. MGR. XXXX XXXXXXXXX
X.X. XXX 000
XXXXX XXXXX, XX 00000
PHONE: 000-000-0000 COUNTY SANTA XXXXXXX
FAX: 000-000-0000
XXXXX XXXXXX - PHONE 000-000-0000
--------------------------------------------------------------------------------------------------------
76 AMERICOLD LOGISTICS, INC. GEN. MGR. XXXXX XXXXXX
0000 XXXXXXXXXX XXX OFF. MGR. XXXXXX XXXX
PASCO, WA 99301 DOCK SUPERINT. XXXXXX XXXXX
PHONE: 000-000-0000 COUNTY FRANKLIN
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
Page 7 of 9
64
SCHEDULE 5.15
LOCATIONS OF INVENTORY
78 NEW ORLEANS COLD STORAGE PRES. XXXX XXXXXXXXX
AND WAREHOUSE CO., LTD. VP MKT/SALES XXXX XXXXXXXXX
P.O. BOX 26308 OFF. MGR. XXX XXXXX
XXX XXXXXXX, XX 00000 CUST. SERV. XXXXXXXX XXXXXXXXX
PHONE: 000-000-0000 COUNTY ORLEANS
000-000-0000
FAX: 000-000-0000
WAREHOUSE/ALVOR ST. WHSE. MGR. XXXXX XXXXXXXX
PHONE: 000-000-0000
WAREHOUSE/AIRLINE HWY. WHSE. MGR. XXXXX XXXXXXXXXX
PHONE: 000-000-0000
WAREHOUSE/NASHVILLE AVE. WHSE. MGR. XXXXX XXXXXXXX
PHONE: 000-000-0000
--------------------------------------------------------------------------------
79 AMERICOLD LOGISTICS, INC. GEN. MGR. XXXX XXXXXX
0000 XXXXXXX XXX. OP. MGR. XXXX XXXXXXX
XXXXXXX, XX 00000 WHSE. SUPV. XXXXX XXXX
PHONE: 000-000-0000 COUNTY SHELBY
--------------------------------------------------------------------------------
80 COLUMBIA COLSTOR, INC. REGIONAL MGR. XXXX XXXXX
X.X. XXX 000 OFF. MGR. XXXXXXX XXXXXXX
XXXXXX, XX 00000 PLANT MGR. XXXXXX XXXXXX
SHIPPING CLERK HONOR XXXXXX
INV. MGR. XXX XXXXXX
APPOINTMENTS XXXXXX XXXXX
PHONE: 000-000-0000 COUNTY GRANT
FAX: 000-000-0000
000-000-0000/XXXX XXXXX CELL PHONE
--------------------------------------------------------------------------------
Page 8 of 9
65
SCHEDULE 5.15
LOCATIONS OF INVENTORY
82 AMERICOLD LOGISTICS, INC. GEN. MGR. XXXX XXXXXX
0000 X. XXXXXXX XX. OFF. MGR. XXXXXXX XXXXX
XXXX XXXXXXX, XX 00000 WHSE. MGR. XXXX XXXXXXX
PHONE: 000-000-0000 COUNTY XXXXXXXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
92 COLUMBIA COLSTOR, INC. GEN. MGR. XXXXXX XXXXXXX
410 X. XXXXXXX ST. OFF. MGR. XXX XXXXXX
XXXXXXXXX, XX 00000 PLT. SUP. XXXX XXXXXXXXXXX
PHONE: 000-000-0000 COUNTY CHELAN
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
1A AMERICOLD LOGISTICS, INC. REG. MGR. XXXXX XXXXXXX
0000 X. XXXXXXXXX XXX. GEN. MGR. XXXXX XXXX
XXXXXXXXXXXX, XX 00000 OFF. MGR. XXXXX XXXXXXX
TRAFFIC MGR. XXX XXXXXXXX
PHONE: 000-000-0000 COUNTY XXXXXX
FAX: 000-000-0000
--------------------------------------------------------------------------------------------------------
Page 9 of 9
66
EXHIBIT "A"
Borrowing Base Certificate
================================================================================
UNITED FOODS, INC.
BELLS, TN
Borrowing Base Certificate
================================================================================
Status as of __________.
(Date)
1. Total Accounts Receivable balance $
-----------------
2. Less: Mushroom Receivables $
-----------------
3. Less: Non-Government Accounts over 60 days from invoice $
-----------------
4. Less: Government Accounts over 90 days $
-----------------
5. Less: Other Ineligible Accounts Receivable (including,
but not limited to, xxxx and hold and military
distributors) $
-----------------
6. Less: $120,000.00 plus all amounts due on accounts
payable to growers of agricultural commodities that
are outstanding for more than thirty (30) days from
due date $
-----------------
7. Total Acceptable Accounts $
-----------------
8. Advance rate on Acceptable Accounts 85%
-----------------
9. Availability from Account Receivable (Line 6 times Line 7) $
-----------------
10. Total Inventory balance $
-----------------
11. Less: Mushroom Inventory $
-----------------
12. Less: Other ineligible inventory $
-----------------
13. Total Acceptable Inventory $
-----------------
X-0
00
00. Advance rate on Acceptable Inventory 60%
-----------------
15. Availability from Acceptable Inventory
(Line 13 times Line 14) $
-----------------
16. Total Availability
(Line 8 plus Line 14) $
-----------------
17. Outstanding Letters of Credit $
-----------------
18. Outstanding Revolving Loan Balance $
-----------------
19. Outstanding Swing Line Loan Balance
-----------------
20. Excess or (deficit)
(Line 16 minus Line 17 minus Line 18 minus Line 19) $
-----------------
================================================================================
Exhibits Attached Hereto:
(a) Aging of Accounts Receivable (and Listing of Accounts
Receivable)
(b) Identification of Acceptable Inventory by location.
(c) Summary Aging of Accounts Payable with detail listing of
balances due to growers of agricultural commodities.
A-2
68
The undersigned certifies that the information set out herein and the
Exhibits attached hereto is true and correct in all material respects as of the
status date above. The undersigned further certifies that the figures set out
herein pertain only to Acceptable Accounts, and Acceptable Inventory as those
terms are defined in the Amended and Restated Loan Agreement among United Foods,
Inc., First American National Bank and National Bank of Canada To the best of
the undersigned's knowledge, no Account Debtor is Insolvent.
UNITED FOODS, INC.
By:
-------------------------------------
Title:
----------------------------------
A-3
69
EXHIBIT "A-1"
(Amended and Restated Revolving Credit Note)
A-1-1
70
AMENDED AND RESTATED REVOLVING CREDIT NOTE
U.S. $13,000,000.00 Memphis, Tennessee
June , 1999
FOR VALUE RECEIVED, the undersigned, UNITED FOODS, INC., a Delaware
corporation (the "Company"), promises to pay on the Revolving Credit Loan
Maturity Date (hereinafter defined) or such earlier date as may be determined
pursuant to the Loan Agreement (as hereinafter defined) to the order of FIRST
AMERICAN NATIONAL BANK, a national banking association with a place for the
conduct of business in Memphis, Tennessee, (the "Bank"), at the office of the
Bank located at 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, or at such other
office as may be designated by the Bank by written notice to the Company, in
lawful money of the United States of America and in immediately available funds,
the principal amount of the lesser of (a) Thirteen Million Dollars (U.S.
