EXHIBIT 10.13
(Note Schedules to this Exhibit have not been filed due to their size,
but are available on request for inspection at the Company's offices)
EXHIBIT 10.13
FACILITY B LOAN AUTHORIZATION AGREEMENT
The Customer referred to below has applied for, and Xxxxxx Trust and Savings
Bank, Chicago, Illinois ("Bank"), has approved the establishment of, a loan
authorization account ("Loan Account") from which the Customer may from time to
time request loans and letters of credit in the aggregate amount of credit shown
below (the "Maximum Credit"). The Loan Account shall be secured as described in
this Agreement. Interest on such loans shall be computed at a variable rate
which may change daily based upon changes in the Bank's Prime Rate or at short
term fixed rates based upon LIBOR. The Customer may make principal payments at
any time and in any amount, subject to payment of the funding indemnity more
fully provided in paragraph no. 2 below. The request by the Customer for, and
the making by the Bank of, any loan or letter of credit against the Loan Account
shall constitute an agreement between the Customer and the Bank as follows:
Name of Customer: SunRich Food Group, Inc., a Minnesota corporation
Address: 0000 00xx Xxxxxx
Xxxx, Xxxxxxxxx 00000
Type of Loan Account: Revolving, which means as principal is repaid, the
Customer may reborrow subject to this Agreement.
Amount of Maximum Credit: $5,000,000
Each Loan Requested Shall Be At Least: $100,000 in the case of Loans bearing
interest with reference to the Bank's
Prime Rate or such greater amount which
is an integral multiple of $100,000; and
$1,000,000 in the case of Loans bearing
interest with reference to LIBOR or such
greater amount which is an integral
multiple of $100,000.
Interest Rate: The Loans will bear interest as set forth in paragraph no. 2
below.
Maturity Date: The Loan Account terminates, and Loans are payable, ON DEMAND.
Periodic Statement reflecting accrued interest will be sent and interest will be
payable monthly.
Payments shall be due at the Bank's principal office in Chicago, Illinois, paid
to the order of the Bank, and made by debit to Xxxxxx Account #000-000-0.
1. Using the Account. (a) All loans and advances from the Loan Account are
referred to in this Agreement as "Loans." Loan requests shall be sent to
the Customer's Xxxxxx Account Officer and may be made by writing or by
telephone. Loan proceeds shall be credited to the Customer's deposit
account at the Bank unless the Bank is otherwise directed by special
written directions from the Customer. The amount of each Loan requested
shall be at least the minimum amount shown above, and the Bank shall have
the right to refuse to honor any Loan requested by the Customer which is
less than that minimum amount, even if the Bank has previously honored a
Loan request for less than the minimum amount. Each Loan shall initially
constitute part of the Prime Rate Portion (as described in paragraph no.
2(a) below) except to the extent the Customer has otherwise timely elected
that such Loan, or any part thereof, constitutes part of a LIBOR
Portion as provided in paragraph 2 below. The Customer shall not request
any Loan which, when taken together with Loans and Letters of Credit then
outstanding, would exceed the Maximum Credit. If Loans are secured
directly or indirectly by securities traded on a national exchange or by
other "margin stock" (as defined by the Federal Reserve Board in
Regulation U), then the Customer promises to furnish the Bank a duly
executed and completed Form U-1 statement and agrees that the proceeds of
Loans from the Loan Account will not be used to purchase or carry stock,
convertible bonds or warrants unless the Customer has obtained the prior
written consent of the Bank.
Loans will be made available from the Loan Account subject to the Bank's
approval on a loan-by-loan basis as and when Loans are requested by the
Customer. None of the proceeds of the Loans shall be loaned to or
otherwise utilized by or for the benefit of Virginia Materials, Inc. or
International Materials & Supplies, Inc.
All Loans shall be made against and evidenced by the Customer's promissory
note payable to the order of the Bank in the principal amount of
$5,000,000, such note to be in the form of Exhibit A attached hereto (the
"Note"). The Bank agrees that notwithstanding the fact that the Note is in
the principal amount of $5,000,000, it shall evidence only the actual
unpaid principal balance of Loans made under the Loan Account. The Bank
agrees that if it transfers or assigns the Note, the Bank will stamp
thereon a statement of the actual principal amount evidenced thereby at
the time of transfer. The Customer agrees that in any action or proceeding
instituted to collect or enforce collection of the Note, the amount shown
as owing the Bank on its records shall be prima facie evidence of the
unpaid balance of principal and interest on the Note.
