SECURED TERM CREDIT AGREEMENT
Among
PILGRIM'S PRIDE CORPORATION
And
XXXXXX TRUST AND SAVINGS BANK
INDIVIDUALLY AND AS AGENT
AND
FBS Ag Credit, Inc.
COBANK, ACB
ING (U.S.) Capital Corporation
XXXXX FARGO BANK (TEXAS), X.X.
Xxxxxx Nationale de Credit Agricole, Chicago Branch
Dated as of June 5, 1997
TABLE OF CONTENTS
Pilgrim's Pride Corporation
SECURED TERM CREDIT AGREEMENT
Exhibit A Secured Term Credit Note
Exhibit BDeed of Trust
Exhibit C Environmental Disclosure
Exhibit D Permitted Liens
Exhibit E Compliance Certificate
Exhibit F Subsidiaries
Exhibit GLabor Disputes
Pilgrim's Pride Corporation
SECURED TERM CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
FBS Ag Credit, Inc.
Denver, Colorado
CoBank, ACB
Wichita, Kansas
ING (U.S.) Capital Corporation ("ING")
New York, New York
Xxxxx Fargo Bank (Texas), N.A.
Dallas, Texas
Caisse Nationale de Credit Agricole, Chicago Branch
Chicago, Illinois
Ladies and Gentlemen:
The undersigned, PILGRIM'S PRIDE CORPORATION, a Delaware corporation
(the "COMPANY"), applies to you for your several 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 Company, all as more fully
hereinafter set forth. Each of you is hereinafter referred to
individually as "BANK" and collectively as "BANKS." Xxxxxx Trust and
Savings Bank in its individual capacity is sometimes referred to herein
as "XXXXXX", and in its capacity as Agent for the Banks is hereinafter in
such capacity called the "AGENT."
SECTION 1. THE CREDIT FACILITIES.
SECTION 1.1. THE TERM CREDIT. (a) Subject to all of the terms and
conditions hereof, the Banks agree, severally and not jointly, to extend
a Term Credit to the Company which may be utilized by the Company in the
form of loans (individually a "TERM LOAN" and collectively the "TERM
LOANS"). The aggregate principal amount of all Term Loans made hereunder
shall not exceed the Banks' Term Credit Commitments (as hereinafter
defined). The Term Loans may be disbursed in one or more borrowings
during the period from the date hereof to and including April 30, 1999
(the "TERMINATION DATE").
(b) The respective maximum aggregate principal amounts of the Term
Credit and the percentage of the Term Credit (the "COMMITMENT
PERCENTAGE") available at any time which each Bank by its acceptance
hereof severally agrees to make available to the Company are as follows
(collectively, the "TERM CREDIT COMMITMENTS" and individually, a "TERM
CREDIT COMMITMENT"):
Xxxxxx Trust and Savings Bank $2,666,667.00
FBS Ag Credit, Inc. $2,000,000.00
CoBank, ACB $2,000,000.00
ING (U.S.) Capital Corporation $1,333,333.00
Xxxxx Fargo Bank (Texas), N.A. $1,000,000.00
Caisse Nationale de Credit Agricole $1,000,000.00
Total $10,000,000.00
All Term Loans shall be made from each Bank in proportion to its
respective Term Credit Commitment as above set forth. Each borrowing of
Term Loans shall be in an amount not less than $1,000,000 or such greater
amount which is an integral multiple of $500,000 and each Fixed Rate
Portion shall be in an amount not less than $1,000,000. The Term Loans
shall mature on the Termination Date.
SECTION 1.2. THE NOTES. All Term Loans made by each Bank hereunder
shall be evidenced by a single Secured Term Credit Note of the Company
substantially in the form of Exhibit A hereto (individually, a "TERM
NOTE" and together, the "TERM NOTES") payable to the order of each Bank
in the principal amount of such Bank's Term Credit Commitment, but the
aggregate principal amount of indebtedness evidenced by such Term Note at
any time shall be, and the same is to be determined by, the aggregate
principal amount of all Term Loans made by such Bank to the Company
pursuant hereto on or prior to the date of determination less the
aggregate amount of principal repayments on such Term Loans received by
or on behalf of such Bank on or prior to such date of determination.
Each Term Note shall be dated as of the execution date of this Agreement,
shall be delivered concurrently herewith, and shall be expressed to
mature on the Termination Date and to bear interest as provided in
Section 1.3 hereof. Each Bank shall record on its books or records or on
a schedule to its Term Note the amount of each Term Loan made by it
hereunder, and, with respect to Eurodollar Portions, the interest rate
and Interest Period applicable thereto, and all payments of principal and
interest and the principal balance from time to time outstanding,
provided that prior to any transfer of such Term Note all such amounts
shall be recorded on a schedule to such Term Note. The record thereof,
whether shown on such books or records or on the schedule to the Term
Note, shall be PRIMA FACIE evidence as to all such amounts; provided,
however, that the failure of any Bank to record or any mistake in
recording any of the foregoing shall not limit or otherwise affect the
obligation of the Company to repay all Term Loans made hereunder together
with accrued interest thereon. Upon the request of any Bank, the Company
will furnish a new Term Note to such Bank to replace its outstanding Term
Note and at such time the first notation appearing on the schedule on the
reverse side of, or attached to, such Term Note shall set forth the
aggregate unpaid principal amount of Term Loans then outstanding from
such Bank, and, with respect to each Fixed Rate Portion, the interest
rate and Interest Period applicable thereto. Such Bank will cancel the
outstanding Term Note upon receipt of the new Term Note.
SECTION 1.3. INTEREST RATES AND RATE SELECTION. (a) INTEREST RATE
OPTIONS. Subject to all of the terms and conditions of this Section 1.3,
portions of the principal indebtedness evidenced by each Term Note (all
of the indebtedness evidenced by each Term Note bearing interest at the
same rate for the same period of time being hereinafter referred to as a
"PORTION") may, at the option of the Company, bear interest with
reference to the Domestic Rate (the "DOMESTIC RATE PORTION") or with
reference to an Adjusted Eurodollar Rate ("EURODOLLAR PORTIONS") or with
reference to an Adjusted CD Rate ("CD RATE PORTIONS"), and Portions may
be converted from time to time from one basis to another. All of the
indebtedness evidenced by each Term Note which is not part of a Fixed
Rate Portion shall constitute a single Domestic Rate Portion. All of the
indebtedness evidenced by each Term Note which bears interest with
reference to a particular Adjusted Eurodollar Rate for a particular
Interest Period shall constitute a single Eurodollar Portion, all of the
indebtedness evidenced by each Term Note which bears interest with
reference to a particular Adjusted CD Rate for a particular Interest
Period shall constitute a single CD Rate Portion. Each Domestic Rate
Portion shall be in an amount not less than $1,000,000 or such greater
amount which is an integral multiple of $500,000 and each Fixed Rate
Portion shall be in an amount not less than $1,000,000 or such greater
amount which is an integral multiple of $1,000,000.
(b) DOMESTIC RATE PORTIONS. Each Domestic Rate Portion shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan
is made until maturity (whether by acceleration, upon prepayment or
otherwise) at a rate per annum equal to the lesser of (i) the Highest
Lawful Rate and (ii) the sum of the Applicable Margin plus the Domestic
Rate from time to time in effect, payable quarterly in arrears on the
last day of each calendar quarter, commencing on the first of such dates
occurring after the date hereof and at maturity (whether by acceleration,
upon prepayment or otherwise).
(c) EURODOLLAR PORTIONS. Each Eurodollar Portion shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan
is made until the last day of the Interest Period applicable thereto or,
if earlier, until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the lesser of (i) the Highest Lawful Rate and
(ii) the sum of the Applicable Margin plus the Adjusted Eurodollar Rate,
payable on the last day of each Interest Period applicable thereto and at
maturity (whether by acceleration or otherwise) and, with respect to
Eurodollar Portions with an Interest Period in excess of three months, on
the date occurring every three months from the first day of the Interest
Period applicable thereto.
(d) CD RATE PORTIONS. Each CD Rate Portion shall bear interest
(computed on the basis of a year of 360 days and actual days elapsed) on
the unpaid principal amount thereof from the date such Loan is made until
the last day of the Interest Period applicable thereto or, if earlier,
until maturity (whether by acceleration or otherwise) at a rate per annum
equal to the lesser of (i) the Highest Lawful Rate and (ii) the sum of
the Applicable Margin plus the Adjusted CD Rate, payable on the last day
of each Interest Period applicable thereto and at maturity (whether by
acceleration of otherwise) and, with respect to CD Rate Portions with an
Interest Period in excess of 90 days, on the date occurring every 90 days
from the first day of the Interest Period applicable thereto.
(e) DEFAULT RATE. During the existence of an Event of Default all
Loans and Reimbursement Obligations shall bear interest (computed on the
basis of a year of 360 days and actual days elapsed) from the date of
such Event of Default until paid in full, payable on demand, at a rate
per annum equal to the sum of 2.5% plus the Domestic Rate from time to
time in effect plus the Applicable Margin.
(f) The Company shall give telephonic, telex or telecopy notice to
the Agent (which notice, if telephonic, shall be promptly confirmed in
writing) no later than (i) 11:00 a.m. (Chicago time) on the date the
Banks are requested to make each Domestic Rate Portion, (ii) 11:00 a.m.
(Chicago time) on the date at least three (3) Banking Days prior to the
date of (A) each Eurodollar Portion which the Banks are requested to make
or continue, and (B) the conversion of any CD Rate Portion or Domestic
Rate Portion into a Eurodollar Portion and (iii) 11:00 a.m. (Chicago
time) on the date at least one (1) Business Day prior to the date of (A)
each CD Rate Portion which the Banks are requested to make and (B) the
conversion of any Eurodollar Portion or Domestic Rate Portion into a CD
Rate Portion. Each such notice shall specify the date of the Loan
requested (which shall be a Business Day in the case of Domestic Rate
Portions and CD Rate Portions and a Banking Day in the case of a
Eurodollar Portion), the amount of such Loan, whether the Loan is to be
made available by means of a Domestic Rate Portion, CD Rate Portion or
Eurodollar Portion and, with respect to Fixed Rate Portions, the Interest
Period applicable thereto. The Company agrees that the Agent may rely on
any such telephonic, telex or telecopy notice given by any person who the
Agent believes is authorized to give such notice without the necessity of
independent investigation and in the event any notice by such means
conflicts with the written confirmation, such notice shall govern if any
Bank has acted in reliance thereon. The Agent shall, no later than 12:30
p.m. (Chicago time) on the day any such notice is received by it, give
telephonic, telex or telecopy (if telephonic, to be confirmed in writing
within one Business Day) notice of the receipt of notice from the Company
hereunder to each of the Banks, and, if such notice requests the Banks to
make, continue or convert any Fixed Rate Portions, the Agent shall
confirm to the Company by telephonic, telex or telecopy means, which
confirmation shall be conclusive and binding on the Company in the
absence of manifest error, the Interest Period and the interest rate
applicable thereto promptly after such rate is determined by the Agent.
SECTION 1.4. CONVERSION AND CONTINUATION OF PORTIONS. (a) Provided
that no Event of Default or Potential Default has occurred and is
continuing, the Company shall have the right, subject to the other terms
and conditions of this Agreement, to continue in whole or in part (but,
if in part, in the minimum amount specified for Fixed Rate Portions in
Section 1.3(a) hereof) any Fixed Rate Portion from any current Interest
Period into a subsequent Interest Period, provided that the Company shall
give the Bank notice of the continuation of any such Loan as provided in
Section 1.3(f) hereof.
