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EXHIBIT 10.40
XXXXXXX FOODS, INC.
AMENDMENT AGREEMENT
Re: Loan Agreement dated December 1, 1989
Dated as of
February 26, 1997
Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Reference is made to the Loan Agreement dated December 1, 1989 (the
"Outstanding Agreement"), between XXXXXXX FOODS, INC., a Delaware corporation
(the "Company"), and you, under and pursuant to which you loaned $50,000,000 to
the Company and the Company evidenced such loan by a like aggregate principal
amount of the Company's 9.50% senior notes due December 1, 1999. $26,000,000
aggregate principal amount of such senior notes, as heretofore amended, (the
"Outstanding Notes") is presently outstanding.
The Company now desires to amend certain provisions of the Outstanding
Agreement and the Outstanding Notes. You are the owner and holder of 100% of
the Outstanding Notes. The Company hereby requests that from and after your
acceptance hereof in the manner hereinafter provided, said Outstanding
Agreement and Outstanding Notes shall be amended in the respects, but only in
the respects, hereinafter set forth.
ARTICLE I
AMENDMENTS TO OUTSTANDING AGREEMENT
I-A. Section 5 of the Outstanding Agreement is hereby amended and restated
in its entirety to read as follows:
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"SECTION 5. FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES;
ADDITIONAL INFORMATION; INSPECTION.
Section 5.1. Financial Statements and Reports. From and after
February 26, 1997, the Company will deliver to each Institutional Holder,
in duplicate:
(a) as soon as practicable, and in any event within 60 days
after the end of each quarterly period (other than the last
quarterly period) in each fiscal year of the Company, the
consolidated statement of income of the Company and its
Subsidiaries for such period and for that part of the fiscal year
ended with such quarterly period, the consolidated statement of
cash flows of the Company and its Subsidiaries for that part of the
fiscal year ended with such quarterly period and the consolidated
balance sheet of the Company and its Subsidiaries as at the end of
such period, setting forth in each case in comparative form the
corresponding figures as of the end of and for the corresponding
quarterly period of the preceding fiscal year (or, in the case of
the consolidated balance sheet, as of the end of and for the then
most recent fiscal year), all in reasonable detail, prepared in
conformity with generally accepted accounting principles applied on
a basis consistent with that of previous years (except as otherwise
stated therein or in the notes thereto and except that footnotes
shall not be required) and certified by the chief financial officer
of the Company as presenting fairly the financial condition and
results of operations of the Company and its Subsidiaries as at the
end of and for the fiscal periods to which they relate, subject to
the Company's year end adjustments;
(b) as soon as practicable, and in any event within 90 days
after the end of each fiscal year of the Company, the consolidated
balance sheet and related consolidated statements of income,
stockholders' equity and cash flows of the Company and its
Subsidiaries as
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at the end of and for such year, setting forth in each case in
comparative form the corresponding figures as at the end of and for
the previous fiscal year, all in reasonable detail, prepared in
conformity with generally accepted accounting principles applied on
a basis consistent with that of previous years (except as otherwise
stated therein or in the notes thereto) and certified by the chief
financial officer of the Company as presenting fairly the financial
condition, results of operations and cash flows of the Company and
its Subsidiaries as at the end of and for the fiscal year to which
such financial statements relate, and accompanied by a report or
opinion of independent certified public accountants of recognized
national standing selected by the Company stating that such
financial statements present fairly the consolidated financial
condition, results of operations and cash flows of the Company and
its Subsidiaries in accordance with generally accepted accounting
principles consistently applied (except for changes with which such
accountants concur) and that the examination of such accountants in
connection with such financial statements has been made in
accordance with generally accepted auditing standards;
(c) concurrently with the financial statements delivered
pursuant to Section 5.1(b), the written statement of said
accountants that in making the examination necessary for their
report or opinion on said financial statements they have obtained
no knowledge of any Event of Default or any event which, with
notice or lapse of time or both, would constitute such an Event of
Default, or, if such accountants shall have obtained knowledge of
any such Event of Default or event, they shall disclose in such
statement the Event of Default or event and the nature and status
thereof;
(d) concurrently with the financial statements delivered
pursuant to Sections 5.1(a) and 5.1(b), a certificate of the chief
financial officer of the
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Company (1) stating that a review of the activities of the Company
and its Subsidiaries during such fiscal period has been made under
such officer's supervision to determine whether the Company has
fulfilled all of its obligations under this Agreement and the
Notes, (2) setting forth, where applicable, the figures and
computations demonstrating the compliance by the Company with the
requirements of Section 4 of the Notes as at the end of such fiscal
period; provided, that, as at the end of each of the first three
quarterly fiscal periods, the Company need only demonstrate
compliance with Sections 4.03 and 4.04, and (3) stating that, to
the best of such officer's knowledge, there exists no Event of
Default under this Agreement or under the Notes or event which,
with notice or lapse of time or both, would constitute such an
Event of Default, or, if any such Event of Default or event exists,
specifying such Event of Default or event and the nature and status
thereof;
(e) as soon as practicable, copies of all financial
statements, proxy statements and reports as the Company shall send
or make available generally to its security holders and all
registration statements and regular periodic reports, if any, which
it or any of its Subsidiaries may file with the Securities and
Exchange Commission or any governmental agency or agencies
substituted therefor or with any national securities exchange;
(f) as soon as practicable, and in any event within three days
after a responsible officer of the Company becomes aware of the
existence of an Event of Default under the Notes or any other
evidence of Indebtedness of the Company or any of its Subsidiaries,
or an event which, with notice or lapse of time or both, would
constitute such an Event of Default, written notice specifying the
nature and period of existence thereof and what action the Company
or such
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Subsidiary, as the case may be, is taking or proposes to take with
respect thereto;
(g) as soon as practicable, and in any event within thirty
days after the Company or any of its ERISA Affiliates knows or
reasonably should know that any of the events or conditions
specified below with respect to any Plan, as defined in Section
2.12 hereof, or Multiemployer Plan, as defined in Section
4001(a)(3) of ERISA (as defined in Section 2.12 hereof), has
occurred or exists, a statement, signed by a financial officer of
the company setting forth details respecting such event or
condition, and the action, if any, that the Company or its ERISA
Affiliate proposes to take with respect thereto and a copy of any
report or notice required to be filed with or given to the PBGC, as
defined in Section 2.12 hereof, by the Company or its ERISA
Affiliate with respect to such event or condition;
(i) any "Reportable Event," as defined in Section 4043
(b) of ERISA with respect to a Plan or Multiemployer Plan, as
to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event; provided,
however, that the failure to meet the minimum funding
standard of Section 412 of the Code, as defined in Section
2.12 hereof, or Section 302 of ERISA shall be a Reportable
Event regardless of the issuance of any waivers in accordance
with Section 303 of ERISA or Section 412(d) of the Code;
(ii) the filing under Section 4041(b) or 4041(c) of
ERISA by the Company or any of its ERISA Affiliates of a
notice of intent to terminate any Plan or the termination of
any Plan or the treatment of a Plan amendment as a Plan
termination under Section 4041(e) of ERISA;
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(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any of its ERISA Affiliates of a
notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company
or any of its ERISA Affiliates under Section 4203 or 4205 of
ERISA from a Multiemployer Plan, or the receipt by the
Company or any of its ERISA Affiliates of notice from a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any of its
ERISA Affiliates to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days;
(vi) any event or series of events has occurred or
exists which could reasonably be expected to result in
liability to the Company or any of its ERISA Affiliates under
Title IV of ERISA pursuant to Section 4069(a) or 4212(c) of
ERISA; and
(vii) any statutory lien, under the Code or ERISA, shall
have been placed upon the assets of the Company or any of its
ERISA Affiliates in respect to any Plan or Multiemployer
Plan;
(h) as soon as practicable, and in any event within thirty
days of receipt thereof, copies of any
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notice to the Company or any Subsidiary from any Federal or state
governmental authority relating to any order, ruling, statute or
other law or regulation which involves the likelihood of any
material and adverse change in the business, operations,
properties, prospects, assets or condition, financial or other, of
the Company and its Subsidiaries, taken as a whole; and
(i) such other information as to the business and properties
of the Company and of its Subsidiaries, consolidated financial
statements of the Company and its Subsidiaries and financial
statements and other reports filed by the Company or any of its
Subsidiaries with any governmental department, bureau, commission
or agency, as any Institutional Holder may from time to time
reasonably request.
Section 5.2. Right to Inspect Properties, Books, Etc. From and
after February 26, 1997 each Institutional Holder (or such Persons as
such Institutional Holder may designate) shall have the right to visit
and inspect any of the properties of the Company and its Subsidiaries, to
examine the books of account and records of the Company and its
Subsidiaries, to make copies and extracts therefrom of financial records
of the Company and its Subsidiaries, to discuss the affairs, finances,
accounts and condition of the Company and its Subsidiaries with, and to
be advised as to the same by, their respective officers, employees and
independent accountants, all at such reasonable times and intervals as
such Institutional Holder may desire. The Company shall be required to
pay or reimburse any Institutional Holder for all reasonable expenses
which it may incur in connection with any such visitation or inspection
if an Event of Default shall have occurred and be continuing at the time
thereof."
I-B. Section 6 of the Outstanding Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 6. MISCELLANEOUS.
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Section 6.1. Expenses. The Company agrees to pay all reasonable
costs and expenses (including stamp and other taxes, if any, payable in
connection with the execution and delivery of the Agreements or the Notes
and reasonable attorney's fees of a special counsel) reasonably incurred
by you in connection with such transactions and incurred by any holder of
a Note in connection with the Pending Reorganization and any amendments,
waivers or consents under or in respect of the Agreements or the Notes
(whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in
enforcing or defending any rights under the Agreements or the Notes or in
responding to any subpoena or other legal process or informal
investigative demand issued in connection with the Agreements or the
Notes, or by reason of being a holder of any Note, and (b) the costs and
expenses, including financial advisors' fees, incurred in connection with
the insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company shall not, in
connection with any of the matters described in this Section 6.1, be
liable for the costs and expenses of more than one separate legal firm,
unless a holder of a Note reasonably determines that its interests as a
holder of Notes differs from the interests of other holders so as to
require separate legal advice. The Company also agrees to pay, and save
each holder of a Note harmless from, all claims in respect of any fees,
costs or expenses, if any, of brokers and finders (other than any
retained by you). The obligations of the Company under this Section 6.1
shall survive the transfer of any Note or portion thereof or interest
therein by any holder and the payment or prepayment of any Note.
Section 6.2. Stamp Taxes, etc. The Company will pay, and save you
and any subsequent holder of the Notes harmless against, any and all
liability (including any interest or penalty for non-payment or delay in
payment) with respect to stamp taxes (other than any such stamp taxes
incurred upon a transfer of the Notes by you or any other holder of the
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Notes), if any, which may be payable or determined to be payable in
connection with the transactions contemplated by the Agreements,
including, without limitation, the issue and delivery of the Notes, the
acquisition thereof or any modification, amendment or alteration thereof
made at the request of the Company. The obligations of the Company under
this Section 6.2 shall survive the transfer of any Note or portion
thereof or interest therein by any holder and the payment or prepayment
of any Note.
Section 6.3. Successors and Assigns. All covenants, agreements,
representations and warranties made herein or in certificates delivered
in connection herewith by or on behalf of the Company shall survive the
issue and delivery of the Notes to you, the making of the loan by you as
provided in Section 1.2 and payment therefor, and shall bind the
successors and assigns of the Company, whether so expressed or not, and
all such covenants, agreements, representations and warranties shall
inure to the benefit of your successors and assigns, including any
subsequent holder of any of the Notes.