(b) Letters of Credit. Subject to the terms and conditions hereof,
the Loan Amount may be availed of by the Customer in the form of
commercial letters of credit issued by the Bank for the account of the
Customer (individually a "Letter of Credit" and collectively the "Letters
of Credit"), provided that the aggregate amount of Letters of Credit
issued and outstanding hereunder shall not at any one time exceed
$1,500,000. For purposes of this Agreement, a Letter of Credit shall be
deemed outstanding as of any time in an amount equal to the maximum amount
which could be drawn thereunder under any circumstances and over any
period of time plus any unreimbursed drawings then outstanding with
respect thereto. If and to the extent any Letter of Credit expires or
otherwise terminates without having been drawn upon, the availability
shall to such extent be reinstated. Each Letter of Credit issued hereunder
shall expire not later than twelve (12) months from the date of issuance.
Each Letter of Credit issued hereunder shall be payable in U.S. Dollars,
conform to the general requirements of the Bank for the issuance of a
commercial letter of credit, as to form and substance, and be a letter of
credit which the Bank may lawfully issue. At the time the Customer
requests each Letter of Credit to be issued, the Customer shall execute
and deliver to the Bank an application for such Letter of Credit in the
form then customarily prescribed by the Bank (individually an
"Application" and collectively the "Applications"). Subject to the other
provisions of this subsection, the obligation of the Customer to reimburse
the Bank for drawings under a Letter of Credit shall be governed by the
Application for such Letter of Credit. Anything contained in the
Applications to the contrary notwithstanding, (i) in the event the Bank is
not reimbursed by the Customer for the amount the Bank pays on any draft
drawn under a Letter of Credit issued hereunder by 11:00 a.m. (Chicago
time) on the date when such drawing is paid, the obligation of the
Customer to reimburse the Bank for the amount of such draft paid shall
bear interest (which the Customer hereby promises to pay on demand) from
and after the date the draft is paid until payment in full thereof at the
fluctuating rate per annum determined by adding 3% to the sum of the
Applicable Margin plus the Prime Rate as from time to time in effect
(computed on the basis of a
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year of 360 days for the actual number of days elapsed), (ii) the Customer
shall pay fees in connection with each Letter of Credit as set forth in
Section 3 hereof, and (iii) the Customer shall, upon demand of the Bank,
immediately pay to the Bank the full amount of each Letter of Credit then
outstanding, the Customer agreeing to immediately make such payment and
acknowledging and agreeing that the Bank would not have an adequate remedy
at law for failure of the Customer to honor any such demand and that the
Bank shall have the right to require the Customer to specifically perform
such undertaking whether or not any draws have been made under any such
Letters of Credit.
2. Interest Rate Options.
(a) Subject to the terms and conditions hereof, portions of the
principal of the Loans (all of the principal of the Loans bearing
interest at the same rate for the same period of time being
hereinafter referred to as a "Portion") may, at the Customer's
option, bear interest with reference to the Prime Rate (the "Prime
Rate Portion") or with reference to an Adjusted LIBOR ("LIBOR
Portions"). Subject to the terms and conditions hereof, Portions may
be converted from time to time from one basis to another. All
principal of the Loans which is not part of a LIBOR Rate Portion
shall constitute a single Prime Rate Portion. All principal of the
Loans which bears interest with reference to a particular Adjusted
LIBOR for a particular Interest Period shall constitute a single
LIBOR Portion. There shall not be more than four (4) LIBOR Portions
outstanding at any one time. Anything contained herein to the
contrary notwithstanding, no LIBOR Portion shall be created,
continued or effected by conversion after any demand for payment of
the Loans or any non-compliance by the Customer with any of the
terms or conditions of this Agreement. The Customer hereby promises
to pay interest on each Portion at the rates and times specified
herein. The interest rate payable under this Agreement shall be
subject, however, to the limitation that such interest rate shall
never exceed the highest rate which the Customer may contract to pay
under applicable law.
(b) Prime Rate Portion. The Prime Rate Portion shall bear interest at
the rate per annum determined by adding the Applicable Margin to the
Prime Rate as in effect from time to time, provided that if the
Prime Rate Portion or any part thereof is not paid when due (whether
by demand or otherwise), such Portion shall bear interest, whether
before or after judgment, until payment in full thereof at the rate
per annum determined by adding 3% to the sum of the Applicable
Margin plus the Prime Rate as from time to time in effect. Interest
on the Prime Rate Portion shall be payable monthly in arrears on the
last day of each calendar month in each year; and interest shall
also be due and payable upon demand. Any change in the interest rate
on the Prime Rate Portion resulting from a change in the Prime Rate
shall be effective on the date of the relevant change in the Prime
Rate.