$13,000,000.00) and (b) the sum of (i) the aggregate unpaid principal amount
then outstanding of all Revolving Credit Advances made by the Bank to the
Company pursuant to Section 4.1 of the Loan Agreement, and (ii) the aggregate
unpaid principal amount then outstanding of all Swing Line Loans (as defined in
the Loan Agreement) made by the Bank to the Company pursuant to Section 4.2 of
the Loan Agreement. The Company further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time (whether at
the stated maturity, by acceleration or otherwise) on the dates and at the
applicable rates per annum specified in Sections 4.5 and 4.6 of the Loan
Agreement until paid in full (both before and after judgment). Until the
Revolving Credit Loan Maturity Date the Company may use the Commitment by
borrowing, prepaying the Revolving Credit Loan in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. For
purposes hereof, the term "Revolving Credit Loan Maturity Date" shall mean
either (i) June 1, 2002, or (ii) such later date to which the Revolving Credit
Loan Maturity Date may be extended as provided in the Loan Agreement.
The holder of this Note is authorized to record the date, type (whether
the Loan is a Prime Rate Loan or a Eurodollar Loan) and amount of each Revolving
Credit Advance made by the Bank pursuant to Section 4.1 of the Loan Agreement,
the date and amount of each payment or prepayment of principal hereof, and the
date of each interest rate conversion pursuant to Section 4.7 of the Loan
Agreement and the principal amount subject thereto, on EXHIBITS "A" AND "B,"
attached hereto and made a part hereof by reference, and any such recordation
shall constitute prima facie evidence of the information so recorded absent
manifest error.
This Note is one of the Amended and Restated Revolving Credit Notes
referred to in the Amended and Restated Loan Agreement of even date herewith
among the Company, the Bank and others therein mentioned and described, (as the
same may from time to time be amended, supplemented or otherwise modified, the
"Loan Agreement"), and is entitled to the benefits thereof and is subject to
optional and mandatory prepayment in whole or in part as provided therein. All
capitalized terms used herein not otherwise defined herein shall have their
respective meanings as defined in the Loan Agreement.
71
Upon the occurrence of any one or more of the Events of Default
specified in the Loan Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable as provided
in the Loan Agreement.
If this Note is placed in the hands of an attorney for collection, by
suit or otherwise, or to protect the security for its payment, or to enforce its
collection, or to represent the rights of the Bank in connection with any loan
documentation executed in connection herewith, or to defend successfully against
any claim, cause of action or suit brought by the Company against the Bank, the
Company shall pay on demand all costs of collection and litigation (including
court costs), together with a reasonable attorney's fee.
The Company and any endorsers or guarantors hereof waive protest,
demand, presentment, and notice of dishonor, and agree that this Note may be
extended, in whole or in part, without limit as to the number of such extensions
or the period or periods thereof, without notice to them and without affecting
their liability thereon.
It is the intention of the Bank and the Company to comply strictly with
applicable usury laws; and, accordingly, in no event and upon no contingency
shall the holder hereof ever be entitled to receive, collect, or apply as
interest any interest, fees, charges or other payments equivalent to interest,
in excess of the maximum effective contract rate which the Bank may lawfully
charge under applicable statutes and laws from time to time in effect; and in
the event that the holder hereof ever receives, collects, or applies as interest
any such excess, such amount which, but for this provision, would be excessive
interest, shall be applied to the reduction of the principal amount of the
indebtedness hereby evidenced; and if the principal amount of the indebtedness
evidenced hereby, all lawful interest thereon and all lawful fees and charges in
connection therewith, are paid in full, any remaining excess shall forthwith be
paid to the Company, or other party lawfully entitled thereto. All interest paid
or agreed to be paid by the Company shall, to the maximum extent permitted under
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal so that the interest hereon for
such full period shall not exceed the maximum amount permitted by applicable
law. Any provision hereof, or of any other agreement between the holder hereof
and the Company, that operates to bind, obligate, or compel the Company to pay
interest in excess of such maximum effective contract rate shall be construed to
require the payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between the holder hereof and the Company that is in conflict
with the provisions of this paragraph.
This Note shall be governed and construed according to the statutes and
laws of the State of Tennessee from time to time in effect, except to the extent
that Section 85 of Title 12 of the United States Code (or other applicable
federal statute) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether state or federal, from
time to time in effect, which permit the charging of a higher rate of interest,
shall govern and control; provided, always, however, that in no event and under
no circumstances shall
-2-
72
the Company be liable for the payment of interest in excess of the maximum rate
permitted by such applicable law, from time to time in effect.
To the extent of Thirteen Million Dollars (U.S. $13,000,000.00), this
Amended and Restated Revolving Credit Note evidences the same indebtedness as
that evidenced by the Revolving Credit Note (the "Note") dated as of April 7,
1993, in the principal amount of Twenty-Three Million Dollars (U.S.
$23,000,000.00) issued by the Company to the Bank, which Note was subsequently
reduced to Eighteen Million Dollars (U.S. $18,000,000.00). To the extent of
Thirteen Million Dollars (U.S. $13,000,000.00), this Amended and Restated
Revolving Credit Note is an amendment to and restatement of the Note. The
execution and delivery of this Amended and Restated Revolving Credit Note does
not constitute payment, cancellation, satisfaction, discharge, release or
novation of the Note or the indebtedness evidenced by the Note, and such Note
shall continue to constitute evidence of such indebtedness.
UNITED FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
-3-
73
EXHIBIT "A"
TO
AMENDED AND RESTATED REVOLVING CREDIT NOTE
================================================================================
PRIME RATE LOANS
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
=======================================================================================================
DATE AMOUNT AMOUNT AMOUNT UNPAID NOTATION
OF OF CONVERTED PRINCIPAL MADE BY
LOANS PRINCIPAL TO EURO- BALANCE
REPAID DOLLAR
LOANS
=======================================================================================================
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
=======================================================================================================
A-1
74
EXHIBIT "B"
TO
AMENDED AND RESTATED REVOLVING CREDIT NOTE
================================================================================
EURODOLLAR LOANS
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
=======================================================================================================
DATE AMOUNT AMOUNT AMOUNT UNPAID NOTATION
OF OF CONVERTED PRINCIPAL MADE BY
LOANS PRINCIPAL TO PRIME BALANCE
REPAID RATE
LOANS
=======================================================================================================
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
=======================================================================================================
B-1
75
EXHIBIT "A-2"
(Revolving Credit Note)
A-2-1
76
REVOLVING CREDIT NOTE
U.S. $17,000,000.00 Memphis, Tennessee
June , 1999
FOR VALUE RECEIVED, the undersigned, UNITED FOODS, INC., a Delaware
corporation (the "Company"), promises to pay on the Revolving Credit Loan
Maturity Date (hereinafter defined) or such earlier date as may be determined
pursuant to the Loan Agreement (as hereinafter defined) to the order of NATIONAL
BANK OF CANADA, a commercial banking institution organized and existing under
the laws of Canada, with a United States domestic branch office located at 000
X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Bank"), at the office
of the Bank located at 000 X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other office as may be designated by the Bank by written notice to
the Company, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (a) Seventeen Million
Dollars (U.S. $17,000,000.00) and (b) the aggregate unpaid principal amount then
outstanding of all Revolving Credit Advances made by the Bank to the Company
pursuant to Section 4.1 of the Loan Agreement. The Company further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time (whether at the stated maturity, by acceleration or otherwise) on
the dates and at the applicable rates per annum specified in Sections 4.5 and
4.6 of the Loan Agreement until paid in full (both before and after judgment).