(b) In the event that the Company fails to give notice pursuant to
Section 1.3(f) hereof of the continuation of any Fixed Rate Portion or
fails to specify the Interest Period applicable thereto, or an Event of
Default or Potential Default has occurred and is continuing at the time
any such Portion is to be continued hereunder, then such Portion shall be
automatically converted as (and the Company shall be deemed to have given
notice requesting) a Domestic Rate Portion, subject to Sections 1.3, 8.2
and 8.3 hereof, unless paid in full on the last day of the then
applicable Interest Period.
(c) Provided that no Event of Default or Potential Default has
occurred and is continuing, the Company shall have the right, subject to
the terms and conditions of this Agreement, to convert Portions of one
type (in whole or in part) into Portions of another type from time to
time provided that: (i) the Company shall give the Bank notice of each
such conversion as provided in Section 1.3(f) hereof, (ii) the principal
amount of any Portion converted hereunder shall be in an amount not less
than the minimum amount specified for the type of Portion in Section
1.3(a) hereof, (iii) after giving effect to any such conversion in part,
the principal amount of any Fixed Rate Portion then outstanding shall not
be less than the minimum amount specified for the type of Portion in
Section 1.3(a) hereof, (iv) any conversion of a Portion hereunder shall
only be made on a Banking Day, and (v) any Fixed Rate Portion may be
converted only on the last day of the Interest Period then applicable
thereto.
SECTION 1.5. MANNER OF BORROWING. (a) In addition to any notice
required by Section 1.3(f) of this Agreement, the Company shall give
telephonic, telex or telecopy notice to the Agent (which notice, if
telephonic, shall be promptly confirmed in writing) no later than 11:00
a.m. (Chicago time) on the date the Banks are requested to make a
borrowing of Term Loans available hereunder. Each such notice shall
specify the date of the proposed borrowing and the amount of such
borrowing. The Company agrees that the Agent may rely on any such
telephonic, telex or telecopy notice given by any person who the Agent
believes is authorized to give such notice without the necessity of
independent investigation and in the event any notice by such means
conflicts with the written confirmation, such notice shall govern if any
Bank has acted in reliance thereon. The Agent shall, no later than 12:30
p.m. (Chicago time) on the day any such notice is received by it, give
telephonic, telex or telecopy (if telephonic, to be confirmed in writing
within one Business Day) notice of the receipt of notice from the Company
hereunder to each of the Banks.
(b) Subject to the provisions of Section 6 hereof, the proceeds of
each Term Loan shall be made available to the Company at the principal
office of the Agent in Chicago, Illinois, in immediately available funds,
on the date such Term Loan is requested to be made. Not later than
2:00 p.m. Chicago time, on the date specified for any Term Loan to be
made hereunder, each Bank shall make its portion of such Term Loan
available to the Company in immediately available funds at the principal
office of the Agent.
(c) Unless the Agent shall have been notified by a Bank prior to
1:00 p.m. (Chicago time) on the date a Term Loan is to be made by such
Bank (which notice shall be effective upon receipt) that such Bank does
not intend to make the proceeds of such Term Loan available to the Agent,
the Agent may assume that such Bank has made such proceeds available to
the Agent on such date and the Agent may in reliance upon such assumption
(but shall not be required to) make available to the Company a
corresponding amount. If such corresponding amount is not in fact made
available to the Agent by such Bank, the Agent shall be entitled to
receive such amount on demand from such Bank (or, if such Bank fails to
pay such amount forthwith upon such demand, to recover such amount,
together with interest thereon at the rate otherwise applicable thereto
under Section 1.3 hereof, from the Company) together with interest
thereon in respect of each day during the period commencing on the date
such amount was made available to the Company and ending on the date the
Agent recovers such amount, at a rate per annum equal to the effective
rate charged to the Agent for overnight Federal funds transactions with
member banks of the Federal Reserve System for each day, as determined by
the Agent (or, in the case of a day which is not a Business Day, then for
the preceding Business Day) (the "FED FUNDS RATE"). Nothing in this
Section 1.5(c) shall be deemed to permit any Bank to breach its
obligations to make Term Loans under the Term Credit or to limit the
Company's claims against any Bank for such breach.
SECTION 1.6 LETTER OF CREDIT. Subject to all the terms and
conditions hereof, satisfaction of all conditions precedent set forth in
this Agreement and so long as no Potential Default or Event of Default is
in existence, at the Company's request Xxxxxx shall issue a standby
letter of credit (the "BOND L/C") in an original stated amount of up to
$10,000,000 (the "L/C COMMITMENT") for the account of the Company at any
time on or prior to April 30, 1999 (the "L/C FACILITY EXPIRATION DATE").
The Bond L/C shall be issued pursuant to a Reimbursement Agreement (the
"L/C AGREEMENT" ) in form and substance satisfactory to the Banks and
shall be for the purpose of supporting tax-exempt industrial revenue
bonds which may be issued to finance the Company's Tenaha Feed Mill (the
"IRBS"). The Bond L/C shall have an expiry date not more than three
years from the date of issuance thereof, subject to extension as provided
in the L/C Agreement. Nothing contained in this Agreement shall be
deemed to require the Company to cause any IRBs to be issued, it being
agreed that the issuance of IRBs shall be within the Company's sole
discretion.
SECTION 1.7. REIMBURSEMENT OBLIGATION. The Company will be obligated
to pay in immediately available funds to Xxxxxx each demand for payment
made under the Bond L/C as provided in the L/C Agreement (the obligation
of the Company under the L/C Agreement is hereinafter referred to as a
"REIMBURSEMENT OBLIGATION").
SECTION 1.8. PARTICIPATION IN THE BOND L/C. Each of the Banks will
acquire a risk participation for its own account, without recourse to or
representation or warranty from Xxxxxx, in the Bond L/C upon the issuance
thereof ratably in accordance with its Commitment Percentage. In the
event any Reimbursement Obligation is not immediately paid by the Company
pursuant to Section 1.7 hereof and the L/C Agreement, each Bank will pay
to Xxxxxx funds in an amount equal to such Bank's Commitment Percentage
of the unpaid amount of such Reimbursement Obligation. The obligation of
the Banks to Xxxxxx under this Section 1.9 shall be absolute and
unconditional and shall not be affected or impaired by any Event of
Default or Potential Default which may then be continuing hereunder.
Xxxxxx shall notify each Bank by telephone of its Commitment Percentage
of such unpaid Reimbursement Obligation. If such notice has been given
to each Bank by 12:00 Noon, Chicago time, each Bank agrees to pay Xxxxxx
in immediately available and freely transferable funds on the same
Business Day. If such notice is received after 12:00 noon, Chicago time,
each Bank agrees to pay Xxxxxx in immediately available and freely
transferable funds no later than the following Business Day. Funds shall
be so made available at the account designated by Xxxxxx in such notice
to the Banks. Xxxxxx shall share with each Bank on a pro rata basis
relative to its Commitment Percentage a portion of each payment of a
Reimbursement Obligation (whether of principal or interest) and any L/C
Fee (but not any L/C Issuance Fee) payable by the Company. Any such
amount shall be promptly remitted to the Banks when and as received by
Xxxxxx from the Company.
SECTION 1.9. REDUCTIONS AND REINSTATEMENTS. The Company and the Banks
recognize, acknowledge and agree that (i) the Bond L/C provides for
automatic reductions and reinstatements as set forth in the provisions of
such Bond L/C, and (ii) the Bond L/C provides for the beneficiary thereof
to reduce from time to time the amounts available to be drawn thereon.
Each Bank acknowledges that, because the interest component of the Bond
L/C may be reinstated at a time when the Company has not reimbursed the
Banks in full for an interest drawing under the Bond L/C, the total may
exceed the total amount of L/Cs that may be issued pursuant to
Section 1.6 hereof and each Bank agrees to pay Xxxxxx its pro rata share
of any drawing under the Bond L/C notwithstanding that any such payment
may result in the aggregate principal amount owing such Bank hereunder
exceeding the Revolving Credit Commitment of such Bank.
SECTION 1.10. LIABILITY OF XXXXXX. None of the Xxxxxx-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with the L/C Agreement or any Bond Document
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Banks for any recital, statement,
representation or warranty made by the Company, the Subsidiary Guarantors
or any Affiliate of the Company or the Subsidiary Guarantors, or any
officer thereof, contained in the L/C Agreement or any Bond Document, or
in any certificate, report, statement or other document referred to or
provided for in, or received by Xxxxxx under or in connection with, the
L/C Agreement or any Bond Document, or for the validity, effectiveness,
genuineness, enforceability or sufficiency of the L/C Agreement or any
Bond Document, or for any failure of the Company or any other party to
the L/C Agreement or any Bond Document to perform its obligations
thereunder (other than for the gross negligence or willful misconduct of
Xxxxxx). No Xxxxxx-Related Person shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, the L/C Agreement
or any Bond Document, or to inspect the properties, books or records of
the Company, the Subsidiary Guarantors or any of their respective
Affiliates.
SECTION 1.11. RELIANCE BY XXXXXX. Xxxxxx shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company). Xxxxxx shall be fully
justified in failing or refusing to take any action under the L/C
Agreement or any Bond Document which would otherwise require the consent
of the Required Banks or all of the Banks unless it shall first receive
such advice or concurrence of the Required Banks (or, if required by this
Agreement, all Banks) as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Xxxxxx shall in all cases
be fully protected in acting, or in refraining from acting, under the L/C
Agreement or any Bond Document in accordance with a request or consent of
the Required Banks (or, if required by this Agreement, all Banks) and
such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
SECTION 1.12. NOTICE OF DEFAULT. Xxxxxx shall not be deemed to have
knowledge or notice of the occurrence of any Potential Default or Event
of Default under Section 8.1(1) hereof, unless Xxxxxx shall have received
written notice from the Company or any other party to a Bond Document.
Xxxxxx shall take such action with respect to such Potential Default or
Event of Default under the L/C Agreement and the Bond Documents as shall
be required pursuant to Section 8 hereof; PROVIDED that unless and until
Xxxxxx shall have received direction under Section 8, Xxxxxx may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Potential Default or Event of Default as it
shall deem advisable and in the best interest of the Banks, except any
action resulting in the acceleration or redemption of any Bonds.
SECTION 1.13. INDEMNIFICATION. The Banks shall indemnify upon demand
the Xxxxxx-Related Persons (to the extent not reimbursed by or on behalf
of the Company and without limiting the obligation of the Company to do
so), ratably according to such Bank's Revolving Credit Commitment from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind whatsoever which may at any time (including at any time
following the termination of the Bond L/C) be imposed on, incurred by or
asserted against any such Person and which are in any way relating to or
arising out of this Agreement or any document contemplated by or referred
to herein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection with
any of the foregoing; PROVIDED that no Bank shall be liable for the
payment to the Xxxxxx-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from such Person's
gross negligence or willful misconduct or for the fees and expenses of
counsel in connection with the preparation, execution, delivery,
administration, or modification of the L/C Agreement or any Bond Document
or any amendments thereto. The obligation of the Banks in this Section
shall survive the payment of all amounts owing by the Company hereunder.
SECTION 1.14. DOCUMENTS AND REPORTS. Xxxxxx agrees to deliver to the
Banks promptly upon receipt thereof copies of all documents and reports
delivered to Xxxxxx pursuant to the L/C Agreement or any Bond Document.