(c) LIBOR Portions. Each LIBOR Portion shall bear interest for each
Interest Period selected therefor at a rate per annum determined by
adding the Applicable Margin to the Adjusted LIBOR for such Interest
Period, provided that if any LIBOR Portion is not paid when due
(whether by demand or otherwise), such Portion shall bear interest,
whether before or after judgment, until payment in full thereof
through the end of the Interest Period then applicable thereto at
the rate per annum determined by adding 3% to the interest rate
which would otherwise be applicable thereto, and effective at the
end of such Interest Period such LIBOR Portion shall automatically
be converted into and added to the Prime Rate Portion and shall
thereafter bear interest at the interest rate applicable to the
Prime Rate Portion after default. Interest on each LIBOR Portion
shall be due
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and payable on the last day of each Interest Period applicable
thereto and, with respect to any Interest Period applicable to a
LIBOR Portion in excess of 3 months, on the date occurring every 3
months after the date such Interest Period began and at the end of
such Interest Period; and interest shall also be due and payable
upon demand. The Customer shall notify the Bank on or before 11:00
a.m. (Chicago time) on the third Business Day preceding the end of
an Interest Period applicable to a LIBOR Portion whether such LIBOR
Portion is to continue as a LIBOR Portion, in which event the
Customer shall notify the Bank of the new Interest Period selected
therefor; and in the event the Customer shall fail to so notify the
Bank, such LIBOR Portion shall automatically be converted into and
added to the Prime Rate Portion as of and on the last day of such
Interest Period.
(d) Computation of Interest. All interest on the Loans shall be computed
on the basis of a year of 360 days for the actual number of days
elapsed.
(e) Manner of Rate Selection.
(i) LIBOR Portions. The Customer shall notify the Bank by 11:00
a.m. (Chicago time) at least 3 Business Days prior to the date
upon which the Customer requests that any LIBOR Portion be
created or that any part of the Prime Rate Portion be
converted into a LIBOR Portion (each such notice to specify in
each instance the amount thereof and the Interest Period
selected therefor). If any request is made to convert a LIBOR
Portion into another type of Portion available hereunder, such
conversion shall only be made so as to become effective as of
the last day of the Interest Period applicable thereto.
(ii) Interest Rate Selections. All requests for the creation,
continuance and conversion of LIBOR Portions under this
Agreement shall be irrevocable. Such requests may be written
or oral and the Bank is hereby authorized to honor telephonic
requests for creations, continuances and conversions received
by it from any person the Bank in good faith believes to be
the Customer, or its designated representative, without the
need of independent investigation, the Customer hereby
indemnifying the Bank from any liability or loss ensuing from
so acting.
(f) Change of Law. Notwithstanding any other provisions hereof, if at
any time the Bank shall determine that any change in applicable
laws, treaties or regulations or in the interpretation thereof makes
it unlawful for the Bank to create or continue to maintain any LIBOR
Portion, it shall promptly so notify the Customer and at the Bank's
option make demand repayment of the Loans or only the affected LIBOR
Portion and, even absent such demand, no LIBOR Portion shall be
created, continued or maintained after the date of such
determination until it is no longer unlawful for the Bank to create,
continue or maintain such LIBOR Portion. Upon such a demand by the
Bank for payment, the Customer shall thereupon prepay the
outstanding principal amount of the Loans so demanded, together with
all interest accrued thereon and all other amounts payable to the
Bank with respect thereto under this Agreement (including without
limitation any amount due the Bank under the funding indemnity
paragraph below); provided, however, that unless the Bank makes
demand for repayment of the Loans in full, the Customer may elect to
convert the principal amount of the affected LIBOR Portion into the
Prime Rate Portion, subject to the terms and
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conditions hereof (including, without limitation, the payment of
such interest and other amounts so payable to the Bank hereunder).
(g) Unavailability of Deposits or Inability to Ascertain Adjusted LIBOR.
Notwithstanding any other provision hereof, if the Bank shall
determine prior to the commencement of any Interest Period that
deposits in the amount of any LIBOR Portion scheduled to be
outstanding during such Interest Period are not readily available to
the Bank in the relevant market or, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining Adjusted LIBOR, then the Bank shall promptly
give notice thereof to the Customer and at the Bank's option make
demand for repayment of the Loans and, even absent such demand, no
LIBOR Portion shall be created, continued or effected by conversion,
as the case may be, in such amount and for such Interest Period
until deposits in such amount and for the Interest Period selected
by the Customer shall again be readily available to the Bank in the
relevant market and adequate and reasonable means exist for
ascertaining Adjusted LIBOR.