Until the Revolving Credit Loan Maturity Date the Company may use the Commitment
by borrowing, prepaying the Revolving Credit Loan in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. For
purposes hereof, the term "Revolving Credit Loan Maturity Date" shall mean
either (i) June 1, 2002, or (ii) such later date to which the Revolving Credit
Loan Maturity Date may be extended as provided in the Loan Agreement.
The holder of this Note is authorized to record the date, type (whether
the Loan is a Prime Rate Loan or a Eurodollar Loan) and amount of each Revolving
Credit Advance made by the Bank pursuant to Section 4.1 of the Loan Agreement,
the date and amount of each payment or prepayment of principal hereof, and the
date of each interest rate conversion pursuant to Section 4.7 of the Loan
Agreement and the principal amount subject thereto, on EXHIBITS "A" AND "B,"
attached hereto and made a part hereof by reference, and any such recordation
shall constitute prima facie evidence of the information so recorded absent
manifest error.
This Note is one of the Revolving Credit Notes referred to in the
Amended and Restated Loan Agreement of even date herewith among the Company, the
Bank and others therein mentioned and described (as the same may from time to
time be amended, supplemented or otherwise modified, the "Loan Agreement"), and
is entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. All capitalized terms used
herein not otherwise defined herein shall have their respective meanings as
defined in the Loan Agreement.
77
Upon the occurrence of any one or more of the Events of Default
specified in the Loan Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable as provided
in the Loan Agreement.
If this Note is placed in the hands of an attorney for collection, by
suit or otherwise, or to protect the security for its payment, or to enforce its
collection, or to represent the rights of the Bank in connection with any loan
documentation executed in connection herewith, or to defend successfully against
any claim, cause of action or suit brought by the Company against the Bank, the
Company shall pay on demand all costs of collection and litigation (including
court costs), together with a reasonable attorney's fee.
The Company and any endorsers or guarantors hereof waive protest,
demand, presentment, and notice of dishonor, and agree that this Note may be
extended, in whole or in part, without limit as to the number of such extensions
or the period or periods thereof, without notice to them and without affecting
their liability thereon.
It is the intention of the Bank and the Company to comply strictly with
applicable usury laws; and, accordingly, in no event and upon no contingency
shall the holder hereof ever be entitled to receive, collect, or apply as
interest any interest, fees, charges or other payments equivalent to interest,
in excess of the maximum effective contract rate which the Bank may lawfully
charge under applicable statutes and laws from time to time in effect; and in
the event that the holder hereof ever receives, collects, or applies as interest
any such excess, such amount which, but for this provision, would be excessive
interest, shall be applied to the reduction of the principal amount of the
indebtedness hereby evidenced; and if the principal amount of the indebtedness
evidenced hereby, all lawful interest thereon and all lawful fees and charges in
connection therewith, are paid in full, any remaining excess shall forthwith be
paid to the Company, or other party lawfully entitled thereto. All interest paid
or agreed to be paid by the Company shall, to the maximum extent permitted under
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal so that the interest hereon for
such full period shall not exceed the maximum amount permitted by applicable
law. Any provision hereof, or of any other agreement between the holder hereof
and the Company, that operates to bind, obligate, or compel the Company to pay
interest in excess of such maximum effective contract rate shall be construed to
require the payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between the holder hereof and the Company that is in conflict
with the provisions of this paragraph.
This Note shall be governed and construed according to the statutes and
laws of the State of Tennessee from time to time in effect, except to the extent
that Section 85 of Title 12 of the United States Code (or other applicable
federal statute) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether state or federal, from
time to time in effect, which permit the charging of a higher rate of interest,
shall
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78
govern and control; provided, always, however, that in no event and under no
circumstances shall the Company be liable for the payment of interest in excess
of the maximum rate permitted by such applicable law, from time to time in
effect.
UNITED FOODS, INC.
By:
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Title:
-----------------------------------
-3-
79
EXHIBIT "A"
TO
REVOLVING CREDIT NOTE
================================================================================
PRIME RATE LOANS
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
=======================================================================================================
DATE AMOUNT AMOUNT AMOUNT UNPAID NOTATION
OF OF CONVERTED PRINCIPAL MADE BY
LOANS PRINCIPAL TO EURO- BALANCE
REPAID DOLLAR
LOANS
=======================================================================================================
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A-1
80
EXHIBIT "B"
TO
REVOLVING CREDIT NOTE
================================================================================
EURODOLLAR LOANS
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
=======================================================================================================
DATE AMOUNT AMOUNT AMOUNT UNPAID NOTATION
OF OF CONVERTED PRINCIPAL MADE BY
LOANS PRINCIPAL TO PRIME BALANCE
REPAID RATE
LOANS
=======================================================================================================
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B-1
81
EXHIBIT "A-3"
(Amended and Restated Swing Line Note)
A-3-2
82
AMENDED AND RESTATED
SWING LINE REVOLVING CREDIT NOTE
U.S. $5,000,000.00 Memphis, Tennessee
June , 1999
FOR VALUE RECEIVED, the undersigned, UNITED FOODS, INC., a Delaware
corporation (the "Company"), promises to pay on the Revolving Credit Loan
Maturity Date (hereinafter defined) or such earlier date as may be determined
pursuant to the Loan Agreement (as hereinafter defined) to the order of FIRST
AMERICAN NATIONAL BANK, a national banking association with a place for the
conduct of business in Memphis, Tennessee, (the "Bank"), at the office of the
Bank located at 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, or at such other
office as may be designated by the Bank by written notice to the Company, in
lawful money of the United States of America and in immediately available funds,
the principal amount of the lesser of (a) Five Million Dollars (U.S.
$5,000,000.00) and (b) the sum of (i) the aggregate unpaid principal amount then
outstanding of all advances under the Swing Line Loan made by the Bank to the
Company pursuant to Section 4.2 of the Loan Agreement. The Company further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time (whether at the stated maturity, by acceleration
or otherwise) on the dates and at a per annum rate equal to the Prime Rate (as
defined in the Loan Agreement) until paid in full (before judgment), and at the
default rate specified in the Loan Agreement (after judgment). Until the
Revolving Credit Loan Maturity Date the Company may use the Commitment by
borrowing, prepaying the Revolving Credit Loan in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. For
purposes hereof, the term "Revolving Credit Loan Maturity Date" shall mean
either (i) June 1, 2002, or (ii) such later date to which the Revolving Credit
Loan Maturity Date may be extended as provided in the Loan Agreement.
The holder of this Note is authorized to record the date and amount of
each advance under the Swing Line Loan made by the Bank pursuant to Section 4.2
of the Loan Agreement, the date and amount of each payment or prepayment of
principal hereof and the principal amount subject thereto, on EXHIBIT "A,"
attached hereto and made a part hereof by reference, and any such recordation
shall constitute prima facie evidence of the information so recorded absent
manifest error.