SECTION 1.15. AMENDMENTS. Xxxxxx may enter into any amendment or
modification of, or may waive compliance with the terms of any Bond
Document (other than an Indenture) without the consent of any Bank;
PROVIDED (a) that without the consent of the Required Banks, Xxxxxx shall
not execute any instrument agreeing to any amendment or modification of,
or waiver of compliance with the L/C Agreement or any Bond Document,
which would waive any "EVENT OF DEFAULT" arising under the L/C Agreement
or any Bond Document, and (b) without the consent of all of the Banks,
Xxxxxx shall not execute any instrument agreeing to any amendment or
modification of, or waiver of compliance with the L/C Agreement or any
Bond Document, (i) which would (A) reduce the principal of, or interest
on, any Reimbursement Obligation, (B) postpone the due date for any
payment of principal of, or interest on, any Reimbursement Obligation,
(C) extend the stated expiration date of the Bond L/C, (D) increase in
any material manner (in the reasonable opinion of Xxxxxx) the obligations
of the Banks, or (E) release or otherwise adversely affect the interests
of the Banks in any collateral granted under the L/C Agreement or any
Bond Document, or (ii) after the occurrence of a Potential Default or
Event of Default.
SECTION 1.16. CAPITAL ADEQUACY. If, after the date hereof, any Bank or
the Agent shall have determined in good faith that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any
change therein (including, without limitation, any revision in the Final
Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X)
or of the Office of the Comptroller of the Currency (12 CFR Part 3,
Appendix A), or in any other applicable capital rules heretofore adopted
and issued by any governmental authority), or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on such Bank's capital, or on the capital of any corporation
controlling such Bank, in each case as a consequence of its obligations
hereunder to a level below that which such Bank would have achieved but
for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount reasonably
deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Agent),
the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction.
SECTION 2. FEES, PREPAYMENTS AND TERMINATIONS.
SECTION 2.1.(A) COMMITMENT FEE. For the Period from the date hereof
through the Termination Date or such earlier date on which the Banks'
Term Credit Commitments are terminated in whole, the Company shall pay
the Banks a commitment fee at the rate of one-quarter of one percent
(0.25%) per annum (computed on the basis of a year of 360 days and actual
days elapsed) of the average daily unused portion of the Term Credit
Commitments, as the same may be reduced from time to time pursuant to
Section 2.4 hereof, such fee to be payable quarterly in arrears on the
last day of each March, June, September and December commencing on the
first such date occurring after the date of this Agreement and on the
Termination Date, unless the Term Credit Commitments are terminated in
whole on an earlier date, in which event this commitment fee for the
final period shall be paid on the date of such earlier termination in
whole.
(B) L/C FEES. The Company shall pay the Bank an L/C fee (the "L/C
FEE") with respect to the Bond L/C for the period from and including the
date of issuance of the Bond L/C and thereafter until the expiration or
termination of the Bond L/C, such fee to be in the amount per annum equal
to the Applicable Margin in Eurodollar Portions (calculated on the basis
of a year of 360 days and actual days elapsed), payable quarterly in
arrears on the last day of each March, June, September and December
commencing on the first of such date occurring after the issuance of the
Bond L/C and on the date the Bond L/C terminates or expires; PROVIDED,
HOWEVER, that upon the occurrence of an Event of Default and during the
continuation thereof such fee shall be in the amount of three percent
(3%) per annum, calculated and payable as described above.
(C) L/C ISSUANCE FEES. The company shall pay Xxxxxx for its own
account such issuance, drawing, negotiation, amendment and other
administration fees (collectively, "L/C Issuance Fees") in connection
with the Bond L/C as may be established by Xxxxxx from time to time.
SECTION 2.2. OPTIONAL PREPAYMENTS. The Company shall have the
privilege of prepaying without premium or penalty and in whole or in part
(but if in part, then in a minimum principal amount of $1,000,000 or such
greater amount which is an integral multiple of $100,000) any Domestic
Rate Portion at any time upon prior telex or telephonic notice to the
Agent on or before 12:00 Noon on the same Business Day. The Company may
not prepay any Fixed Rate Portion. Any amount prepaid under the Term
Credit may not be borrowed again.
SECTION 2.3. MANDATORY PREPAYMENT. The Term Loans shall be subject to
mandatory prepayment in full on the date of issuance of the Bond L/C.
Such prepayment shall be effected by the payment of the entire
outstanding principal amount of the Term Loans together with all accrued
and unpaid interest thereon and any amounts payable pursuant to
Section 9.4 of this Agreement.
SECTION 2.4. TERMINATION BY COMPANY. The Company shall have the
option at any time upon 10 Business Days written notice to the Bank to
terminate the Banks' Term Credit Commitments in whole. Upon such
termination of the Banks' Term Credit Commitment all amounts payable
hereunder and under the Notes will become due and payable on the
effective date of such termination without notice to the Company,
notwithstanding anything to the contrary contained in the Notes.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
All payments of principal and interest made by the Company in
respect of the Notes and Reimbursement Obligations and all fees payable
by the Company hereunder, shall be made to the Agent at its office at
000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and in immediately
available funds, prior to 12:00 noon on the date of such payment. All
such payments shall be made without setoff or counterclaim and without
reduction for, and free from, any and all present and future levies,
imposts, duties, fees, charges, deductions withholdings, restrictions or
conditions of any nature imposed by any government or any political
subdivision or taxing authority thereof. Unless the Banks otherwise
agree, any payments received after 12:00 noon Chicago time shall be
deemed received on the following Business Day. The Agent shall remit to
each Bank its proportionate share of each payment of principal, interest
and facility fees and L/C fees received by the Agent by 3:00 P.M. Chicago
time on the same day of its receipt if received by the Agent by 12:00
noon, Chicago time, and its proportionate share of each such payment
received by the Agent after 12:00 noon on the Business Day following its
receipt by the Agent. In the event the Agent does not remit any amount
to any Bank when required by the preceding sentence, the Agent shall pay
to such Bank interest on such amount until paid at a rate per annum equal
to the Fed Funds Rate. The Company hereby authorizes the Agent to
automatically debit its account with Xxxxxx for any principal, interest
and fees when due under the Notes, the L/C Agreement or this Agreement
and to transfer the amount so debited from such account to the Agent for
application as herein provided. All proceeds of Collateral shall be
applied in the manner specified in the Security Documents.
SECTION 4. DEFINITIONS.
SECTION 4.1. CERTAIN TERMS DEFINED. The terms hereinafter set forth
when used herein shall have the following meanings:
"ADJUSTED CD RATE" shall mean a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined in accordance with the
following formula:
CD RATE Assessment
Adjusted CD Rate = 100% - CD Reserve Percentage + Rate
"ADJUSTED EURODOLLAR RATE" means a rate per annum determined
pursuant to the following formula:
Adjusted Eurodollar Rate = EURODOLLAR RATE
{ }100% - Reserve Percentage
"AGENT" is defined in the first paragraph of this Agreement.
"AGREEMENT" shall mean this Secured Term Credit Agreement as
supplemented, modified, restated and amended from time to time.
"APPLICABLE MARGIN" shall mean, with respect to each type of Loan
described in Column A below, the rate of interest per annum shown in
Columns B, C and D below for the range of Leverage Ratio specified for
each Column:
A B C D E
Leverage Ratio <.45 >.45 to 1 and >.50 to 1 and >.60 to 1 and
<0.5 to 1 <.60 to 1 <.70 to 1
Eurodollar Portions 0.75% 1.125% 1.375% 1.75%
Domestic Rate Portions 0% 0.125% 0.375% 0.75%
CD Rate Portions 0.875% 1.25% 1.50% 1.875%
Not later than 5 Business Days after receipt by the Agent of the
financial statements called for by Section 7.4 hereof for the applicable
fiscal quarter, the Agent shall determine the Leverage Ratio for the
applicable period and shall promptly notify the Company and the Banks of
such determination and of any change in the Applicable Margins resulting
therefrom. Any such change in the Applicable Margins shall be effective
as of the date the Agent so notifies the Company and the Banks with
respect to all Loans and L/Cs outstanding on such date, and such new
Applicable Margins shall continue in effect until the effective date of
the next quarterly redetermination in accordance with this Section. Each
determination of the Leverage Ratio and Applicable Margins by the Agent
in accordance with this Section shall be conclusive and binding on the
Company and the Banks absent manifest error. From the date hereof until
the Applicable Margins are first adjusted pursuant hereto, the Applicable
Margins shall be those set forth in column D above.
"ASSESSMENT RATE" shall mean the assessment rate (rounded upwards,
if necessary, to the nearest 1/100 of 1%) imposed by the Federal Deposit
Insurance Corporation or its successors for insuring the Agent's
liability for time deposits, as in effect from time to time.
"BANK" and "BANKS" shall have the meanings specified in the first
paragraph of this Agreement.
"BOND DOCUMENTS" shall mean the Indenture and all other documents
relating to the issuance and sale of the IRBs.
"BOND L/C" shall have the meaning specified in Section 1.6 hereof.
"CD RATE" shall mean, with respect to each Interest Period
applicable to a CD Rate Portion, the rate per annum determined by the
Agent to be the arithmetic average of the rate per annum determined by
the Agent to be the average of the bid rates quoted to the Agent at
approximately 10:00 a.m. Chicago time (or as soon thereafter as
practicable) on the first day of such Interest Period by at least two
certificate of deposit dealers of recognized national standing selected
by the Agent for the purchase at face value of certificates of deposit of
the Agent having a term comparable to such Interest Period and in an
amount comparable to the principal amount of the CD Rate Loan to be made
by the Agent for such Interest Period. Each determination of the CD Rate
made by the Agent in accordance with this paragraph shall be conclusive
and binding on the Company except in the case of manifest error or
willful misconduct.
"CD RESERVE PERCENTAGE" shall mean the rate (as determined by the
Bank) of the maximum reserve requirement (including, without limitation,
any supplemental, marginal and emergency reserves) imposed on the Agent
by the Board of Governors of the Federal Reserve System (or any
successor) from time to time on non-personal time deposits having a
maturity equal to the applicable Interest Period and in an amount equal
to the unpaid principal amount of the relevant CD Rate Portion, subject
to any amendments of such reserve requirement by such Board or its
successor, taking into account any transitional adjustments thereto. The
Adjusted CD Rate shall automatically be adjusted as of the date of any
change in the CD Reserve Percentage.
"CHANGE IN LAW" shall have the meaning specified in Section 9.3
hereof.
"COLLATERAL" shall mean the collateral security provided to the
Agent for the benefit of the Banks pursuant to the Security Documents.
"COMMITMENT PERCENTAGE" shall have the meaning set forth in
Section 1.1(b) hereof.
"COMPANY" shall have the meaning specified in the first paragraph of
this Agreement.
"DOMESTIC RATE" means for any day the rate of interest announced by
Xxxxxx from time to time as its prime commercial rate in effect on such
day, with any change in the Domestic Rate resulting from a change in said
prime commercial rate to be effective as of the date of the relevant
change in said prime commercial rate (the "XXXXXX PRIME RATE"), provided
that if the rate per annum determined by adding 1/2 of 1% to the rate at
which Xxxxxx would offer to sell federal funds in the interbank market on
or about 10:00 a.m. (Chicago time) on any day (the "ADJUSTED FED FUNDS
RATE") shall be higher than the Xxxxxx Prime Rate on such day, then the
Domestic Rate for such day and for any succeeding day which is not a
Business Day shall be such Adjusted Fed Funds Rate. The determination of
the Adjusted Fed Funds Rate by Xxxxxx shall be final and conclusive
except in the case of manifest error or willful misconduct.