(h) Taxes and Increased Costs. With respect to any LIBOR Portion, if the
Bank shall determine that any change in any applicable law, treaty,
regulation or guideline (including, without limitation, Regulation D
of the Board of Governors of the Federal Reserve System) or any new
law, treaty, regulation or guideline, or any interpretation of any
of the foregoing by any governmental authority charged with the
administration thereof or any central bank or other fiscal, monetary
or other authority having jurisdiction over the Bank or its lending
branch or the LIBOR Portions contemplated hereby (whether or not
having the force of law), shall: (i) impose, increase, or deem
applicable any reserve, special deposit or similar requirement
against assets held by, or deposits in or for the account of, or
loans by, or any other acquisition of funds or disbursements by, the
Bank which is not in any instance already accounted for in computing
the interest rate applicable to such LIBOR Portion; (ii) subject the
Bank, this Agreement or any LIBOR Portion to any tax (including,
without limitation, any United States interest equalization tax or
similar tax however named applicable to the acquisition or holding
of debt obligations and any interest or penalties with respect
thereto), duty, charge, stamp tax, fee, deduction or withholding in
respect of this Agreement or any LIBOR Portion, except such taxes as
may be measured by the overall net income or gross receipts of the
Bank or its lending branches and imposed by the jurisdiction, or any
political subdivision or taxing authority thereof, in which the
Bank's principal executive office or its lending branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Customer to the Bank hereunder (other than by
a change in taxation of the overall net income or gross receipts of
the Bank); or (iv) impose on the Bank any penalty with respect to
the foregoing or any other condition regarding this Agreement or any
LIBOR Portion, and the Bank shall determine that the result of any
of the foregoing is to increase the cost (whether by incurring a
cost or adding to a cost) to the Bank of creating or maintaining any
LIBOR Portion hereunder or to reduce the amount of principal or
interest received or receivable by the Bank (without benefit of, or
credit for, any prorations, exemption, credits or other offsets
available under any such laws, treaties, regulations, guidelines or
interpretations thereof), then the Customer shall pay on demand
(which need not but may at the Bank's option be combined with a
demand for repayment of the Loans) to the Bank from time to time as
specified by the Bank such additional amounts as the Bank shall
reasonably determine are sufficient to compensate and indemnify it
for such increased cost or reduced amount. If the Bank makes such a
claim for compensation, it shall provide to the Customer a
certificate setting forth the computation of the increased cost or
reduced
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amount as a result of any event mentioned herein in reasonable
detail and such certificate shall be conclusive if reasonably
determined.
(i) Funding Indemnity. In the event the Bank shall incur any loss, cost
or expense (including, without limitation, any loss (including loss
of profit), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired or contracted to be
acquired by the Bank to fund or maintain any LIBOR Portion or the
relending or reinvesting of such deposits or other funds or amounts
paid or prepaid to the Bank) as a result of:
(x) any payment of a LIBOR Portion on a date other than the last
day of the then applicable Interest Period for any reason,
whether before or after default, and whether or not such
payment is required by any provisions of this Agreement; or
(y) any failure by the Customer to create, borrow, continue or
effect by conversion a LIBOR Portion on the date specified in
a notice given pursuant to this Agreement;
then the Customer shall pay to the Bank upon its demand (which need
not but may at the Bank's option be combined with a demand for
repayment of the Loans) such amount as will reimburse the Bank for
such loss, cost or expense. If the Bank requests compensation under
this paragraph, it shall provide to the Customer a certificate
setting forth the computation of the loss, cost or expense giving
rise to the request for compensation in reasonable detail and such
certificate shall be conclusive if reasonably determined.
(j) Lending Branch; Discretion of Bank as to Manner of Funding. The Bank
may, at its option, elect to make, fund or maintain Portions of the
Loans hereunder at such of its branches or offices as the Bank may
from time to time elect. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall be entitled to fund and
maintain its funding of all or any part of the Loans in any manner
it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder with respect to LIBOR
Portions shall be made as if the Bank had actually funded and
maintained each LIBOR Portion during each Interest Period applicable
thereto through the purchase of deposits in the relevant market in
the amount of such LIBOR Portion, having a maturity corresponding to
such Interest Period, and bearing an interest rate equal to the
LIBOR for such Interest Period.
(k) Notations. The status of all amounts evidenced by the Note as
constituting part of the Prime Rate Portion or a LIBOR Portion, and,
in the case of any LIBOR Portion, the rates of interest and Interest
Periods applicable to such Portions shall be recorded by the Bank on
its books and records or, at its option in any instance, endorsed on
a schedule hereto and the unpaid principal balance and status, rates
and Interest Periods so recorded or endorsed by the Bank shall be
prima facie evidence in any court or other proceeding brought to
enforce this Agreement of the principal amount remaining unpaid
thereon, the status of the Loans evidenced by the Note, and the
interest rates and Interest Periods applicable thereto; provided
that the failure of the Bank to record any of the foregoing shall
not limit or otherwise affect the obligation of the Customer to
repay the principal balance of the Loan Account together with
accrued interest thereon. Prior to any negotiation of the Note, the
Bank shall record on a schedule hereto the status of all amounts
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evidenced thereby as constituting part of the Prime Rate Portion or
a LIBOR Portion and, in the case of any LIBOR Portion, the rates of
interest and the Interest Periods applicable thereto.
