EXHIBIT 1
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CREDIT AGREEMENT
Among
XXXXXX XXXX XXXXXXXXX AND XXXX XXXXXX XXXXXXXXX
NOT INDIVIDUALLY BUT SOLELY AS CO-EXECUTORS OF THE ESTATE OF
XXXXX X. XXXXXXXXX, XX., DECEASED
and
UNION PLANTERS BANK, N. A.
Dated as of September 2, 2000
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TABLE OF CONTENTS
CREDIT AGREEMENT
PAGE
SECTION 1. THE CREDIT .......................................................................... 1
Section 1.1. The Term Credit ..................................................................... 1
Section 1.2. The Term Notes ...................................................................... 1
Section 1.3. Interest Rate ....................................................................... 1
SECTION 2. COLLATERAL .......................................................................... 1
Section 2.1. Borrower's Obligations .............................................................. 1
Section 2.2. Under Margin - Additional Pledge .................................................... 2
Section 2.3. Application of Cash Collateral ...................................................... 2
SECTION 3. PREPAYMENTS, TERMINATIONS AND PLACE AND APPLICATION OF
PAYMENTS ............................................................................ 2
Section 3.1. Prepayments Prohibited .............................................................. 2
Section 3.2. Place and Application of Payments ................................................... 2
SECTION 4. DEFINITIONS ......................................................................... 3
SECTION 5. REPRESENTATIONS AND WARRANTIES ...................................................... 4
Section 5.1. Authority; No Conflict .............................................................. 4
Section 5.2. Financial Information ............................................................... 4
Section 5.3. Litigation .......................................................................... 4
Section 5.4. Collateral .......................................................................... 4
Section 5.5. Other Obligations ................................................................... 5
Section 5.6. Income Taxes ........................................................................ 5
Section 5.7. No Default .......................................................................... 5
Section 5.8. Xxxxxxxxx Farms, Inc. Stock Ownership ............................................... 5
Section 5.9. Enforceability ...................................................................... 5
SECTION 6. CONDITIONS PRECEDENT ................................................................ 5
Section 6.1. Before Initial Extension of Credit .................................................. 5
Section 6.2. Before Extension of Credit .......................................................... 6
SECTION 7. COVENANTS ........................................................................... 6
Section 7.1. Use of Proceeds ..................................................................... 7
Section 7.2. Financial Information ............................................................... 7
Section 7.3. Other Debts ......................................................................... 7
Section 7.4. Other Liens ......................................................................... 7
Section 7.5. Notices to Bank ..................................................................... 8
Section 7.6. Compliance with Laws ................................................................ 8
Section 7.7. Perfection of Liens ................................................................. 8
Section 7.8. Cooperation ......................................................................... 8
Section 7.9. Disposition of Assets ............................................................... 8
Section 7.10. Termination ......................................................................... 9
Section 7.11. Income Taxes ........................................................................ 9
SECTION 8. EVENTS OF DEFAULT AND REMEDIES ...................................................... 9
Section 8.1. Definitions ......................................................................... 9
Section 8.2. Remedies for Non-Bankruptcy Defaults ................................................ 11
Section 8.3. Remedies for Bankruptcy Defaults .................................................... 11
SECTION 9. MISCELLANEOUS ....................................................................... 11
Section 9.1. Amendments and Waivers .............................................................. 11
Section 9.2. Waiver of Rights .................................................................... 11
Section 9.3. Documentary Taxes ................................................................... 11
Section 9.4. Representations ..................................................................... 11
Section 9.5. Notices ............................................................................. 12
Section 9.6. Costs and Expenses .................................................................. 12
Section 9.7. Counterparts ........................................................................ 12
Section 9.8. Successors and Assigns; Governing Law; Entire Agreement ............................. 12
Section 9.9. No Joint Venture .................................................................... 12
Section 9.10. Severability ........................................................................ 13
Section 9.11. Table of Contents and Headings ...................................................... 13
Section 9.12. Waiver of Jury Trial ................................................................ 13
Section 9.13. Confidentiality ..................................................................... 13
Section 9.14. Adjustment of Number of Shares ...................................................... 13
Section 9.15. Borrower ............................................................................ 13
Signature Page ............................................................................................. 14
Exhibit A Term Loan Note
Exhibit B Repayment Schedule
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XXXXXX XXXX XXXXXXXXX AND XXXX XXXXXX XXXXXXXXX,
NOT INDIVIDUALLY BUT SOLELY AS CO-EXECUTORS OF THE ESTATE OF
XXXXX X. XXXXXXXXX, XX., DECEASED
CREDIT AGREEMENT
The undersigned, XXXXXX XXXX XXXXXXXXX AND XXXX XXXXXX XXXXXXXXX, not
individually but solely as co-executors of the estate of Xxxxx X. Xxxxxxxxx, Xx.
