EXECUTION COPY
XXXX X. XXXXXXXXXX & SON, INC.
0000 Xxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
New York, New York
As of January 24, 1997
Re: Amendment No. 2 to Note Purchase Agreement
dated as of August 30, 1995
Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated
as of August 30, 1995 (as in effect on the date hereof, the
"Agreement") between Xxxx X. Xxxxxxxxxx & Son, Inc., a Delaware
corporation (the "Company"), and Teachers Insurance and Annuity
Association of America (the "Noteholder"), pursuant to which the
Noteholder purchased $10,000,000 aggregate principal amount of
the Company's 8.30% Senior Notes due 2005 (the "Senior Notes")
and $15,000,000 aggregate principal amount of the Company's 9.38%
Senior Subordinated Notes due 2005 (the "Subordinated Notes" and,
together with the Senior Notes, the "Notes").
The Company has requested that the Noteholder agree,
and the Noteholder is willing, to amend various provisions of the
Agreement, all on the terms and conditions of this Amendment.
Accordingly, in consideration of the premises and the
mutual agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined
herein, all terms used herein which are defined in the Agreement
(as amended hereby) shall have their respective meanings as
therein defined. In addition, as used herein, "Bank Amendment"
means Amendment No. 3 to Credit Agreement dated as of January 24,
1997 by and among the Company, the lenders party thereto and Bank
of America Illinois, as Agent.
Section 2. Amendments to Agreement. Subject to the
satisfaction of the conditions to effectiveness specified in
Section 6 below, the Agreement is amended as follows:
2.1. Addition of Section 5.9. A new Section 5.9 and
a new Section 5.10 are added to the Agreement to read as
follows:
"Section 5.9. Prepayment Pursuant to Collateral
Agency Agreement. If amounts are to be applied to the
principal of the Notes pursuant to the terms of the
Collateral Agency Agreement or any other Collateral
Document, such amounts shall be deemed to be optional
prepayments of the Notes pursuant to Section 5.2, and the
applicable Make-Whole Amount in respect of such principal to
be prepaid shall be due and payable as provided in said
Section 5.2.
Section 5.10. Existing Prudential Notes. Neither the
Company nor any Subsidiary shall make any optional
prepayment of principal with respect to the Existing
Prudential Notes without providing the holders of the Senior
Notes written notice thereof at the same time as notice is
given to Prudential with respect to such prepayment (which
notice in any case shall not be given less than ten (10)
Business Days or more than sixty (60) days prior to such
proposed date of prepayment). Such notice shall contain an
offer by the Company to the holders of Senior Notes to
purchase, on a date (the "Prepayment Date") no later than
the date that the Existing Prudential Notes are scheduled to
be prepaid, that outstanding principal amount of Senior
Notes which bears the same proportion to the aggregate
principal amount of Senior Notes then outstanding as the
outstanding principal amount of Existing Prudential Notes
being prepaid bears to the aggregate principal amount of
Existing Prudential Notes then outstanding. If a holder of
Senior Notes accepts such offer, the Company shall on the
Prepayment Date purchase (and each such holder thereof shall
sell) such holder's pro rata share (based on the proportion
of the outstanding principal amount of all Senior Notes held
by such holder) of the principal amount of Senior Notes that
the Company is offering to purchase hereunder at a purchase
price equal to the aggregate outstanding principal amount
thereof, together with interest thereon to the date of
purchase and the applicable Make-Whole Amount, if any, with
respect thereto (calculated as if the purchase of such Note
were an optional prepayment thereof as provided in Section
5.2); provided, however, if a holder of a Senior Note
notifies the Company prior to the proposed Prepayment Date
that such holder is rejecting the Company's offer to
purchase such holder's Senior Notes, the Company shall not
be obligated to purchase, and such holder shall not be
obligated to sell, such holder's Senior Notes under this
Section 5.10. For purposes of this Section 5.10, a
holder's failure prior to the Prepayment Date to reject in
writing any offer made by the Company hereunder to purchase
such holder's Senior Notes shall be deemed an acceptance of
such offer. No holder of any such Senior Note shall be
required to make any representation or warranty in
connection with such sale, other than with respect to its
ownership of its Notes. All purchases of a holder's Senior
Notes pursuant to this Section 5.10 shall be applied
ratably to the Senior Notes then outstanding held by such
holder. Any partial prepayment of the Senior Notes pursuant
to this Section 5.10 shall not relieve the Company of its
obligation to make the prepayments of principal of the
Senior Notes required by Section 5.1. Notwithstanding the
foregoing, if the holders of the Existing Prudential Notes
waive the payment of any Yield-Maintenance Amount (as
defined in the Amended and Restated Prudential Note
Agreement) with respect to any optional prepayment of the
Existing Prudential Notes, and no other prepayment fee or
similar amount is payable in connection therewith, the
Company shall not be obligated with respect to such optional
payment to purchase under this Section 5.10 all or any
portion of the Senior Notes of a holder that has accepted
the Company's offer to purchase made in connection with such
optional prepayment, unless such holder waives in writing
prior to or on the Prepayment Date the payment of any
applicable Make-Whole Amount that would be due upon such
purchase.".
