EXHIBIT 6
XXX XXXXXXXX XXXXXXXXX, JR. AND XXXXXXX XXXXX XXXXXXXXX,
NOT INDIVIDUALLY BUT SOLELY AS CO-EXECUTORS OF THE ESTATE OF
XXX XXXXXXXX XXXXXXXXX, DECEASED
SECOND AMENDMENT TO CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
The Lenders from time to time parties hereto
SunTrust Bank (formerly known as
SunTrust Bank, Atlanta)
Atlanta, Georgia
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
March 21, 2000, as amended (the "Credit Agreement"), among the undersigned, XXX
XXXXXXXX XXXXXXXXX, JR. AND XXXXXXX XXXXX XXXXXXXXX, not individually but solely
as co-executors of the estate of Xxx Xxxxxxxx Xxxxxxxxx, Deceased (the
"Borrower"), you (the "Banks") and Xxxxxx 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 Borrower has requested that the Banks amend the Credit Agreement to
remove the mortgage on certain property located in Mississippi and commonly
known as the Pine Lane Ranch from the Collateral and the Banks are willing to do
so 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. Section 2.2 of the Credit Agreement shall be amended to read as
follows:
"Section 2.2. Under Margin - Additional Pledge. If for any
reason, including a decline in the Market Value of the Securities, the
ratio (the "Loan-to-Value Ratio") of (i) the remainder of (x) the
unpaid principal amount of the Term Loans, minus (y) the sum of (A) the
amount of any Cash Collateral provided to the Agent and securing the
obligations of the Borrower with respect to the principal of the Term
Loans, and (B) if an SFI Guaranty has been executed and delivered and
is in effect, the principal amount of the Term Loans guaranteed by
Xxxxxxxxx Farms, Inc. pursuant to such SFI Guaranty, to the Market
Value of the Securities, exceeds 60%, the Borrower will notify the
Agent that the Borrower is under margin. Within five Business Days of
the giving of any such notice to the Agent, the Borrower will cause the
Loan-to-Value Ratio to be reduced to 50% by either (i) with the consent
of the Agent, making a payment on the Term Loans in the amount of the
shortfall, or
(ii) pledging to the Agent for the benefit of the Banks additional
Collateral that is acceptable to the Agent in its sole discretion
exercised in a commercially reasonable manner. It is acknowledged by
the Banks that the common stock of Xxxxxxxxx Farms, Inc. and cash or
cash equivalents are acceptable Collateral. "Market Value" means, to
the extent quotations are available, the closing sale price of the
Securities on the preceding Business Day as appearing on any regularly
published reporting or quotation service or, if there is no closing
sale price, any reasonable estimate used by the Borrower or the Agent
in accordance with sound banking practices; provided, however, that any
equity Securities having a closing sale price of less than $5 per share
or unit shall be deemed to have a Market Value of zero dollars ($0)."
1.2. Section 4 of the Credit Agreement shall be amended by deleting
therefrom the definitions of the terms "Loan Value of Pine Lane Ranch,"
"Partnership" and "Pine Lane Ranch Mortgage."
1.3. The first paragraph of Section 7.10 of the Credit Agreement shall
be amended to read as follows:
"The Borrower shall not, without the Banks' prior written
consent, distribute or transfer without receipt of fair market value
consideration any shares of the common stock of Xxxxxxxxx Farms, Inc.
held by the Borrower or all or a substantial part of the Borrower's
other assets; provided, however, that if (a) no Potential Default or
Event of Default has occurred and is continuing or would exist
immediately after the distribution, (b) after giving effect to the
distribution the Borrower's Net Worth (as defined below) is not less
than $2,500,000, and (c) after giving effect to the distribution the
Loan to Value Ratio (determined without regard to the amount of any SFI
Guaranty that may be in effect) does not exceed 25%, the Borrower may
during the term of this Agreement distribute to the legatees of the
Estate not more than (x) 200,000 shares of the common stock of
Xxxxxxxxx Farms, Inc. (or an equivalent amount of cash based on the
Market Value on the Business Day immediately preceding the
distribution, or any combination of cash and shares) in the calendar
year 2000 and 100,000 shares of the common stock of Xxxxxxxxx Farms,
Inc. (or an equivalent amount of cash or any combination of shares and
cash) in each calendar year thereafter, and (y) in each calendar year
after the year 2000 the shares of the common stock of Xxxxxxxxx Farms,
Inc. (or an equivalent amount of cash or any combination of shares and
cash) which were (or would have been had the conditions of clauses (a),
(b) and (c) been satisfied) permitted to be distributed under clause
(x) above and which were not distributed during the period specified in
clause (x); provided further, however, that if after giving effect to
any distribution permitted hereby the Loan to Value Ratio (determined
without regard to the amount of any SFI Guaranty that is in effect)
shall be less than 15% but equal to or greater than 5% the Borrower may
distribute an additional 100,000 shares of the common stock of
Xxxxxxxxx Farms, Inc. (or an equivalent amount of cash or any
combination of shares and cash) and if after giving effect to any
distribution permitted hereby the Loan to Value Ratio (determined
without regard to the amount of any SFI Guaranty that is in effect)
shall be less than 5% the Borrower may distribute an additional 400,000
shares of the common stock of Xxxxxxxxx Farms, Inc. (or an equivalent
amount of cash or any combination of shares and cash; provided further,
however, that in no event shall the aggregate number of shares of
common stock of Xxxxxxxxx Farms, Inc. distributed pursuant to this
Section 7.10 exceed 700,000 shares (or an equivalent amount of cash or
any combination of shares and cash) during the entire term of
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this Agreement. At least one Business Day prior to any distribution
permitted under this paragraph the Borrower shall deliver to the Agent
a written verification of the Borrower's Net Worth, in form and content
acceptable to the Agent and as of the date not more than 30 days prior
to the date of delivery, together with a projection of the Borrower's
Net Worth and a calculation of the Loan to Value Ratio immediately
after the proposed distribution."
1.4. Section 8.1 of the Credit Agreement shall be amended by replacing
the "; or" appearing at the end of subsection (k) thereof with a period and by
deleting subsection (l) thereof.
1.5. The Banks hereby authorize and direct the Agent to release all
liens and security interests granted to it for the benefit of the Banks pursuant
to the Pine Lane Ranch Mortgage (as defined in the Credit Agreement before
giving effect to this Amendment) and in furtherance thereof to execute and
deliver to the Borrower such releases, terminations and other instruments and
documents as may be necessary to effect such release.
2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
2.1. The Borrower, the Agent and each of the Banks shall have executed
this Amendment.
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 Borrower 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 Notes, or any
communication issued or made pursuant to or with respect to the Credit Agreement
or the 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.
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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 5, 2001.
/s/Xxx Xxxxxxxx Xxxxxxxxx, Jr.
XXX XXXXXXXX XXXXXXXXX, JR., AS CO-EXECUTOR
OF THE ESTATE OF XXX XXXXXXXX XXXXXXXXX,
DECEASED, AND NOT IN HIS INDIVIDUAL CAPACITY
/s/Xxxxxxx Xxxxx Xxxxxxxxx
XXXXXXX XXXXX XXXXXXXXX, AS CO-EXECUTOR
OF THE ESTATE OF XXX XXXXXXXX XXXXXXXXX,
DECEASED, AND NOT IN HIS INDIVIDUAL CAPACITY
Accepted and agreed to as of the day and year last above written.
XXXXXX TRUST AND SAVINGS BANK
individually and as Agent
By /s/ Xxxxxx Xxxxxxxx
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Its Vice President
SUNTRUST BANK
By /s/ Xxxx X. Xxxxx
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Its Vice President
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