Deceased (the "Borrower"), applies to you UNION PLANTERS BANK, NATIONAL
ASSOCIATION (hereinafter the "Bank") for your commitment, subject to all the
terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to make a term credit (the "Term Credit")
available to the Borrower, all as more fully hereinafter set forth.
SECTION 1. THE CREDIT.
Section 1.1. The Term Credit. (a) Subject to all of the terms and
conditions hereof, the Bank agrees to make a term loan (the"Term Loan") to the
Borrower during the period commencing on the date of this Agreement and ending
on September 15, 2000, at which time the Term Credit Commitment shall expire,
time being of the essence.
Only one borrowing may be made under the Term Credit Commitments and any part of
the Term Credit Commitments not borrowed shall automatically terminate on the
date the Borrower obtains any Term Loans hereunder.
Section 1.2. The Term Note. The Term Loan made by the Bank shall be
evidenced by a Term Note of the Borrower substantially in the form of Exhibit A
hereto (the "Term Note" or "Note") payable to the order of the Bank in the
principal amount of such Term Loan. Each Term Note shall be expressed to mature
in eight (8) quarterly installments of principal commencing on October 31, 2003,
and continuing on the last day of each February, May, August and October
thereafter to and including August 31, 2005, with each such installment to be in
accordance with the Repayment Schedule attached hereto as Exhibit B.
Section 1.3. Interest Rates. The Term Loan shall bear interest (computed
on the basis of a year of 365 days and actual days elapsed) payable in twenty
(20) quarterly installments commencing on October 31, 2000, and continuing on
the last day of each February, May, August and October thereafter to and
including August 31, 2005, at a rate per annum equal to 8.09% per annum, simple
interest.
SECTION 2. COLLATERAL.
Section 2.1. Borrower's Obligations. The Borrower's obligations to the
Bank under this Agreement and the other Loan Documents will be secured by the
shares of the common stock (the "Securities") of Xxxxxxxxx Farms, Inc. referred
to in the Pledge Agreement, dated the date hereof (the "Pledge Agreement"),
between the Borrower and the Bank (the "Pledged Shares")
and may also be secured by cash or cash equivalents pursuant to the terms of a
Security Agreement by the Borrower in favor of the Bank, executed at the time of
delivery of such cash or cash equivalents and any other collateral security
mutually acceptable to the Borrower and the Bank.
Section 2.2. Under Margin - Additional Pledge. If for any reason,
including a decline in the Market Value of the Securities, the ratio (the
"Loan-to-Value Ratio") of (i) the remainder of (x) the unpaid principal amount
of the Term Loans, minus (y) the amount of any Cash Collateral provided to the
Bank and securing the obligations of the Borrower with respect to the principal
of the Term Loan, to (ii) the Market Value of the Securities, exceeds 70%, the
Borrower will notify the Bank that the Borrower is under margin. Within five
Business Days of the giving of any such notice to the Bank (or within five
Business Days of Bank notifying Borrower that Borrower is under margin), the
Borrower will cause the Loan-to-Value Ratio to be reduced to 60% by either (i)
with the consent of the Bank, making a payment on the Term Loan in the amount of
the shortfall, or (ii) pledging additional Collateral that is acceptable to the
Bank in its sole discretion exercised in a commercially reasonable manner. It is
acknowledged by the Bank that the common stock of Xxxxxxxxx Farms, Inc. and cash
or cash equivalents are acceptable Collateral and, to the extent pledged as
additional collateral, shall become Pledged Shares. "Market Value" means, to the
extent quotations are available, the closing sale price of the Securities on the
preceding Business Day as appearing on any regularly published reporting or
quotation service or, if there is no closing sale price, any reasonable estimate
used by the Borrower or the Bank in accordance with sound banking practices.
Section 2.3. Application of Cash Collateral. In the event that at any time
the Borrower has provided to the Bank Cash Collateral for the Term Loans, as
provided in Sections 2.2 and 7.10, provided that no Event of Default has
occurred and is continuing and that after giving effect to any such application
the 70% Loan to Value Ratio required by Section 2.2 is maintained, upon the
request of the Borrower the Bank will permit the application of such Cash
Collateral to regularly scheduled principal installments of the Term Loan or to
the principal or interest installments or payments on the Term Loan, as the case
may be.
SECTION 3. PREPAYMENTS, TERMINATIONS AND PLACE AND APPLICATION OF PAYMENTS.
Section 3.1. Prepayment Prohibited. (a) The Borrower may not prepay the
outstanding principal amount of the Term Note in full or in part.
(b) Prepayment Fee. In the event that the Borrower prepays the Term Note in
violation of subsection (a) above for any reason, such prepayment will be
accompanied by payment of all accrued interest on the amount prepaid, plus an
amount equal to the amount of interest that would have otherwise been paid on
that portion of the Term Note so prepaid through and including August 31, 2005.