2.2. Amendment to Section 8.6. Section 8.6 of the
Agreement is amended to read in its entirety as follows:
"Section 8.6. Ownership. Xxxxxx X. Xxxxxxxxxx and
Xxxxxxx X. Xxxxxxxxx, together with their respective
immediate family members and certain trusts created for the
benefit of their respective sons and daughters, shall
continue to own shares representing the right to elect a
majority of the directors of the Company. The Company shall
continue to own, directly and beneficially, shares
representing (a) 100% of Sunshine's aggregate outstanding
shares of common stock of all classes and (b) 100% of
Quantz's aggregate outstanding shares of common stock of all
classes.".
2.3. Amendment to Section 8.8. Section 8.8 of the
Agreement is amended to read in its entirety as follows:
"Section 8.8. Subsidiary Debt. The Company will not
permit any Subsidiary to create, assume, guarantee or
otherwise become liable in respect of any Indebtedness
(excluding any Indebtedness arising under any Guaranty or
any guaranty by Sunshine or Quantz of the obligations of the
Company under the Existing Indebtedness Documents) unless at
the time such Subsidiary becomes liable with respect to such
Indebtedness and after giving effect thereto Priority Debt
shall not exceed 15% of Consolidated Tangible Net Worth.".
2.4. Amendment to Section 9.1. Section 9.1 of the
Agreement is amended to read in its entirety as follows:
"Section 9.1. Financial Tests. (A) The Company (i)
will not on any date falling in the Company's fiscal quarter
ending in September, 1997 permit the Fixed Charge Coverage
Ratio for the period of four consecutive quarterly fiscal
periods of the Company ending on or immediately prior to
such date to be less than 1 to 1, (ii) will not on any date
falling in the Company's fiscal quarter ending in December,
1997 permit the Fixed Charge Coverage Ratio for the period
of four consecutive quarterly fiscal periods of the Company
ending on or immediately prior to such date to be less than
1.35 to 1 and (iii) will not on any date thereafter permit
the Fixed Charge Coverage Ratio for the period of four
consecutive quarterly fiscal periods of the Company ending
on or immediately prior to such date to be less than 1.75 to
1.
(B) The Company will not permit Interest Expense for
any fiscal quarter set forth below to be greater than the
respective amount set forth opposite such fiscal quarter:
Fiscal Quarter Ending In: Amount($)
------------------------- ---------
December, 1996 2,350,000
March, 1997 3,200,000
June, 1997 2,800,000.
(C) The Company will not permit Consolidated Operating
Income for any fiscal quarter set forth below to be less
than the respective amount set forth opposite such fiscal
quarter:
Fiscal Quarter Ending In: Amount($)
------------------------- ---------
December, 1996 2,000,000
March, 1997 1,300,000
June, 1997 2,400,000.".
2.5. Amendment to Section 9.3(C). Section 9.3(C) of
the Agreement is amended to read in its entirety as follows:
"(C) Cash Management Liabilities (excluding
liabilities in respect of checks in the process of
clearing) in an aggregate outstanding amount at any
time not greater than $1,000,000 and Indebtedness
represented by the Senior Notes and the Subordinated
Notes,".