"DOMESTIC RATE PORTION" means a Term Loan which bears interest as
provided in Section 1.3(a) hereof.
"EURODOLLAR PORTION" shall mean a Term Loan which bears interest as
provided in Section 1.3(b) hereof.
"EURODOLLAR RATE" shall mean for each Interest Period applicable to
a Eurodollar Portion, (a) the LIBOR Index Rate for such Interest Period,
if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rate of interest per annum
(rounded upwards, if necessary, to nearest 1/100 of 1%) at which deposits
in U.S. dollars in immediately available funds are offered to the Agent
at 11:00 a.m. (London, England time) two (2) Business Days before the
beginning of such Interest Period by major banks in the interbank
eurodollar market for a period equal to such Interest Period and in an
amount equal or comparable to the principal amount of the Eurodollar
Portion scheduled to be made by the Agent during such Interest Period.
"EVENT OF DEFAULT" shall mean any event or condition identified as
such in Section 8.1 hereof.
"FED FUNDS RATE" shall have the meaning specified in Section 1.5(c)
hereof.
"FIXED RATE" shall mean either of the Adjusted Eurodollar Rate or
the Adjusted CD Rate.
"FIXED RATE PORTION" shall mean a Eurodollar Portion or a CD Rate
Portion and "FIXED RATE PORTIONS" shall mean either or both of such types
of Portion.
"XXXXXX" shall have the meaning specified in the first paragraph of
this Agreement.
"XXXXXX-RELATED PERSON" means Xxxxxx, together with its Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact of
Xxxxxx and such Affiliates.
"HIGHEST LAWFUL RATE" shall have the meaning specified in
Section 11.19 hereof.
"INDENTURE" shall mean any trust indenture, trust agreement or other
agreement pursuant to which the IRBs are issued.
"IRBS" shall have the meaning specified in Section 1.6 hereof.
"INTEREST PERIOD" shall mean with respect to (a) the Eurodollar
Portions, the period used for the computation of interest commencing on
the date the relevant Eurodollar Portion is made, continued or effected
by conversion and concluding on the date one, two, three or six months
thereafter and, (b) with respect to the CD Rate Portions, the period used
for the computation of interest commencing on the date the relevant CD
Rate Portion is made, continued or effected by conversion and concluding
on the date 30, 60, 90 or 180 days thereafter; PROVIDED, HOWEVER, that no
Interest Period for any Fixed Rate Portion may extend beyond the
Termination Date. For purposes of determining an Interest Period
applicable to a Eurodollar Portion, a month means a period starting on
one day in a calendar month and ending on a numerically corresponding day
in the next calendar month; PROVIDED, HOWEVER, that if there is no
numerically corresponding day in the month in which an Interest Period is
to end or if an Interest Period begins on the last day of a calendar
month, then such Interest Period shall end on the last Banking Day of the
calendar month in which such Interest Period is to end.
"L/C Agreement" shall have the meaning set forth in Section 1.6
hereof.
"L/C COMMITMENT' shall have the meaning specified in Section 1.6
hereof.
"L/C FACILITY EXPIRATION DATE" shall have the meaning specified in
Section 1.6 hereof.
"L/C FEE" has the meaning specified in Section 2.1(b) hereof.
"L/C ISSUANCE FEE" has the meaning specified in Section 2.1(c)
hereof.
"LIBOR INDEX RATE" shall mean, for any Interest Period applicable to
a Eurodollar Portion, the rate per annum (rounded upwards, if necessary,
to the next higher one hundred-thousandth of a percentage point) for
deposits in U.S. Dollars for a period equal to such Interest Period,
which appears on the Telerate Page 3750 as of 11:00 a.m. (London, England
time) on the day two Banking Days before the commencement of such
Interest Period.
"LOAN DOCUMENTS" shall mean this Agreement and any and all exhibits
hereto, the Notes, the L/C Agreement and the Security Documents.
"MORTGAGE" shall mean a Deed of Trust and Security Agreement with
Assignment of Rents substantially in the form of Exhibit B hereto from
the Company to a trustee for the benefit of the Agent, as the same may be
amended and supplemented from time to time.
"NOTES" shall mean the Term Notes, and "NOTE" means any of the
Notes.
"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.
"REIMBURSEMENT OBLIGATION" has the meaning specified in Section 1.7
hereof.
"REQUIRED BANKS" shall mean (a) prior to the issuance of the Bond
L/C, any Bank or Banks which in the aggregate hold at least 66-2/3% of
the aggregate unpaid principal balance of the Term Loans or, if no Term
Loans are outstanding hereunder, any Bank or Banks in the aggregate
having at least 66-2/3% of the Term Credit Commitments, and (b) after the
issuance of the Bond L/C, any Bank or Banks which in the aggregate hold
66-2/3% of the participation interests in the Bond L/C or, if the Bond
L/C is not outstanding, 66-2/3% of the participation interests in the
outstanding Reimbursement Obligations.
"RESERVE PERCENTAGE" means the daily arithmetic average maximum rate
at which reserves (including, without limitation, any supplemental,
marginal and emergency reserves) are imposed on member banks of the
Federal Reserve System during the applicable Interest Period by the Board
of Governors of the Federal Reserve System (or any successor) under
Regulation D on "EUROCURRENCY LIABILITIES" (as such term is defined in
Regulation D), subject to any amendments of such reserve requirement by
such Board or its successor, taking into account any transitional
adjustments thereto. For purposes of this definition, the Eurodollar
Portions shall be deemed to be eurocurrency liabilities as defined in
Regulation D without benefit or credit for any prorations, exemptions or
offsets under Regulation D.
"REVOLVING AGREEMENT" shall mean the Secured Credit Agreement dated
as of May 27, 1993, among the Company, Xxxxxx Trust and Savings Bank,
individually and as Agent thereunder, and the other lenders named
therein, as amended, supplemented, restated and otherwise modified from
time to time, and all agreements entered into in substitution or
replacement thereof.
"SECURITY AGREEMENT" shall mean that certain Security Agreement Re:
Accounts Receivable, Farm Products and Inventory from the Company to
Xxxxxx, as Agent, as such agreement may be supplemented and amended from
time to time.
"SECURITY DOCUMENTS" shall mean the Security Agreement and the
Mortgage.
"SUBORDINATED DEBT" shall mean indebtedness for borrowed money of
the Company which is subordinate in right of payment to the prior payment
in full of the Company's indebtedness, obligations and liabilities to the
Banks under the Revolving Agreement and the Loan Documents pursuant to
written subordination provisions satisfactory in form and substance to
the Banks.
"TENAHA FEED MILL" shall mean a feed mill and related facilities and
equipment to be located in Tenaha, Shelby County, Texas.
"TELERATE PAGE 3750" shall mean the display designated as "PAGE
3750" on the Telerate Service (or such other page as may replace Page
3750 on that service or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for
U.S. Dollar deposits).
"TERM CREDIT COMMITMENT" and "TERM CREDIT COMMITMENTS" shall have
the meanings specified in Section 1.1(b) hereof.
"TERM LOAN" and "TERM LOANS" shall have the meanings specified in
Section 1.1(a) hereof.
"TERM NOTE" or "TERM NOTES" shall have the meanings specified in
Section 1.1(d) hereof.
"TERMINATION DATE" shall have the meaning set forth in
Section 1.1(a) hereof.
SECTION 4.2. TERMS DEFINED IN THE REVOLVING AGREEMENT. Unless
otherwise defined in this Agreement, all defined terms used herein shall
have the same meaning as in the Revolving Agreement.
SECTION 4.3. ACCOUNTING TERMS. Any accounting term or the character
or amount of any asset or liability or item of income or expense required
to be determined under this Agreement, shall be determined or made in
accordance with generally accepted accounting principles at the time in
effect, to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
SECTION 5. Representations and Warranties.
The Company represents and warrants to the Banks as follows:
SECTION 5.1. REVOLVING AGREEMENT REPRESENTATIONS. The representations
and warranties of the Company contained in Section 5 of the Revolving
Agreement are true and correct in all material respects on the date
hereof (except that the representations contained in Section 5.3 of the
Revolving Agreement shall be deemed to refer to the most recent financial
statements of the Company delivered to the Banks).
SECTION 5.2. NO DEFAULT. The Company is in full compliance with all
of the terms and conditions of this Agreement, and no Potential Default
or Event of Default is existing under this Agreement.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of the Banks to make any Term Loan pursuant hereto or
to issue the Bond L/C shall be subject to the following conditions
precedent:
SECTION 6.1. INITIAL EXTENSION OF CREDIT. Prior to the initial Term
Loan hereunder:
(a) the Company shall have delivered to the Agent for the
benefit of the Banks in sufficient counterparts for distribution to
the Banks:
(i) a fully executed Note payable to the order of each
Bank;
(ii) a fully executed supplement to the Security
Agreement;
(iii) a fully executed Mortgage encumbering the real estate
on which the Tenaha Feed Mill is to be located;
(iv) an appraisal of the real estate subject to the
Mortgage which complies with all regulatory requirements
applicable to the Banks with respect thereto;
(v) a mortgagee's policy or policies of title insurance
(or a binding commitment or commitments therefor) relating to
the Mortgage and in an amount equal to $6,500,000 of the
appraised value of the real estate, buildings and improvements
subject to the Mortgage, with a wavier of coinsurance insuring
the liens of those Security Documents creating liens on real
property to be valid first liens subjected to no defects or
objections which are unacceptable to the Agent, together with
such direct access reinsurance agreements and endorsements
(including without limitation a letter of credit endorsement
and doing business, usury and zoning endorsements) as the Agent
may require;
(vi) current ALTA surveys of and current Phase I
environmental inspection reports for so much of the Collateral
under the Mortgage as consists of real property;
(vii) an opinion of local counsel to the Agent with respect
to the Mortgage and other real estate matters;
(viii) appropriate forms of financing statements to perfect
the security interest of the Agent provided for by the
Mortgage;
(ix) a fully executed counterpart of a Guaranty Agreement
from Mr. and Xxx. Xxxxxx X. Xxxxxxx to the Banks satisfactory
in form and substance to the Banks;
(x) evidence of insurance required by Section 7.3 hereof
and by the Security Agreement showing the Agent as loss payee
thereunder;
(xi) a good standing certificate or certificate of
existence for the Company, dated as of the date no earlier than
April 1, 1997, from the office of the secretary of state of the
state of its incorporation and each state in which it is
qualified to do business as a foreign corporation;
(xii) copies of the Certificate of Incorporation, and all
amendments thereto, of the Company certified by the office of
the secretary of state of its state of incorporation as of the
date no earlier than April 1, 1997;
(xiii) copies of the By-Laws, and all amendments thereto, of
the Company, certified as true, correct and complete on the
date hereof by the Secretary of the Company;
(xiv) copies, certified by the Secretary or Assistant
Secretary of the Company, of resolutions regarding the
transactions contemplated by this Agreement, duly adopted by
the Board of Directors of the Company, and satisfactory in form
and substance to all of the Banks;
(xv) an incumbency and signature certificate for the
Company satisfactory in form and substance to all of the Banks;
and
(xvi) such other documents as the Banks may reasonably
require;
(b) legal matters incident to the execution and delivery of
the Loan Documents shall be satisfactory to each of the Banks and
their legal counsel; and prior to the initial Term Loans hereunder,
the Agent shall have received the favorable written opinion of
Xxxxxx & Carlton, counsel for the Company, substantially in the form
of Exhibit E, in substance satisfactory to each of the Banks and
their respective legal counsel; and
(c) the Agent shall have received copies (executed or
certified, as may be appropriate) of all documents or proceedings
taken in connection with the execution and delivery of the Loan
Documents to the extent any Bank or its respective legal counsel
requests.
