EXHIBIT 10.3
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FORM OF AMENDED AND RESTATED LINE OF CREDIT NOTE
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$52,500,000 Denver, Colorado
March 7, 2005
FOR VALUE RECEIVED, the undersigned XXXX X. XXXXXXXXXX & SON,
INC., a Delaware corporation (and successor in interest to Sunshine
Nut Co., Inc. and Quantz Acquisition Co., Inc.), (collectively, the
"Borrower" whether one or more) promises to pay to the order of
U.S NATIONAL BANK ASSOCIATION (hereinafter referred to as
"Lender"), at such place as U.S. Bank National Association, as agent
for the Lender, may designate, in lawful money of the United States of
America and in immediately available funds, the principal sum of
Fifty Two Million Five Hundred Thousand Dollars ($52,500,000)
or so much thereof as may be advanced and be outstanding, together
with interest on any and all principal amounts outstanding calculated
in accordance with the provisions set forth below. This Amended and
Restated Note (this "Note") is issued under that certain Credit
Agreement dated as of March 31, 1998 (as amended, supplemented, restated
or otherwise modified and in effect from time to time, the "Credit
Agreement") between Borrower, U.S. Bank National Association, a national
banking association, as agent (the "Agent"), Lender and the other lenders
identified therein (collectively the "Lenders").
Capitalized terms used and not defined herein shall have the
meanings given to such terms in the Credit Agreement.
The outstanding Loans hereunder shall be maintained as Prime Rate
Loans, LIBOR Rate Loans, or Overnight Funds Rate Loans as more fully
provided in the Credit Agreement. The Borrower shall have the right
to make prepayments of principal only in accordance with the Credit
Agreement.
Borrower shall pay interest on the unpaid principal amount of
each Loan made by the Lender from the date of such Loan until such
principal amount shall be paid in full, at the times and at the rates
per annum set forth in the Credit Agreement.
The unpaid balance of this obligation at any time shall be the
total amounts advanced hereunder by the Lender, together with accrued
and unpaid interest, less the amount of payments made hereon by or for
the Borrower, which balance may be endorsed hereon from time to time
by the Lender.
In addition to the repayment requirements imposed upon the
Borrower under the Credit Agreement, together with the agreements
referred to therein, the principal and interest owing under this Note
shall be due and payable in full on the Maturity Date, without
presentment, demand, protest or further notice (including without
limitation, notice of intent to accelerate and notice of acceleration)
of any kind, all of which are expressly waived by the Borrower. Time
is of the essence hereof.
Interim payments made by Borrower pursuant to and in accordance
with the Credit Agreement shall be applied as provided therein.
Should any Matured Default occur, then all sums of principal and
interest outstanding hereunder may be declared immediately due and
payable in accordance with the Credit Agreement, without presentment,
demand or notice of dishonor, all of which are expressly waived, and
the Lender shall have no obligation to make any further Loans pursuant
to the Credit Agreement.
This Note (i) in part, re-evidences and amends and restates in
its entirety, that certain Line of Credit Note dated as of May 30,
2003 in the original principal amount of Forty Million and 00/100 Dollars
($40,000,000) made by the Borrower in favor of the Lender (the "Original
Note") and (ii) in part, evidences new Loans being made by the Lender to
the Borrower under and pursuant to the Credit Agreement. The Borrower
hereby acknowledges that the indebtedness evidenced by the Original Note
is a continuing indebtedness of the Borrower and that this Note is being
issued in substitution thereof and not as a release or novation
thereof.
This Note shall be construed in accordance with the laws of the
State of Colorado.
XXXX X. XXXXXXXXXX & SON, INC., a
Delaware corporation
ATTEST:
By /s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
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Its Vice President of Finance Its Executive Vice President
Finance, Chief Financial
Officer and Secretary