Such interest rate shall not be less than the interest rate specified in Section
1.3 above.
Section 3.2. Place and Application of Payments. All payments of principal
and interest made by the Borrower in respect of the Note and all fees payable by
the Borrower hereunder,
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shall be made to the Bank at its office at 000 X. 00xx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxx 00000 in immediately available funds, prior to 12:00 noon on the
date of such payment. Any payments received after 12:00 noon Hattiesburg time
(or after such later time as the Bank may otherwise direct) shall be deemed
received upon the following Business Day. The Borrower hereby authorizes the
Bank to automatically debit its account with Bank for any principal, interest
and fees when due under the Notes or this Agreement and to transfer the amount
so debited from such account to the Bank for application as herein provided, but
the Bank shall give prompt telephonic notice thereof to the Borrower.
SECTION 4. DEFINITIONS.
The terms hereinafter set forth when used herein shall have the following
meanings:
"Agreement" shall mean this Credit Agreement as supplemented and amended
from time to time.
"Bank" shall have the meaning specified in the first paragraph of this
Agreement.
"Banking Day" shall mean a day on which banks are open for business in
Hattiesburg, Mississippi, other than a Saturday or Sunday.
"Borrower" shall have the meaning specified in the first paragraph of this
Agreement.
"Business Day" shall mean any day except Saturday or Sunday on which banks
are open for business in Hattiesburg, Mississippi.
"Cash Collateral" shall mean cash or cash equivalents in which the
Borrower has granted to the Bank a first priority security interest as
Collateral for the Term Loans.
"Collateral" shall mean any and all collateral security for the Borrower's
indebtedness, obligations and liabilities to the Bank under this Agreement and
the other Loan Documents.
"Estate" means the estate of Xxxxx X. Xxxxxxxxx, Xx., deceased.
"Event of Default" shall mean any event or condition identified as such in
Section 8.1 hereof.
"Loan Documents" shall mean this Agreement and any and all exhibits
hereto, the Term Note and the Pledge Agreement.
"Note" shall have the meaning specified in Section 1.2.
"Person" shall mean and include any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, entity, party or government (whether national,
federal, state, county, city, municipal, or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
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"Pledge Agreement" shall have the meaning specified in Section 2.1.
"Potential Default" shall mean any event or condition which, with the
lapse of time, or giving of notice, or both, would constitute an Event of
Default.
"Property" shall mean all assets and properties of any nature whatsoever,
whether real or personal, tangible or intangible.
"Term Loan" shall have the meaning specified in Section 1.1(a) hereof.
"Term Note" shall have the meaning specified in Section 1.2 hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Bank as follows:
Section 5.1. Authority; No Conflict. The Borrower has full right, power
and authority, including the necessary authorization and approval from the
Chancery Court of the Second Judicial District of Xxxxx County, Mississippi, to
enter into this Agreement and the other Loan Documents, make the borrowings
herein provided for and encumber its assets as collateral security therefor, to
execute and issue the Note in evidence thereof, and to perform its obligations
under the Loan Documents; and the Borrower's execution of this Agreement and the
other Loan Documents does not, nor does the performance or observance by the
Borrower of any of the matters or things provided for in this Agreement and the
other Loan Documents, contravene any provision of law or any covenant, indenture
or agreement of or judgment, order or decree applicable to or affecting the
Borrower or any of its Property.
Section 5.2. Financial Information. The financial and other information
heretofore delivered to the Bank, including the Borrower's financial statements
as of July 31, 2000, is sufficiently complete to give the Bank accurate
knowledge of the Borrower's financial condition, including all material
contingent liabilities, and is in compliance with all applicable government
regulations and requirements. Since said date of July 31, 2000 there has,
through the date of this Agreement, been no material adverse change in the
Borrower's financial condition or its ability to repay the Term Loan, other than
any change that may have resulted from a change in the market value of the
common stock of Xxxxxxxxx Farms, Inc.
Section 5.3. Litigation. Except as otherwise disclosed to the Bank in
writing prior to the date hereof, there is no known litigation, or governmental
proceeding pending, nor to the best knowledge of the Borrower threatened,
against the Borrower which, if adversely determined could reasonably be expected
to result in any material adverse change in the financial condition of the
Borrower or to impair the Borrower's ability to repay the Term Loans. The Bank
acknowledges that the Borrower has disclosed that inchoate liens may exist
against the Borrower's Property for state and federal estate taxes until such
taxes are paid.
Section 5.4. Collateral. All Collateral required by this Agreement is
owned by the Borrower free of any title defects or any liens or interests of
others, except as disclosed in writing
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to the Bank. It is acknowledged by the Bank that the Borrower has disclosed to
the Bank that inchoate liens may exist against the property of the Borrower for
state and Federal estate taxes until such taxes are paid.
