Exhibit 10.1
▇▇▇▇▇▇▇▇▇ FARMS, INC.
SEVENTH AMENDMENT TO CREDIT AGREEMENT
▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois
SunTrust Bank
Atlanta, Georgia
AmSouth Bank,
Jackson, Mississippi
Trustmark National Bank
Jackson, Mississippi
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of July
31, 1996, as amended (the "Credit Agreement") among the undersigned, ▇▇▇▇▇▇▇▇▇
Farms, Inc., a Mississippi corporation (the "Company"), you (the "Banks") and
▇▇▇▇▇▇ Trust and Savings Bank, as agent for the Banks (the "Agent"). All defined
terms used herein shall have the same meaning as in the Credit Agreement unless
otherwise defined herein.
The Credit Agreement provides for a $90,000,000 Revolving Credit to be made
available to the Company. The Company now applies to the Banks to amend the
Credit Agreement to increase the amount of the Revolving Credit to $100,000,000,
extend the Termination Date thereof from July 31, 2004 to July 31, 2005, and
amend certain covenants contained in the Credit Agreement, all in the manner and
on the terms and conditions set forth herein.
1. AMENDMENTS.
Upon satisfaction of all of the conditions precedent set forth in Section 2
hereof, the Credit Agreement shall be amended as follows:
1.1. The date "July 31, 2004" appearing in the last sentence of Section
1.1(a) of the Credit Agreement shall be replaced with the date "July 31, 2005",
and the Revolving Credit Termination Date under the Credit Agreement shall be
July 31, 2005.
1.2. Section 1.1(c) of the Credit Agreement shall be amended to read as
follows:
"(c) The respective maximum aggregate principal amounts of the
Revolving Credit at any one time outstanding and the percentage of the
Revolving Credit available at any time which each Bank by its
acceptance hereof severally agrees to make available to the Company
are as follows (collectively, the "Revolving Credit Commitments" and
individually, a "Revolving Credit Commitment"):
▇▇▇▇▇▇ Trust and Savings Bank $33,215,556.51 33.215556%
SunTrust Bank $30,368,509.23 30.368509%
Trustmark National Bank $22,082,285.12 22.082285%
AmSouth Bank $14,333,649.14 14.333649%
Total $100,000,000 100%"
1.3. Section 7.9(b) of the Credit Agreement shall be amended to read as
follows:
"(b) during each fiscal quarter of each fiscal year of the Company
thereafter, an amount equal to the sum of the minimum amount required
to be maintained on the last day of the preceding fiscal year of the
Company plus the Net Proceeds of Stock issued in the last quarter of
the preceding fiscal year and any preceding quarter or quarters of the
then current fiscal year plus 60% of an amount (but not less than
zero) equal to (i) the Company's Consolidated Net Income, if any,
through the immediately preceding fiscal quarter end of such fiscal
year minus (ii) the lesser of (x) $1,500,000 for each completed fiscal
quarter in such fiscal year and (y) the aggregate amount of all
dividends actually paid during such fiscal year through the last day
of such fiscal quarter rounded to the next highest $100,000."
1.4. Section 7.11 of the Credit Agreement shall be amended to read as
follows:
"Section 7.11. Consolidated Current Ratio. The Company shall maintain
at all times a Consolidated Current Ratio of not less than 2.00 to 1."
2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
2.1. The Company and each of the Banks shall have executed this Amendment.
2.2. Each Guarantor Subsidiary shall have executed the Guarantors'
Acknowledgment attached hereto.
2.3. The Company shall have executed and delivered to AmSouth Bank and
Trustmark National Bank a Revolving Credit Note in the form attached to this
Amendment as Exhibit B payable to the order of such Bank in the principal amount
of such Bank's Revolving Credit Commitment after giving effect to this
Amendment.
2.4. The Agent shall have received the favorable written opinion of counsel
for the Company in the form of Exhibit A attached hereto.
2.5. The Agent shall have received a Certificate of the Treasurer of the
Company and each of the Guarantor Subsidiaries with respect to (a) resolutions
of their respective Board of Directors authorizing the transactions contemplated
hereby, and (b) incumbency and signature of the President, Treasurer and
Secretary of the Company and each Guarantor Subsidiary.
2.6. Th Agent shall have received for the ratable account of the Banks a
non-refundable amendment fee in the amount of $53,185.98.
3. REPRESENTATIONS AND WARRANTIES.
3.1. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement are true and correct.
3.2. The Company is in full compliance with all of the terms and conditions
of the Credit Agreement and no Event of Default or Potential Default has
occurred and is continuing thereunder or shall result after giving effect to
this Amendment.
4. MISCELLANEOUS.
4.1. Reference to this specific Amendment need not be made in any note,
document, letter, certificate, the Credit Agreement itself, the Revolving Notes,
or any communication issued or made pursuant to or with respect to the Credit
Agreement or the Revolving Notes, any reference to the Credit Agreement being
sufficient to refer to the Credit Agreement as amended hereby.