This Note is of the Swing Line Note referred to in the Amended and
Restated Loan Agreement of even date herewith among the Company, the Bank and
others therein mentioned and described, (as the same may from time to time be
amended, supplemented or otherwise modified, the "Loan Agreement"), and is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. All capitalized terms used
herein not otherwise defined herein shall have their respective meanings as
defined in the Loan Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Loan Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable as provided
in the Loan Agreement.
If this Note is placed in the hands of an attorney for collection, by
suit or otherwise, or to protect the security for its payment, or to enforce its
collection, or to represent the rights of the Bank
83
in connection with any loan documentation executed in connection herewith, or to
defend successfully against any claim, cause of action or suit brought by the
Company against the Bank, the Company shall pay on demand all costs of
collection and litigation (including court costs), together with a reasonable
attorney's fee.
The Company and any endorsers or guarantors hereof waive protest,
demand, presentment, and notice of dishonor, and agree that this Note may be
extended, in whole or in part, without limit as to the number of such extensions
or the period or periods thereof, without notice to them and without affecting
their liability thereon.
It is the intention of the Bank and the Company to comply strictly with
applicable usury laws; and, accordingly, in no event and upon no contingency
shall the holder hereof ever be entitled to receive, collect, or apply as
interest any interest, fees, charges or other payments equivalent to interest,
in excess of the maximum effective contract rate which the Bank may lawfully
charge under applicable statutes and laws from time to time in effect; and in
the event that the holder hereof ever receives, collects, or applies as interest
any such excess, such amount which, but for this provision, would be excessive
interest, shall be applied to the reduction of the principal amount of the
indebtedness hereby evidenced; and if the principal amount of the indebtedness
evidenced hereby, all lawful interest thereon and all lawful fees and charges in
connection therewith, are paid in full, any remaining excess shall forthwith be
paid to the Company, or other party lawfully entitled thereto. All interest paid
or agreed to be paid by the Company shall, to the maximum extent permitted under
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal so that the interest hereon for
such full period shall not exceed the maximum amount permitted by applicable
law. Any provision hereof, or of any other agreement between the holder hereof
and the Company, that operates to bind, obligate, or compel the Company to pay
interest in excess of such maximum effective contract rate shall be construed to
require the payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between the holder hereof and the Company that is in conflict
with the provisions of this paragraph.
This Note shall be governed and construed according to the statutes and
laws of the State of Tennessee from time to time in effect, except to the extent
that Section 85 of Title 12 of the United States Code (or other applicable
federal statute) may permit the charging of a higher rate of interest than
applicable state law, in which event such applicable federal statute, as amended
and supplemented from time to time shall govern and control the maximum rate of
interest permitted to be charged hereunder; it being intended that, as to the
maximum rate of interest which may be charged, received, and collected
hereunder, those applicable statutes and laws, whether state or federal, from
time to time in effect, which permit the charging of a higher rate of interest,
shall govern and control; provided, always, however, that in no event and under
no circumstances shall the Company be liable for the payment of interest in
excess of the maximum rate permitted by such applicable law, from time to time
in effect.
To the extent of Five Million Dollars (U.S. $5,000,000.00), this
Amended and Restated Revolving Credit Note evidences the same indebtedness as
that evidenced by the Revolving Credit Note (the "Note") dated as of April 7,
1993, in the principal amount of Twenty-Three Million Dollars (U.S.
$23,000,000.00) issued by the Company to the Bank, which Note was subsequently
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84
reduced to Eighteen Million Dollars (U.S. $18,000,000.00). To the extent of Five
Million Dollars (U.S. $5,000,000.00), this Amended and Restated Revolving Credit
Note is an amendment to and restatement of the Note. The execution and delivery
of this Amended and Restated Revolving Credit Note does not constitute payment,
cancellation, satisfaction, discharge, release or novation of the Note or the
indebtedness evidenced by the Note, and such Note shall continue to constitute
evidence of such indebtedness.
UNITED FOODS, INC.
By:
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Title:
-----------------------------------
-3-
85
EXHIBIT "A"
TO
SWING LINE REVOLVING CREDIT NOTE
================================================================================
PRIME RATE LOANS
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
=======================================================================================================
DATE AMOUNT AMOUNT AMOUNT UNPAID NOTATION
OF OF CONVERTED PRINCIPAL MADE BY
LOANS PRINCIPAL TO EURO- BALANCE
REPAID DOLLAR
LOANS
=======================================================================================================
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A-1
86
EXHIBIT "B-1"
(Annual Non-Default Certificate)
ANNUAL NON-DEFAULT CERTIFICATE
The undersigned, a duly authorized officer of United Foods, Inc., a
Delaware corporation [referred to as "Borrower" in that certain Amended and
Restated Loan Agreement (the "Loan Agreement") dated June _____, 1999, among
Borrower, First American National Bank, and National Bank of Canada
(collectively, "Lender")], certifies to Lender, in accordance with the terms and
provisions of the Loan Agreement, as follows:
1. All of the representations and warranties set forth in Section 5 of
the Loan Agreement are and remain true and correct on and as of the date of this
Certificate with the same effect as though such representations and warranties
had been made on and as of this date.
2. As of the date hereof, the Borrower is in full compliance with all
of the terms and provisions set forth in the Loan Agreement and all of the
instruments and documents executed in connection therewith, and no Event of
Default, as specified in Section 7 of the Loan Agreement, nor any event which,
upon notice, lapse of time or both, would constitute an Event of Default, has
occurred or is continuing.
3. The financial statements that accompany this Certificate are
complete and correct in all material respects and have been prepared in
reasonable detail in accordance with GAAP consistently applied throughout the
periods reflected therein (except as disclosed therein).
4. Attached hereto and incorporated herein by reference is a statement
of calculations supporting the letter of the Reporting Accountants (as defined
in the Loan Agreement), with respect to the Borrower's compliance with the
covenants set forth in Sections 6.1(l) through (o) of the Loan Agreement.
DATED this _____ day of _________________, _____.
UNITED FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
B-1-1
87
EXHIBIT "B-2"
(Quarterly Non-Default Certificate)
QUARTERLY NON-DEFAULT CERTIFICATE
The undersigned, a duly authorized officer of United Foods, Inc., a
Delaware corporation [referred to as "Borrower" in that certain Amended and
Restated Loan Agreement (the "Loan Agreement") dated June _____, 1999, among
Borrower, First American National Bank, and National Bank of Canada
(collectively, "Lender")], certifies to Lender, in accordance with the terms and
provisions of the Loan Agreement, as follows:
1. All of the representations and warranties set forth in Section 5 of
the Loan Agreement are and remain true and correct on and as of the date of this
Certificate with the same effect as though such representations and warranties
had been made on and as of this date.
2. As of the date hereof, the Borrower is in full compliance with all
of the terms and provisions set forth in the Loan Agreement and all of the
instruments and documents executed in connection therewith, and no Event of
Default, as specified in Section 7 of the Loan Agreement, nor any event which,
upon notice, lapse of time or both, would constitute an Event of Default, has
occurred or is continuing.