Section 5.5. Other Obligations. As of the date of this Agreement, the
Borrower is not in default on any obligations for borrowed money, any purchase
money obligation or any material lease, commitment, contract, instrument or
obligation.
Section 5.6. Income Taxes. As of the date of this Agreement, (a) the
Borrower has filed (or has obtained extension of the due date from the
applicable authorities) all tax returns required to be filed and has paid, or
made adequate provisions for the payment of, all taxes due and payable pursuant
to such returns and pursuant to any assessments made against the Borrower or any
of the Borrower's Property, (b) no tax liens have been filed and no material
claims are being asserted with respect to any such taxes, and (c) the Borrower
is not aware of any proposed assessment or adjustment for additional taxes (or
any basis for any such assessment) which might be material to the Borrower.
Section 5.7. No Default. No Potential Default or Event of Default is
existing under this Agreement.
Section 5.8. Xxxxxxxxx Farms, Inc. Stock Ownership. As of the date of this
Agreement, the Borrower owns not less than 3,268,482 shares of the common stock
of Xxxxxxxxx Farms, Inc.
Section 5.9. Enforceability. This Agreement and the other Loan Documents
are the legal, valid and binding agreements of the Borrower, enforceable against
it in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws or judicial decisions for the relief of debtors or the limitation of
creditors' rights generally; and any equitable principles relating to or
limiting the rights of creditors generally or any equitable remedy which may be
granted to cure any defaults.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of the Bank to make any Term Loan pursuant hereto shall be
subject to the following conditions precedent:
Section 6.1. Before Extension of Credit. Prior to making the Term Loan
hereunder, the Borrower shall have delivered to the Bank:
(a) the Term Note;
(b) the Pledge Agreement providing for the pledge by the Borrower to
the Bank of 1,703,364 shares of the common stock of Xxxxxxxxx Farms, Inc.,
together with stock certificates representing such shares and undated
blank stock powers therefor;
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(c) a Security Agreement providing for the grant of a security
interest by the Borrower to the Bank in any money market account or
accounts or certificates of deposit of the Borrower described therein;
(d) evidence that the execution and delivery and performance
by the Borrower of this Agreement and the other Loan Documents have
been duly authorized;
(e) evidence that security interests and liens in favor of the
Bank are valid, enforceable, and prior to all others' rights and
interests, except those the Bank consents to in writing;
(f) a certificate of the co-executors of the Borrower
concerning such matters as the Bank may reasonably require, together
with a copy of the evidence of the appointment and authority of the
co-executors of the Borrower;
(g) a written opinion from the Borrower's legal counsel, Xxxx
Xxxxxx Child & Xxxxxxx, Professional Association, covering such matters
as the Bank may require, the terms of the opinion to be acceptable to
the Bank;
(h) Federal Reserve Form U-1 executed by the Borrower;
(i) an order from the Chancery Court of the Second Judicial
District of Xxxxx County, Mississippi (a) authorizing the Term Loan,
and (b) finding that the Term Loan were necessarily incurred in the
administration of the Estate of Xxxxx X. Xxxxxxxxx, Xx., Deceased; and
(j) any other items that the Bank reasonably require.
Section 6.2. Extension of Credit. As of the time of the making of the
Term Loan hereunder:
(a) each of the representations and warranties set forth in
Section 5 hereof shall have been true and correct in all material
respects; and
(b) after giving effect to the Borrower's application of the
proceeds of the Term Loan hereunder, no Potential Default or Event of
Default shall have occurred and be continuing;
and the request by the Borrower for any Term Loan pursuant hereto shall be and
constitute a warranty to the foregoing effects.
SECTION 7. COVENANTS.
It is understood and agreed that so long as credit is in use or
available under this Agreement or any amount remains unpaid on any Note, except
to the extent compliance in any case or cases is waived in writing by the Bank:
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Section 7.1. Use of Proceeds. The Borrower shall use the proceeds of
the Term Loan only to pay the Borrower's federal and state estate tax
obligations.