4.2. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereto may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
4.3. The Company hereby requests that ▇▇▇▇▇▇ extend the Stated Expiration
Date of its Letter of Credit Number SPL 34947 dated November 16, 1995 which
▇▇▇▇▇▇ has issued for the Company's account to First Trust National Association,
as trustee (the "Trustee") under the Indenture of Trust dated as of November 1,
1995 between ▇▇▇▇▇▇▇▇▇ County Industrial Development Corporation and the Trustee
to July 31, 2004. The Banks hereby consent and agree to such extension.
Upon acceptance hereof by the Agent and the Banks in the manner
hereinafter set forth, this Amendment shall be a contract between us for the
purposes hereinabove set forth.
Dated as of July 29, 2002.
▇▇▇▇▇▇▇▇▇ FARMS, INC.
By /s/D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Treasurer & CFO
Accepted and agreed to as of the day and year last above written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
individually and as Agent
By /s/▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Vice President
SUNTRUST BANK
By /s/▇▇▇▇▇ ▇. Kenwood
Its Vice President
By:
Its
AMSOUTH BANK
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Vice President
TRUSTMARK NATIONAL BANK
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Its Vice President
-2-
GUARANTORS' ACKNOWLEDGMENT
The undersigned, each of which has executed and delivered to the Banks
a Guaranty Agreement dated as of July 31, 1996 (the "Guaranty Agreement"),
hereby acknowledges the amendment of the Credit Agreement as set forth above and
agrees that all of the Company's indebtedness, obligations and liabilities to
the Banks and the Agent under the Credit Agreement and the Notes as amended by
the foregoing Amendment shall continue to be entitled to the benefits of said
Guaranty Agreement. The undersigned further agree that the Acknowledgment or
consent of the undersigned to any further amendments of the Credit Agreement
shall not be required as a result of this Acknowledgment having been obtained,
except to the extent, if any, required by the Guaranty Agreement.
Dated as of July 29, 2002.
▇▇▇▇▇▇▇▇▇ FARMS, INC. (FOODS DIVISION)
By /s/D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Treasurer & CFO
▇▇▇▇▇▇▇▇▇ FARMS, INC. (PRODUCTION DIVISION)
By /s/D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Treasurer & CFO
▇▇▇▇▇▇▇▇▇ FARMS, INC. (PROCESSING DIVISION)
By /s/D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Treasurer & CFO
-2-
EXHIBIT A
FORM OF OPINION OF COUNSEL
EXHIBIT B
▇▇▇▇▇▇▇▇▇ FARMS, INC.
REVOLVING CREDIT NOTE
July 29, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇ FARMS, INC., a
Mississippi corporation (the "Company") promises to pay to the order of
_________________________ (the "Lender") on the Revolving Credit Termination
Date (as defined in the Credit Agreement referred to below) at the principal
office of ▇▇▇▇▇▇ Trust and Savings Bank in Chicago, Illinois, the principal sum
of ____________________________________________ or, if less, the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Company under the Revolving Credit provided for under the Credit Agreement
hereinafter mentioned and remaining unpaid on the Revolving Credit Termination
Date together with interest on the principal amount of each Revolving Credit
Loan from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in said Credit Agreement.
The Lender shall record on its books or records or on the schedule to
this Note which is a part hereof the principal amount of each Revolving Credit
Loan made under the Revolving Credit, all payments of principal and interest and
the principal balances from time to time outstanding; provided that prior to the
transfer of this Note all such amounts shall be recorded on the schedule
attached to this Note. The record thereof, whether shown on such books or
records or on the schedule to this Note, shall be prima facie evidence as to all
such amounts; provided, however, that the failure of the Lender to record, or
any mistake in recording, any of the foregoing shall not limit or otherwise
affect the obligation of the Company to repay all Revolving Credit Loans made
under the Revolving Credit, together with accrued interest thereon.
This Note is one of the Revolving Notes referred to in and issued under
that certain Credit Agreement dated as of July 31, 1996, as amended, among the
Company, ▇▇▇▇▇▇ Trust and Savings Bank, as Agent, and the banks named therein,
as amended from time to time (the "Credit Agreement"), and this Note and the
holder hereof are entitled to all of the benefits and security provided for
thereby or referred to therein. Payment of this Note has been guaranteed
pursuant to that certain Guaranty Agreement dated as of July 31, 1996 from the
Guarantor Subsidiaries to the Banks, to which reference is hereby made for a
statement of the terms thereof. All defined terms used in this Note, except
terms otherwise defined herein, shall have the same meaning as such terms have
in said Credit Agreement.
Prepayments may be made on any Revolving Credit Loan evidenced hereby
and this Note (and the Revolving Credit Loans evidenced hereby) may be declared
due prior to the expressed maturity thereof, all in the events, on the terms and
in the manner as provided for in said Credit Agreement.
This Note is issued in substitution and replacement of, and in part
evidences indebtedness formerly evidenced by, the Revolving Credit Note dated
[July 29, 1999, for Trustmark and April 6, 2001 for AmSouth], of the Company
payable to the order of the Lender issued pursuant to the Credit Agreement.
The Company hereby waives presentment for payment and demand.
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Illinois.
▇▇▇▇▇▇▇▇▇ FARMS, INC.
By
Its
