REVOLVING CREDIT NOTE
$35,000,000 Denver, Colorado
March 31, 1998
FOR VALUE RECEIVED, the undersigned XXXX X. XXXXXXXXXX & SON, INC., a
Delaware corporation ("Xxxxxxxxxx"), SUNSHINE NUT CO., INC., a Texas
corporation ("Sunshine"), JBS INTERNATIONAL, INC., a Barbados corporation
("JBS") and QUANTZ ACQUISITION CO., INC., a Delaware corporation ("Quantz"
and collectively with Xxxxxxxxxx, JBS and Sunshine, the "Borrower", whether
one or more), promises to pay to the order of U.S. BANCORP AG CREDIT, INC.
f/k/a FBS Ag Credit, Inc., a Colorado corporation (hereinafter referred to
as "Lender"), at such place as U.S. Bancorp Ag Credit, Inc. f/k/a FBS Ag
Credit, Inc., as agent for the Lender, may designate, in lawful money of the
United States of America, the principal sum of Thirty Five Million Dollars
($35,000,000) or so much thereof as may be advanced and be outstanding,
together with interest on any and all principal amounts outstanding calculated
in accordance with the provisions set forth below. This Note is issued under
that certain Credit Agreement dated March 31, 1998 (as the same may be
amended, replaced, restated and/or supplemented from time to time, the "Credit
Agreement") between Borrower, U.S. Bancorp Ag Credit, Inc., a Colorado
corporation, as agent (the "Agent"), Lender and the other lenders identified
therein (collectively the "Lenders").
Capitalized terms used and not defined herein shall have the meanings given to
such terms in the Credit Agreement. In addition, as used herein, the following
terms shall have the following respective meanings (such terms to be equally
applicable to both the singular and plural forms of the terms defined):
"LOAN DOCUMENTS": the Credit Agreement, this Note, all Financing Agreements (as
defined in the Credit Agreement) and all documents, instruments, certificates
and agreements now or hereafter executed or delivered by the Borrower to the
Agent or the Lender pursuant to any of the foregoing, and any and all
amendments, modifications, supplements, renewals, extensions, increases
and rearrangements of, and substitutions for, any of the foregoing.
"MATURITY DATE": March 31, 2001 or the earlier date of termination in whole of
the Commitments (as defined in the Credit Agreement) pursuant to Section 4.4
or 11.1 of the Credit Agreement.
The outstanding Revolving Loans hereunder may be maintained as Reference Rate
Loans, Eurodollar Rate Loans or a combination thereof, at the election of the
Borrower and as more fully provided in the Credit Agreement. The Borrower
shall have the right to make prepayments of principal in accordance with the
Credit Agreement.
So long as no Matured Default (as defined in the Credit Agreement) has
occurred or is continuing, the Borrower shall pay interest on the unpaid
principal amount of each Revolving Loan made by the Lender from the date of
such Revolving Loan until such principal amount shall be paid in full, at the
times and at the rates per annum set forth below: (a) during such periods as
such Revolving Loan is a Reference Rate Loan, a rate per annum equal to the
lesser of (i) the sum of the Reference Rate in effect from time to time plus
the Applicable Margin and (ii) the Highest Lawful Rate; or (b) during such
periods as such Revolving Loan is a Eurodollar Rate Loan, a rate per annum
equal during each Interest Period for such Revolving Loan to the lesser of (i)
the sum of the Eurodollar Rate for such Interest Period for such Revolving
Loan plus the Applicable Margin and (ii) the Highest Lawful Rate. With
respect to each Reference Rate Loan, the rate of interest accruing hereunder
shall change concurrently with each change in the Reference Rate as announced
by U.S. Bank. All interest under this Note on Reference Rate Loans shall be
due and payable monthly in arrears on the first day of each month commencing
April 1, 1998, and on the Maturity Date. All interest under this Note on
Eurodollar Rate Loans for each Interest Period for each such Loan shall
be due and payable monthly in arrears on the first day of each month during
the applicable Interest Period and on the last day of such Interest Period.
The Agent shall make automatic advances of principal under the Credit
Agreement for any and all interest payments as the same become due and
payable.
After the occurrence of a Matured Default and for so long as such Matured
Default is continuing, the Agent may notify the Borrower that any and all
amounts due under this Note or under any other Loan Document, whether for
principal, interest (to the extent permitted by applicable law), fees,
expenses or otherwise, shall bear interest, from the date of such notice by
the Agent and for so long as such Matured Default continues, payable on
demand, at a rate per annum equal to the lesser of (i) the sum of three
percent (3.0%) per annum plus the Reference Rate in effect from time to time
and (ii) the Highest Lawful Rate.
All computations of interest pursuant to this Note shall be made on the basis
of a year of 360 days, unless the foregoing would result in a rate exceeding
the Highest Lawful Rate, in which case such computations shall be based on a
year of 365 or 366 days, as the case may be. Interest, whether based on a
year of 360, 365 or 366 days, shall be charged for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest is payable.
The unpaid balance of this obligation at any time shall be the total amounts
advanced hereunder by the Lender together with accrued and unpaid interest,
less the amount of payments made hereon by or for the Borrower, which balance
may be endorsed hereon from time to time by the Lender.
In addition to the repayment requirements imposed upon the Borrower under the
Credit Agreement, together with the agreements referred to therein, the
principal amount owing under this Note shall be due and payable in full on
the Maturity Date.
Interim payments made by Borrower pursuant to and in accordance with the
Credit Agreement shall be applied as provided therein.
Should any Matured Default occur, then all sums of principal and interest
outstanding hereunder may be declared or may otherwise become immediately
due and payable in accordance with the Credit Agreement, without presentment,
demand or notice of dishonor, all of which are expressly waived, and the
Lender shall have no obligation to make any further Revolving Loans pursuant
to the Credit Agreement.
Should more than one person or entity sign this Note, the obligations of each
signer shall be joint and several.
This Note shall be construed in accordance with the laws of the State of
Colorado.
XXXX X. XXXXXXXXXX & SON, INC., a
Delaware corporation
By /s/ Xxxx X. Xxxxxx
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Its Executive Vice President,
Finance and Chief Financial
Officer
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SUNSHINE NUT CO., INC., a Texas
corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Its Assistant Secretary
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QUANTZ ACQUISITION CO., INC., a
Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Its Assistant Secretary
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JBS INTERNATIONAL, INC., a
Barbados corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Its President
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