2.6. Amendment to Section 9.6(A). Section 9.6(A) of
the Agreement is amended to read in its entirety as follows:
"(A) Liens existing on the date hereof securing
Indebtedness of the Company outstanding on the date
hereof, as specified in Exhibit C hereto, and Liens
arising under the Collateral Documents;".
2.7. Amendment to Section 10.1. Section 10.1 of the
Agreement is amended to read in its entirety as follows:
"Section 10.1. Financial Tests. (A) The Company (i)
will not on any date falling in the Company's fiscal quarter
ending in September, 1997 permit the Fixed Charge Coverage
Ratio for the period of four consecutive quarterly fiscal
periods of the Company ending on or immediately prior to
such date to be less than 0.7 to 1, (ii) will not on any
date falling in the Company's fiscal quarter ending in
December, 1997 permit the Fixed Charge Coverage Ratio for
the period of four consecutive quarterly fiscal periods of
the Company ending on or immediately prior to such date to
be less than 1 to 1 and (iii) will not on any date
thereafter permit the Fixed Charge Coverage Ratio for the
period of four consecutive quarterly fiscal periods of the
Company ending on or immediately prior to such date to be
less than 1.35 to 1.
(B) The Company will not permit Interest Expense for
any fiscal quarter set forth below to be greater than the
respective amount set forth opposite such fiscal quarter:
Fiscal Quarter Ending In: Amount($)
------------------------- ---------
December, 1996 2,900,000
March, 1997 3,900,000
June, 1997 3,400,000.
(C) The Company will not permit Consolidated Operating
Income for any fiscal quarter set forth below to be less
than the respective amount set forth opposite such fiscal
quarter:
Fiscal Quarter Ending In: Amount($)
------------------------- ---------
December, 1996 1,500,000
March, 1997 1,000,000
June, 1997 1,850,000.".
2.8. Amendment to Section 10.3(C). Section 10.3(C) of
the Agreement is amended to read in its entirety as follows:
"(C) Cash Management Liabilities (excluding
liabilities in respect of checks in the process of
clearing) in an aggregate outstanding amount at any
time not greater than $1,000,000 and Indebtedness
represented by the Senior Notes and the Subordinated
Notes,".
2.9. Amendment to Section 10.6(A). Section 10.6(A) of
the Agreement is amended to read in its entirety as follows:
"(A) Liens existing on the date hereof securing
Indebtedness of the Company outstanding on the date
hereof, as specified in Exhibit C hereto, and Liens
arising under the Collateral Documents;".
2.10. Amendment to Section 12.1. Section 12.1 of the
Agreement is amended by deleting Subsection (P) thereof and
replacing said Subsection with the following new Subsections (P),
(Q) and (R):
"(P) any Guaranty shall be terminated or shall
cease to be in full force and effect, or default shall
be made in the performance or observance of any
covenant, agreement or condition contained in any
Guaranty; or
(Q) the Collateral Agent under the Collateral
Agency Agreement shall cease to have a first priority
perfected security interest and Lien (subject to Liens
permitted by Section 9.6 and Section 10.6) in
substantially all of the property of the Borrower,
Sunshine and Quantz pursuant to the Collateral
Documents; or
(R) any Bank or the Bank Agent (as defined in the
Bank Agreement) shall refuse for more than five
consecutive Business Days to make any loan, issue any
letter of credit or create any bankers' acceptance
requested by the Company under the Bank Agreement where
such loan, letter of credit or bankers' acceptance
would not cause the Company to exceed the limitations
set forth in Section 2.1.1 or 3.1 of the Bank
Agreement or the availability under the Borrowing Base
(as so defined);".
2.11. Amendment to Section 11. (A) The following
definitions in Section 11 of the Agreement are amended and
restated to read in their entirety as follows:
"'Amended and Restated Prudential Note Purchase
Agreement' shall mean the Second Amended and Restated Note
Agreement dated as of January 24, 1997 between the Company,
Prudential and certain other Persons, as amended, modified
and in effect from time to time."
"'Existing Prudential Notes' means the 'Notes' as
defined in the Amended and Restated Prudential Note Purchase
Agreement."