3. The financial statements that accompany this Certificate are
complete and correct in all material respects and have been prepared in
reasonable detail in accordance with GAAP consistently applied throughout the
periods reflected therein (except as disclosed therein, and except for normal
year end audit or quarterly adjustments).
4. Attached hereto and incorporated herein by reference is a statement
of calculations supporting this Certificate, with respect to the Borrower's
compliance with the covenants set forth in Section 6.1(m) of the Loan Agreement.
DATED this _____ day of _________________, _____.
UNITED FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
B-2-1
88
EXHIBIT "B-3"
(Monthly Non-Default Certificate)
MONTHLY NON-DEFAULT CERTIFICATE
The undersigned, a duly authorized officer of United Foods, Inc., a
Delaware corporation [referred to as "Borrower" in that certain Amended and
Restated Loan Agreement (the "Loan Agreement") dated June _____, 1999, among
Borrower, First American National Bank, and National Bank of Canada
(collectively, "Lender")], certifies to Lender, in accordance with the terms and
provisions of the Loan Agreement, as follows:
1. All of the representations and warranties set forth in Section 5 of
the Loan Agreement are and remain true and correct on and as of the date of this
Certificate with the same effect as though such representations and warranties
had been made on and as of this date.
2. As of the date hereof, the Borrower is in full compliance with all
of the terms and provisions set forth in the Loan Agreement and all of the
instruments and documents executed in connection therewith, and no Event of
Default, as specified in Section 7 of the Loan Agreement, nor any event which,
upon notice, lapse of time or both, would constitute an Event of Default, has
occurred or is continuing.
3. The financial statements that accompany this Certificate are
complete and correct in all material respects and have been prepared in
reasonable detail in accordance with GAAP consistently applied throughout the
periods reflected therein (except as disclosed therein, and except for normal
year end audit and quarterly adjustments).
DATED this _____ day of ______________, _____.
UNITED FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
B-3-1
89
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (the "Agreement"), made
and entered into this 30th day of June, 1999, by UNITED FOODS, INC., a Delaware
corporation whose address is Xxx Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000-0000
(the "Grantor"), to FIRST AMERICAN NATIONAL BANK, a national banking association
whose address is 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 ("FANB"), as Agent
(the "Agent") for itself as a lender and for the other lender, NATIONAL BANK OF
CANADA, a commercial banking institution organized and existing under the laws
of Canada, with a United States domestic branch office located at 000 X. 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("NBC") (FANB and NBC sometimes
collectively referred to herein as the "Lenders");
W I T N E S S E T H:
That for good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the Grantor hereby agrees with the Agent for
the ratable benefit of the Lenders, as follows:
1. DEFINITIONS. (a) Reference is made to that certain Amended and
Restated Loan Agreement (the "Loan Agreement") of even date herewith among the
Grantor, FANB, and NBC, said Loan Agreement being incorporated herein by
reference. All terms used in this Agreement which are defined in the Loan
Agreement or in the Uniform Commercial Code of the State of Tennessee (the
"Code") and which are not otherwise defined herein shall have the same meanings
herein as set forth therein.
(b) The term "Event of Default" shall have the meaning set out in
Article 7 of the Loan Agreement.
2. GRANT OF SECURITY INTEREST. As collateral security for all of the
Obligations (as defined in Section 3 hereof), the Grantor hereby pledges and
assigns to the Agent for the ratable benefit of the Lenders, and grants to the
Agent for the ratable benefit of the Lenders a continuing security interest in,
the following (the "Collateral"):
(a) All of the Grantor's inventory in all of its forms,
wherever located and whether now or hereafter existing, and all
accessions thereto and products thereof, including, but not limited to,
(i) all growing crops, packaging materials, raw materials and work in
process, finished goods, and materials used or consumed in the
manufacture or production thereof, (ii) goods in which the Grantor has
an interest in mass or a joint or other interest or right of any kind
(including, without limitation,
90
goods in which the Grantor has an interest or right as consignee),
(iii) goods which are returned to or repossessed by the Grantor, and
(iv) all accessions thereto and all products thereof and all warehouse
receipts, bills of lading and other documents of title evidencing or
representing any part thereof, but excluding the Mushroom Inventory
(collectively hereinafter referred to as "Inventory");
(b) All farm products in all of their respective forms,
wherever located, now or hereafter existing, including but not limited
to (i) all agricultural supplies used or consumed in the operations of
the Grantor, including without limitation all chemicals used in
maintaining, growing, preserving or producing any such farm products,
and (ii) all accessions to and products of and documents for any of the
foregoing, but excluding the Mushroom Farm Products (any and all such
farm products, accessions, products and documents being hereinafter
called the "Farm Products");
(c) All of the Grantor's accounts, accounts receivable,
contract rights, chattel paper, instruments, general intangibles and
other obligations of any kind (including, without limitation,
payment-in-kind certificates, rights to any government subsidy, set
aside, diversion, deficiency or disaster payment, and
payments-in-kind), whether or not evidenced by an instrument or chattel
paper, and whether or not it has been earned by performance
(collectively hereinafter referred to as "Accounts Receivable" or
"Receivables"), whether now or hereafter existing, whether or not
arising out of or in connection with the sale or lease of goods or the
rendering of services, and all rights now or hereafter existing in and
to all security agreements, leases, and other contracts securing or
otherwise relating to any such Accounts Receivable, but excluding the
Mushroom Receivables;
(d) All future contracts and funds, margin accounts and other
property of any kind relating to such futures contracts, funds and
margin accounts, including, without limitation, any balance credited to
any margin account upon closing, excluding those relating to the
Mushroom Collateral;
(e) All mortgages, deeds to secure debt and deeds of trust on
real or personal property, guaranties, leases, security agreements, and
other agreements and property which secure or relate to the Collateral,
or are acquired for the purpose of securing and enforcing any item
thereof;
(f) All documents of title, instruments, policies and
certificates of insurance, securities, chattel paper, and other
documents and instruments evidencing or pertaining to any and all items
of Collateral;
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91
(g) All books, records, files, correspondence, computer
programs, tapes, discs and related data processing software which
contain information identifying or pertaining to any of the Accounts
Receivable or any account debtor, or showing the amounts thereof or
payments thereon or otherwise necessary or helpful in the realization
thereon or the collection thereof;
(h) All lock boxes and deposit accounts maintained by the
Grantor with any financial institution relating to or into which any
proceeds of the Collateral are collected, deposited or maintained; and
(i) All proceeds ("Proceeds") of any and all of the foregoing
Collateral and, to the extent not otherwise included, all payments
under insurance (whether or not the Lenders are, or either FANB or NBC
is, the loss payee thereof), any indemnity, warranty, or guaranty,
payable by reason of loss or damage to or otherwise with respect to any
of the foregoing Collateral, and including, without limitation, all
moneys due or to become due in connection with any of the Collateral,
guaranties and security for the payment of such moneys, the right of
stoppage in transit, and all returned or repossessed goods arising from
a sale or lease thereof. (Although proceeds are covered, the Agent does
not authorize the sale or other transfer of any of the Collateral or
the transfer of any interest in the Collateral, except for the sale of
goods in the ordinary course of Grantor's business);
in each case, whether now owned or hereafter acquired by the Grantor and
howsoever Grantor's interest therein may arise or appear (whether by ownership,
lease, security interest, claim, or otherwise). The Collateral described in
subparagraph(s) (a) and (b) of this Section, and the products thereof, are
sometimes hereinafter called the "Tangible Collateral."