(l) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
"Adjusted LIBOR" means a rate per annum determined by the Bank in
accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------
100%-Reserve Percentage
"Reserve Percentage" means, for the purpose of computing Adjusted
LIBOR, the maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental or other
special reserves) imposed by the Board of Governors of the Federal
Reserve System (or any successor) under Regulation D on Eurocurrency
liabilities (as such term is defined in Regulation D) for the
applicable Interest Period as of the first day of such Interest
Period, but subject to any amendments to such reserve requirement by
such Board or its successor, and taking into account any
transitional adjustments thereto becoming effective during such
Interest Period. For purposes of this definition, LIBOR Portions
shall be deemed to be Eurocurrency liabilities as defined in
Regulation D without benefit of or credit for prorations, exemptions
or offsets under Regulation D. "LIBOR" means, for each Interest
Period, (a) the LIBOR Index Rate for such Interest Period, if such
rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%)
at which deposits in U.S. Dollars in immediately available funds are
offered to the Bank at 11:00 a.m. (London, England time) 2 Business
Days before the beginning of such Interest Period by 3 or more major
banks in the interbank eurodollar market selected by the Bank for a
period equal to such Interest Period and in an amount equal or
comparable to the applicable LIBOR Portion scheduled to be
outstanding from the Bank during such Interest Period. "LIBOR Index
Rate" means, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the next higher one hundred-thousandth of
a percentage point) for deposits in U.S. Dollars for a period equal
to such Interest Period, which appears on the Telerate Page 3750 as
of 11:00 a.m. (London, England time) on the day 2 Business Days
before the commencement of such Interest Period. "Telerate Page
3750" means the display designated as "Page 3750" on the Telerate
Service (or such other page as may replace Page 3750 on that service
or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for U.S.
Dollar deposits). Each determination of LIBOR made by the Bank shall
be conclusive and binding absent manifest error.
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"Applicable Margin" means, with respect to Loans and Letters of
Credit, initially the following:
Applicable Margin for Prime Rate Portion of Loans: 0.15%
Applicable Margin for LIBOR Portions of Loans and Letters of 1.15%
Credit:
; provided, however, that the Applicable Margin with respect to the
Loans and Letters of Credit shall be subject to quarterly
adjustments (commencing with an adjustment with respect to the
fiscal quarter ending on March 31, 2002) as follows:
IF AS OF THE LAST DAY
OF THE MOST RECENTLY APPLICABLE MARGIN
COMPLETED FISCAL QUARTER APPLICABLE MARGIN FOR LIBOR PORTIONS
THE SENIOR FUNDED DEBT TO FOR PRIME RATE PORTION OF LOANS AND LETTERS OF
EBITDA RATIO IS OF LOANS IS CREDIT IS
below 1.50 to 1.0 0% 0.90%
at or above 1.50 to 1.0 but 0.15% 1.15%
below 2.0 to 1.0
at or above 2.0 to 1.0 but 0.40% 1.40%
below 2.5 to 1.0
at or above 2.5 to 1.0 0.65% 1.65%
After the close of each quarterly fiscal period of the Customer (the
close of such quarterly fiscal period being hereinafter referred to
as the "Margin Testing Time"), the Bank shall, within five days
after receipt of the Customer's covenant compliance certificate
delivered pursuant to Section 6 hereof, (i) confirm that the
financial statements theretofore furnished to it indicate compliance
with the Senior Funded Debt to EBITDA Ratio required in the chart
above as of the Margin Testing Time and (ii) notify the Customer of
such determination and of any change in the Applicable Margin
resulting therefrom. Any change in the Applicable Margin shall be
effective on the 5th Business Day immediately following the Bank's
receipt of the Customer's most recent financial statement for the
most recent completed fiscal quarter delivered pursuant to Section 6
and with such new Applicable Margin to continue in effect until the
effectiveness of the next redetermination thereof. Any determination
by the Bank of the Senior Funded Debt to EBITDA Ratio shall be
conclusive and binding upon the Customer provided that it has been
made in good faith.
"BMO" means Bank of Montreal and its successors and assigns.
"Business Day" means any day other than a Saturday or Sunday on
which the Bank is not authorized or required to close in Chicago,
Illinois and, when used with respect to LIBOR Portions, a day on
which the Bank is also dealing in United States Dollar deposits in
London, England.
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"Capital Lease" means, with respect to a Person, any lease or other
arrangement relating to property or assets which would be required
to be accounted for as a capital lease on a balance sheet of that
Person in accordance with generally accepted accounting principles.
The amount of any Capital Lease at any date shall be the amount of
the obligation in respect thereof which would be included on the
balance sheet.
"Consolidated Borrower" means Stake and all Included Subsidiaries on
a consolidated basis.
"EBITDA" means, with respect to any fiscal period of the
Consolidated Borrower, the net income of the Consolidated Borrower
(adjusted from time to time, with the prior written consent of the
Bank, for extraordinary gains or losses, income or expenses) for
that period, plus, to the extent deducted in determining the net
income, interest and income taxes accrued during that period, and
eliminating any non-cash items deducted or added in determining that
net income, including depreciation, depletion and amortization
expenses and unrealized foreign exchange losses or gains.