Section 7.2. Financial Information. The Borrower shall provide the
following financial information and statements in form and content acceptable to
the Bank and such additional information as reasonably requested by the Bank
from time to time:
(a) The Borrower's annual audited financial statements in form
reasonably satisfactory to the Bank by February 15 of each year;
(b) The Borrower's quarterly financial statements in form
reasonably satisfactory to the Bank within 30 days after the end of
each calendar quarter;
(c) Copies of the Borrower's federal income tax return (with
all forms K-1 attached), within 30 days of filing, and, if requested by
the Bank, copies of any extensions of the filing date;
Section 7.3. Other Debts. The Borrower shall not have outstanding or
incur any direct or contingent liabilities or lease obligations (other than
those under the Loan Documents), or become liable for the liabilities of others,
without the Bank's written consent. This does not prohibit:
(a) Liabilities for, and debt incurred by the Borrower to pay,
estate taxes which are in excess of the amounts currently estimated to
be due from the Borrower as disclosed in writing to the Bank and which
are due and payable;
(b) Liabilities for administration expenses of the Estate (as
defined below) including, but not limited to, fees and expenses of
attorneys, accountants and other professionals and income and capital
gains taxes and liabilities incurred in the ordinary course in
connection with the maintenance or sale of the assets of the Estate;
(c) Liabilities for income taxes which are not yet due and
payable;
(d) Contingent liabilities permitted by this Agreement; and
Section 7.4. Other Liens. The Borrower shall not create, assume, or
allow any security interest or lien (including judicial liens) on Property the
Borrower now or later owns, except:
(a) Mortgages or deeds of trust and security agreements in
favor of the Bank;
(b) Liens for state and federal estate taxes and income taxes
not yet due;
(c) Liens on assets of the Borrower which are not subject to a
security interest in favor of the Bank and which secure indebtedness
permitted by Section 7.4;
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(d) Liens arising by operation of law, which liens and/or the
obligation secured thereby are being contested by the Borrower in good
faith by proper legal actions or proceedings, and as to which the
Borrower has given the Bank written notice of its intention to contest
such lien and/or obligation and at the time of commencement of any such
action or proceeding, and during the pendency thereof (i) no Event of
Default shall have occurred and be continuing, (ii) adequate reserves
with respect to the obligation which such lien secures are maintained
on the books of the Borrower, (iii) such contest operates to suspend
collection of the obligation such lien secures and such contest is
maintained and prosecuted continuously with diligence, (iv) none of the
Collateral for the Term Loan would be subject to forfeiture or loss of
the security interest in favor of the Bank by reason of the institution
or prosecution of such contest, and (v) the Borrower promptly pays or
discharges the obligation secured by such lien, and provides to the
Bank evidence thereof satisfactory to the Bank, if such contest is
terminated or discontinued adversely to the Borrower; and
Section 7.5. Notices to Bank. The Borrower shall promptly notify the
Bank in writing of:
(a) any lawsuits which in the aggregate seek over $500,000
against the Borrower or any of the Borrower's Property;
(b) any substantial dispute between the Borrower and any
government authority;
(c) any Potential Default or Event of Default; and
(d) any material adverse change in the Borrower's financial
condition (other than any such change that results from a decrease in
the market value of common stock of Xxxxxxxxx Farms, Inc. unless such
notice is otherwise required by the terms of this Agreement).
Section 7.6. Compliance with Laws. The Borrower shall comply with the
laws, regulations, and orders of any government body with authority over the
Borrower.
Section 7.7. Perfection of Liens. The Borrower shall help the Bank
perfect and protect its security interests and liens, and reimburse it for
related reasonable out-of-pocket expenses and reasonable fees of outside counsel
it incurs to protect its security interests and liens.
Section 7.8. Cooperation. The Borrower shall take any action reasonably
requested by the Bank to carry out the intent of this Agreement.
Section 7.9. Disposition of Assets.
The Borrower shall not, without the prior written consent of the Bank,
distribute, transfer, dispose or utilize dividends paid with respect to the
Pledged Shares; provided, however, that the Borrower may utilize dividends
received on the Pledged Shares to pay expenses of the Estate
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including the principal of and interest on the Term Loan, income tax
obligations, professional fees and expenses and other customary fees and
expenses incurred in connection with the administration of the Estate,
including, but not limited to, fees and expenses of attorneys, accountants and
other professionals and income and capital gains taxes and liabilities incurred
in the ordinary course in connection with the maintenance or sale of the assets
of the Estate.
The sale or disposition of shares of Xxxxxxxxx Farms, Inc. common stock
which are not Pledged Shares is not restricted by this Agreement. Furthermore,
the provisions of this Section 7.9 are not intended to and do not prohibit the
Borrower from selling the Pledged Shares provided that (i) at the time of such
sale no Event of Default has occurred and is continuing (unless permitted by the
Bank), (ii) such sale is effected in a manner reasonably acceptable to the Bank
which provides for an uninterrupted security interest in favor of the Bank in
the stock to be sold and following the sale, the proceeds thereof net of any
commissions payable in connection with such sale and all state and federal taxes
payable as a result of such sale, and (iii) after giving effect to such sale the
Loan to Value Ratio shall not exceed 70%.
The provisions of this Section 7.9 are not intended to and do not
prohibit the Borrower from paying liabilities of the Estate permitted by this
Agreement from the assets of the Estate which are not serving as Collateral for
the Term Loan.
The provisions of this Section are not intended to and do not prohibit
liens permitted by Section 7.4.