3. SECURITY FOR OBLIGATIONS. The security interest created hereby in
the Collateral constitutes continuing collateral security for all of the
following obligations, whether now existing or hereafter incurred (the
"Obligations"):
(a) The full and prompt payment when due of the indebtednesses
evidenced by that certain Amended and Restated Revolving Credit Note of
even date herewith, in the principal sum of Thirteen Million Dollars
($13,000,000.00) executed by Grantor and payable to the order of FANB,
and any and all renewals, modifications and extensions thereof, in
whole or in part; and
(b) The full and prompt payment when due of the indebtednesses
evidenced by that certain Revolving Credit Note of even date herewith,
in the principal sum of Seventeen Million Dollars ($17,000,000.00)
executed by Grantor and payable to the
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92
order of NBC, and any and all renewals, modifications and extensions
thereof, in whole or in part; and
(c) The full and prompt payment when due of the indebtednesses
evidenced by that certain Swing Line Note, of even date herewith, in
the principal sum of Five Million Dollars ($5,000,000.00), executed by
Grantor and payable to the order of FANB, and any and all renewals,
modifications and extensions thereof, in whole or in part; and
(d) The due performance and observance by the Grantor of all
of its covenants, agreements, representations, liabilities,
obligations, and undertakings as set forth herein, or in the Loan
Agreement (as the same may be modified renewed or extended from time to
time), or in any other instrument or document which now or at any time
hereafter evidences or secures all or any part of the Obligations
hereby secured;
howsoever and whensoever arising, whether absolute or contingent, joint or
several, matured or unmatured, direct or indirect, primary or secondary, and
including without limitation, all future advances to the Grantor, all
liabilities of the Grantor under any guaranty executed in favor of the Agent
and/or the Lenders at any time and all obligations of the Grantor with respect
to any letters of credit issued at any time by the Lenders or by either of the
Lenders for the benefit of Grantor.
4. REPRESENTATIONS AND WARRANTIES. The Grantor represents and warrants
as follows:
(a) Except for Inventory in transit and Inventory that is temporarily
stored elsewhere as permitted in Section 6.1(r) of the Loan Agreement, all
Tangible Collateral now existing is, and all Tangible Collateral hereafter
existing will be, located at the addresses specified in Schedule 5.15 to the
Loan Agreement, as said Schedule 5.15 may be supplemented and amended from time
to time in accordance with Section 5(b) hereof. The Grantor's chief place of
business and chief executive office, the place where the Grantor keeps Grantor's
records concerning Accounts Receivable and all originals of all chattel paper
which constitute Accounts Receivable are located at the address specified for
the Grantor in the initial paragraph hereof. Except as listed in Schedule III
attached hereto and made a part hereof by reference (as said Schedule III may be
supplemented from time to time), none of the Accounts Receivable is evidenced by
a promissory note or other instrument.
(b) To the best of Grantor's knowledge, the Grantor owns the Collateral
free and clear of any lien, security interest or other charge or encumbrance
except for the security interest created by this Agreement and except for
Permitted Exceptions, and except for the financing statements filed in favor of
Agent for the ratable benefit of the Lenders relating to this Agreement or
relating to the Permitted Exceptions, no other financing statement or other
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93
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office.
(c) The exercise by Agent of its rights and remedies hereunder will not
contravene any law or governmental regulation or any contractual restriction
binding on or affecting the Grantor or any of Grantor's properties and will not
result in or require the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of the Grantor's properties.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or other regulatory body is required
either for the grant by the Grantor of the security interest created hereby in
the Collateral or for the exercise by Agent of its rights and remedies
hereunder, except for the filing of appropriate UCC-1 financing statements (the
"Financing Statements") as required by the Code (or comparable laws in
jurisdictions other than Tennessee) to perfect the Agent's security interest in
the Collateral.
(e) This Agreement creates a valid security interest in favor of the
Agent in the Collateral. The taking possession by the Agent of all instruments
and chattel paper constituting Collateral from time to time and the filing of
the Financing Statements with the various filing offices as described in
Schedule I attached hereto and made a part hereof by reference will perfect and
establish the first priority of the Agent's security interest hereunder in the
Collateral, subject to no other liens and encumbrances, except for Permitted
Exceptions. Except as set forth in this Section 4(e), no other action is
necessary or desirable to perfect or otherwise protect such security interest.
(f) All names under which Grantor presently does business are set forth
in Schedule II attached hereto and made a part hereof by reference, as
supplemented from time to time to include new names under which Grantor proposes
to do business.
5. COVENANTS AS TO THE COLLATERAL. So long as any of the Obligations
shall remain outstanding, unless the Agent shall otherwise consent in writing:
(a) Further Assurances. The Grantor will at Grantor's expense, at any
time and from time to time, promptly execute and deliver all further instruments
and documents and take all further action that the Agent deems necessary or
desirable or that the Agent may request in order (i) to perfect and protect the
security interest created or purported to be created hereby; (ii) to enable the
Agent to exercise and enforce its rights and remedies hereunder in respect of
the Collateral; or (iii) to otherwise effect the purposes of this Agreement,
including, without limitation: (A) executing and filing such financing or
continuation statements, or amendments thereto, as the Agent deems necessary or
desirable or that the Agent may request in order to perfect and preserve the
security interest created or purported to be created hereby;
-5-
94
(B) furnishing to the Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Agent may reasonably request, all in reasonable
detail; (C) marking conspicuously each chattel paper included in the Accounts
Receivable and, at the request of the Agent, each of its records pertaining to
the Accounts Receivable with a legend, in form and substance satisfactory to the
Agent, indicating that such chattel paper is subject to the security interest
created hereby; (D) if any Account Receivable shall be evidenced by a promissory
note or other instrument or chattel paper, delivering and pledging to the
Lenders hereunder such note, instrument or chattel paper duly endorsed and
accompanied by executed instruments of transfer or assignment, all in form and
substance satisfactory to the Agent; and (E) if any Inventory shall be
represented by a negotiable warehouse receipt or other negotiable document of
title, delivering such warehouse receipt or other document to the Agent duly
endorsed or assigned to the Lenders or to the Agent for the ratable benefit of
the Lenders, all in form and substance satisfactory to the Agent.
(b) Location of Tangible Collateral. The Grantor will keep all of the
Tangible Collateral, both now owned and hereafter acquired, at the locations set
forth in Schedule 5.15 to the Loan Agreement, or at such other location or
locations as permitted under Section 6.1(r) of the Loan Agreement and Grantor
shall immediately upon request of the Agent execute such additional financing
statements as the Agent deems necessary or desirable to perfect the Lenders'
security interest created or purported to be created hereby with respect to such
additional location(s).
(c) Taxes. The Grantor will pay promptly before delinquent all property
and other taxes, assessments, and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials, and supplies) against,
the Collateral, except to the extent the validity thereof is being contested
diligently and in good faith by proper proceedings and adequate reserves are set
aside to pay the tax or assessment and any interest charges or penalties
associated therewith.
(d) Insurance. The Grantor will, at Grantor's own expense, maintain
such insurance with respect to the Inventory as is required in Section 6.1(q) of
the Loan Agreement.