"Funded Debt" means, with reference to the Consolidated Borrower, at
any time and without duplication:
(a) all debts and liabilities for borrowed money including,
without limitation, the obligations;
(b) other than the deferred net profit interest payable to
Xxxx Xxxxx by Virginia Materials, Inc., all debts or
liabilities representing the deferred acquisition cost
of property or assets created or arising under any
conditional sale agreement or other title retention
agreement even though the rights and remedies of the
seller under that agreement in the event of default are
limited to repossession or sale of property or assets
covered thereby;
(c) all liabilities, contingent, unmatured or other, under
indemnities given in respect of any bankers' acceptance,
letter of credit or letter of guarantee;
(d) all operating leases under which a residual value
guarantee or the equivalent has been furnished.
(e) all Capital Leases; and
(f) all liabilities under Swap Transactions determined on a
"xxxx to market" basis;
after deducting all cash on deposit with BMO and the value of all
marketable securities acceptable to Bank in its sole discretion and
which are subject to Liens in favour of the Bank under the
Collateral Documents but excludes, to the extent included above,
Subordinated Debt, accounts payable incurred in the ordinary course
of the Stake's and its subsidiaries' business payment obligations
with respect to the Rhodia Price Reduction and the amount of the
Rhodia Receivable; provided, however, that all payments under the
Rhodia Receivable are current.
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"Included Subsidiary" means (a) any Subsidiary of Stake, other than
1108176 Ontario, which, at any time has assets or revenues of
greater than or equal to $100,000, and (b) 1108176 Ontario if (i)
1108176 Ontario becomes a direct or indirect wholly-owned subsidiary
of Stake, or (ii) the consent of Bentonite of Canada Inc. is
obtained to the grant of a security interest in favour of the
Lender, (A) by 1108176 Ontario in the real property located at 000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx and (B) by Stake in the common
shares of 1108176 Ontario owned by Stake.
"Interest Period" means, with respect to any LIBOR Portion, the
period commencing on, as the case may be, the creation, continuation
or conversion date with respect to such LIBOR Portion and ending 1,
2, 3 or 6 months thereafter as selected by the Customer in its
notice as provided herein; provided that all of the foregoing
provisions relating to Interest Periods are subject to the
following:
(i) 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; and
(ii) the interest rate to be applicable to each LIBOR Portion
for each Interest Period shall apply from and including
the first day of such Interest Period to but excluding
the last day thereof.
For purposes of determining an Interest Period, a month means a
period starting on one day in a calendar month and ending on a
numerically corresponding day in the next calendar month, provided,
however, if an Interest Period begins on the last day of a month or
if there is no numerically corresponding day in the month in which
an Interest Period is to end, then such Interest Period shall end on
the last Business Day of such month.
"NFD" means Northern Food and Dairy, Inc., a Minnesota corporation.
"Prime Rate" means, for any day, the greater of (i) the rate of
interest announced by the Bank from time to time as its prime
commercial rate, as in effect on such day (it being understood and
agreed that such rate may not be the Bank's best or lowest rate);
and (ii) the sum of (x) the rate determined by the Bank to be the
average (rounded upwards, if necessary, to the next higher 1/100 of
1%) of the rates per annum quoted to the Bank at approximately 10:00
a.m. (Chicago time) (or as soon thereafter as is practicable) on
such day (or, if such day is not a Business Day, on the immediately
preceding Business Day) by two or more Federal funds brokers
selected by the Bank for the sale to the Bank at face value of
Federal funds in an amount equal or comparable to the principal
amount owed to the Bank for which such rate is being determined,
plus (y) 1%.
"Rhodia Price Reduction" means amounts due to Rhodia Inc. by NFD
pursuant to the Rhodia Rider.
"Rhodia Receivable" means the amount due to NFD by Rhodia Inc.
pursuant to the Rhodia Rider.
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"Rhodia Rider" means Rider No. 5 to the manufacturing agreement
between Rhodia Inc. and NFD dated September 1, 1999 attached to the
Stake Credit Agreement as Exhibit A to Schedule L.
"Senior Funded Debt to EBITDA Ratio" means Funded Debt of the
Consolidated Borrower divided by the EBITDA of the Consolidated
Borrower.
"Stake" means Stake Technology Ltd., a corporation organized under
the laws of Canada.
"Stake Credit Agreement" means that certain Credit Agreement dated
as of ________________, 2002 among Stake and certain subsidiaries
thereof, as borrowers, Bank of Montreal, as lender, and certain
affiliates of the borrowers, as obligors, as the same may be
amended, modified or restated from time to time.
"Swap Transaction" means an agreement which may be entered into
between the Bank or Bank of Montreal and Stake or any subsidiary
thereof in connection with the management of foreign exchange risks
in all major currencies acceptable to the Bank or Bank of Montreal
and includes foreign currency options and foreign exchange forward
contracts and includes financial products offered by the Bank or
Bank of Montreal to Stake or any subsidiary thereof in connection
with management of interest rate risks including forward rate
agreements and interest rate swaps.