SECTION 6.2. EACH EXTENSION OF CREDIT. As of the time of the making
of each Term Loan and the issuance of the Bond L/C hereunder (including
the initial Term Loan):
(a) each of the representations and warranties set forth
in Section 5 hereof shall be and remain true and correct as of
said time as if made at said time, except that (i) the
representations and warranties made under Section 5.3 shall be
deemed to refer to the most recent financial statements
furnished to the Banks pursuant to Section 7.4 hereof and (ii)
with respect to the Company's Subsidiaries in Mexico the
representations and warranties made under Section 5.13(d) shall
be deemed to refer only to material, strikes, work stoppages,
unfair labor practice claims or other material labor disputes;
and
(b) the Company shall be in full compliance with all of
the terms and conditions hereof, and no Potential Default or
Event of Default shall have occurred and be continuing; and
and the request by the Company for any Term Loan or the Bond L/C pursuant
hereto shall be and constitute a warranty to the foregoing effects.
SECTION 6.3. THE BOND L/C. Prior to the issuance of the Bond L/C:
(a) the Agent shall have received:
(i) a fully executed L/C Agreement substantially in the
form of Exhibit B attached hereto;
(ii) a receipt for the L/C from the trustee for the IRBs;
(iii) an opinion of counsel to the Company, in
substantially the form of Exhibit E attached hereto with
respect to the L/C Agreement;
(iv) written evidence of any consents and approvals
required in connection with the issuance of the Bond L/C to
support the IRBs;
(v) an opinion of local counsel to the Agent with respect
to the Mortgage and other real estate matters; and
(vi) certified copies of all documentation, legal opinions
and legal proceedings relating to the issuance of the Bond L/C
to support the IRBs;
(b) the Term Loans shall be fully paid concurrently with the
issuance of the Bond L/C;
(c) all conditions precedent contained in the L/C Agreement
shall be satisfied; and
(d) the conditions precedent set forth in Sections 6.1(a)(ii),
(iii), (v), (vi), (vii), (viii), (xiv), (xv), (xvi), (xvii),
(xviii), (b) and (c) and 6.2(a) and (b) shall be satisfied.
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
or the Bond L/C, except to the extent compliance in any case or cases is
waived in writing by the Required Banks, the Company agrees that it will
comply with, abide by, and be restricted by all the provisions (as
originally in force and effect but amended as set forth below) contained
in Sections 7.1 to and including 7.32 of the Revolving Agreement
regardless of whether any of said provisions were heretofore waived,
modified, amended, released or discharged or whether any indebtedness is
now or hereafter remains outstanding thereunder (all of which provisions,
and all Exhibits to the Revolving Agreement referred to therein, are
incorporated herein by reference and made a part hereof to the same
extent and with the same force and effect as if the same had been herein
set forth and repeated at length); provided, however, that any amendment,
modification or waiver of any of Sections 7.1 to and 7.32 of or any such
Exhibit to the Revolving Agreement shall automatically be and constitute
an amendment, modification or waiver to such Sections or Exhibits as
incorporated herein effective as of the date such amendment, modification
or waiver to the Revolving Agreement is effective, it being specifically
agreed that the payment of all indebtedness under the Revolving Agreement
and the discharge or termination thereof will not constitute an
amendment, modification or waiver of such Sections or Exhibits as
incorporated herein; and provided further, that said provisions as
incorporated herein and made a part hereof shall be amended in the
following respects:
(1) Sections 7.4(d) and (e) of the Revolving Agreement as
incorporated herein shall be of no force or effect;
(2) so long as the Revolving Agreement is in effect, the
Company's delivery of the Compliance Certificate required by
Section 7.4(c) of the Revolving Agreement shall also satisfy the
requirements of Section 7.4(c) of this Agreement;
(3) Section 7.22 of the Revolving Agreement as incorporated
herein shall read as follows:
"SECTION 7.22. USE OF PROCEEDS. The proceeds of all
Term Loans made hereunder shall be used solely to
finance the acquisition and construction of the
Tenaha Feed Mill and the Bond L/C shall be used
solely to support the IRBs.";
(4) the terms "EVENT OF DEFAULT" and "POTENTIAL DEFAULT" now
appearing in said provisions shall mean and refer to an "EVENT OF
DEFAULT" and a "POTENTIAL DEFAULT" as defined herein, respectively;
(5) the terms "HEREIN", "HERETO" and "HEREUNDER" now appearing
in said provisions shall be deemed to refer to this Agreement;
(6) said Sections 7.1 to and including 7.32 of the Revolving
Agreement as incorporated herein by this Section are hereby
renumbered as Sections 7.1 to and including 7.32, respectively, for
all purposes of this Agreement and any reference in other documents
to such Sections of this Agreement;
(7) Exhibits A and B of the Revolving Agreement shall be
replaced by Exhibits A and B, respectively, to this Agreement;
(8) Exhibits C, F, H, J, L and M of the Revolving Agreement
shall be deleted and Exhibits D, E, G, I and K to the Revolving
Agreement shall be redesignated as Exhibits C, D, E, F and G and H,
respectively, for all purposes of this Agreement and any reference
in other documents to such Exhibits to this Agreement; and
(9) any reference in said Exhibits to the Revolving Agreement
as incorporated herein to the Revolving Agreement shall be deemed to
refer to this Agreement.
Other than as hereinabove amended, any terms contained in the
Sections of the Revolving Agreement as incorporated herein which are
defined in the Revolving Agreement shall have the same meaning herein as
in the Revolving Agreement.
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) Default in the payment when due of any interest on or
principal of any Note or Reimbursement Obligation, whether at
the stated maturity thereof or as required by Section 2.4
hereof or at any other time provided in this Agreement, or of
any fee or other amount payable by the Company pursuant to this
Agreement;
(b) Default in the observance or performance of any
covenant set forth in Sections 7.4, 7.5, 7.6, 7.7, 7.15, 7.17,
7.19 and 7.20, inclusive, hereof, or of any provision of any
Security Document requiring the maintenance of insurance on the
Collateral subject thereto or dealing with the use or
remittance of proceeds of such Collateral;
(c) Default in the observance or performance of any
covenant set forth in Sections 7.8, 7.9, 7.10, 7.11, 7.12,
7.13, 7.14, 7.16, 7.18, 7.21, 7.23 and 7.31, inclusive, hereof
and such default shall continue for 10 days after written
notice thereof to the Company by any Bank;
(d) Default in the observance or performance of any other
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 Company by any Bank;
(e) Default shall occur under any evidence of
indebtedness in a principal amount exceeding $1,000,000 issued
or assumed or guaranteed by the Company, 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 any indebtedness evidenced thereby or outstanding
or secured thereunder;
(f) Any representation or warranty made by the Company
herein or in any Loan Document or in any statement or
certificate furnished by it pursuant hereto or thereto, proves
untrue in any material respect as of the date made or deemed
made pursuant to the terms hereof;
(g) Any judgment or judgments, writ or writs, or warrant
or warrants of attachment, or any similar process or processes
in an aggregate amount in excess of $2,000,000 shall be entered
or filed against the Company or any Subsidiary or against any
of their respective Property or assets and remain unbonded,
unstayed and undischarged for a period of 30 days from the date
of its entry;
(h) Any reportable event (as defined in ERISA) which
constitutes grounds for the termination of any Plan or for the
appointment by the appropriate United States District Court of
a trustee to administer or liquidate any such Plan, shall have
occurred and such reportable event shall be continuing thirty
(30) days after written notice to such effect shall have been
given to the Company by any Bank; or any such Plan shall be
terminated; or a trustee shall be appointed by the appropriate
United States District Court to administer any such Plan; or
the Pension Benefit Guaranty Corporation shall institute
proceedings to administer or terminate any such Plan;
(i) The Company or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the
Bankruptcy Code of 1978, as amended, (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;
(j) A custodian, receiver, trustee, conservator,
liquidator or similar official shall be appointed for the
Company, any Subsidiary or any substantial part of its
respective Property, or a proceeding described in
Section 8.1(i)(v) shall be instituted against the Company or
any Subsidiary and such appointment continues undischarged or
any such proceeding continues undismissed or unstayed for a
period of 60 days;
(k) The existence of an "EVENT OF DEFAULT" as defined in
the Security Agreement;
(l) Any shares of the capital stock of the Company owned
legally or beneficially by Mr. and/or Xxx. Xxxxxx X. Xxxxxxx
shall be pledged, assigned or otherwise encumbered for any
reason, other than the pledge of up to 2,000,000 shares to
secure personal obligations of Mr. and Xxx. Xxxxxx X. Xxxxxxx
or such other personal obligations incurred by any Person so
long as such obligations are not related to the financing of
the Company of any of its Subsidiaries;
(m) Mr. and Xxx. Xxxxxx X. Xxxxxxx and their descendants
and heirs shall for any reason cease to have legal and/or
beneficial ownership of no less than 51% of the issued and
outstanding shares of all classes of capital stock of the
Company;
(n) Either Mr. or Xxx. Xxxxxx X. Xxxxxxx shall terminate,
breach, repudiate or disavow his or her guaranty of the
Company's indebtedness, obligations and liabilities to the
Banks under the Loan Documents or any part thereof, or any
event specified in Sections 8.1(i) or (j) shall occur with
regard to either or both of Mr. and Xxx. Xxxxxx X. Xxxxxxx;
(o) The Required Banks shall have determined that one or
more conditions exist or events have occurred which may result
in a material adverse change in the business, operations,
Properties or condition (financial or otherwise) of the Company
or any Subsidiary;
(p) The occurrence of a "CHANGE OF CONTROL" as defined in
that certain Indenture dated as of May 1, 1993 from the Company
to Ameritrust Texas National Association, as Trustee, relating
to the Company's 10.875% Senior Subordinated Notes Due 2003; or
(q) the existence of any condition or the occurrence of any
event which is specified as an "EVENT OF DEFAULT" under the L/C
Agreement.
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 Agent, if
directed by the Required Banks, shall give notice to the Company and take
any or all of the following actions: (i) terminate the remaining Term
Credit Commitments or L/C Commitment hereunder on the date (which may be
the date thereof) stated in such notice, (ii) declare the principal of
and the accrued interest on the Notes and unpaid Reimbursement
Obligations to be forthwith due and payable and thereupon the Notes and
unpaid Reimbursement Obligations including both principal and interest,
shall be and become immediately due and payable without further demand,
presentment, protest or notice of any kind, (iii) proceed to foreclose
against any Collateral under any of the Security Documents, 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. Any Bank may
exercise the right of set off with regard to any deposit accounts or
other accounts maintained by the Company with any of the Banks, and (iv)
if the Bond L/C is outstanding, require the Company to immediately pay to
the Agent for the benefit of the Banks the maximum amount available to be
drawn under the Bond L/C, which amount shall be held by the Agent as
additional collateral security for the Company's indebtedness,
obligations and liabilities to the Agent and the Banks under the Loan
Documents.