(e) As to Receivables.
(i) The Grantor will (A) keep Grantor's chief place of
business and chief executive office and the office where Grantor keeps
Grantor's records concerning Accounts Receivable, and all originals of
all chattel paper which constitute Accounts Receivable at the
location(s) specified in paragraph 5(b) hereof or at such other
locations as Grantor shall elect after giving sixty (60) days prior
written notice to the Agent of such new locations, and (B) hold and
preserve its records concerning the
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Receivables and such chattel paper and permit representatives of the
Agent at any time during normal business hours to inspect and make
copies of or abstracts from such records and chattel paper.
(ii) The Grantor will, except as otherwise provided in this
paragraph (ii), continue to collect, at Grantor's own expense, all
amounts due or to become due under the Receivables. In connection with
such collections, the Grantor will take such action as the Grantor may
deem necessary or advisable to enforce collection or performance of the
Receivables, provided, however, that the Agent shall have the right at
any time, upon the occurrence and during the continuance of an Event of
Default or in the event that the Total Exposure shall at any time
exceed the Lenders' maximum Commitment under Section 4.1(a), and the
Grantor shall fail to make a principal payment within three (3)
Business Days thereof the effect of which shall be to reduce the Total
Exposure to not more than such maximum Commitment, to notify the
account debtors or obligors under any Receivables of the assignment of
such Receivables to the Lenders or to the Agent for the ratable benefit
of the Lenders and to direct such account debtors or obligors to make
payment of all amounts due or to become due to the Grantor thereunder
directly to the Agent for the ratable benefit of the Lenders and, upon
such notification and at the expense of the Grantor and to the extent
permitted by law, to enforce collection of any such Receivables and to
adjust, settle or compromise the amount or payment thereof, in the same
manner and to the same extent as the Grantor might have done. Upon and
after the giving of such notification, (A) all amounts and proceeds
(including instruments) received by the Grantor in respect of the
Receivables shall be received in trust for the benefit of the Lenders
hereunder, shall be segregated from other funds of the Grantor and
shall be forthwith paid over to the Agent in the same form as so
received (with any necessary indorsement) to be held as cash collateral
and either (1) released to the Grantor so long as no Event of Default
shall have occurred and be continuing or (2) if any Event of Default
shall have occurred and be continuing, applied as specified in Section
7(b) hereof, and (B) the Grantor will not adjust, settle or compromise
the amount of payment of any Receivable or release wholly or partly any
account debtor or obligor thereof or allow any credit or discount
thereon.
(f) Transfers and Other Liens. Without the prior written consent of
Agent, the Grantor will not (i) sell, assign (by operation of law or otherwise),
exchange, or otherwise dispose of any of the Collateral (except for sale or
other use of inventory in the ordinary course of business); or (ii) create or
suffer to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Collateral except for the security interest
created by this Agreement and except for Permitted Exceptions.
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(g) Condition of Collateral. The Grantor will promptly furnish to the
Agent a statement respecting any material loss or damage to any of the Tangible
Collateral.
(h) Field Warehouse Arrangement. Unless the Agent shall otherwise
consent, Grantor will at its own expense continue in force and effect and comply
with and operate under its existing field warehouse arrangements and future
warehousing arrangements of which the Grantor has notified the Agent, providing
for the warehousing of Grantor's Inventory.
6. ADDITIONAL PROVISIONS CONCERNING THE COLLATERAL. (a) The Grantor
hereby authorizes Agent to file, without the signature of the Grantor where
permitted by law, one or more financing or continuation statements, and
amendments thereto, relating to the Collateral.
(b) The Grantor hereby irrevocably appoints Agent the Grantor's
attorney-in-fact and proxy, with full authority in the place and stead of the
Grantor and in the name of the Grantor or otherwise, from time to time in the
Agent's discretion, to file one or more financing or continuation statements,
and amendments thereto, relating to the Collateral and, otherwise following an
Event of Default, to take any action and to execute any instrument which the
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation: (i) to obtain and adjust insurance
required to be paid to Agent pursuant to Section 5(d) hereof; (ii) to ask,
demand, collect, xxx for, recover, compound, receive, and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral; (iii) to receive, endorse, and collect any checks, drafts or other
instruments, documents, and chattel paper in connection with clause (i) or (ii)
above; and (iv) to file any claims or take any action or institute any
proceedings which Agent may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of Agent with respect
to any of the Collateral. Grantor hereby ratifies and approves all acts of said
attorney; and so long as the attorney acts in good faith and without gross
negligence it shall have no liability to Grantor for any act or omission as such
attorney.
(c) If the Grantor fails to perform any agreement contained herein,
Agent may itself perform, or cause performance of, such agreement or obligation,
and the expenses of Agent incurred in connection therewith shall be payable by
the Grantor under Section 9 hereof, and shall be fully secured hereby.
(d) The powers conferred on Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, Agent shall have no
duty as to any Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral.
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(e) Anything herein to the contrary notwithstanding, (i) the Grantor
shall remain liable under any contracts and agreements included in or relating
to the Collateral to the extent set forth therein to perform all of the
Grantor's obligations thereunder to the same extent as if this Agreement had not
been executed; (ii) the exercise by Agent of any of its rights hereunder shall
not release the Grantor from any of the Grantor's duties or obligations under
the contracts and agreements included in or relating to the Collateral; and
(iii) Agent shall not have any obligation or liability by reason of this
Agreement under any contracts and agreements included in or relating to the
Collateral, nor shall Agent be obligated to perform any of the obligations or
duties of the Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
7. REMEDIES UPON DEFAULT. If an Event of Default shall have occurred:
(a) Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Code (whether or
not the Code applies to the affected Collateral), and also may (i) require the
Grantor to, and the Grantor hereby agrees that the Grantor will at the Grantor's
expense and upon request of Agent forthwith, assemble all or part of the
Collateral as directed by Agent and make it available to Agent at a place to be
designated by Agent which is reasonably convenient to both parties; and (ii)
without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels or lots at public or private sale, at any of
Agent's offices or elsewhere, for cash, on credit or for future delivery, and at
such price or prices and upon such other terms as Agent may deem commercially
reasonable. The Grantor agrees that, to the extent notice of sale shall be
required by law, at least five (5) Business Days' notice to the Grantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) Any cash held by Agent as Collateral and all cash proceeds received
by Agent in respect of any sale of, collection from, or other realization upon,
all or any part of the Collateral under the provisions of the Code or this
Agreement shall be applied as follows:
(i) First, to the repayment of the reasonable costs and
expenses, including reasonable attorneys' fees and legal expenses,
incurred by Agent in connection with (A) the administration of this
Agreement, (B) the custody, preservation, use, or operation of, or the
sale of, collection from, or other realization upon, any Collateral,
(C) the exercise or enforcement of any of the rights of Agent
hereunder, or (D) the failure of the Grantor to perform or observe any
of the provisions hereof;
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(ii) Second, at the option of Agent, to the payment or other
satisfaction of any liens and other encumbrances upon any of the
Collateral;
(iii) Third, to the reimbursement of Agent for the amount of
any obligations of the Grantor paid or discharged by Agent pursuant to
the provisions of this Agreement, and of any expenses of Agent payable
by the Grantor hereunder;
(iv) Fourth, to the satisfaction of the Obligations, in such
order as Agent shall elect;
(v) Fifth, to the satisfaction of any other indebtedness of
the Grantor to Lenders;
(vi) Sixth, to the payment of any other amounts required by
applicable law [including, without limitation, Section 47-9-504(1)(c)
the Code or any successor or similar, applicable statutory provision];
and
(vii) Seventh, the surplus proceeds, if any, to the Grantor or
to whomsoever shall be lawfully entitled to receive the same or as a
court of competent jurisdiction shall direct.