Section 7.10. Termination. The Borrower shall not close the Estate
until the indebtedness evidenced by the Term Loans has been paid off in full.
Section 7.11. Income Taxes. The Borrower will file (or obtain extension
of the due date from the applicable authorities) all tax returns required to be
filed and pay, or make adequate provisions for the payment of, all taxes due and
payable pursuant to such returns and pursuant to any assessments made against
the Borrower or any of the Borrower's property.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1. Definitions. Any one or more of the following shall
constitute an Event of Default:
(a) (i) Default in the payment when due of any principal of
any Note, whether at the stated maturity thereof or at any other time
provided in this Agreement, or (ii) default in the payment when due of
any interest on any Note and the continuation of such default for 5
Business Days, or (iii) default in the payment of any fee or other
amount payable by the Borrower pursuant to this Agreement within 5
Business Days after the Borrower receives an invoice therefor;
(b) Default in the observance or performance of any covenant,
condition, agreement or provision hereof or any of the other Loan
Documents and such default shall continue for 30 days after written
notice thereof to the Borrower by any Bank;
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(c) Default shall occur under any evidence of indebtedness for
borrowed money in an aggregate principal amount exceeding $100,000
issued or assumed or guaranteed by the Borrower, or under any mortgage,
agreement or other similar instrument under which the same may be
issued or secured and such default shall continue for a period of time
sufficient to permit the acceleration of maturity of the indebtedness
evidenced thereby or outstanding or secured thereunder;
(d) Any representation or warranty made by the Borrower herein
or in any Loan Document or in any written statement or certificate
furnished by it pursuant hereto or thereto after the date of this
Agreement, proves untrue in any material respect as of the date made or
deemed made pursuant to the terms hereof;
(f) Any judgment or judgments, writ or writs, or warrant or
warrants of attachment, or any similar process or processes which order
the payment of money in excess of $500,000 over and above any insurance
proceeds payable with respect thereto shall be entered or filed against
the Borrower or any of its Property or assets and remain unstayed and
undischarged for a period of 30 days from the date of its entry;
(g) The Bank shall for any reason fail to have a perfected
first priority security interest in any of the Collateral;
(h) A material adverse change occurs, or is likely to occur,
in the Borrower's ability to repay the Term Loan when due;
(i) The Borrower shall (i) have entered involuntarily against
it an order for relief under the Bankruptcy Code of 1978, as amended,
and such order is not dismissed within 60 days thereafter, (ii) admit
in writing its inability to pay, or not pay, its debts generally as
they become due or suspend payment of its obligations, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
conservator, liquidator or similar official for it or any substantial
part of its property, (v) file a petition seeking relief or institute
any proceeding seeking to have entered against it an order for relief
under the Bankruptcy Code of 1978, as amended, to adjudicate it
insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, marshalling of assets, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such
proceeding filed against it, or (vi) fail to contest in good faith any
appointment or proceeding described in Section 8.1(j) hereof; or
(j) A custodian, receiver, trustee, conservator, liquidator or
similar official shall be appointed for the Borrower or any substantial
part of the Property of the Borrower, or a proceeding described in
Section 8.1(i) (v) shall be instituted against the Borrower and such
appointment continues undischarged or any such proceeding continues
undismissed or unstayed for a period of 60 days.
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Section 8.2. Remedies for Non-Bankruptcy Defaults. Section 8.2 Remedies
for Non-Bankruptcy Defaults. When any Event of Default, other than an Event of
Default described in subsections (i) and (j) of Section 8.1 hereof, has occurred
and is continuing, the Bank shall give notice to the Borrower and take any or
all of the following actions: (i) terminate the remaining Term Credit
Commitments on the date (which may be the date thereof) stated in such notice,
(ii) declare the principal of and the accrued interest on the Note to be
forthwith due and payable and thereupon the Note (including both principal and
interest, plus an amount equal to the amount of interest that would have
otherwise been paid on the portion of the Note in default through and including
August 31, 2005) shall be and become immediately due and payable without further
demand, presentment, protest of notice of any kind, and (iii) take any action or
exercise any remedy under any of the Loan Documents or exercise any other
action, right, power or remedy permitted by law. The Bank may exercise the right
of set-off with regard to any deposit accounts or other accounts maintained by
the Borrower with the Bank, and the Borrower's indebtedness hereunder shall be
satisfied to the extent of any amount set-off against such indebtedness.
Section 8.3. Remedies for Bankruptcy Defaults. When any Event of
Default described in subsections (i) or (j) of Section 8.1 hereof has occurred
and is continuing, then the Note shall immediately become due and payable
without presentment, demand, protest or notice of any kind, and the obligation
of the Bank to extend further credit pursuant to any of the terms hereof shall
immediately terminate. In such event the amount set forth in Section 3.1(b)
shall also be immediately due and payable without presentment, demand, protest
or notice of any kind.