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 (a) the Notes and all Reimbursement
Obligations shall immediately become due and payable without presentment,
demand, protest or notice of any kind, and the obligation of the Banks to
extend further credit pursuant to any of the terms hereof shall
immediately terminate, and (b) if the Bond L/C is then outstanding, the
Company shall immediately pay to the Agent for the benefit of the Banks
the maximum amount available to be drawn under the Bond L/C, which amount
shall be held by the Agent as additional collateral security for the
Company's indebtedness, obligations and liabilities to the Agent and the
Banks under the Loan Documents.
SECTION 8.4. REMEDIES UNDER THE BOND DOCUMENTS. In addition to the
foregoing, the Banks shall have all of the remedies provided for in the
Bond Documents upon the occurrence of an Event of Default.
SECTION 9. CHANGE IN CIRCUMSTANCES REGARDING FIXED RATE PORTIONS.
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or any Note to the contrary, if at any time after the date
hereof with respect to Fixed Rate Portions, any Bank shall determine in
good faith that any change in applicable law or regulation or in the
interpretation thereof makes it unlawful for such Bank to make or
continue to maintain any Fixed Rate Portion or to give effect to its
obligations as contemplated hereby, such Bank shall promptly give notice
thereof to the Company to such effect, and such Bank's obligation to
make, continue or convert any such affected Fixed Rate Portions under
this Agreement shall terminate until it is no longer unlawful for such
Bank to make or maintain such affected Portion. The Company shall prepay
the outstanding principal amount of any such affected Fixed Rate Portion
made to it, together with all interest accrued thereon and all other
amounts due and payable to the Banks under Section 9.4 of this Agreement,
on the earlier of the last day of the Interest Period applicable thereto
and the first day on which it is illegal for such Bank to have such
Portions outstanding; provided, however, the Company may then elect to
borrow the principal amount of such affected Portion by means of another
type of Portion available hereunder, subject to all of the terms and
conditions of this Agreement.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN THE
ADJUSTED EURODOLLAR RATE OR ADJUSTED CD RATE. Notwithstanding any other
provision of this Agreement or any Note to the contrary, if prior to the
commencement of any Interest Period any Bank shall determine (i) that
deposits in the amount of any Fixed Rate Portion scheduled to be
outstanding are not available to it in the relevant market or (ii) by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Adjusted Eurodollar
Rate or the Adjusted CD Rate, then such Bank shall promptly give
telephonic or telex notice thereof to the Company, the Agent and the
other Banks (such notice to be confirmed in writing), and the obligation
of the Banks to make, continue or convert any such Fixed Rate Portion in
such amount and for such Interest Period shall terminate until deposits
in such amount and for the Interest Period selected by the Company shall
again be readily available in the relevant market and adequate and
reasonable means exist for ascertaining the Adjusted Eurodollar Rate or
the Adjusted CD Rate, as the case may be. Upon the giving of such
notice, the Company may elect to either (i) pay or prepay, as the case
may be, such affected Portion or (ii) reborrow such affected Portion as
another type of Portion available hereunder, subject to all terms and
conditions of this Agreement.
SECTION 9.3. TAXES AND INCREASED COSTS. With respect to the Fixed
Rate Portions, if any Bank shall determine in good faith that any change
in any applicable law, treaty, regulation or guideline (including,
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) or any new law, treaty, regulation or guideline, or any
interpretation of any of the foregoing by any governmental authority
charged with the administration thereof or any central bank or other
fiscal, monetary or other authority having jurisdiction over such Bank or
its lending branch or the Fixed Rate Portions contemplated by this
Agreement (whether or not having the force of law) ("CHANGE IN LAW")
shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirements against assets held by,
or deposits in or for the account of, or Loans by, or any other
acquisition of funds or disbursements by, such Bank (other than
reserves included in the determination of the Adjusted
Eurodollar Rate or the Adjusted CD Rate);
(ii) subject such Bank, any Fixed Rate Portion or any Note
to any tax (including, without limitation, any United States
interest equalization tax or similar tax however named
applicable to the acquisition or holding of debt obligations
and any interest or penalties with respect thereto), duty,
charge, stamp tax, fee, deduction or withholding in respect of
this Agreement, any Fixed Rate Portion or any Note except such
taxes as may be measured by the overall net income of such Bank
or its lending branch and imposed by the jurisdiction, or any
political subdivision or taxing authority thereof, in which
such Bank's principal executive office or its lending branch is
located;
(iii) change the basis of taxation of payments of principal
and interest due from the Company to such Bank hereunder or
under any Note (other than by a change in taxation of the
overall net income of such Bank); or
(iv) impose on such Bank any penalty with respect to the
foregoing or any other condition regarding this Agreement, any
Fixed Rate Portion or any Note;
and such Bank shall determine that the result of any of the foregoing is
to increase the cost (whether by incurring a cost or adding to a cost) to
such Bank of making or maintaining any Fixed Rate Portion hereunder or to
reduce the amount of principal or interest received by such Bank, then
the Company shall pay to such Bank from time to time as specified by such
Bank such additional amounts as such Bank shall reasonably determine are
sufficient to compensate and indemnify it for such increased cost or
reduced amount. If any Bank makes such a claim for compensation, it
shall provide to the Company a certificate setting forth such increased
cost or reduced amount as a result of any event mentioned herein
specifying such Change in Law, and such certificate shall be conclusive
and binding on the Company as to the amount thereof except in the case of
manifest error. Upon the imposition of any such cost, the Company may
prepay any affected Portion, subject to the provisions of Sections 2.3
and 9.4 hereof.
SECTION 9.4. FUNDING INDEMNITY. (a) In the event any Bank shall incur
any loss, cost, expense or premium (including, without limitation, any
loss of profit and any loss, cost, expense or premium incurred by reason
of the liquidation or re-employment of deposits or other funds acquired
by such Bank to fund or maintain any Fixed Rate Portion or the relending
or reinvesting of such deposits or amounts paid or prepaid to such Bank)
as a result of:
(i) any payment or prepayment of a Fixed Rate Portion on
a date other than the last day of the then applicable Interest
Period;
(ii) any failure by the Company to create, continue or
convert any Fixed Rate Portion on the date specified in the
notice given pursuant to Section 1.3(f) hereof; or
(iii) the occurrence of any Event of Default;
then, upon the demand of such Bank, the Company shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost or expense.
(b) If any Bank makes a claim for compensation under this Section
9.4, it shall provide to the Company a certificate setting forth the
amount of such loss, cost or expense in reasonable detail and such
certificate shall be conclusive and binding on the Company as to the
amount thereof except in the case of manifest error.
SECTION 9.5. LENDING BRANCH. Each Bank may, at its option, elect to
make, fund or maintain its Eurodollar Portions hereunder at the branch or
office specified opposite its signature on the signature page hereof or
such other of its branches or offices as such Bank may from time to time
elect, subject to the provisions of Section 1.5(b) hereof.
SECTION 9.6. DISCRETION OF BANK AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, each
Bank shall be entitled to fund and maintain its funding of all or any
part of its Term Loans in any manner it sees fit, it being understood
however, that for the purposes of this Agreement all determinations
hereunder shall be made as if the Banks had actually funded and
maintained each Fixed Rate Portion during each Interest Period for such
Portion through the purchase of deposits in the relevant interbank market
having a maturity corresponding to such Interest Period and bearing an
interest rate equal to the Adjusted Eurodollar Rate or Adjusted CD Rate,
as the case may be, for such Interest Period.
SECTION 10. THE AGENT.
SECTION 10.1. APPOINTMENT AND POWERS. Xxxxxx Trust and Savings Bank is
hereby appointed by the Banks as Agent under the Loan Documents,
including but not limited to the Security Agreement, wherein the Agent
shall hold a security interest for the benefit of the Banks, solely as
the Agent of the Banks, and each of the Banks irrevocably authorizes the
Agent to act as the Agent of such Bank. The Agent agrees to act as such
upon the express conditions contained in this Agreement.
SECTION 10.2. POWERS. The Agent shall have and may exercise such
powers hereunder as are specifically delegated to the Agent by the terms
of the Loan Documents, together with such powers as are incidental
thereto. The Agent shall have no implied duties to the Banks, nor any
obligation to the Banks to take any action under the Loan Documents
except any action specifically provided by the Loan Documents to be taken
by the Agent.
SECTION 10.3. GENERAL IMMUNITY. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Banks or
any Bank for any action taken or omitted to be taken by it or them under
the Loan Documents or in connection therewith except for its or their own
gross negligence or willful misconduct.
SECTION 10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. The Agent
shall not (i) be responsible to the Banks for any recitals, reports,
statements, warranties or representations contained in the Loan Documents
or furnished pursuant thereto, (ii) be responsible for the payment or
collection of or security for any Term Loans or Reimbursement Obligations
hereunder except with money actually received by the Agent for such
payment, (iii) be bound to ascertain or inquire as to the performance or
observance of any of the terms of the Loan Documents, or (iv) be
obligated to determine or verify the existence, eligibility or value of
any Collateral, or the correctness of any compliance certificate. In
addition, neither the Agent nor its counsel shall be responsible to the
Banks for the enforceability or validity of any of the Loan Documents or
for the existence, creation, attachment, perfection or priority of any
security interest in the Collateral.
SECTION 10.5. RIGHT TO INDEMNITY. The Banks hereby indemnify the Agent
for any actions taken in accordance with this Section 10, and the Agent
shall be fully justified in failing or refusing to take any action
hereunder, unless it shall first be indemnified to its satisfaction by
the Banks pro rata against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action,
other than any liability which may arise out of Agent's gross negligence
or willful misconduct.
SECTION 10.6. ACTION UPON INSTRUCTIONS OF BANKS. The Agent agrees,
upon the written request of the Required Banks, to take any action of the
type specified in the Loan Documents as being within the Agent's rights,
duties, powers or discretion. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in
accordance with written instructions signed by the Required Banks, and
such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks and on all holders of the Notes. In
the absence of a request by the Required Banks, the Agent shall have
authority, in its sole discretion, to take or not to take any action,
unless the Loan Documents specifically require the consent of the
Required Banks or all of the Banks.
SECTION 10.7. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute
any of its duties as Agent hereunder by or through agents (other than
employees) and attorneys-in-fact and shall not be answerable to the
Banks, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-
fact selected by it in good faith and with reasonable care. The Agent
shall be entitled to advice and opinion of legal counsel concerning all
matters pertaining to the duties of the agency hereby created.
SECTION 10.8. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person
or persons, and, in respect to legal matters, upon the opinion of legal
counsel selected by the Agent.
SECTION 10.9. MAY TREAT PAYEE AS OWNER. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall
have been filed with the Agent. Any request, authority or consent of any
person, firm or corporation who at the time of making such request or
giving such authority or consent is the holder of any such Note shall be
conclusive and binding on any subsequent holder, transferee or assignee
of such Note or of any Note issued in exchange therefor.
SECTION 10.10. AGENT'S REIMBURSEMENT. Each Bank agrees to reimburse the
Agent pro rata in accordance with its Commitment Percentage for any
reasonable out-of-pocket expenses (including fees and charges for field
audits) not reimbursed by the Company (a) for which the Agent is entitled
to reimbursement by the Company under the Loan Documents and (b) for any
other reasonable out-of-pocket expenses incurred by the Agent on behalf
of the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and for which the
Agent is entitled to reimbursement by the Company and has not been
reimbursed.