"1108176 Ontario" means 1108176 Ontario Limited, a corporation
incorporated under the laws of Ontario, and its successors and
permitted assigns.
3. Fees. (a) Commitment Fee. Since this is an uncommitted credit arrangement,
no commitment or similar fee will be charged.
(b) Letter of Credit Fees. On the date of issuance of each Letter of
Credit, and as a condition thereto, and annually thereafter, the Customer
shall pay to the Bank a letter of credit fee computed at the rate per
annum equal to the Applicable Margin in effect during the applicable
period (computed on the basis of a year of 360 days for the actual number
of days elapsed) on the maximum amount of the related Letter of Credit
which is scheduled to be outstanding during the immediately succeeding
twelve (12) months. In addition to the letter of credit fee called for
above, the Customer further agrees to pay to the Bank such issuance and
drawing fees with respect to commercial Letters of Credit and such other
processing and transaction fees and charges with respect to any Letter of
Credit, in each case as the Bank from time to time customarily imposes in
connection with any issuance, amendment, cancellation, negotiation and/or
payment of letters of credit and drafts drawn thereunder.
4. Maturity Date; Payments. The Customer shall pay to the Bank the principal
balance of outstanding Loans together with any accrued interest ON DEMAND.
Payments received by the Bank shall be applied first to accrued interest
and then to the principal balance of outstanding Loans unless otherwise
directed, provided that after demand all payments received shall be
applied in such order and manner as the Bank shall determine. The Customer
may make principal prepayments at any time and in any amount, subject to
payment of the relevant funding indemnity more fully provided for in
paragraph 2(j) above. Unless the Customer otherwise directs, principal
payments shall be first applied to the Prime Rate Portion until payment in
full thereof, with any balance applied to the LIBOR Portions in the order
in which their Interest
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Periods expire. If any payment from the Customer under this Agreement
becomes due on a day which is not a Business Day, such payment shall be
made on the next Business Day and any such extension shall be included in
computing interest under this Agreement.
5. Periodic Statements. The Bank will furnish the Customer with a statement
for each billing period (either monthly or quarterly as shown on the front
of this Agreement) which has any transaction or balance.
6. Customer Financial Statements. The Customer agrees to furnish financial
information to the Bank upon request of the Bank from time to time and
without request, the Customer shall furnish or cause to be furnished all
of the financial information furnished to the Lender pursuant to Section
9.4 of the Stake Credit Agreement. Such information shall be furnished as
soon as reasonably possible, but in any event within 30 days after request
by the Bank.
7. Representation and Warranties. In consideration of establishing and
maintaining the Loan Account, the Customer hereby represents and warrants
to the Bank that: (a) the Customer is a corporation duly organized,
validly existing, and in good standing under the laws of its state of
organization; (b) the execution, delivery, and performance by the Customer
of this Agreement and the Note are within its corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
the Customer's charter, articles of incorporation or by-laws or any law or
contractual restriction binding on or affecting the Customer; (c) no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the
Customer's due execution, deliver, and performance of this Agreement or
the Note; (d) this Agreement is, and the Note when executed and delivered
by the Customer will be, the Customer's legal, valid, and binding
obligation enforceable against the Customer in accordance with its terms;
(e) the Customer is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of the Loans will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock; (f) the Customer's balance sheet
as of December 31, 2000, and the Customer's related statements of income
and retained earnings for the fiscal year then ended, copies of which have
been furnished to the Bank, fairly present Customer's financial condition
as at such date and result of the operations for the period ending on such
date, all in accordance with generally accepted accounting principles
consistently applied, and since December 31, 2000, there has been no
material adverse change in the Customer's condition or operations; and (g)
there is no pending or threatened action or proceeding affecting the
Customer before any court, governmental agency or arbitrator, which may
materially adversely affect the Customer's financial condition or
operations or which purports to affect the legality, validity, or
enforceability of this Agreement or the Note.
8. Security; Guaranties. The Loans (both for principal and interest) shall be
secured by the property described in a Security Agreement from the
Customer and each of the Customer's subsidiaries and from certain other
parties and by various mortgages and deeds of trust executed by the
Customer and each of its subsidiaries (all of such documents, as the same
may be amended, supplemented or restated from time to time being
hereinafter referred to as the "Collateral Documents"). In addition, the
Loans may also be secured by collateral which secures other indebtedness
which the Customer may have outstanding from the Bank at the present time
or in the future. The Bank shall have the right to call for additional
security satisfactory to the Bank should the value of the collateral
decline or be deemed by the Bank inadequate or unsatisfactory.
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The Loans shall at all times be guarantied by each subsidiary of the
Customer and by various other entities pursuant to various guaranties
satisfactory to the Bank.