"'Interest Expense' shall mean for any period the sum
(without duplication) of the following (in each case,
eliminating all offsetting debits and credits between the
Company and its Subsidiaries and all other items required to
be eliminated in the course of the preparation of
consolidated financial statements of the Company and its
Subsidiaries in accordance with Generally Accepted
Accounting Principles): (i) all interest in respect of
Indebtedness of the Company and its Subsidiaries (including
imputed interest on Capitalized Lease Obligations and any
fees and commissions payable by the Company or any
Subsidiary in respect of such Indebtedness) deducted in
determining Consolidated Net Income for such period, (ii)
all Specified Letter of Credit Fees and (iii) all debt
discount and expense amortized or required to be amortized
in the determination of Consolidated Net Income for such
period."
"'Senior Indebtedness' shall mean (subject to the next
succeeding sentence) (i) all Bank Obligations (as such term
is defined in the Bank Agreement as in effect from time to
time or in any extension or renewal thereof, or the
equivalent obligations under any refunding or refinancing
thereof permitted pursuant to clause (y) of Section
10.3(B)(i)), (ii) all Cash Management Liabilities and (iii)
all principal, interest and premium (if any) and fees and
expenses on or in respect of (x) the Amended and Restated
Prudential Note Purchase Agreement and the Existing
Prudential Notes issued thereunder, each as in effect from
time to time (collectively, the "Prudential Obligations"),
(y) this Agreement (as this Agreement relates to the Senior
Notes) and the Senior Notes and (z) any Senior Funded Debt
incurred in compliance with Section 9.3(D) and Section
10.3(D), provided that (A) the aggregate outstanding
principal amount (and undrawn face amount in the case of
letters of credit) of the Bank Obligations included in
Senior Indebtedness in respect of revolving loans, term
loans, letters of credit and bankers acceptances shall not
exceed $60,000,000 plus an additional amount not exceeding
$2,000,000 in aggregate outstanding principal in respect of
loans to fund overdrafts or overdrafts, (B) the aggregate
principal amount of the Cash Management Liabilities included
in Senior Indebtedness shall not exceed $1,000,000 and (C)
and the aggregate principal amount of the Prudential
Obligations included in Senior Indebtedness shall not exceed
$33,750,000. With respect to interest, the term "Senior
Indebtedness" shall include any interest accruing for a
period of two years after the date of any filing by or
against the Company of any bankruptcy, insolvency or similar
proceeding, whether or not allowed as a claim in any such
proceeding.".
(B) Section 11 of the Agreement is further amended by
adding the following definitions in their respective appropriate
alphabetic locations:
"'Cash Management Liabilities' has the meaning
specified in the Security Agreement."
"'Collateral Agency Agreement' means the Collateral
Agency Agreement dated as of January 24, 1997 by and among
Bank of America Illinois, individually and as Collateral
Agent, Teachers Insurance and Annuity Association, and the
other financial institutions party thereto, as such
agreement may be amended and supplemented and in effect from
time to time."
"'Collateral Documents' has the meaning specified in
the Collateral Agency Agreement."
"'Guaranty' shall mean each of (i) a Guaranty by
Sunshine in favor of the holders of the Senior Notes from
time to time, as the same may be amended or supplemented and
in effect from time to time, (ii) a Guaranty by Sunshine in
favor of the holders of the Subordinated Notes from time to
time, as the same may be amended or supplemented and in
effect from time to time, (iii) a Guaranty by Quantz in
favor of the holders of the Senior Notes from time to time,
as the same may be amended or supplemented and in effect
from time to time and (iv) a Guaranty by Quantz in favor of
the holders of the Subordinated Notes from time to time, as
the same may be amended or supplemented and in effect from
time to time, each such Guaranty to be substantially in the
form of Exhibit G."
"'Security Agreement' has the meaning specified in the
Collateral Agency Agreement."
"'Specified Letter of Credit Fees' has the meaning
specified in the Security Agreement."
"'Quantz' means Quantz Acquisition Co., Inc., a
Delaware corporation.".