SECTION 10.11. RIGHTS AS A LENDER. With respect to its commitment, Term
Loans made by it, the Bond L/C and the Note issued to it, Xxxxxx shall
have the same rights and powers hereunder as any Bank and may exercise
the same as though it were not the Agent, and the term "BANK" or "BANKS"
shall, unless the context otherwise indicates, include Xxxxxx in its
individual capacity. Xxxxxx and each of the Banks may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with the Company as if it were not the Agent or a Bank
hereunder, as the case may be.
SECTION 10.12. BANK CREDIT DECISION. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank
and based on the financial statements referred to in Section 5.3 and such
other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into the Loan Documents. Each
Bank also acknowledges that it will, independently and without reliance
upon the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan
Documents.
SECTION 10.13. RESIGNATION OF AGENT. Subject to the appointment of a
successor Agent, the Agent may resign as Agent for the Banks under this
Agreement and the other Loan Documents at any time by sixty days' notice
in writing to the Banks. Such resignation shall take effect upon
appointment of such successor. The Required Banks shall have the right
to appoint a successor Agent who shall be entitled to all of the rights
of, and vested with the same powers as, the original Agent under the Loan
Documents. In the event a successor Agent shall not have been appointed
within the sixty day period following the giving of notice by the Agent,
the Agent may appoint its own successor. Resignation by the Agent shall
not affect or impair the rights of the Agent under Sections 10.5 and
10.10 hereof with respect to all matters preceding such resignation. Any
successor Agent must be a Bank, a national banking association, a bank
chartered in any state of the United States or a branch of any foreign
bank which is licensed to do business under the laws of any state or the
United States.
SECTION 10.14. DURATION OF AGENCY. The agency established by Section
10.1 hereof shall continue, and Sections 10.1 through and including
Section 10.15 shall remain in full force and effect, until the Notes and
all other amounts due hereunder and thereunder, including without
limitation all Reimbursement Obligations, shall have been paid in full
and the Banks' commitments to extend credit to or for the benefit of the
Company shall have terminated or expired.
SECTION 11. MISCELLANEOUS.
SECTION 11.1. AMENDMENTS AND WAIVERS. Any term, covenant, agreement or
condition of this Agreement may be amended only by a written amendment
executed by the Company, the Required Banks and, if the rights or duties
of the Agent are affected thereby, the Agent, or compliance therewith
only may be waived (either generally or in a particular instance and
either retroactively or prospectively), if the Company shall have
obtained the consent in writing of the Required Banks and, if the rights
or duties of the Agent are affected thereby, the Agent, provided,
however, that without the consent in writing of the holders of all
outstanding Notes and unpaid Reimbursement Obligations and the issuer of
the Bond L/C, or all Banks if no Notes, Reimbursement Obligations or the
Bond L/C are outstanding, no such amendment or waiver shall (i) change
the amount or postpone the date of payment of any scheduled payment or
required prepayment of principal of the Notes or reduce the rate or
extend the time of payment of interest on the Notes, or reduce the amount
of principal thereof, or modify any of the provisions of the Notes with
respect to the payment or prepayment thereof, (ii) give to any Note any
preference over any other Notes, (iii) amend the definition of Required
Banks, (iv) alter, modify or amend the provisions of this Section 11.1,
(v) change the amount or term of any of the Banks' Term Credit
Commitments or the fees required under Section 2.1 hereof, (vi) alter,
modify or amend the provisions of Sections 1.10, 6 or 9 of this
Agreement, (vii) alter, modify or amend any Bank's right hereunder to
consent to any action, make any request or give any notice, (viii)
release any Collateral under the Security Documents or release or
discharge any guarantor of the Company's indebtedness, obligations and
liabilities to the Banks, in each case, unless such release or discharge
is permitted or contemplated by the Loan Documents, or (ix) alter, amend
or modify any subordination provisions of any Subordinated Debt. Any
such amendment or waiver shall apply equally to all Banks and the holders
of the Notes and Reimbursement Obligations and shall be binding upon
them, upon each future holder of any Note and Reimbursement Obligation
and upon the Company, whether or not such Note shall have been marked to
indicate such amendment or waiver. No such amendment or waiver shall
extend to or affect any obligation not expressly amended or waived.
SECTION 11.2. WAIVER OF RIGHTS. No delay or failure on the part of the
Agent or any Bank or on the part of the holder or holders of any Note or
Reimbursement Obligation 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 Agent, the Banks 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 11.3. SEVERAL OBLIGATIONS. The commitments of each of the
Banks hereunder shall be the several obligations of each Bank and the
failure on the part of any one or more of the Banks to perform hereunder
shall not affect the obligation of the other Banks hereunder, provided
that nothing herein contained shall relieve any Bank from any liability
for its failure to so perform. In the event that any one or more of the
Banks shall fail to perform its commitment hereunder, all payments
thereafter received by the Agent on the principal of Term Loans and
Reimbursement Obligations hereunder, whether from any Collateral or
otherwise, shall be distributed by the Agent to the Banks making such
additional Term Loans ratably as among them in accordance with the
principal amount of additional Term Loans made by them until such
additional Term Loans shall have been fully paid and satisfied. All
payments on account of interest shall be applied as among all the Banks
ratably in accordance with the amount of interest owing to each of the
Banks as of the date of the receipt of such interest payment.
SECTION 11.4. NON-BUSINESS DAY. (a) If any payment of principal or
interest on any Domestic Rate Portion shall fall due on a day which is
not a Business Day, interest at the rate such Portion bears for the
period prior to maturity shall continue to accrue on such principal from
the stated due date thereof to and including the next succeeding Business
Day on which the same is payable.
(b) If any payment of principal or interest on any Eurodollar
Portion shall fall due on a day which is not a Banking Day, the payment
date thereof shall be extended to the next date which is a Banking Day
and the Interest Period for such Portion shall be accordingly extended,
unless as a result thereof any payment date would fall in the next
calendar month, in which case such payment date shall be the next
preceding Banking Day.
SECTION 11.5. SURVIVAL OF INDEMNITIES. All indemnities and all
provisions relative to reimbursement to the Banks of amounts sufficient
to protect the yield to the Banks with respect to Eurodollar Portions,
including, but not limited to, Sections 9.3 and 9.4 hereof, shall survive
the termination of this Agreement and the payment of the Notes for a
period of one year.
SECTION 11.6. DOCUMENTARY TAXES. Although the Company is of the
opinion that no documentary or similar taxes are payable in respect of
this Agreement or the Notes, the Company 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 11.7. REPRESENTATIONS. All representations and warranties made
herein or in certificates given pursuant hereto shall survive the
execution and delivery of this Agreement and 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 the
request for the Bond L/C and as long as any credit is in use or available
hereunder.
SECTION 11.8. 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
Company) addressed if to the Company to 000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx
00000 Attention: Xxxxxxxx X. Xxxxxx; if to the Agent or Xxxxxx at
000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Agribusiness
Division; and if to any of the Banks, at the address for each Bank set
forth under its signature hereon; 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 11.8.
SECTION 11.9. COSTS AND EXPENSES; INDEMNITY;. The Company agrees to
pay on demand all costs and expenses of the Agent, in connection with the
negotiation, preparation, execution and delivery of this Agreement, the
Notes and the other instruments and documents to be delivered hereunder
or in connection with the transactions contemplated hereby, including the
fees and expenses of Messrs. Xxxxxxx and Xxxxxx, special counsel to the
Agent; all costs and expenses of the Agent (including attorneys' fees)
incurred in connection with any consents or waivers hereunder or
amendments hereto, and all costs and expenses (including attorneys'
fees), if any, incurred by the Agent, the Banks or any other holders of a
Note or any Reimbursement Obligation in connection with the enforcement
of this Agreement or the Notes and the other instruments and documents to
be delivered hereunder. The Company agrees to indemnify and save
harmless the Banks and the Agent from any and all liabilities, losses,
costs and expenses incurred by the Banks or the Agent in connection with
any action, suit or proceeding brought against the Agent or any Bank by
any Person which arises out of the transactions contemplated or financed
hereby or by the Notes, or out of any action or inaction by the Agent or
any Bank hereunder or thereunder, except for such thereof as is caused by
the gross negligence or willful misconduct of the party indemnified. The
provisions of this Section 11.9 shall survive payment of the Notes and
Reimbursement Obligations and the termination of the Revolving Credit
Commitments hereunder.
SECTION 11.10. 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. One or more of the
Banks may execute a separate counterpart of this Agreement which has also
been executed by the Company, and this Agreement shall become effective
as and when all of the Banks have executed this Agreement or a
counterpart thereof and lodged the same with the Agent.
SECTION 11.11. SUCCESSORS AND ASSIGNS.. This Agreement shall be binding
upon each of the Company and the Banks and their respective successors
and assigns, and shall inure to the benefit of the Company and each of
the Banks and the benefit of their respective successors and assigns,
including any subsequent holder of any Note or Reimbursement Obligation.
The Company may not assign any of its rights or obligations hereunder
without the written consent of the Banks.
SECTION 11.12. NO JOINT VENTURE. Nothing contained in this Agreement
shall be deemed to create a partnership or joint venture among the
parties hereto.
SECTION 11.13. SEVERABILITY. In the event that any term or provision
hereof is determined to be unenforceable or illegal, it shall 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 11.14. 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 11.15. PARTICIPANTS. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements
or certificates of participation) in the Term Loans made, and/or Term
Credit Commitment and participations in the Bond L/C and Reimbursement
Obligations held, by such Bank at any time and from time to time, and to
assign its rights under such Term Loans, participations in the Bond L/C
and Reimbursement Obligations or the Notes evidencing such Loans to one
or more other Persons; PROVIDED that no such participation shall relieve
any Bank of any of its obligations under this Agreement, and any
agreement pursuant to which such participation or assignment of a Note or
the rights thereunder is granted shall provide that the granting Bank
shall retain the sole right and responsibility to enforce the obligations
of the Company under the Loan Documents, including, without limitation,
the right to approve any amendment, modification or waiver of any
provision thereof, except that such agreement may provide that such Bank
will not agree without the consent of such participant or assignee to any
modification, amendment or waiver of this Agreement that would (A)
increase any Term Credit Commitment of such Lender, or (B) reduce the
amount of or postpone the date for payment of any principal of or
interest on any Term Loan or Reimbursement Obligation or of any fee
payable hereunder in which such participant or assignee has an interest,
or (C) reduce the interest rate applicable to any Term Loan or other
amount payable in which such participant or assignee has an interest or
(D) release any collateral security for or guarantor for any of the
Company's indebtedness, obligations and liabilities under the Loan
Documents, and provided further that no such assignee or participant
shall have any rights under this Agreement except as provided in this
Section 11.15, and the Agent shall have no obligation or responsibility
to such participant or assignee, except that nothing herein provided is
intended to affect the rights of an assignee of a Note to enforce the
Note assigned. Any party to which such a participation or assignment has
been granted shall have the benefits of Section 1.10, Section 9.3 and
Section 9.4 hereof but shall not be entitled to receive any greater
payment under any such Section than the Bank granting such participation
or assignment would have been entitled to receive with respect to the
rights transferred.