SECTION 9. MISCELLANEOUS
Section 9.1. Amendments and Waivers. Any term, covenant, agreement or
condition of this Agreement may be amended only by a written amendment executed
by the Borrower and Bank. No such amendment or waiver shall extend to or affect
any obligation not expressly amended or waived.
Section 9.2. Waiver of Rights. No delay or failure on the part of the
Bank or on the part of the holder or holders of any Note in the exercise of any
power or right shall operate as a waiver thereof, nor as an acquiescence in any
Potential Default or Event of Default, nor shall any single or partial exercise
of any power or right preclude any other or further exercise thereof, or the
exercise of any other power or right, and the rights and remedies hereunder of
the Bank and of the holder or holders of any Notes are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
Section 9.3. Documentary Taxes. Although the Borrower is of the opinion
that no documentary or similar taxes are payable in respect to this Agreement or
the Notes, the Borrower agrees that it will pay such taxes, including interest
and penalties, in the event any such taxes are assessed irrespective of when
such assessment is made and whether or not any credit is then in use or
available hereunder.
Section 9.4. Representations. All representations and warranties made
herein or in certificates given pursuant hereto shall survive the execution and
delivery of this Agreement and
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of the Notes, and shall continue in full force and effect with respect to the
date as of which they were made and as reaffirmed on the date of each borrowing
(as and to the extent provided in Section 6.2 hereof) and as long as any credit
is in use or available hereunder.
Section 9.5. Notices. Unless otherwise expressly provided herein, all
communications provided for herein shall be in writing or by telex and shall be
deemed to have been given or made when served personally, when an answer back is
received in the case of notice by telex, or 2 days after the date when deposited
in the United States mail (registered, if to the Borrower) addressed if to the
Borrower at 000 Xxxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000; if to the Bank at
000 X. 00xx Xxxxxx Xxxxxxxxxxx, XX 00000; or at such other address as shall be
designated by any party hereto in a written notice to each other party pursuant
to this Section 9.5.
Section 9.6. Costs and Expenses. The Borrower agrees to pay on demand
all customary and reasonable out-of-pocket costs and expenses of the Bank in
connection with the negotiation, preparation, execution and delivery of this
Agreement, the other Loan Documents and the other instruments and documents to
be delivered hereunder or in connection with the transactions contemplated
hereby (unless otherwise expressly limited herein); all reasonable out-of-pocket
costs and expenses of the Bank (including in each case reasonable attorneys'
fees and expenses) incurred in connection with any consents or waivers hereunder
or amendments hereto in each case requested by the Borrower, and all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' fees and
expenses), if any, incurred by the Bank or any other holders of a Note in
connection with the enforcement against the Borrower of this Agreement or the
other Loan Documents and the other instruments and documents to be delivered
hereunder. The provisions of this Section shall survive payment of the Note and
the termination of the Bank's Term Credit Commitments hereunder.
Section 9.7. Counterparts. This Agreement may be executed in any number
of counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument. This Agreement shall become effective as
and when the Bank and the Borrower have executed this Agreement or a counterpart
thereof.
Section 9.8. Successors and Assigns; Governing Law; Entire Agreement.
This Agreement shall be binding upon each of the Borrower and the Bank and their
respective successors and assigns, and shall inure to the benefit of the
Borrower and of the Bank and the benefit of their respective successors and
assigns, including any subsequent holder of any Note. This Agreement and the
rights and duties of the parties hereto shall be construed and determined in
accordance with the laws of the State of Mississippi, without regard to
Mississippi conflict of laws principles. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and any
prior agreements, whether written or oral, with respect thereto are superseded
hereby. The Borrower may not assign any of its rights or obligations hereunder
without the written consent of the Bank.
Section 9.9. No Joint Venture. Nothing contained in this Agreement
shall be deemed to create a partnership or joint venture among the parties
hereto.
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Section 9.10. Severability. In the event that any term or provision
hereof is determined to be unenforceable or illegal, it shall be deemed severed
herefrom to the extent of the illegality and/or unenforceability and all other
provisions hereof shall remain in full force and effect.
Section 9.11. Table of Contents and Headings. The table of contents and
section headings in this Agreement are for reference only and shall not affect
the construction of any provision hereof.