(C) The definition of "Indebtedness" in Section 11 of
the Agreement is amended by adding the following sentence at the
end thereof:
"In addition to the foregoing, for all purposes of this
Agreement, liabilities of the Company arising in respect of
Cash Management Liabilities shall constitute 'Indebtedness'
of the Company.".
(D) The definition "Private Shelf Notes" is deleted
from Section 11 of the Agreement, and each other reference to
"Private Shelf Notes" in the Agreement is also deleted.
2.12. Amendment to Exhibits A-1 and A-2. Each of
Exhibit A-1 and Exhibit A-2 of the Agreement is amended by
deleting the second sentence from the second paragraph thereof
and replacing said sentence with the following:
"Payment of the principal of, interest on and any Make-Whole
Amount with respect to this Note has been guaranteed (i) by
Sunshine Nut Co., Inc. pursuant to a Guaranty Agreement
dated as of August 30, 1995 and (ii) by Quantz Acquisition
Co., Inc. pursuant to a Guaranty Agreement dated as of
January 24, 1997. In addition, this Note is entitled to the
security provided for in the Collateral Documents (as
defined in said Note Purchase Agreement)."
2.13. Amendment to Exhibit J. Exhibit J of the
Agreement is amended by deleting Section B therefrom and
replacing said Section B with the following:
"B. Amended and Restated Prudential Note Agreement
Any Event of Default (as defined therein) under*:
(i) Section 7A(i).
(ii) Section 7A(ii).
(iii) Section 7A(v) to the extent such Event of
Default results from a breach of obligations under
Section 5I or under any of Section s 6A through 6S,
inclusive, other than Xxxxxxx 0X xx 0X.
(iv) Section 7A(vi) to the extent such Event of
Default results from a breach of Section 6A.
(v) Section 7A(xvii).".
Section 3. Amendment to Outstanding Notes. Each
outstanding Series A Note is amended to reflect the changes made
to Exhibit A-1 to the Agreement as set forth in Section 2.12
above, and each outstanding Series B Note is amended to reflect
the changes made to Exhibit A-2 to the Agreement as set forth in
Section 2.12 above.
Section 4. Consent. The Noteholder hereby consents to
(i) the amendment of the Bank Agreement as provided by the Bank
Amendment and (ii) the amendment and restatement of the terms of
the documents governing the Senior Indebtedness held by
Prudential as provided by the Amended and Restated Prudential
Note Purchase Agreement.
Section 5. Representations and Warranties. The
Company represents and warrants to the Noteholder on the date
hereof and as of the Effective Date as follows (and the parties
hereto agree that the following representations and warranties
shall be deemed to have been made pursuant to the Agreement for
all relevant purposes thereof):
5.1. Power and Authority. The Company has all
requisite corporate power and authority to execute and deliver
this Amendment and to perform the Agreement as amended hereby
(the "Amended Agreement") and this Amendment has been duly
authorized by all necessary corporate action on the part of the
Company.
5.2. Enforceability. This Amendment has been duly
executed and delivered by the Company, and the Amended Agreement
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms
except as such enforcement may be limited by bankruptcy,
insolvency, fraudulent transfers or similar laws of general
application relating to creditors' rights.
5.3. No Conflicts. Neither the execution nor delivery
of this Amendment, nor fulfillment of nor compliance with the
terms and provisions hereof and of the Amended Agreement will
conflict with, or result in the breach of the terms, conditions
or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of
the properties or assets of the Company pursuant to, the charter
or by-laws of the Company, any award of any arbitrator or any
agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company is subject.
5.4. Governmental Authorizations. No consent,
approval or authorization of, or registration, filing or
declaration with, any Governmental Body is required for the
validity of the execution and delivery of this Amendment or for
the performance by the Company of the Amended Agreement.
5.5. No Defaults. After giving effect to this
Amendment, no Default or Event of Default shall have occurred and
be continuing, and no default shall have occurred and be
continuing under the Bank Agreement or under the Amended and
Restated Prudential Note Purchase Agreement.
5.6. No Misstatement. This Amendment does not contain
any misstatement of a material fact or fail to state a material
fact necessary to make the statement or statements of the Company
contained herein not misleading, and the Company has disclosed to
the Noteholder all facts or circumstances of which the Company is
aware following due and diligent inquiry which are material to,
or could adversely affect in any way, the purpose or subject
matter of this Amendment and/or the consummation of the terms and
conditions hereof.