Section 6.4. Direct Payment. Notwithstanding anything to the
contrary contained in the Agreements or the Notes, in the case of any
Note owned by you or owned by any other Institutional Holder which has
given written notice to the Company requesting that the provisions of
this Section 6.4 shall apply, the Company will punctually pay when due
and payable the principal amount thereof then to be prepaid, interest
thereon and premium, if any, due with respect to said principal, without
any presentment thereof, directly to such holder at its address set forth
in Schedule I hereto or such other address as such holder may from time
to time designate in writing to the Company or, if a bank account with a
United States bank is set forth in Schedule I hereto or so designated,
the Company will make such payments in immediately available funds to
such bank account, marked for attention as indicated, or in such other
manner or to such other account in any bank in the United States as such
holder may from time to time direct in
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writing. With respect to any Notes to which this Section 6.4 applies,
the Company shall be entitled to presume conclusively that you or any
Institutional Holder which has requested the provisions of this Section
6.4 to apply to its Notes remains the holder of such Notes until such
Notes shall have been presented to the Company as evidence of the
transfer thereof. Prior to any sale or other disposition of any Note to
which this Section 6.4 applies, the holder thereof shall make a notation
thereon of the aggregate amount of all payments of principal, if any,
theretofore made and of the date to which interest has been paid. If
requested by the Company, the holder of any Note which has been paid in
full shall promptly return such Note to the Company for cancellation.
Section 6.5. Notices. All communications provided for hereunder
shall be in writing and, if to a holder of a Note, delivered by overnight
air courier, or by facsimile communication confirmed by overnight air
courier, in each case addressed to such holder at its address set forth
on Schedule I hereto or such other address as any holder may designate to
the Company in writing, and, if to the Company, delivered by overnight
air courier, or by facsimile communication confirmed by overnight air
courier, to the Company at 324 Park National Bank Building, 0000 Xxxxxxx
Xxxx., Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Vice President-Finance,
or to such other address as the Company may in writing designate to the
holders.
Section 6.6. Defined Terms. The terms used herein and in
certificates delivered pursuant hereto shall have the meanings assigned
thereto in Exhibit A hereto, unless otherwise defined herein.
Section 6.7. Pending Reorganization. By your acceptance hereof you
shall be deemed to have agreed to enter into an agreement substantially
in the form of the Novation and Assumption Agreement (the "Assumption
Agreement") attached hereto as Exhibit E; provided that such Assumption
Agreement shall become effective only upon the
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receipt by you of a favorable opinion of Maun & Simon, PLC, dated the
Effective Date of the Xxxxxxx Reorganization (as such terms are used in
the Assumption Agreement) and in form and substance satisfactory to you
substantially to the effect that:
(i) New Xxxxxxx (as defined in the Assumption Agreement) is a
duly incorporated and validly existing corporation in good standing
under the laws of the State of Minnesota and has the corporate
power and authority to own its property and assets and to carry on
its business as presently conducted and to enter into the
Assumption Agreement and perform its obligations as contemplated
therein;
(ii) the Assumption Agreement has been duly authorized,
executed and delivered by New Xxxxxxx and constitutes the legal,
valid and binding obligation of New Xxxxxxx enforceable in
accordance with its terms (except as enforceability may be limited
by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and by general principles of equity);
and that no consent of shareholders is required for the execution
and delivery of the Assumption Agreement;
(iii) no action of, or filing with, any governmental or public
body or authority is required to authorize, or is otherwise
required in connection with, the execution, delivery and (except
for such filings as may be required in connection with the Pending
Reorganization) performance of the Assumption Agreement by New
Xxxxxxx;
(iv) New Xxxxxxx is, to the best of such counsel's knowledge,
duly qualified and in good standing as a foreign corporation in
each jurisdiction wherein the nature of the property owned or
leased by it or the nature of the business transacted by it makes
such qualification necessary, except where the failure so to
qualify would not have a material and adverse effect on
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the business, operations, properties, prospects, assets or
condition, financial or other, of New Xxxxxxx and its Subsidiaries
taken as a whole;
(v) neither the execution and delivery of the Assumption
Agreement by New Xxxxxxx, the performance by New Xxxxxxx of its
obligations thereunder nor compliance by New Xxxxxxx with the
terms, conditions and provisions thereof will violate any order,
injunction or decree of any court or other governmental body to
which New Xxxxxxx is a party or by which it is bound, or conflict
with or result in a breach of any of the terms, conditions or
provisions of the corporate charter or by-laws of New Xxxxxxx or
any agreement or instrument, known to such counsel, to which New
Xxxxxxx is a party or by which New Xxxxxxx is bound, or constitute
a default thereunder, or result in the creation or imposition of
any Lien of any nature whatsoever upon any of the properties or
assets of New Xxxxxxx;
and as to such other matters incident to the transactions contemplated by
the Pending Reorganization as you may reasonably request.
Section 6.8. Confidential Information. For the purposes of this
Section 6.8, "Confidential Information" means information delivered to
you by or on behalf of the Company or any Subsidiary in connection with
the transactions contemplated by or otherwise pursuant to this Agreement
that is proprietary in nature and that was clearly marked or labeled or
otherwise adequately identified in writing when received by you as being
confidential information of the Company or such Subsidiary, provided that
such term does not include information that (a) was publicly known or
otherwise known to you prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by you or
any person acting on your behalf, (c) otherwise becomes known to you
other than through disclosure by the Company or any Subsidiary or
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(d) constitutes financial statements delivered to you under Section 5.1
hereof that are otherwise publicly available. You will maintain the
confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may
deliver or disclose Confidential Information to (i) your directors,
trustees, officers, employees, agents, attorneys and affiliates (to the
extent such disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors and
other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms of
this Section 6.8, (iii) any other holder of any Note, (iv) any
institutional investor to which you sell or offer to sell such Note or
any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 6.8), (v) any Person from which
you offer to purchase any security of the Company (if such Person has
agreed in writing prior to its receipt of such Confidential Information
to be bound by the provisions of this Section 6.8), (vi) any Federal or
state regulatory authority having jurisdiction over you, (vii) the
National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires
access to information about your investment portfolio or (viii) any other
Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or
order applicable to you, (x) in response to any subpoena or other legal
process, (y) in connection with any litigation to which you are a party
or (z) if an Event of Default has occurred and is continuing, to the
extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the
rights and remedies under your Notes and this Agreement. Each holder of
a Note, by its acceptance of a Note, will be deemed to have agreed to be
bound by and to be entitled to the benefits of this Section 6.8 as though
it were a party
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to this Agreement. On reasonable request by the Company in connection
with the delivery to any holder of a Note of information required to be
delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee),
such holder will enter into an agreement with the Company embodying the
provisions of this Section 6.8.
Section 6.9. Law Governing. This Agreement shall be construed in
accordance with and governed by laws of the State of Minnesota.
Section 6.10. Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall
not be deemed to constitute a part of this Agreement.
Section 6.11. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart."
I-C. The Outstanding Agreement is hereby amended to add Schedule I thereto
which Schedule I shall read as set forth on Annex X attached hereto.
I-D. Exhibit A to the Outstanding Agreement is hereby amended and restated
in its entirety so that the same shall read as set forth on Annex Y attached
hereto.
I-E. The Outstanding Agreement is hereby amended to add Exhibit E thereto
which Exhibit E shall read as set forth on Annex Z attached hereto.
ARTICLE II
AMENDMENTS TO OUTSTANDING NOTES
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Sections 1 through 8, both inclusive, of, and Schedule I to, the
Outstanding Notes shall, without any further action by you or the Company, be
amended to be in the form of Sections 1 through 8 and Schedule I as set forth
in Exhibit A to the Outstanding Agreement, as amended hereby.
ARTICLE III
MISCELLANEOUS
II-A. If the foregoing is acceptable to you, kindly note your acceptance
in the space provided below, and the Outstanding Agreement and Outstanding
Notes shall, as of February 26, 1997, be amended and restated as set forth
above, but all other terms and provisions of the Outstanding Agreement and the
Outstanding Notes shall remain unchanged and are in all respects ratified,
confirmed and approved.
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II-B. By your acceptance hereof you also agree that you shall, prior to
any sale, assignment, transfer, pledge, or other disposition by you of any
Outstanding Notes, either (i) place on the Outstanding Notes so to be disposed
of an appropriate endorsement referring to this Amendment Agreement as binding
upon the parties hereto and upon any and all future holders of such Outstanding
Notes, or (ii) (at your option) surrender such Outstanding Notes for new notes
in the form set forth in Annex Y attached hereto (the "New Notes"), which New
Notes shall be in an aggregate principal amount equal to the unpaid principal
amount of the surrendered Outstanding Notes and shall be dated and bear
interest from the date to which interest shall have been paid on the
surrendered Outstanding Notes. All expenses for the preparation of such New
Notes and the exchange of such Outstanding Notes are to be borne by the
Company.
Very truly yours,
XXXXXXX FOODS, INC.
By
Its
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The foregoing Amendment Agreement and the amendments referred to therein
are hereby accepted and agreed to on the date of execution hereof and are
effective as of February 26, 1997, and the undersigned hereby confirms that on
February 26, 1997 it held $26,000,000 aggregate principal amount of Outstanding
Notes of the Company and that on the date of execution hereof it continues to
hold such Outstanding Notes.
METROPOLITAN LIFE
INSURANCE COMPANY
By _______________________________
Its
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"SCHEDULE I
METROPOLITAN LIFE INSURANCE COMPANY
X.X. Xxx 000
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Private Placement Unit
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes
to be by bank wire transfer of Federal or
other immediately available funds
(identifying each payment as "Xxxxxxx
Foods, Inc., 9.50% Senior Notes due
December 1, 1999, principal or interest")
to:
The Chase Manhattan Bank
(ABA #000000000)
Metropolitan Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: Metropolitan Life
Insurance Company--Corporate
Investments
Account Number 002-2-410591
Notices
All notices and communications, including
notices with respect to payments and
written confirmation of each such payment,
to be addressed as first provided above
with duplicate notice to:
Metropolitan Life Insurance
Company
ANNEX X
(to Amendment Agreement)
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Fixed Income Investments
000 Xxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxx Xxxxxxx, Xxx Xxxxxx
00000-0000
Attention: Private Placement Unit
Telecopier Number: (000) 000-0000
Taxpayer I.D. Number: 00-0000000"
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"EXHIBIT A
XXXXXXX FOODS, INC.
9.50% Senior Note
Due December 1, 1999
No. R- Minneapolis, Minnesota
$ ___________,____
XXXXXXX FOODS, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company"), for value
received, hereby promises to pay to _____________________, or registered
assigns, on December 1, 1999 the principal amount of ____________________
Dollars (or so much thereof as shall not have been prepaid) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, at the principal office of the
Company in Minnesota, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) at said office, in like coin or currency, on the
unpaid portion of said principal amount from the date hereof, semi-annually on
the first day of June and December in each year, commencing on the first such
day after the date hereof, at the rate of 9.50% until such unpaid portion of
such principal amount shall have become due and payable and at the Overdue
Interest Rate thereafter and, so far as may be lawful, on any unpaid premium or
any overdue installment of interest at the Overdue Interest Rate.
SECTION 1. THE NOTES; TRANSFERS, EXCHANGE, ETC.
Section 1.01. The Notes. This Note is one of an authorized issue of
senior notes (hereinafter called the "Notes") made by the Company in an
aggregate principal amount of $50,000,000, maturing on December 1, 1999,
bearing interest payable at the same rate and on the same dates as the interest
on the principal amount of this Note and issued pursuant to the Agreement.
ANNEX Y
(to Amendment Agreement)
21
Section 1.02. Registration, Transfer or Exchange of Notes. The Notes are
issuable only as registered Notes. The Company will keep at its office or
agency maintained as provided in Section 3.01 a register in which the Company
shall provide for the registration and registration of transfer of the Notes.
The holder of this Note may, at its option and either in person or by duly
authorized attorney, surrender the same at said office or agency for
registration of transfer or exchange, accompanied if surrendered for transfer
by a written instrument of transfer duly executed by such holder or attorney.
