AMENDED AND RESTATED LINE OF CREDIT NOTE
Exhibit
10.59
AMENDED
AND RESTATED LINE OF CREDIT NOTE
| $50,000,000 | Denver, Colorado | |
| February 2, 2006 |
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. BANK
NATIONAL 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 Million Dollars
($50,000,000) 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 March 7, 2005 in the original principal amount of Fifty Two Million Five
Hundred Thousand Dollars ($52,500,000) 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 Xxxxxxxxxx | By | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Its Exec. Vice President | Its CFO | |||||||
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