5.7. No Change. Since September 26, 1996 (the date of
the Company's most recent financial statements, copies of which
have been provided to the Noteholder), there has been no material
adverse change in the assets or the financial condition of the
Company and its Subsidiaries taken as a whole.
5.8. Other Documents. The Company has provided the
Noteholder with true and correct copies of the Bank Agreement,
the Bank Amendment and the Amended and Restated Prudential Note
Purchase Agreement as in effect on the date hereof.
Section 6. Conditions to Effectiveness. This
Amendment shall become effective as of the date (the "Effective
Date") when the following conditions shall have been satisfied:
6.1. Amendment. This Amendment shall have been duly
executed and delivered by the Company and the Noteholder, and
duly acknowledged by Sunshine.
6.2. Other Documents. The Noteholder shall have
received each of the documents specified in Section 4(a) of the
Bank Amendment, each of which shall be in form and substance
satisfactory to the Noteholder, together with such other
documents as the Noteholder may reasonably request, provided that
(a) with respect to the "Guaranty" by Quantz referred to in
clause (xii) of the Bank Amendment, the Noteholder shall have
received each of (i) a Guaranty executed and delivered by Quantz
in favor of the holders of the Senior Notes from time to time and
(ii) a Guaranty executed and delivered by Quantz in favor of the
holders of the Subordinated Notes from time to time, each of
which shall be substantially in the form of the Sunshine
Guaranty, (b) with respect to the documents referred to in clause
(xiii) of the Bank Amendment, such documents shall contain
appropriate references to this Amendment, (c) with respect to the
certificate referred to in clause (xvi) of the Bank Amendment,
such certificate shall contain appropriate references to this
Amendment, to Defaults and Events of Default arising under the
Agreement, and to the representations of the Company set forth in
this Amendment, and (d) with respect to the legal opinion
referred to in clause (xvii) of the Bank Amendment, such opinion
shall cover, inter alia, the matters specified in Sections 5.1,
5.2, 5.3 and 5.4 above and shall be addressed to the Noteholder.
6.3. Fees. The Company shall have paid the fees and
expenses of special counsel to the Noteholder, Milbank, Tweed,
Xxxxxx & XxXxxx, relating to the transactions contemplated
hereby.
Section 7. Miscellaneous.
7.1. Ratification; Waiver. The Agreement, except as
amended pursuant hereto, is in all respects ratified and
confirmed, and the terms, covenants and agreements thereof shall
remain in full force and effect. Subject to the satisfaction of
the conditions to effectiveness specified in Section 6 above, the
Noteholder hereby waives (i) any Default or Event of Default that
may be in existence on the date hereof caused by the failure of
the Company to comply with Section 9.1 or Section 10.1 of the
Agreement (except as required by the Agreement as amended hereby)
and (ii) any Default or Event of Default that may be in existence
on the date hereof arising under Section 12.1(C) or (O) of the
Agreement caused by the failure of the Company to comply with any
provision of the Bank Agreement or the Amended and Restated Note
Purchase Agreement. The Noteholder is not aware of any Default
or Event of Default in existence on the date hereof after giving
effect to this Amendment.
7.2. References to Agreement and Notes. From and
after the Effective Date, all references to the Agreement in the
Agreement and in the Notes shall be deemed to be references to
the Agreement as amended by this Amendment.
7.3. Governing Law. This Amendment shall be construed
in accordance with and governed by the laws of the State of New
York.
7.4. Execution in Counterparts. This Amendment may be
executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
If you are in agreement with the foregoing, please sign
the form of acceptance in the space provided below whereupon this
Amendment shall become a binding agreement between you and the
Company.
Very truly yours,
XXXX X. XXXXXXXXXX & SON, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Title: Executive Vice President of Finance
and Chief Financial Officer
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: Managing Director
ACKNOWLEDGED AND AGREED:
SUNSHINE NUT CO.
By: /s/ Xxxx X. Xxxxxx
---------------------
Title: President