In case such holder shall so request a transfer or exchange of this Note, the
Company shall deliver to or upon such holder's order one or more Notes in the
same aggregate unpaid principal amount as this Note, each dated as of the date
of, or, if later, the date to which interest has been paid on, this Note, in
the principal amount of $1,000,000 or a multiple of $100,000 in excess thereof,
(provided that one such new Note so issued to any holder may be issued in any
amount), as requested by such holder (provided that if such aggregate unpaid
principal amount is less than $1,000,000, the Company will deliver one Note in
exchange for the Note), and registered in such name or names as shall be
specified by such holder. The reasonable and customary expenses of such
exchange shall be borne by the requesting holder. Every new Note so made and
delivered upon transfer or in exchange for this Note shall be in the form of
Exhibit A to the Agreement and shall have attached thereto a Schedule I
providing a schedule for the prepayment of the principal portion thereof that
is in the same proportion, as nearly as may be, to the schedule of prepayments
of principal set forth in Schedule I to the Note so surrendered as the
outstanding principal amount of such new Note bears to the then outstanding
(after giving effect to any concurrent prepayment thereof) principal amount of
the Note so surrendered.
Prior to due presentation for registration of transfer of this Note, the
Company may deem and treat the registered holder hereof as the absolute owner
of this Note for the purpose of receiving payment of or on account of the
principal of and premium, if any, and interest on this Note, and for the
purpose of any notice, waiver or consent hereunder, and payment of this
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Note shall be made only to or upon the order in writing of such holder.
Section 1.03. Loss, Theft, Destruction or Mutilation of Notes. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and, in the case of any such loss, theft or
destruction, upon receipt of a bond of indemnity reasonably satisfactory to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of this Note, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Note, a new Note of like tenor and unpaid principal
amount and dated the date of, or, if later, the date to which interest has been
paid on, the lost, stolen, destroyed or mutilated Note. In the case of an
Institutional Holder of the Notes, its own unsecured agreement of indemnity
shall be deemed satisfactory to the Company.
SECTION 2. PREPAYMENT OF NOTES.
Section 2.01. Mandatory Prepayments. On June 1 and December 1 in each
year, commencing June 1, 1991, and continuing until the Notes shall be redeemed
in whole or December 1, 1999, whichever shall first occur, the Company will
prepay, at a prepayment price of 100%, an aggregate principal amount of the
Notes equal to the respective principal amount of such Notes set forth opposite
such date on Schedule I hereto, in each case together with interest accrued
thereon to such prepayment date, but without premium; provided, that upon any
partial prepayment of the Notes pursuant to Section 2.02 or Section 2.03 or any
partial prepayment, redemption, retirement, purchase or other acquisition of
the Notes pursuant to clause (d) of Section 4.11, the principal amount of each
required prepayment of the Notes becoming due under this Section 2.01 on and
after the date of such prepayment, redemption, retirement, purchase or other
acquisition shall be reduced in the same proportion as the aggregate principal
amount of the Notes is reduced as a result of such prepayment, redemption,
retirement, purchase or other acquisition.
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Section 2.02. Optional Prepayments. In addition to the prepayments
required by Section 2.01 and Section 2.03:
A. Unconditional Optional Prepayments. The Company may at its
option, from time to time on any Business Day, prepay the Notes then
outstanding as a whole at any time, or in part in a minimum amount of
$1,000,000 or in $100,000 multiples in excess thereof from time to time,
by giving each holder thereof written notice, not less than 30 days nor
more than 60 days prior to the date fixed therein for such prepayment (an
"Optional Prepayment Date"), which notice shall also specify the
principal amount of the Notes held by such holder so to be prepaid.
B. Optional Prepayments on Failure of Holders to Grant Certain
Consents. In the event the Company shall request the holders of the
Notes in writing (with such request making specific reference to the
optional prepayment provisions set forth in this Section 2.02(B)) to
consent to a merger or consolidation of the Company not permitted
pursuant to the provisions of Section 4.07 hereof and the holder or
holders of 50% or more in aggregate principal amount of the then
outstanding Notes shall have failed or refused for a period of 30 days
following the receipt of such request, to consent in writing to such
merger or consolidation, then the Company may, on a Business Day (the
"Optional Prepayment Date") selected by the Company and occurring within
65 days after the expiration of such 30 day period, and upon not less
than 30 nor more than 60 days prior written notice, prepay all Notes held
by each holder which has failed or refused to consent to such merger or
consolidation. Any request by the Company made pursuant to this Section
2.02B shall set forth such financial and other information as is, in the
best judgment of the Company, necessary for each holder to make an
informed decision with respect to such requested consent.
C. Prepayment Out of Proceeds of Asset Disposition. In the event
that the Company shall elect to apply all or any portion of the proceeds
of sales, transfers or other
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dispositions of assets or property to the repayment or prepayment of
unsubordinated Funded Indebtedness of the Company or a Subsidiary as
contemplated in Section 4.06, the Company will give written notice
("Company Notice") of such election to all holders of the Notes. The
Company Notice shall (i) describe the facts and circumstances of such
sales, transfers or other dispositions in reasonable detail, (ii) set
forth the aggregate principal amount of such proceeds (the "Designated
Proceeds") which it intends to apply to the prepayment or repayment of
unsubordinated Funded Indebtedness, (iii) contain an offer by the Company
to prepay on a stated date (the "Optional Prepayment Date"), which shall
be a Business Day not more than 60 days and not less than 30 days after
such Company Notice, the principal amount of Notes held by each holder
which bears the same relationship to the aggregate amount of such
Designated Proceeds as the aggregate principal amount of all Notes held
by such holder bears to the aggregate principal amount of all then
outstanding Funded Indebtedness (including the Notes) with respect to
which a portion of such Designated Proceeds is to be applied, and (iv)
request each holder to notify the Company in writing by a stated date,
which date shall be not less than 15 days after such holder's receipt of
the Company Notice, of its acceptance or rejection of such prepayment
offer. If a holder does not notify the Company as provided in subclause
(iv) above, then such holder shall be deemed to have accepted such offer.
For purposes of any prepayment pursuant to the provisions of subsection A
or subsection B or subsection C of this Section 2.02, the Computing Holder, as
defined in Section 2.03 herein, shall give written notice to the Company, on
the fifth Business Day prior to any Optional Prepayment Date determined
pursuant to subsection A or subsection B or subsection C above, of the amount
of the Prepayment Price, as defined in Section 2.03 herein, of the principal
amount of the Notes held by such Computing Holder so to be prepaid, which
notice shall set forth in reasonable detail the computation thereof.
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The Company shall deliver to each holder then to be prepaid, at least two
Business Days before such Optional Prepayment Date, a certificate signed by a
principal financial officer of the Company setting forth the Prepayment Price
of the principal amount of the Notes held by such holder so to be prepaid,
accompanied by a copy of the written notice by the Computing Holder referred to
above (which sets forth the computation of the Prepayment Price of the Notes
held by the Computing Holder).
Thereupon, the Company covenants and agrees that it will on such Optional
Prepayment Date prepay the principal amount of the Notes held by such holder so
to be prepaid by payment to such holder of the Prepayment Price of such
principal amount, together with interest accrued on such principal amount to
such Optional Prepayment Date. No prepayment of less than all of the Notes
pursuant to this Section 2.02 shall be credited to or relieve the Company to
any extent from its obligation to make any prepayments required by Section
2.01.
Section 2.03. Prepayment Upon Event Risk Occurrence. The Company
covenants and agrees to, promptly after the occurrence of an Event Risk
Occurrence, but in any event within 10 days thereafter, give written notice to
each holder of a Note. Such notice shall (a) describe in reasonable detail the
facts and circumstances giving rise to such Event Risk Occurrence and the
effect thereof on the Company, (b) offer to prepay, on a date (the "Event Risk
Occurrence Prepayment Date") which shall be not less than 30 days nor more than
60 days after the date of such notice, all of the Notes held by such holder,
(c) request such holder to notify the Company in writing, not less than 10 days
prior to the Event Risk Occurrence Prepayment Date, of its acceptance or
rejection of such offer and (d) inform such holder that, upon its receipt of
such notice from the Company, failure to reject such offer in writing on or
before the 10th day prior to the Event Risk Occurrence Prepayment Date shall be
deemed acceptance of such offer. The notice to the Computing Holder shall also
set forth the respective names and addresses of, and the principal amounts of
the Notes held by, the other holders.
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The Computing Holder shall give written notice to the Company and the
other holders, on the fifth Business Day prior to the Event Risk Occurrence
Prepayment Date, of the amount of the Prepayment Price of the Notes held by it
and such other holders, which notice shall set forth in reasonable detail the
computation thereof. Such notice in itself shall constitute neither an
acceptance nor a rejection by the Computing Holder of such prepayment offer.
Thereupon, the Company covenants and agrees that it will on the Event Risk
Occurrence Prepayment Date prepay all of the Notes held by each holder who has
accepted the prepayment offer in accordance with this Section, by payment of
the Prepayment Price of such Notes, together with interest accrued on the
unpaid principal amount of such Notes to the Event Risk Occurrence Prepayment
Date. No prepayment of less than all of the Notes pursuant to this Section
2.03 shall be credited to or relieve the Company to any extent from its
obligation to make any prepayments required by Section 2.01.
The following terms shall have the following definitions:
"Business Day" means any day on which banks are required to be open to
carry on their normal business in the States of Minnesota and New York.
"Change of Control" means any Acquisition subsequent to February 26, 1997
by any Person, or related Persons constituting a "group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, of (a) the power to
elect, appoint or cause the election or appointment of at least a majority of
the members of the Board of Directors of the Company, through beneficial
ownership of the capital stock of the Company or otherwise, or (b) all or
substantially all of the properties and assets of the Company; provided,
however, that a Change of Control shall not be deemed to have occurred as a
result of the consummation of the Pending Reorganization or if (x) the
Acquisition of such power or properties and assets is pursuant to a transaction
in compliance with the provisions of Section 4.07 hereof and (y) no Person, or
related Persons constituting a "group" for purposes of
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Section 13(d) of the Securities Exchange Act of 1934, shall have the power to
elect, appoint or cause the election or appointment of at least a majority of
the members of the Board of Directors of such successor or transferee. For the
purposes of this definition, "Acquisition" of the power or properties and
assets stated in the preceding sentence means the earlier of (i) the actual
possession thereof and (ii) the consummation of any transaction or series of
related transactions which, with the passage of time, will give such Person or
Persons the actual possession thereof.
"Computing Holder" means, as of the date of notice, the holder who holds
Notes with an aggregate principal amount outstanding higher than that of Notes
held by any other holder; provided , however, that for purposes of any
prepayment made pursuant to the provisions of this Section 2.03 or Section
2.02B, "Computing Holder" means the holder who holds Notes then to be prepaid
pursuant to this Section 2.03 or Section 2.02B with an aggregate amount
outstanding higher than that of Notes held by any other holder then to be
prepaid. For purposes of determining the Computing Holder, the Notes then held
by affiliated holders shall be aggregated.
"Designated Event" means any of the following:
(a) the majority of the members of the Company's Board of Directors
at any time being different from the majority of the members of its Board
of Directors at any other time within the immediately preceding two
calendar years; provided that for purposes of this clause (a), a member
of the Company's Board of Directors shall not be deemed to be "different"
if such board member is a member or designee of either the Xxxxxxx Family
or the Papetti Family and has replaced another member or designee of the
same family, or
(b) the authorization by the Company's Board of Directors of
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(i) a consolidation or merger of the Company (other than the
Pending Reorganization) or a sale of all or substantially all of
its properties and assets,
(ii) a dividend or other distribution by the Company to its
shareholders, in one transaction or a series of related
transactions, of cash, property or securities (other than a
dividend or other distribution payable solely in capital stock of
the Company that is not convertible into or exchangeable for any
securities that are not capital stock of the Company) having an
aggregate fair market value at the time of distribution that is 30%
or more of the fair market value of the common stock of the Company
outstanding immediately prior to such distribution (both such fair
market values as determined by its Board of Directors) or
(iii) an acquisition by the Company for cash, property or
securities (other than capital stock of the Company that is not
convertible into or exchangeable for any securities that are not
capital stock of the Company), in one transaction or a series of
related transactions, of more than 30% of common stock of the
Company outstanding immediately prior to the commencement of such
acquisition;
provided that any event described above in this clause (b) shall be a
Designated Event only if at any time within 12 months of the occurrence
of such event, the Company's Consolidated Net Worth as of such time shall
be less than 50% of its Consolidated Net Worth as of the fiscal year-end
immediately preceding the earlier of such event and such time.