Section 9.12. Waiver of Jury Trial. THE BORROWER AND THE BANK HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATIVE TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
Section 9.13. Confidentiality. The Bank will keep confidential any
non-public information concerning the Borrower furnished by the Borrower (which
is designated by the Borrower as confidential at the time such information is
furnished to the Bank or is actually known by such Bank to be confidential),
except that any Bank may disclose such information (a) to regulatory authorities
having jurisdiction, (b) pursuant to subpoena or other legal process, (c) to
such Bank's counsel and auditors in connection with matters concerning this
Agreement, (d) to such Bank's consultants in connection with negotiations
concerning this Agreement or the other Loan Documents and (e) to prospective
participants or assignees in the Loans and participants and assignees in the
Loan, provided that any Persons described in clauses (d) and (e) shall first
agree to be bound to comply with the terms of this Section to the same extent as
if it were the Bank. In the situations described above (except where the
Borrower is a party), the Bank shall notify the Borrower as promptly as
practicable of the receipt of a request for such disclosure and furnish it with
a copy of such subpoena or other legal process (to the extent the Bank is
legally permitted to do so). The provisions of this Section shall survive the
payment of the Note and the termination of this Agreement.
Section 9.14. Adjustment of Number of Shares. The number of shares of
Xxxxxxxxx Farms, Inc. common stock designated in Section 5.8 of this Agreement
shall be automatically adjusted to give effect to any stock split or similar
event.
Section 9.15. Borrower. The Loan Documents are obligations of the
Borrower, and do not constitute personal obligations of the Co-Executors in
their individual capacities, and are enforceable solely against the assets of
the Borrower and not the personal assets of the Co-Executors in their individual
capacities.
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set forth.
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Dated as of September __, 2000.
/s/Xxxxxx Xxxx Xxxxxxxxx
XXXXXX XXXX XXXXXXXXX,
CO-EXECUTOR
/S/XXXX XXXXXX XXXXXXXXX
XXXX XXXXXX XXXXXXXXX
CO-EXECUTOR
AS CO-EXECUTORS OF THE ESTATE OF
XXXXX X. XXXXXXXXX, XX., DECEASED, AND
NOT IN THEIR INDIVIDUAL CAPACITIES
Accepted and Agreed to as of the day and year last above written.
UNION PLANTERS BANK,
NATIONAL ASSOCIATION
BY: /s/ Xxxx X. Xxxxxx
ITS: Regional Senior Lender
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EXHIBIT A
TERM NOTE
$6,148,050 September __, 2000
FOR VALUE RECEIVED, the undersigned, Xxxxxx Xxxx Xxxxxxxxx and Xxxx
Xxxxxx Xxxxxxxxx, not individually but solely as co-executors of the estate of
Xxxxx X. Xxxxxxxxx, Xx., deceased (the "Borrower"), promises to pay to the order
of Union Planters Bank, National Association (the "Lender"), at the principal
office of 000 X. 00xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx, the principal sum of Six
Million One Hundred Forty-Eight Thousand Fifty Dollars ($6,148,050), in eight
(8) consecutive quarterly installments, payable on the dates and in the amounts
specified in the Credit Agreement referred to below, together with interest on
the principal amount of the principal indebtedness payable in twenty (20)
consecutive quarterly installments payable on the dates and in the amount
specified in the Credit Agreement.
This Note evidences a Term Loan, as such term is defined in that
certain Credit Agreement dated as of September ___, 2000, by and among the
Borrower and Bank, (the "Credit Agreement").
The Borrower may not prepay the outstanding principal amount of this
Note in full or in part at any time.
This Note is issued by the Borrower under the terms and provisions of
the Credit Agreement and this Note and the holder are entitled to all of the
benefits and security provided for thereby or referred to therein. This Note may
be declared to be, or be and become, due prior to its expressed maturity upon
the occurrence of an event of default specified in the Credit Agreement.
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Mississippi.
The Borrower hereby waives presentment for payment and demand.
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/S/XXXXXX XXXX XXXXXXXXX,
CO-EXECUTOR
/S/ XXXX XXXXXX XXXXXXXXX,
CO-EXECUTOR
AS CO-EXECUTORS OF THE ESTATE
OF XXXXX X. XXXXXXXXX, XX., DECEASED
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XXXXXXX X
XXXXXX XX XXXXX X. XXXXXXXXX, XX.
REPAYMENT SCHEDULE
PAYMENT DATE INTEREST PRINCIPAL
------------ -------- ---------
Oct. 31, 2000 80,398
Feb. 28, 2001 167,441
May 31, 2001 124,343
Aug. 31, 2001 124,343
Oct. 31, 2001 83,122
Feb. 28, 2002 166,050
May 31, 2002 124,343
Aug. 31, 2002 124,343
Oct. 31, 2002 83,123
Feb. 28, 2003 166,050
May 31, 2003 124,343
Aug. 31, 2003 124,343
Oct. 31, 2003 81,760 756,555
Feb. 28, 2004 143,178 695,137
May 31, 2004 96,045 742,271
Aug. 31, 2004 79,971 758,345
Oct. 31, 2004 43,207 795,109
Feb. 28, 2005 64,837 773,479
May 31, 2005 32,908 805,407
Aug. 31, 2005 16,619 821,697
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