(c) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Agent or the
Lenders is legally entitled, the Grantor shall be liable for the deficiency,
together with interest thereon at such rate(s) as shall be fixed by
instrument(s) evidencing the Obligation(s) with respect to which such deficiency
exists, together with the costs of collection and the reasonable fees of any
attorneys employed by Agent to collect such deficiency.
8. RIGHTS AND DUTIES OF AGENT, ETC. Agent undertakes, as to this
Agreement, to exercise only such duties as are specifically set forth in this
Agreement and to exercise such of the rights, powers and remedies as are vested
in it by this Agreement or by law. In any instance hereunder where Agent's
approval or consent is required or the exercise of Agent's judgment is required,
the granting or denial of such approval or consent and the exercise of such
judgment shall be within the sole discretion of Agent, and Agent shall not, for
any reason or to any extent, be required to grant such approval or consent or
exercise such judgment. Agent may consult with counsel, and the written advice
or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
9. INDEMNITY AND EXPENSES. (a) The Grantor agrees to indemnify Agent
from and against any and all claims, losses, and liabilities growing out of or
resulting from this
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Agreement (including, without limitation, enforcement of this Agreement), except
claims, losses, or liabilities resulting solely and directly from Agent's gross
negligence or willful misconduct.
(b) The Grantor will upon demand pay to Agent the amount of any and all
reasonable costs and expenses, including the fees and disbursements of the
Agent's counsel and of any experts and Agents, which Agent may incur in
connection with (i) the administration of this Agreement (excluding the salary
of Agent's employees and Agent's normal and usual overhead expenses); (ii) the
custody, preservation, use, or operation of, or the sale of, collection from, or
other realization upon, any Collateral; (iii) the exercise or enforcement of any
of the rights of Agent hereunder; or (iv) the failure by the Grantor to perform
or observe any of the provisions hereof, except expenses resulting solely and
directly from Agent's gross negligence or willful misconduct.
10. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, certified mail, return
receipt requested, if to Grantor, to Grantor at United Foods, Inc., Xxx
Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000-0000, Attention: X.X. Xxxxxxxxxx, XX,
Senior Vice-President; if to Agent, to it at First American National Bank, 0000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxx X. Tutor,
Vice-President; or as to any such person to such other address as shall be
designated by such person in a written notice to the other party complying as to
delivery with the terms of this Section 10. All such notices and other
communications shall be effective (i) if mailed, when received or three (3) days
after mailing, whichever is earlier; or (ii) if delivered, upon delivery. All
required notices to Lenders may be satisfied by delivering notice to Agent.
11. SECURITY INTEREST ABSOLUTE. All rights of Agent, all security
interests and all Obligations of the Grantor hereunder shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of the
Loan Agreement, or any other agreement or instrument relating thereto; (ii) any
change in the time, manner, or place of payment of, or in any other term in
respect of, all or any of the Obligations, or any other amendment or waiver of
or consent to any departure from this Agreement, the Loan Agreement, or any
other agreement or instrument relating thereto; (iii) any increase in, addition
to, or exchange, release, or non-perfection of, any other collateral, or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the Obligations; (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Grantor in respect of
the Obligations or this Agreement; or (v) the absence of any action on the part
of Agent to obtain payment or performance of the Obligations from the Grantor or
any other party.
12. MISCELLANEOUS. (a) No amendment of any provision of this Agreement
shall be effective unless it is in writing and signed by the Grantor and Agent,
and no waiver of any
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provision of this Agreement, and no consent to any departure by the Grantor
therefrom, shall be effective unless it is in writing and signed by Agent, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
(b) No failure on the part of Agent to exercise, and no delay in
exercising, any right hereunder or under any other instrument or document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of Agent provided herein and in the other
instruments and documents are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law. The rights of Agent under
the Loan Agreement, any other instrument which now or hereafter evidences or
secures all or part of the Obligations, or any related document against any
party thereto are not conditional or contingent on any attempt by Agent to
exercise any of its rights under any other such instrument or document against
such party or against any other party.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or invalidity without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the payment in
full of the Obligations, (ii) be binding on the Grantor and the Grantor's
successors and permitted assigns and shall inure, together with all rights and
remedies of Agent hereunder, to the benefit of Agent and its respective
successors, transferees, and assigns. None of the rights or obligations of the
Grantor hereunder may be assigned or otherwise transferred without the prior
written consent of Agent.
(e) Upon the satisfaction in full of the Obligations, Agent will, upon
the Grantor's request and at the Grantor's expense, (i) return to the Grantor
such of the Collateral as shall not have been sold or otherwise disposed of or
applied pursuant to the terms hereof; and (ii) execute and deliver to the
Grantor such documents as the Grantor shall reasonably request to evidence
termination of the security interest herein granted.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of Tennessee, except as required by mandatory
provisions of law and except to the extent that the validity or perfection of
the security interest created hereby, or remedies hereunder, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
State of Tennessee. If any provision hereof is in conflict with the provisions
of the Loan Agreement, the provisions of the Loan Agreement shall control.
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(g) The captions or headings of the Sections of this Agreement are
inserted merely for convenience of reference and shall not be deemed to limit or
modify the terms and provisions hereof.
IN WITNESS WHEREOF, the Grantor has caused the execution and delivery
of this Agreement by its duly authorized officers on the date first above
written.
ATTEST: UNITED FOODS, INC.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx, XX
-------------------------------- --------------------------------------
Title: Senior Vice President Title: Sr. Vice President - Finance and
Administration Treasurer
-----------------------------------
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SCHEDULE I
List of Filing Offices
1. Secretary of State of Arkansas
2. Clerk of the Circuit Court and Ex-Officio Recorder of Xxxxxxxxxx County,
Arkansas
3. Secretary of State of California
4. Department of State of Florida
5. Secretary of State of Indiana
6. Secretary of State of Iowa
7. Secretary of State of Kansas
8. Recorder of Mortgages of Orleans Parish, Louisiana
9. Secretary of State of Minnesota
10. Secretary of State of New Jersey
11. Department of State of New York
12. County Court Clerk of Onondaga County, New York
13. Secretary of State of Oregon
14. Secretary of State of Tennessee
15. Division of Corporations and Commercial Code of Utah
16. Department of Licensing of Washington
17. Secretary of State of Wisconsin
18. Secretary of State of Illinois
19. Secretary of State of Michigan
20. Secretary of State of Missouri
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SCHEDULE II
List of Names Under Which Grantor Does Business
1. Pictsweet Frozen Foods
2. Pictsweet Farms
3. United Express
4. Pictsweet Express
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SCHEDULE III
List of Promissory Notes (or other instruments) Evidencing Accounts Receivable
1. None
III-1