"Event Risk Occurrence" means (a) a Change of Control or (b) a Designated
Event or (c) the failure of the Company to pay the purchase price and otherwise
effect the acquisition of the Papetti Companies on February 26, 1997 (except
for any filings which, in accordance with standard practice, are to be made
subsequent to the closing of such transaction) all substantially
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as contemplated in the Memorandum and, within five business days thereafter, to
provide to each holder of a Note an opinion of Maun & Simon PLC to such effect
(in form and substance reasonably satisfactory to the holders of the Notes).
"Xxxxxxx Family" means and includes (i) Xxxxx X. Xxxxxxx, (ii) any Person
who is a lineal descendent of Xxxxx X. Xxxxxxx, (iii) the spouse, children or
grandchildren of any such Person, (iv) any trust of which any of such Persons
are the sole beneficiaries and (v) the estate, executor, administrator or legal
guardian of any such Person.
"Papetti Family" means and includes (i) Xxxxxx X. Xxxxxxx and Xxxxxxx
Xxxxxxx, (ii) any Person who is a lineal descendent of Xxxxxx X. Xxxxxxx or
Xxxxxxx Xxxxxxx, (iii) the spouse, children or grandchildren of any such
Person, (iv) any trust of which any of such Persons are the sole beneficiaries
and (v) the estate, executor, administrator or legal guardian of any such
Person.
"Prepayment Price" means, for purposes of calculations required by this
Section and Section 2.02 hereof, the higher of (1) the unpaid principal amount
of the Notes to be prepaid on the Event Risk Occurrence Prepayment Date or
Optional Prepayment Date, as the case may be, and (2) the sum of the respective
Payment Values of each prospective interest payment, prospective mandatory
prepayment and the principal payment at maturity in respect of such Notes (the
amount of each such payment being herein referred to as a "Payment"). The
"Payment Value" of each Payment shall be determined by discounting such Payment
at the Adjusted Reinvestment Rate, for the period from the scheduled date of
such Payment to the Event Risk Occurrence Prepayment Date or Optional
Prepayment Date, as the case may be. The "Adjusted Reinvestment Rate" is the
sum of (a) 50 basis points and (b) the yield which shall be imputed from the
yields (as reported on the Telerate Access Service (Page 500-offer side) or
such other display as may replace Page 500) of those actively traded United
States Treasury securities having maturities as close as practicable to the
Weighted Average Life to Final Maturity of the Notes so to be prepaid. The
yields of such United States
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Treasury securities shall be determined as of 10 A.M. Eastern Time on the fifth
Business Day prior to the Event Risk Occurrence Prepayment Date or Optional
Prepayment Date, as the case may be.
"Weighted Average Life to Final Maturity" of the Notes as of the time of
determination thereof means the number of years (rounded to the nearest
one-twelfth) obtained by dividing the then Remaining Dollar-Years of the Notes
by the then outstanding principal amount of the Notes. For the purposes of
this definition, "Remaining Dollar-Years" means the sum of the amounts obtained
by multiplying the amount of each then remaining required prepayment, including
prepayment at final maturity, by the number of years (calculated to the nearest
one-twelfth) which will elapse between the time of such determination and the
date of such prepayment.
Section 2.04. Interest After Date Fixed for Prepayment. This Note or any
portion hereof to be prepaid shall cease to bear interest on and after the date
fixed for such prepayment unless the Company shall fail to pay this Note or
such portion, as the case may be, on the date fixed for such prepayment, in
which event this Note or such portion, as the case may be, shall bear interest
at the Overdue Interest Rate from and after such date until paid and, so far as
may be lawful, any unpaid premium and overdue installment of interest shall
bear interest at said rate.
Section 2.05. Allocation of Prepayments. In the event of any prepayment
of less than all of the outstanding Notes (other than any prepayment pursuant
to Section 2.02B or Section 2.03) the Company will allocate the principal
amount so to be prepaid (but only in units of $1,000) among the registered
holders of Notes in proportion, as nearly as may be, to the respective
principal amounts of such Notes, not theretofore called for prepayment, of
which they shall be registered holders.
Section 2.06. Surrender of Notes; Notation Thereon. Upon any prepayment
of a portion of the principal amount of this Note, the registered holder
hereof, at its option, may require the Company to execute and deliver, upon
surrender of this Note, a new Note registered in the name of such person or
persons as may be
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designated by such holder for the principal amount of this Note then remaining
unpaid, dated as of the date to which interest has been paid on the principal
amount of this Note then remaining unpaid, or may present this Note to the
Company for notation hereon of the payment of the portion of the principal
amount of this Note so prepaid. The reasonable and customary expenses of such
exchange or notation shall be borne by the requesting holder. Every new Note
made and delivered pursuant to the provisions of this Section 2.06 shall in all
other respects be in the same form and have the same terms as this Note.
SECTION 3. AFFIRMATIVE COVENANTS.
The Company covenants and agrees that so long as this Note shall be
outstanding:
Section 3.01. Maintenance of Company Office. The Company will maintain an
office or agency at 324 Park National Bank Building, 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (or such other place in the United States of
America as the Company may designate in writing to the holder hereof), where
notices, presentations and demands to or upon the Company in respect of the
Notes may be given or made.
Section 3.02. To Keep Books. The Company will, and will cause each of its
Subsidiaries to, at all times keep proper books of record and account in which
full, true and correct entries will be made of its transactions in accordance
with generally accepted accounting principles.
Section 3.03. Payment of Taxes; Corporate Existence; Maintenance of
Properties. The Company will, and will cause each of its Subsidiaries to,
A. pay and discharge promptly all taxes, assessments and other
governmental charges or levies imposed upon it or upon its income or upon
any of its property, real, personal or mixed or upon any part thereof, as
well as all claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a Lien upon
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its property; provided, however, that neither the Company nor any
Subsidiary shall be required to pay any such tax, assessment, charge,
levy or claim if the amount, applicability or validity thereof shall
currently be contested in good faith by appropriate proceedings and if
the Company or any such Subsidiary, as the case may be, shall have set
aside on its books reserves (segregated to the extent required by
generally accepted accounting principles) deemed by it to be adequate
with respect thereto;
B. do all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises; provided, however,
that nothing in this Section 3.03B shall prevent the abandonment or
termination of the corporate existence, rights and franchises of any
Subsidiary if, in the opinion of the Company, such abandonment or
termination would not have a material and adverse effect on the business,
operations, properties, prospects, assets or condition, financial or
other, of the Company and its Subsidiaries, taken as a whole;
C. maintain and keep its properties, in good repair, working order
and condition and from time to time make all needful and proper repairs,
renewals and replacements, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
Section 3.04. Insurance. The Company will, and will cause each Subsidiary
to, keep adequately insured, by financially sound and reputable insurers, all
property of a character usually insured by corporations engaged in the same or
a similar business similarly situated against loss or damage of the kinds
customarily insured against by such corporations, and carry such other
insurance as is usually carried by corporations engaged in the same or a
similar business similarly situated; provided that the Company and its
Subsidiaries may maintain a system or systems of self-insurance which, in the
opinion of the chief financial officer of the Company, will accord with sound
practices of corporations maintaining such systems engaged in the same or a
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similar business similarly situated and under which the Company or such
Subsidiaries shall maintain adequate reserves in accordance with sound
actuarial and insurance principles and practice.
Section 3.05. Payment of Indebtedness. The Company will, and will cause
each Subsidiary (but only to the extent that such Subsidiary's assets shall be
sufficient for the purpose) to,
A. pay or cause to be paid the principal of and the interest on all
Indebtedness heretofore or hereafter incurred or assumed by it when and
as the same shall become due and payable, unless such Indebtedness shall
be renewed, extended or refunded in accordance with the provisions of
Sections 4.01 and 4.02, and
B. faithfully perform, observe and discharge all the covenants,
conditions and obligations which are imposed on it by any and all
indentures and other agreements securing or evidencing such Indebtedness
or pursuant to which such Indebtedness is issued, and not permit the
occurrence of any act or omission which is or may be declared to be a
default thereunder;
provided, however, that neither the Company nor any such Subsidiary shall be
required to make any payment or to take any other action by reason of this
Section 3.05 at any time while it shall be contesting in good faith by
appropriate proceedings its obligations to do so, if it shall set aside on its
books reserves (segregated to the extent required by generally accepted
accounting principles) deemed by it to be adequate with respect thereto.
Section 3.06. Compliance with Laws. The Company and each of its
Subsidiaries will use their best efforts to comply in all respects with all
applicable statutes, rules, regulations and orders of all governmental
authorities with respect to the conduct of their businesses and the ownership
of properties (including, without limitation, all applicable statutes,
regulations, orders and restrictions relating to environmental
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standards and controls), except to the extent that any of the foregoing are
contested in good faith by appropriate proceedings.
SECTION 4. RESTRICTIVE COVENANTS.
The Company covenants and agrees that so long as this Note shall be
outstanding:
Section 4.01. Limitation on Indebtedness.
A. Incurrence of Funded Indebtedness. The Company will not, and
will not permit any Subsidiary to, create, assume, incur or otherwise
become liable, in each case contingently or otherwise, in respect of any
Funded Indebtedness, whether secured or unsecured other than:
(i) the Notes;
(ii) Funded Indebtedness of the Company or a Subsidiary,
provided that, at the time of the creation, assumption, incurrence
or otherwise becoming liable in respect thereof and after giving
effect thereto and to the application of the proceeds thereof, (x)
Consolidated Funded Indebtedness does not exceed 55% of Total
Capitalization and (y) no Event of Default or event which with the
passage of time or the giving of notice, or both, would constitute
an Event of Default has occurred and is continuing; and
(iii) Funded Indebtedness of the Company or a Subsidiary which
has been extended, renewed or refunded so long as (x) the principal
amount of such Indebtedness is not increased, and (y) no Event of
Default or event which with the passage of time or the giving of
notice, or both, would constitute an Event of Default has occurred
and is continuing.
Any corporation which becomes a Subsidiary after February 26, 1997 shall,
for all purposes of this Section 4.01A, be deemed to have created,
assumed or
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incurred, at the time it becomes a Subsidiary, all Indebtedness of such
corporation existing immediately after it becomes a Subsidiary.
B. Current Indebtedness and Funded Indebtedness. The Company will
not and will not permit any Subsidiary to, at any time be liable with
respect to any Funded Indebtedness or Current Indebtedness unless, on
each of 45 consecutive days within the period of the 12 consecutive
months immediately preceding the date of any determination hereunder, the
aggregate unpaid principal amount of Consolidated Funded Indebtedness and
Consolidated Current Indebtedness does not exceed an amount equal to 55%
of the sum of Total Capitalization and Consolidated Current Indebtedness.
C. Priority Indebtedness. The Company will not at any time permit
any Subsidiary to create, assume, incur or otherwise become liable in
respect of any Priority Indebtedness unless, at the time of such
creation, assumption or incurrence and immediately after giving effect
thereto and to the application of the proceeds thereof, (x) the then
outstanding principal amount of Priority Indebtedness shall not exceed
25% of Consolidated Net Worth as of the end of the immediately preceding
fiscal year of the Company, and (y) the Company could incur at least $1
of additional Funded Indebtedness in compliance with Section 4.01A.