9. DEMAND OBLIGATION; ENFORCEMENT. THE LOANS ARE EXPRESSED TO BE PAYABLE "ON
DEMAND." ACCORDINGLY, THE BANK CAN DEMAND PAYMENT IN FULL OF THE LOANS AT
ANY TIME IN ITS SOLE DISCRETION EVEN IF THE CUSTOMER HAS COMPLIED WITH ALL
OF THE TERMS OF THIS AGREEMENT.
No delay by the Bank in the exercise of any right or remedy shall operate
as a waiver thereof, and no single or partial exercise by the Bank of any
right or remedy shall preclude any other or further exercise thereof or
the exercise of any other right or remedy. The Customer agrees to pay to
the Bank all expenses incurred or paid by the Bank in connection with the
establishment and maintenance of the Loan Account and the collection of
the Loans and any other amounts due under this Agreement and the
enforcement of rights to any collateral security therefor, including,
without limitation, attorneys' fees and court costs. The Bank shall have
the right at any time to set-off the balance of any deposit account that
the Customer may at any time maintain with the Bank against any amounts at
any time owing under this Agreement, whether or not the balance of Loans
under this Agreement is then due.
10. Termination. The availability of additional Loans under this Agreement
will automatically terminate ON DEMAND. The Bank reserves the right at any
time without notice to terminate the Loan Account, suspend the Customer's
borrowing privileges or refuse any Loan request or any request for a LIBOR
Portion even though the Customer has complied with all of the terms of
this Agreement. The Customer may terminate this Agreement at any time
effective upon receipt by the Bank of at least 5 Business Days prior
written notice. No termination under this paragraph shall affect the
Bank's rights or the Customer's obligations regarding payment or default
under this Agreement. Such termination shall not affect the Customer's
obligation to pay all Loans and the interest accrued through the date of
final payment. The Bank may also elect to honor Loan requests after
termination of this Agreement, and the Customer agrees that any such
payment by the Bank shall constitute a Loan to Customer under this
Agreement.
11. Notices. The Bank may rely on instructions from the Customer with respect
to any matters relating to this Agreement or the Loan Account, including
telephone loan requests which are made by a person whom the Bank believes
to be the Customer or its designated representative. All notices and
statements to be furnished by the Bank shall be sufficient if delivered to
any such person at the billing address for the Loan Account shown on the
records of the Bank. All notices from the Customer shall be sent to the
Bank at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxxx, Account Officer. The Customer waives presentment and
notice of dishonor. This Agreement constitutes the entire understanding of
the parties with respect to the subject matter hereof and any prior
agreements, whether written or oral, with respect thereto are superseded
hereby. No amendment or waiver of any provision of this Agreement or the
Note, nor consent to any departure by the Customer therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Bank. If any part of this Agreement is unenforceable, that will not make
any other part unenforceable. This Agreement shall be governed by the laws
of the State of Illinois.
12. Consent to Jurisdiction. THE CUSTOMER SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS AND OF ANY
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ILLINOIS STATE COURT SITTING IN XXXX COUNTY, ILLINOIS, FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
13. Jury Trial Waiver. THE CUSTOMER AND THE BANK WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
THE CUSTOMER AGREES TO THE TERMS SET FORTH ABOVE.
Signed by Customer on March 15, 2002.
SUNRICH FOOD GROUP, INC.
By: "Xxxxxx Xxxxxxx"
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
Accepted and agreed to this 15th day of March, 2002.
XXXXXX TRUST AND SAVINGS BANK
By: "Xxxxx Xxxxxx"
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
DEMAND NOTE
$5,000,000 ____________________, 2002
ON DEMAND, for value received, the undersigned, SunRich Food Group, Inc.,
a Minnesota corporation, promises to pay to the order of XXXXXX TRUST AND
SAVINGS BANK (the "Bank") at its offices at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, the principal sum of Five Million and 00/100 Dollars ($5,000,000) or,
if less, the amount outstanding under the Facility B Loan Authorization
Agreement referred to below together with interest payable at the times and at
the rates and in the manner set forth in the Facility B Loan Authorization
Agreement referred to below.
This Note evidences borrowings by the undersigned under that certain
Facility B Loan Authorization Agreement dated as of ___________, 2002, between
the undersigned and the Bank and is secured by various liens and security
interests granted or to be granted to the Bank from time to time; and this Note
and the holder hereof are entitled to all the benefits provided for under the
Facility B Loan Authorization Agreement, to which reference is hereby made for a
statement thereof. The undersigned hereby waives presentment and notice of
dishonor. The undersigned agrees to pay to the holder hereof all expenses
incurred or paid by such holder, including attorneys' fees and court costs, in
connection with the collection of this Note. It is agreed that this Note and the
rights and remedies of the holder hereof shall be construed in accordance with
and governed by the laws of the State of Illinois.
SUNRICH FOOD GROUP, INC.
By ______________________________________
Name__________________________________
Title_________________________________