Section 4.02. Limitation on Liens. The Company will not, and will not
permit any Subsidiary to, (i) create, assume, incur or suffer to exist any Lien
upon (or, whether by transfer to any Subsidiary or Affiliate or otherwise,
subject, or permit any Subsidiary or Affiliate to subject, to the prior payment
of any Indebtedness other than that represented by the Notes) any property or
assets (real or personal, tangible or intangible) of the Company or any
Subsidiary, whether now owned or hereafter acquired, or any income or profits
therefrom, or (ii) own or acquire or agree to acquire any property or assets
(real or personal, tangible or intangible) subject to or upon any Lien;
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provided, however, that the foregoing restrictions shall not prevent the
Company or any Subsidiary from:
A. (1) making pledges or deposits under workmen's compensation laws,
unemployment insurance laws or similar legislation or good faith deposits
in connection with bids, tenders, contracts (other than for the repayment
of money borrowed) or under leases to which the Company or such
Subsidiary is a party, (2) making deposits to secure public or statutory
obligations of the Company or such Subsidiary or deposits of cash or
obligations of the United States of America to secure surety and appeal
bonds to which the Company or such Subsidiary is a party or deposits in
lieu of such bonds, (3) incurring Liens or priorities imposed by law,
such as employees', carriers', warehousemen's, labor mechanics',
materialmen's and vendors' liens or priorities, and Liens arising out of
judgments or awards against the Company or such Subsidiary with respect
to which the Company or such Subsidiary at the time shall be prosecuting
an appeal or proceedings for review and with respect to which it shall
have secured a stay of execution pending such appeal or proceedings for
review or (4) entering into leases and from incurring landlords' liens on
fixtures and movable property located on premises leased in the ordinary
course of business so long as the rent secured thereby is not in default
and any applicable grace period has not expired; or
B. creating, incurring or suffering to exist (1) Liens for taxes or
import duties not yet subject to penalties for nonpayment or the
nonpayment of which shall be permitted by the proviso to Section 3.03A or
(2) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties, which
Liens, exceptions, encumbrances, easements, reservations, rights and
restrictions do not, in the opinion of the Company, in the aggregate
materially detract from the value of such
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properties or materially impair their use in the operation of the
business of the Company or such Subsidiary; or
C. suffering to exist the Liens existing on February 26, 1997
securing Indebtedness in an aggregate principal amount outstanding on
February 26, 1997 not in excess of $3,000,000, and extensions, renewals
or replacements of any such Lien upon the same property theretofore
subject thereto without increase in the principal amount of the
Indebtedness then secured or evidenced thereby; or
D. in the case of a Subsidiary, creating, incurring, assuming or
suffering to exist any Lien solely to secure Indebtedness owing to the
Company or a Wholly-owned Subsidiary; or
E. creating, incurring, assuming or suffering to exist Liens not
otherwise permitted by the foregoing clauses A through D, inclusive, of
this Section 4.02; provided, however, that at the time of the creation,
incurrence or assumption thereof, and immediately after giving effect to
the Indebtedness secured or evidenced by any such Lien, (1) the then
outstanding aggregate principal amount of Priority Indebtedness shall not
exceed 25% of Consolidated Net Worth as of the end of the immediately
preceding fiscal year of the Company, and (2) the Company could incur at
least $1 of additional Funded Indebtedness in compliance with Section
4.01A.
Section 4.03. Maintenance of Net Worth. The Company will at all times
maintain Consolidated Net Worth at an amount not less than the sum of (i)
$140,000,000 plus (ii) 50% of positive Consolidated Net Income for each fiscal
year of the Company ending on or after December 31, 1997 and prior to the date
of determination thereof, computed on a cumulative basis for said entire
period. If Consolidated Net Income is a deficit figure for any fiscal year of
the Company, such deficit shall not reduce the amount of Consolidated Net Worth
required to be maintained pursuant to this Section 4.03.
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Section 4.04. Maintenance of Interest Expense Coverage. The Company will
maintain the ratio of Consolidated Net Earnings Available for Fixed Charges to
Fixed Charges determined for the immediately preceding four fiscal quarters of
the Company at not less than 1.75 to 1.
Section 4.05. Restricted Payments. The Company will not, directly or
indirectly (i) declare or pay any dividend or make any other distribution
(whether by reduction of capital or otherwise) on any shares of any class of
its capital stock (other than a dividend or distribution payable in shares of
common stock of the Company), (ii) purchase, redeem, retire or otherwise
acquire, or cause or permit any Subsidiary or Affiliate to purchase, redeem,
retire, otherwise acquire or make any payment in respect of, any such shares,
or (iii) pay, repay, redeem, retire, repurchase or otherwise acquire the
principal of any Subordinated Debt (or any installment thereof) prior to the
regularly scheduled maturity dates thereof (as in effect on the date such
Subordinated Debt was originally incurred) unless, immediately after giving
effect to such action,
A. Consolidated Net Worth is not less than the level established
pursuant to the provisions of Section 4.03;
B. the Company shall not be in default in the performance or
observance of any other term, covenant, provision or condition contained
in the Notes; and
C. the Company could incur at least $1 of additional Funded
Indebtedness in compliance with the provisions of Section 4.01A;
provided that the provisions of this Section 4.05 shall not preclude the
prepayment of the presently outstanding subordinated debentures of NSU in
connection with the Pending Reorganization by the application of up to
$21,250,000 aggregate principal amount of the proceeds from the issuance of the
Company's 7.58% Senior Notes due February 26, 2009 together with a cash
contribution from NSU.
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Section 4.06. Limitation on Disposition of Assets. Subject to Section
4.07, the Company will not at any time sell, transfer or otherwise dispose of,
other than in the ordinary course of business, all or any part of its assets
and properties if, immediately after giving effect thereto, the aggregate value
of all such properties and assets so disposed of (valued at the book value
thereof) during the immediately preceding 365 days exceeds 20% of Total
Capitalization as of the end of the then most recently ended fiscal year of the
Company. Computations under this Section 4.06 shall not include, sales,
transfers, or other dispositions for fair market value (as determined in good
faith by the Company), to the extent that all or a portion of the net after-tax
proceeds of such transaction is applied, within 12 months after the date of
such transaction, to
(i) the purchase, acquisition or construction of assets or
properties which are to be used in the business of the Company or a
Subsidiary; or
(ii) the repayment or prepayment of unsubordinated Funded
Indebtedness of the Company or a Subsidiary; provided that the Company
has, on or prior to the application of any such proceeds to the repayment
or prepayment of any other unsubordinated Funded Indebtedness pursuant to
this subclause (ii), offered to prepay the Notes, pro rata with all other
unsubordinated Funded Indebtedness then being repaid or prepaid (which
prepayment of the Notes shall be made in accordance with the terms of
Section 2.02C hereof).
Section 4.07. Merger, Consolidation, Sale or Lease. Except for the
Pending Reorganization, the Company will not consolidate with or merge into any
Person, or permit any Person to merge into it, or sell, transfer or otherwise
dispose of all or substantially all of its properties and assets, unless;
(1) the Company shall be the surviving corporation; and
(2) immediately after giving effect to such transaction, (i) the
Company shall not be in default in the
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performance or observance of any of the terms, covenants, provisions or
conditions contained in the Notes or the Agreement and (ii) the Company
could incur at least $1 of additional Funded Indebtedness in compliance
with the provisions of Section 4.01A.
Section 4.08. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, enter into or be a party to any transaction
or arrangement with any Affiliate (except (i) the Pending Reorganization and
(ii) other transactions or arrangements existing on February 26, 1997,
including any renewals or extensions thereof under terms and provisions which
are no more adverse to the Company or such Subsidiary than the terms and
provisions under the transactions and arrangements so renewed or extended)
including, without limitation, the purchase of property from, sale of property
to or exchange of property with, the rendering of any service by or for, or the
making of any loan or advance to, any Affiliate, except in the ordinary course
of and pursuant to the reasonable requirements of the Company or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would exist in a comparable arm's-length
transaction with a person other than an Affiliate.
Section 4.09. Restrictions on Subsidiaries. A. The Company will not
cause, suffer or permit any Subsidiary to
(1) issue or dispose of any shares of such Subsidiary's capital
stock to any Person other than the Company or a Wholly-owned Subsidiary,
except to the extent that any such shares are required to qualify
directors under any applicable law or required to be issued to other
stockholders of such Subsidiary by virtue of their exercise of preemptive
rights or as their pro rata share of any stock dividend; or
(2) sell, assign, pledge, transfer, dispose of, or in any way part
with control of, any shares of capital stock of another Subsidiary, or
any Indebtedness owing to such Subsidiary from another Subsidiary, to any
Person other than
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the Company or a Wholly-owned Subsidiary, except in connection with a
transaction which complies with Section 4.09B; and, in the case of shares
of capital stock, to the extent, if any, required to qualify directors of
such other Subsidiary under any applicable law; or
(3) sell, assign, lease, pledge, transfer or otherwise dispose of
any substantial part of such Subsidiary's properties and assets to any
Person or consolidate with or merge into any other Person or permit any
other Person to merge into it; provided, however, that
(a) any Subsidiary may sell all or substantially all of its
properties and assets for cash in an amount not less than their
fair market value (as determined in good faith by the Company) if
(i) such Subsidiary does not own any capital stock or any
Indebtedness of the Company or any other Subsidiary not
simultaneously being disposed of, (ii) such sale is not prohibited
by the provisions of Section 4.06, and (iii) at the time of such
transaction and immediately after giving effect thereto, (x) the
Company shall not be in default in the performance or observance of
any of the terms, covenants, provisions or conditions contained in
the Notes, and (y) the Company could incur at least $1 of
additional Funded Indebtedness in compliance with Section 4.01A;
and
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of all or any part of its properties and assets to, or
consolidate with or merge into, the Company (subject to the
provisions of Section 4.07) or a Wholly-owned Subsidiary.
B. The Company will not sell, assign, pledge, transfer, dispose of, or in
any way part with control of, any shares of capital stock of any Subsidiary or
any Indebtedness owing from any Subsidiary to the Company, except, in the case
of shares of capital stock, to the extent, if any, required to qualify
directors of such Subsidiary under any applicable law; provided,
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however, that all shares of capital stock of all classes, together with all
Indebtedness, of any Subsidiary owned by the Company and/or one or more
Subsidiaries may be sold if such sale, if deemed a sale of properties and
assets by such Subsidiary, would not be prohibited by the provisions of Section
4.09A(3)(a).
C. The Company will not, and will not cause, suffer or permit any
Subsidiary to, acquire, directly or indirectly, any stock of any other
corporation which immediately after such acquisition would become a Subsidiary,
unless immediately after giving effect to such acquisition:
(1) the Company shall not be in default in the fulfillment of any of
the terms, covenants, provisions or conditions of the Notes; and
(2) the Company could incur at least $1 of additional Indebtedness
secured or evidenced by Liens in compliance with the provisions of
Section 4.02E.
Section 4.10. Restrictions on Investments. The Company will not and will
not permit any Subsidiary to, make any Restricted Investment if, after giving
effect thereto, the Aggregate Amount of all Restricted Investments of the
Company and its Subsidiaries exceeds 30% of Consolidated Net Worth as of the
end of the Company's then most recently completed fiscal year, provided,
however, that the Aggregate Amount of all Restricted Investments of the Company
and its Subsidiaries in businesses not related to the food industry shall not
exceed 5% of Consolidated Net Worth as of the end of the Company's then most
recently completed fiscal year.
Section 4.11. Acquisition of Notes; No Reissuance. The Company will not,
and will not permit any Subsidiary or Affiliate to directly or indirectly,
prepay, redeem, retire, purchase or otherwise acquire any Note, except pursuant
to (a) Section 2.01, (b) Section 2.02, (c) Section 2.03 or (d) an offer to all
holders of the Notes to prepay, redeem, retire, purchase or otherwise acquire
the Notes, pro rata, from all such holders at the same time and on the same
terms and conditions. Any Note prepaid in
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full pursuant to Sections 2.01, 2.02, 2.03 or clause (d) of this Section, shall
be surrendered to the Company for cancellation and shall not be reissued and no
Note shall be issued in lieu of any principal amount of any Note so prepaid.
SECTION 5. CONSENTS, WAIVERS AND AMENDMENTS.
Any term, covenant, agreement or condition of the Notes may, with the
consent of the Company, be amended or compliance therewith may be waived
(either generally or in a particular instance and either retroactively or
prospectively), by one or more written instruments signed by the holder or
holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding; provided, however, that
A. no such amendment or waiver shall, without the consent of the
holders of all outstanding Notes,
(1) change the maturity of the principal of, or any
installment of interest on, any of the Notes, or reduce the
principal amount thereof or the interest or premium thereon, or
subordinate or otherwise modify the terms of, or rights to, payment
of the principal thereof or interest or premium thereon including,
without limitation, extend the time for any such payment or modify
any of the provisions of Section 2, or
(2) give to any Note any preference over any other Note, or
(3) reduce the percentage of holders of Notes required to
approve any such amendment or effectuate any such waiver; and
B. no such waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
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Any amendment or waiver pursuant to this Section 5 shall apply equally to
all the holders of the Notes and shall be binding upon them, upon each future
holder of any Note and upon the Company, whether or not a notation of such
amendment or waiver shall have been made on such Notes. In the case of an
amendment or waiver of the character described in Section 5A, the holder of
this Note agrees to make a notation on this Note to indicate that such
amendment or waiver has been effected. In the case of any other amendment or
waiver, no notation need be made on the Notes at the time outstanding, but any
Note executed and delivered thereafter may, at the option of the Company, bear
a notation referring to any such amendment or waiver then in effect. For
purposes of determining whether the holders of outstanding Notes of the
requisite aggregate principal amount at any time have agreed or consented to
any amendment or waiver pursuant to the provisions of this Section 5, any Notes
owned by the Company, any Subsidiary or any Affiliate shall be disregarded and
deemed not to be outstanding.
So long as there are any Notes outstanding, the Company will not solicit,
request or negotiate for or with respect to any proposed waiver or amendment of
any of the provisions of the Notes unless each holder of Notes (irrespective of
the amount of Notes then owned by it) shall be informed thereof by the Company
and shall be afforded the opportunity of considering the same and shall be
supplied by the Company with sufficient information to enable it to make an
informed decision with respect thereto. The Company will not, directly or
indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any holder of Notes
as consideration for or as an inducement to entering into by any holder of
Notes of any waiver or amendment of any of the terms and provisions of this
Agreement or the Notes unless such remuneration is concurrently offered, on the
same terms, ratably to the holders of all Notes then outstanding.
SECTION 6. DEFINITIONS.
For all purposes of this Note, except as otherwise expressly provided or
unless the context otherwise requires:
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"Acceleration Calculation Date" has the meaning specified in Section 7.01
hereof.
"Affiliate" means any Person (other than the Company or any Subsidiary)
which, directly or indirectly, (A) controls or is controlled by or is under
common control with the Company or any Subsidiary, or (B) beneficially owns or
holds or has the power to direct the voting power of 5% or more of any class of
voting stock of the Company or any Subsidiary or (C) has 5% or more of its
voting stock (or in the case of a Person which is not a corporation, 5% or more
of its equity interest) beneficially owned or held, directly or indirectly, by
the Company or any Subsidiary or (D) is a director or officer of the Company or
any Subsidiary. For purposes of this definition, "control" means the power to
direct the management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Aggregate Amount," when used with respect to any Investment of any Person
as of the date of determination thereof, means an amount (which may be a
positive or negative figure, as the case may be) equal to (i) the greater of
the amount carried on the books of such Person as at such date with respect to
such Investment and the cost of such Investment to such Person, minus (ii) the
net proceeds (after the deduction of income taxes applicable thereto) realized
from the sale or liquidation of such Investment or any part thereof, or
otherwise.
"Agreement" means the Loan Agreement dated as of December 1, 1989, between
the Company and Metropolitan Life Insurance Company entered into in connection
with the issuance of the Notes, as amended by an Amendment Agreement dated as
of February 26, 1997.
"Assumption Agreement" has the meaning specified in Section 6.7 of the
Agreement.
"Board of Directors" means either the board of directors of the Company
(or, when so specified or the context so indicates, a
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Subsidiary) or, if duly authorized to exercise the power of the Board of
Directors, any duly authorized committee thereof.
"Business Day" has the meaning specified in Section 2.03 hereof.
"Capital Lease" means and includes at any time any lease of property, real
or personal, which in accordance with GAAP would at such time be required to be
capitalized on a balance sheet of the lessee.
"Capital Lease Obligation" means at any time the capitalized amount of the
rental commitment under a Capital Lease which in accordance with GAAP would at
such time be required to be shown on a balance sheet of the lessee.
"Change of Control" has the meaning specified in Section 2.03 hereof.
"Closing" and "Closing Date" have the respective meanings specified in
Section 1.2 of the Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Computing Holder" has the meaning specified in Section 2.03 hereof.
"Consolidated Current Indebtedness," "Consolidated Funded Indebtedness,"
"Consolidated Net Income" and "Consolidated Net Worth," means the Current
Indebtedness, Funded Indebtedness, Net Income and Net Worth, as the case may
be, of the Company and its Subsidiaries, after eliminating intercompany items,
all as consolidated and determined in accordance with GAAP.
"Consolidated Net Earnings Available for Fixed Charges" means, for the
period of determination, Consolidated Net Income of the Company and its
Subsidiaries, plus cash dividends received from Unconsolidated Subsidiaries,
plus income taxes, plus extraordinary items of expense or minus extraordinary
items of income which are included in the determination of Net Income,
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plus any loss from discontinued operations or minus any gain from discontinued
operations which is included in the determination of Net Income, plus any
charge or minus any credit which results from the cumulative effect of a change
in accounting principle which is included in the determination of Net Income,
plus all Fixed Charges. Prior to January 1, 1999, in any determination of
"Consolidated Net Earnings Available for Fixed Charges" there shall be an
addition for any loss (and a deduction for any gain) on "disposal of a product
line" (or "restructuring charges" relating to such disposal) which are included
in determination of Net Income. For purposes hereof, the terms "disposal of a
product line" and "restructuring charges" shall have such meanings as are
viewed as acceptable to the Securities and Exchange Commission when such terms
are used for financial reporting.
"Current Indebtedness" means all Indebtedness other than Funded
Indebtedness.
"Designated Event" has the meaning specified in Section 2.03 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means any Person that is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of the Code) as the
Company or is under common control (within the meaning of Section 414(e) of the
Code) with the Company.
"Events of Default" has the meaning specified in Section 7.01 hereof.
"Event Risk Occurrence" has the meaning specified in Section 2.03 hereof.
"Event Risk Occurrence Prepayment Date" has the meaning specified in
Section 2.03 hereof.
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"Fixed Charges" means, for any period of calculation, the sum of (i) all
interest on Indebtedness incurred by the Company and its Subsidiaries,
including interest payments partially or entirely contingent on earnings and
the portion of rents payable under Capital Leases allocable to interest, and
(ii) all debt discount or premium amortized or required to be amortized during
such period by the Company or any of its Subsidiaries.
"Funded Indebtedness" means, without duplication, all Indebtedness which
would, in accordance with GAAP, constitute long-term debt, including (i) all
Indebtedness which by its terms matures more than one year from the date as of
which any determination of Funded Indebtedness is made, (ii) any Indebtedness
maturing within one year from such date which is renewable at the option of the
obligor beyond one year from such date, including any Indebtedness renewable or
extendible (whether or not theretofore renewed or extended) under, or payable
from the proceeds of other Indebtedness which may be incurred pursuant to the
provisions of, any revolving credit agreement or other similar agreement and
(iii) Capital Lease Obligations in excess of one year.
"GAAP" means generally accepted accounting principles at the time in the
United States.
"Indebtedness" means and includes, without duplication, (i) all
indebtedness or obligations for money borrowed (and any notes payable and
drafts accepted representing extensions of credit, whether or not representing
indebtedness or obligations for money borrowed), (ii) indebtedness or
obligations owed for all or any part of the purchase price of property or other
assets or for the cost of property or other assets constructed or of
improvements thereto, other than accounts payable included in current
liabilities and incurred in respect of property purchased in the ordinary
course of business, (iii) indebtedness or obligations secured or evidenced by
any Lien existing on property owned by the corporation whose Indebtedness is
being determined, whether or not the indebtedness or obligations secured or
evidenced thereby shall have been assumed, (iv) Capital Lease Obligations, (v)
guarantees and endorsements of (other than
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endorsements for purposes of collection in the ordinary course of business),
and obligations to purchase goods or services for the purpose of supplying
funds for the purchase or payment of, or measured by, indebtedness, liabilities
or obligations of others (whether or not representing money borrowed) and other
contingent obligations in respect of, or to purchase or otherwise acquire or
service, indebtedness, liabilities or obligations of others (whether or not
representing money borrowed) and (vi) all indebtedness, liabilities or
obligations (whether or not representing money borrowed) in effect guaranteed
by an agreement, contingent or otherwise, to make a loan, advance or capital
contribution to or other investment in the debtor for the purpose of assuring
or maintaining a minimum equity, asset base, working capital or other balance
sheet condition for any date, or to provide funds for the payment of any
liability, dividend or stock liquidation payment, or otherwise to supply funds
to or in any manner invest in the debtor for such purpose. The guarantees,
endorsements, obligations and agreements referred to in clauses (v) and (vi) of
the preceding sentence shall constitute (a) Current Indebtedness to the extent
the indebtedness, liabilities or obligations of another Person to which they
relate are Current Indebtedness of such other Person and (b) Funded
Indebtedness to the extent such related indebtedness, liabilities or
obligations of such other Person are Funded Indebtedness of such other Person.
"Institutional Holder" means any insurance company, bank, savings and loan
association, trust company, investment company, charitable foundation, employee
benefit plan (as defined in ERISA) or other institutional investor or financial
institution which, in any case is, at the time of determination, the holder of
a Note.
"Investment" of any Person means any investment made by such Person in any
other Person by acquisition of stock or indebtedness, loan, advance, transfer
or purchase of property, capital contribution or otherwise (other than a direct
or indirect guarantee of such other Person's indebtedness or any agreement to
pay, purchase or service such other Person's indebtedness).
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"Lien" means any mortgage, lien, pledge, security interest, encumbrance or
charge of any kind, any conditional sale or other title retention agreement or
any Capital Lease.
"Memorandum" means the Private Placement Memorandum dated January 1997 and
relating to the Company's 7.58% Senior Notes due February 26, 2009 which was
prepared by Prudential Securities Incorporated.
"Xxxxxxx Family" has the meaning specified in Section 2.03 hereof.
"NSU" means North Star Universal, Inc., a Minnesota corporation.
"Net Income" means, with respect to any Person for any period, the net
income (or the net deficit, if expenses and charges exceed revenues and other
proper income credits) of such Person for such period determined in accordance
with GAAP as in effect from time to time, provided, however, that the Net
Income of the Company or any Subsidiary shall not include (i) extraordinary
items, (ii) any equity interest of the Company on unremitted earnings of any
Unconsolidated Subsidiary, and (iii) the Net Income of any Subsidiary prior to
the date it becomes a Subsidiary.
"Net Worth" means, with respect to any Person as of the date of
determination, the sum of redeemable preferred stock and common stockholders'
equity accounts of such Person as of such date, as determined in accordance
with GAAP.
"Optional Prepayment Date" has the meaning specified in Section 2.02
hereof.
"Overdue Interest Rate" means the greater (determined on a daily basis) of
10.50% per annum or the rate per annum which The Chase Manhattan Bank (or its
successor) announces publicly from time to time as its corporate base rate of
interest.
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"PBGC" has the meaning specified in Section 2.12 of the Agreement.
"Papetti Companies" means Papetti's Hygrade Egg Products, Inc., Papetti
Foods, Inc., Quaker State Farms, Inc., Papetti's of Iowa Food Products, Inc.,
Monark Egg Corporation, Casa Trucking Limited Partnership, Egg Specialties,
Inc., Papetti Transport Leasing Limited Partnership and Papetti Equipment
Leasing Limited Partnership.
"Papetti Family" has the meaning specified in Section 2.03 hereof.
"Pending Reorganization" means the several transactions among the Company
and North Star Universal, Inc., a Minnesota corporation, and its affiliates,
all substantially as described in the Memorandum.
"Person" includes an individual, a corporation, a partnership, a joint
venture, a trust, an unincorporated organization or a government or any agency
or political subdivision thereof.
"Plan" has the meaning specified in Section 2.12 of the Agreement.
"Prepayment Price" has the meaning set forth in Section 2.03 hereof.
"Priority Indebtedness" means the sum (without duplication) of the amounts
described in the following clauses (i), (ii) and (iii) and outstanding at the
time of computation: (i) the aggregate principal amount of all Indebtedness of
the Company and its Subsidiaries secured or evidenced by Liens permitted by
Section 4.02E outstanding at such time, (ii) the aggregate principal amount of
unsecured Indebtedness of all Subsidiaries, other than Indebtedness owned by
the Company or a Subsidiary, and (iii) the Aggregate Amount of all outstanding
capital stock of any Subsidiary acquired pursuant to Section 4.09C not owned by
the Company or any Subsidiary having preference as to dividends
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or upon liquidation, and all rights, options and warrants to acquire any such
preference stock.
"Restricted Investment" means any Investment by the Company or any
Subsidiary in any other Person other than:
(i) marketable obligations issued or guaranteed by the United States
of America or by any agency of the United States of America, and maturing
not later than twelve months from the date of acquisition thereof,
(ii) commercial paper which has the highest credit rating by
Standard & Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. or
Xxxxx'x Investors Service, Inc., and maturing not later than 270 days
from the date of acquisition thereof,
(iii) negotiable certificates of deposit or bankers' acceptances
which have at least an A rating by Standard & Poor's Rating Group, a
division of XxXxxx-Xxxx, Inc. or Xxxxx'x Investors Service, Inc., are
issued by or drawn on a United States commercial bank or trust company
which has capital and surplus of at least $150,000,000, and which mature
not later than twelve months from the date of acquisition thereof,
(iv) any Investment in any Subsidiary or in any corporation which by
reason thereof will become a Subsidiary, and
(v) variable rate demand municipal securities rated AAA by Standard
& Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. or Aaa by Xxxxx'x
Investors Service, Inc., provided however, that such securities must be
redeemable at par upon 30 days or less notice.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable
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it or them (as a group) ordinarily, in the absence of contingencies, to elect a
majority of the directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a 50% interest in the
profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Subordinated Debt" means any Indebtedness that is in any manner
subordinated in right of payment or security in respect to the Indebtedness
evidenced by the Notes.
"Total Capitalization" means, as of any particular time, the sum of (i)
Consolidated Net Worth and (ii) Consolidated Funded Indebtedness.
"Unconsolidated Subsidiary" means any corporation less than a majority of
whose outstanding stock having ordinary voting power for the election of the
members of the board of directors (or other governing body) of such corporation
(other than stock having such power only by reason of the happening of a
contingency) shall at the time be owned by the Company and/or one or more
Subsidiaries of the Company.
"Weighted Average Life to Final Maturity" has the meaning specified in
Section 2.03 hereof.
"Wholly-owned" when used in connection with any Subsidiary means a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by the Company
and/or one or more of its Wholly-owned Subsidiaries.
"Yield Maintenance Price" has the meaning set forth in Section 7.01
hereof.
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All accounting terms used herein and not expressly defined in this Note
shall have the meanings respectively given to them in accordance with GAAP as
they exist at the date of applicability thereof.
SECTION 7. DEFAULTS AND REMEDIES.
Section 7.0l. Events of Default. If one or more of the following events
(herein called "Events of Default") shall happen for any reason whatsoever and
whether such happening shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body and be continuing:
A. Default shall be made in the payment of principal of (or premium,
if any, on) any Note when and as the same shall become due and payable,
whether at maturity or at a date fixed for prepayment (including, without
limitation, a prepayment as provided in Section 2.01, 2.02 or 2.03), or
by acceleration or otherwise; or
B. Default shall be made in the payment of any interest on any Note
when such interest becomes due and payable and such default shall
continue for more than 5 days; or
C. Default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Sections 4.01 to Section
4.11 and such default shall continue for more than 10 days; or
D. Default shall be made in the due observance or performance of any
other covenant, condition or agreement contained in this Note or in the
Agreement, and such default shall continue for 30 days after the earlier
of (1) written notice thereof, specifying such default and requesting
that the same be remedied, shall have been given to the Company by the
holder of any Note, and (2) a responsible officer of
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the Company's obtaining knowledge of the occurrence of such default; or
E. The Company or any Subsidiary shall be adjudicated a bankrupt or
insolvent, or shall consent to the appointment of a receiver, trustee,
custodian or liquidator of itself or of any part of its property, or
shall admit in writing its inability, or shall fail, to pay its debts
generally as they come due, or shall make a general assignment for the
benefit of creditors, or shall file a voluntary petition in
reorganization or arrangement in a proceeding under any bankruptcy law
(as now or hereafter in effect) or an answer admitting the material
allegations of a petition filed against the Company or any Subsidiary in
any such proceeding, or shall, by voluntary petition, answer or consent,
seek relief under the provisions of any other now existing or future
bankruptcy or other similar law providing for the reorganization or
winding up of corporations, or the Company or any Subsidiary or its
directors or majority stockholders shall take action looking to the
dissolution or liquidation of the Company or such Subsidiary (other than
as contemplated by Section 4.09); or
F. An order, judgment or decree shall be entered by any court of
competent jurisdiction appointing, without the consent of the Company or
any Subsidiary, a receiver, trustee, custodian or liquidator of the
Company or such Subsidiary or of any part of its property, and such
receiver, trustee, custodian or liquidator shall not have been removed or
discharged within 30 days thereafter, or any part of the property of the
Company or any Subsidiary shall, in any judicial proceeding, be
sequestered and shall not be returned to the possession of the Company or
such Subsidiary within 30 days thereafter; or
G. A petition against the Company or any Subsidiary in a proceeding
under any bankruptcy law (as now or hereafter in effect) shall be filed
and shall not be dismissed within 30 days after such filing, or, in case
the approval of such petition by a court of competent
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jurisdiction is required, shall be filed and approved by such a court as
properly filed and such approval shall not be withdrawn or the proceeding
dismissed within 30 days thereafter, or if, under the provisions of any
other similar law providing for reorganization or winding up of
corporations and which may apply to the Company or any Subsidiary, any
court of competent jurisdiction shall assume jurisdiction, custody or
control of the Company or such Subsidiary or of any part of its property
and such jurisdiction, custody or control shall not be relinquished or
terminated within 30 days thereafter; or
H. The Company or any Subsidiary shall default in the payment of
principal or interest on any evidence of Indebtedness for money borrowed
in excess of $2,500,000 or shall default in the performance or observance
of any other term, condition or agreement contained in any such evidence
of Indebtedness (other than the Notes) or in any agreement relating
thereto, the effect of which is to cause or permit any holder of such
Indebtedness or a trustee to cause the same to become or be declared due
prior to its stated maturity; or
I. Final judgment for the payment of money in excess of $250,000
shall be rendered against the Company or any Subsidiary and the same
shall remain undischarged for a period of 30 days during which execution
shall not be effectively stayed; or
J. An event or condition specified in Section 5.1(g) of the
Agreement shall occur or exist with respect to any Plan or Multiemployer
Plan, as defined therein, and, as a result of such event or condition,
together with all other such events or conditions, the Company or any of
its ERISA Affiliates shall incur or shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan, the Internal Revenue Service
or the Pension Benefit Guaranty Corporation (or any combination of the
foregoing) that is material in relation to the financial condition of the
Company and its Subsidiaries, taken as a whole; or
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K. Any representation or warranty made by the Company in the
Agreement or in any writing furnished in connection with the transactions
contemplated hereby shall prove to have been false or incorrect in a
material respect as of the date made;
then (i) upon the occurrence of any Event of Default described in items E, F or
G of this Section (each a "Bankruptcy Default"), all of the Notes shall
automatically become immediately due and payable, (ii) upon the occurrence of
any Event of Default described in items A or B of this Section, the holder of
this Note may at any time during its continuance, by written notice to the
Company, declare this Note to be due and payable, whereupon this Note shall
forthwith mature and become due and payable or (iii) upon the occurrence of any
Event of Default other than a Bankruptcy Default, the holder or holders of at
least 66-2/3% in principal amount of the Notes then outstanding (exclusive of
any Notes held by the Company, any Subsidiary or any Affiliate) may at any time
during its continuance, by written notice to the Company, declare all of the
Notes to be due and payable, whereupon in each case all of the Notes shall
forthwith mature and become due and payable.
The amount payable upon the occurrence of a Bankruptcy Default shall be
the entire unpaid principal amount of the Notes, together with interest accrued
thereon to the date of the occurrence of such Bankruptcy Default, and such
amount shall be payable without presentment, demand, protest or other
requirement of any kind, all of which are expressly waived by the Company. The
amount payable upon an acceleration based on any other Event of Default shall
be, to the extent permitted by law, the Yield Maintenance Price, as defined
below, of the Notes so accelerated, together with interest accrued on the
unpaid principal amount of the Notes so accelerated to the date of
acceleration, and such amount shall be payable without presentment, demand,
protest or further notice, all of which are expressly waived by the Company.
On the Acceleration Calculation Date, as defined below, the Computing
Holder shall give written notice to the Company and all other holders of the
amount of the Yield Maintenance Price of the
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Notes so accelerated, which notice shall set forth in reasonable detail the
computation thereof.
For purposes of this Section 7.01, the following terms shall have the
following definitions.
"Acceleration Calculation Date" means the date on which the Yield
Maintenance Price of the Notes accelerated pursuant to this Section is
determined. The Acceleration Calculation Date shall be the date of the notice
given by the requisite holders of Notes to the Company declaring all of the
Notes due and payable pursuant to this Section.
"Yield Maintenance Price" means the higher of (1) the entire unpaid
principal amount of the Notes so accelerated, or (2) the sum of the respective
Payment Values of each prospective interest payment, prospective mandatory
prepayment and the principal payment at maturity in respect of such Notes (the
amount of each such payment being herein referred to as a "Payment"). The
Payment Value of each Payment shall be determined by discounting such Payment
at the Reinvestment Rate, for the period from the scheduled date of such
Payment to the applicable date of acceleration. The "Reinvestment Rate" is the
yield (as reported on the Telerate Access Service (Page 500-offer side) or such
other display as may replace Page 500) which shall be imputed from the yields
of those actively traded United States Treasury securities having maturities as
close as practicable to the Weighted Average Life to Final Maturity of the
Notes so accelerated. The yields of such United States Treasury securities
shall be determined as of 10 A.M. Eastern Time on the Acceleration Calculation
Date.
The terms "Computing Holder," "Payment Values," "Payment" and "Weighted
Average Life to Final Maturity" shall have the meanings set forth in Section
2.03 hereof.
Section 7.02. Suits for Enforcement. In case an Event of Default shall
occur and be continuing, the holder of this Note may proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the
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specific performance of any covenant contained in this Note or in aid of the
exercise of any power granted in this Note, or may proceed to enforce the
payment of this Note or to enforce any other legal or equitable right of the
holder of this Note. The Company agrees that its obligations under Section
2.03 of the Note are of the essence of such Note, and upon application to any
court of equity having jurisdiction in the premises, the holder of the Notes
shall be entitled to a decree against the Company requiring specific
performance of such obligations. If any holder of a Note shall demand payment
thereof or take any other action in respect of an Event of Default, the Company
will forthwith give written notice, as provided in Section 8.02, to the other
holders of Notes specifying such action and the nature and status of the Event
of Default.
Section 7.03. Remedies Not Exclusive, Etc. No remedy herein or in the
Agreement conferred upon or reserved to any holder of any of the Notes is
intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under the Agreement or the Notes or now or hereafter
existing at law or in equity. No delay in exercising or omission to exercise
any right or power accruing upon any default, omission or failure of
performance hereunder or under the Agreement shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle any holder of any of the Notes to exercise any
remedy reserved to it in the Notes or in the Agreement, it shall not be
necessary to give any notice to any person. In the event any provision
contained in the Notes should be breached by the Company and thereafter duly
waived by the holders from time to time of the Notes in compliance with Section
5, such waiver shall be limited to the particular breach so waived and shall
not be deemed to waive any other breach hereunder. No waiver, amendment,
release, termination or modification of the Notes shall be established by
conduct, custom or course of dealing but solely by an instrument in writing in
compliance with Section 5.
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SECTION 8. MISCELLANEOUS.
Section 8.01. Costs and Expenses. Without limiting the provisions of
Section 6.1 of the Agreement, if any Event of Default shall occur, the Company
shall pay to each holder of the Notes, to the extent permitted under applicable
law, all reasonable out-of-pocket expenses incurred by such holder in
connection with such Event of Default and such further amount as shall be
sufficient to cover the cost and expense of enforcement and collection,
including reasonable compensation to the attorneys and counsel of such holder
for any services rendered in that connection, upon the Notes, held by such
holder.
Section 8.02. Notices. All notices to be given to any holder of this Note
shall be given by overnight air courier, or by facsimile communication
confirmed by overnight air courier to such holder at its address designated on
the date of such notice on the register or other record maintained by the
Company.
Section 8.03. Covenants Bind Successors and Assigns. All covenants and
agreements in this Note by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 8.04. Governing Law. This Note shall be construed in accordance
with and governed by the laws of the State of Minnesota.
Section 8.05. Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, XXXXXXX FOODS, INC. has caused this Note to be signed
in its corporate name by one of its officers thereunto duly authorized, and to
be dated as of the day and year first above written.
XXXXXXX FOODS, INC.
By
Its
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SCHEDULE I
PREPAYMENT SCHEDULE FOR THE NOTES
DATE OF PAYMENT PRINCIPAL AMOUNT TO BE PREPAID
June 1, 1997 $4,000,000
December 1, 1997 $4,000,000
June 1, 1998 $4,000,000
December 1, 1998 $4,000,000
June 1, 1999 $5,000,000"
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"EXHIBIT E
NOVATION AND ASSUMPTION AGREEMENT
THIS NOVATION AND ASSUMPTION AGREEMENT ("Agreement") made this 26th day of
February, 1997 by and between XXXXXXX FOODS, INC., a Delaware corporation,
whose name will be changed to "Xxxxxxx Foods of Delaware, Inc." upon the
occurrence of the Xxxxxxx Reorganization ("Old Xxxxxxx"), North Star Universal,
Inc. a Minnesota corporation, whose name will be changed to "Xxxxxxx Foods,
Inc." upon the occurrence of the Xxxxxxx Reorganization ("New Xxxxxxx") and
_________________________ ("Holder").
WITNESSETH:
WHEREAS, pursuant to a certain Loan Agreement between Old Xxxxxxx and
Holder dated December 1, 1989 (as said Loan Agreement may have been amended
from time to time, the "Loan Agreement"), Old Xxxxxxx did issue to Holder Fifty
Million Dollars ($50,000,000) in aggregate principal amount of Old Michael's
9.50% Senior Notes due December 1, 1999 (the "Notes"), of which $26,000,000 are
outstanding as of the date hereof; and
WHEREAS, pursuant to a certain Agreement and Plan of Reorganization
between Old Xxxxxxx, New Xxxxxxx and NSU Merger Co., a Delaware corporation and
a wholly-owned subsidiary of New Xxxxxxx ("Merger Sub") dated December 21, 1995
(as said Agreement and Plan of Reorganization may have been amended from time
to time, the "Reorganization Agreement"), the parties thereto have agreed to
enter into a tax-free reorganization under the terms of which (i) Merger Sub
will merge with and into Old Xxxxxxx, (ii) Old Xxxxxxx will become a
wholly-owned subsidiary of New Xxxxxxx, (iii) Old Xxxxxxx will change its name
to "Xxxxxxx Foods of Delaware, Inc.", and (iv) New Xxxxxxx will change its name
to "Xxxxxxx Foods, Inc." (hereinafter referred to as the "Xxxxxxx
Reorganization"); and
ANNEX Z
(to Amendment Agreement)
64
WHEREAS, the parties hereto have agreed that subject to the terms and
conditions hereinafter set forth, immediately upon the occurrence of the
Xxxxxxx Reorganization in accordance with the provisions of the Reorganization
Agreement, New Xxxxxxx will be substituted for, and will assume all obligations
of Old Xxxxxxx under the Loan Agreement, Notes and related documents and New
Xxxxxxx will be entitled to all of the benefits thereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto hereby agree as follows:
1. Recitals. The aforesaid recitals are hereby made a part of this
Agreement.
2. Definitions. Capitalized terms in this Agreement not otherwise defined
herein shall have the meanings assigned to them in the Loan Agreement and the
Reorganization Agreement.
3. Novation and Assumption. As of the Effective Time on the Effective
Date of the Xxxxxxx Reorganization, (a) New Xxxxxxx shall without further act
or deed of the parties hereto, be entitled to all of the benefits and rights of
Old Xxxxxxx under the Loan Agreement, Notes and all documents executed and
delivered by Old Xxxxxxx pursuant thereto (collectively, the "Loan Documents"),
(b) New Xxxxxxx shall, and it hereby does without further act or deed of the
parties hereto unconditionally and expressly, (i) assume all liabilities and
obligations of Old Xxxxxxx under the Loan Documents and (ii) agree to perform
all liabilities and obligations of Old Xxxxxxx under said Loan Documents, as if
said Loan Documents were originally executed and delivered by New Xxxxxxx, and
(c) all references in the Loan Documents to the "Company" shall refer to New
Xxxxxxx except for references to the Company relating to its status prior to
the consummation of the Xxxxxxx Reorganization.
4. Release of Old Xxxxxxx. As of the Effective Time on the Effective Date
of the Xxxxxxx Reorganization, Holder shall, and it hereby does without further
act or deed of the parties hereto other than the satisfaction of the conditions
precedent
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set forth in Section 6.7 of the Loan Agreement and the receipt from New Xxxxxxx
of a certificate, dated as of the Effective Date, of the President or any Vice
President of New Xxxxxxx stating that the Xxxxxxx Reorganization has been
effected and that the representations and warranties set forth in paragraph
5(b) hereof are true and correct on and with respect to such Effective Date,
release Old Xxxxxxx from all liabilities and obligations under the Loan
Documents.
5. Representations and Warranties. As of the Effective Time on the
Effective Date of the Xxxxxxx Reorganization, New Xxxxxxx shall, and it hereby
does without any further act or deed of the parties hereto, (a) accept and
assume all obligations and liabilities of Old Xxxxxxx related to each
representation or warranty made by Old Xxxxxxx in the Loan Agreement or any
other document, instrument or agreement executed and delivered or furnished in
connection therewith, and (b) further represent, warrant and affirm for the
benefit of the Holder that:
(i) Organization, Authority and Good Standing. New Xxxxxxx is a
duly organized and validly existing corporation in good standing under
the laws of its jurisdiction of incorporation and has full power and
authority to own the properties and assets and to carry on the business
which it now owns and carries on. New Xxxxxxx is duly qualified and in
good standing as a foreign corporation in each jurisdiction wherein the
nature of the property owned or leased by it or the nature of the
business transacted by it makes such qualification necessary, except
where the failure to so qualify would not have a material and adverse
effect on the business, operations, properties, prospects, assets or
condition, financial or other, of New Xxxxxxx and its Subsidiaries taken
as a whole.
(ii) Compliance with Other Instruments. Except as may have been
permanently waived in writing, neither New Xxxxxxx nor any of its
Subsidiaries is in default in the performance, observance or fulfillment
of any of the material obligations, covenants or conditions contained in
any bond, debenture, note or other evidence of indebtedness
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of New Xxxxxxx or any such Subsidiary or contained in any instrument
under or pursuant to which any thereof has been issued or made and
delivered the effect of which would materially and adversely affect the
business, operations, properties, prospects, assets or condition,
financial or other, of New Xxxxxxx and its Subsidiaries taken as a whole.
Neither the execution and delivery of this Agreement by New Xxxxxxx, the
consummation by New Xxxxxxx of the transactions herein contemplated nor
compliance by New Xxxxxxx with the terms, conditions and provisions of
the Loan Documents will violate any provision of law or rule or
regulation thereunder or any order, injunction or decree of any court or
other governmental body to which New Xxxxxxx is a party or by which New
Xxxxxxx is bound or conflict with or result in a breach of any of the
terms, conditions or provisions of the corporate charter or by-laws of
New Xxxxxxx or of any agreement or instrument to which New Xxxxxxx is a
party or by which New Xxxxxxx is bound, or constitute a default
thereunder, or result in the creation or imposition of any Lien of any
nature whatsoever upon any of the properties or assets of New Xxxxxxx.
No consent of the stockholders of New Xxxxxxx is required for the
execution, delivery and performance of this Agreement by New Xxxxxxx.
(iii) Foreign Asset Control Regulations. Neither this Agreement nor
any of the transactions contemplated hereby will result in a violation of
any of the foreign asset control regulations of the United States
Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any
ruling issued thereunder or any enabling legislation or Presidential
Executive Order in connection therewith.
(iv) Investment Company Act. New Xxxxxxx is not an "investment
company," or a Person "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
(v) Governmental Action. No action of, or filing with, any
governmental or public body or authority is required to authorize, or is
otherwise required in
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connection with, the execution, delivery and (except for such filings as
may be required in connection with the Xxxxxxx Reorganization)
performance of this Agreement by New Xxxxxxx.
(vi) Indebtedness. After giving effect to the Xxxxxxx
Reorganization, New Xxxxxxx and its Subsidiaries shall not be liable with
respect to any material amount of Indebtedness which was not outstanding
with respect to Old Xxxxxxx, its Subsidiaries and the Papetti Companies
at February 26, 1997 under the Loan Agreement or disclosed in the
Memorandum.
(vii) Events of Default. After giving effect to the Xxxxxxx
Reorganization, no Event of Default or event which with the passage of
time or giving of notice, or both, would become an Event of Default, has
occurred and is continuing under the Loan Agreement and New Xxxxxxx has
the capacity to incur at least $1 of additional Funded Indebtedness in
compliance with Section 4.01A of the Notes.
6. Further Assurances. At any time and from time to time, upon the
request of any holder of a Note and at the sole expense of New Xxxxxxx, New
Xxxxxxx will promptly execute and deliver any and all further instruments and
documents and will take such further action as such holder may reasonably deem
necessary to effect the purposes of this Agreement.
7. Continuing Effectiveness. Except only as provided in paragraphs 3 and
4 above, all of the terms, covenants and conditions of the Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
8. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Agreement.
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9. Termination of Agreement. Notwithstanding anything in this Agreement
to the contrary, in the event the Effective Time of the Effective Date of the
Xxxxxxx Reorganization does not occur on or before 11:59 o'clock p.m.,
Minnesota time on May 31, 1997, this Agreement shall, without further act or
deed of the parties hereto, become null and void and of no further force or
effect.
10. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of Old Xxxxxxx, New Xxxxxxx and Holder and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
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"OLD XXXXXXX"
XXXXXXX FOODS, INC.
By:_____________________________
Its:__________________________
By:_____________________________
Its:__________________________
"NEW XXXXXXX"
NORTH STAR UNIVERSAL, INC.
By:_____________________________
Its:__________________________
By:_____________________________
Its:__________________________
"HOLDER"
[VARIATION]
By:_____________________________
Its:__________________________
By:_____________________________
Its:__________________________
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