SECTION 11.16. ASSIGNMENT OF COMMITMENTS OR TERM LOANS BY BANK. Each
Bank shall have the right at any time, with the prior consent of the
Company and the Agent (which consent will not be unreasonably withheld),
to sell, assign, transfer or negotiate all or any part of its Term Credit
Commitment or Term Loans to one or more commercial banks or other
financial institutions; PROVIDED that such assignment is in an amount of
at least $500,000 or, if less, the entire unused amount of the Term
Credit Commitment or the entire principal amount of the Term Loans of
such Bank, PROVIDED FURTHER that no Bank may so assign more than one-half
of its original Term Credit Commitment or one-half of the principal
amount of such Bank's Term Loans outstanding hereunder, and PROVIDED
FURTHER that any Bank may assign all of its interest hereunder to any of
its subsidiaries or affiliates that are under Under Common Control with
such Bank. Upon any such assignment, and its notification to the Agent,
the assignee shall become a Bank hereunder, all Term Loans and the Term
Credit Commitment it thereby holds shall be governed by all the terms and
conditions hereof, and the Bank granting such assignment shall have its
Term Credit Commitment and its obligations and rights in connection
therewith, reduced by the amount of such assignment. Upon each such
assignment the Bank granting such assignment shall pay to the Agent for
the Agent's sole account a fee of $2,500.
SECTION 11.17. SHARING OF PAYMENTS. Each Bank agrees with each other
Bank that if such Bank shall receive and retain any payment, whether by
set-off or application of deposit balances or otherwise ("SET-OFF"), on
any Term Loan, Reimbursement Obligation or other amount outstanding under
this Agreement in excess of its ratable share of payments on all Term
Loans, Reimbursement Obligations and other amounts then outstanding to
the Banks, then such Bank shall purchase for cash at face value, but
without recourse, ratably from each of the other Banks such amount of the
Term Loans and Reimbursement Obligations held by each such other Bank (or
interest therein) as shall be necessary to cause such Bank to share such
excess payment ratably with all the other Banks; PROVIDED, HOWEVER, that
if any such purchase is made by any Bank, and if such excess payment or
part thereof is thereafter recovered from such purchasing Bank, the
related purchases from the other Banks shall be rescinded ratably and the
purchase price restored as to the portion of such excess payment so
recovered, but without interest. Each Bank's ratable share of any such
Set-Off shall be determined by the proportion that the aggregate
principal amount of Term Loans and Reimbursement Obligations then due and
payable to such Bank bears to the total aggregate principal amount of
Term Loans and Reimbursement Obligations then due and payable to all the
Banks.
SECTION 11.18. JURISDICTION; VENUE. THE COMPANY HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS COURT SITTING IN
CHICAGO FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 11.19. LAWFUL RATE. All agreements between the Company, the
Agent and each of the Banks, whether now existing or hereafter arising
and whether written or oral, are expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or
acceleration of the maturity of any of the indebtedness hereunder or
otherwise, shall the amount contracted for, charged, received, reserved,
paid or agreed to be paid to the Agent or each Bank for the use,
forbearance, or detention of the funds advanced hereunder or otherwise,
or for the performance or payment of any covenant or obligation contained
in any document executed in connection herewith (all such documents being
hereinafter collectively referred to as the "CREDIT DOCUMENTS"), exceed
the highest lawful rate permissible under applicable law (the "HIGHEST
LAWFUL RATE"), it being the intent of the Company, the Agent and each of
the Banks in the execution hereof and of the Credit Documents to contract
in strict accordance with applicable usury laws. If, as a result of any
circumstances whatsoever, fulfillment by the Company of any provision
hereof or of any of such documents, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by applicable usury law or result in the Agent or any Bank
having or being deemed to have contracted for, charged, reserved or
received interest (or amounts deemed to be interest) in excess of the
maximum, lawful rate or amount of interest allowed by applicable law to
be so contracted for, charged, reserved or received by the Agent or such
Bank, then, IPSO FACTO, the obligation to be fulfilled by the Company
shall be reduced to the limit of such validity, and if, from any such
circumstance, the Agent or such Bank shall ever receive interest or
anything which might be deemed interest under applicable law which would
exceed the Highest Lawful Rate, such amount which would be excessive
interest shall be refunded to the Company or, to the extent (i) permitted
by applicable law and (ii) such excessive interest does not exceed the
unpaid principal balance of the Notes and the amounts owing on other
obligations of the Company to the Agent or any Bank under any Loan
Document applied to the reduction of the principal amount owing on
account of the Notes or the amounts owing on other obligations of the
Company to the Agent or any Bank under any Loan Document and not to the
payment of interest. All interest paid or agreed to be paid to the Agent
or any Bank shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full period of
the indebtedness hereunder until payment in full of the principal of the
indebtedness hereunder (including the period of any renewal or extension
thereof) so that the interest on account of the indebtedness hereunder
for such full period shall not exceed the highest amount permitted by
applicable law. This paragraph shall control all agreements between the
Company, the Agent and the Banks.
SECTION 11.20. GOVERNING LAW. (a) THIS AGREEMENT AND THE RIGHTS AND
DUTIES OF THE PARTIES HERETO, SHALL BE CONSTRUED AND DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, EXCEPT TO THE
EXTENT PROVIDED IN SECTION 11.20(b) HEREOF AND TO THE EXTENT THAT THE
FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY OTHERWISE APPLY.
(b) NOTWITHSTANDING ANYTHING IN SECTION 11.20(a) HEREOF TO THE
CONTRARY, NOTHING IN THIS AGREEMENT, THE NOTES, OR THE OTHER LOAN
DOCUMENTS SHALL BE DEEMED TO CONSTITUTE A WAIVER OF ANY RIGHTS WHICH THE
COMPANY, THE AGENT OR ANY OF THE BANKS MAY HAVE UNDER THE NATIONAL BANK
ACT OR OTHER APPLICABLE FEDERAL LAW.
SECTION 11.21. LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY THE
COMPANY, ANY SUBSIDIARY OR ANY GUARANTOR AGAINST ANY BANK OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR
WRONGFUL CONDUCT (WHETHER THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT
OR DUTY IMPOSED BY LAW) IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY
RELATED TO THE TRANSACTIONS CONTEMPLATED AND RELATIONSHIPS ESTABLISHED BY
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY ACT, OMISSION
OR EVENT OCCURRING IN CONNECTION THEREWITH. THE COMPANY, EACH SUBSIDIARY
AND EACH GUARANTOR HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON SUCH
CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
SECTION 11.22. NONLIABILITY OF LENDERS. The relationship between the
Company and the Banks is, and shall at all times remain, solely that of
borrower and lenders, and the Banks and the Agent neither undertake nor
assume any responsibility or duty to the Company to review, inspect,
supervise, pass judgment upon, or inform the Company of any matter in
connection with any phase of the Company's business, operations, or
condition, financial or otherwise. The Company shall rely entirely upon
its own judgment with respect to such matters, and any review,
inspection, supervision, exercise of judgment, or information supplied to
the Company by any Bank or the Agent in connection with any such matter
is for the protection of the Bank and the Agent, and neither the Company
nor any third party is entitled to rely thereon.
SECTION 11.23. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, TOGETHER
WITH THE OTHER LOAN DOCUMENTS EXECUTED CONTEMPORANEOUSLY HEREWITH,
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
Upon your acceptance hereof in the manner hereinafter set forth,
this Agreement shall be a contract between us for the purposes
hereinabove set forth.
Dated as of June 5, 1997.
PILGRIM'S PRIDE CORPORATION
By \s\ Xxxxxxxx X. Xxxxxx
____________Its Executive
President
Accepted and Agreed to as of the day and year last above written.
XXXXXX TRUST AND SAVINGS BANK
individually and as Agent
By \s\ Xxxx Xxxxxxxx
_________________Its Vice
President
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Agribusiness Division
FBS AG CREDIT, INC.
By \s\ Xxxxxx X. xxx Xxxxx
________________________________
Its
Address 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: _______________________
COBANK, ACB
By \s\ Xxxxxx Xxxxx
________________________________
Its
Address: X.X. Xxx 0000
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000-
2940
Attention:
ING (U.S.) CAPITAL CORPORATION
By \s\ Xxxxxx X. Xxxxxxxx
________________________________
Its
Address 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
2101
Attention: _______________________
XXXXX FARGO BANK (TEXAS), N.A.
By \s\ Xxxx Carborne
________________________________
Its
Address: 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention:
CAISSE NATIONALE DE CREDIT AGRICOLE,
CHICAGO BRANCH
By \s\ W. Xxxxx Xxxxxx
________________________________
Its
Address:
Attention:
EXHIBIT A
Pilgrim's Pride Corporation
SECURED TERM CREDIT NOTE
$_______________ June 5,
1997
FOR VALUE RECEIVED, the undersigned, PILGRIM'S PRIDE CORPORATION, a
Delaware corporation (the "COMPANY"), promises to pay to the order of
________________ (the "LENDER") on April 30, 1999, at the principal
office of Xxxxxx Trust and Savings Bank in Chicago, Illinois, the
principal sum of ___________________ or, if less, the aggregate unpaid
principal amount of all Term Loans made by the Lender to the Company
under the Term Credit provided for under the Credit Agreement hereinafter
mentioned and remaining unpaid on April 30, 1999, together with interest
on the principal amount of each Term Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates
specified in said Credit Agreement.
The Lender shall record on its books or records or on the schedule
to this Note which is a part hereof the principal amount of each Term
Loan made under the Term Credit, each Domestic Rate Portion, CD Rate
Portion and Eurodollar Portion and, with respect to Eurodollar Portions,
the interest rate and Interest Period applicable thereto, and all
payments of principal and interest and the principal balances from time
to time outstanding; provided that prior to the transfer of this Note all
such amounts shall be recorded on a schedule attached to this Note. The
record thereof, whether shown on such books or records or on the schedule
to this Note, shall be PRIMA FACIE evidence as to all such amounts;
provided, however, that the failure of the Lender to record or any
mistake in recording any of the foregoing shall not limit or otherwise
affect the obligation of the Company to repay all Term Loans made under
the Term Credit, together with accrued interest thereon.
This Note is one of the Term Notes referred to in and issued under
that certain Secured Term Credit Agreement dated as of June 5, 1997,
among the Company, Xxxxxx Trust and Savings Bank, as Agent, and the banks
named therein, as amended from time to time (the "CREDIT AGREEMENT"), and
this Note and the holder hereof are entitled to all of the benefits and
security provided for thereby or referred to therein, including without
limitation the collateral security provided pursuant to the Security
Documents (as defined in the Credit Agreement), to which Credit Agreement
and Security Documents reference is hereby made for a statement thereof
and a statement of the terms and conditions upon which the Agent may
exercise rights with respect to such collateral. All defined terms used
in this Note, except terms otherwise defined herein, shall have the same
meaning as such terms have in said Credit Agreement.
Prepayments may be made on any Term Loan evidenced hereby and this
Note (and the Term Loans evidenced hereby) may be declared due prior to
the expressed maturity thereof, all in the events, on the terms and in
the manner as provided for in said Credit Agreement and the Security
Documents.
All agreements between the Company, the Agent (as defined in the
Credit Agreement) and each of the Banks (as defined in the Credit
Agreement), whether now existing or hereafter arising and whether written
or oral, are expressly limited so that in no contingency or event
whatsoever, whether by reason of demand or acceleration of the maturity
of any of the indebtedness hereunder or otherwise, shall the amount
contracted for, charged, received, reserved, paid or agreed to be paid to
the Agent or each Bank for the use, forbearance, or detention of the
funds advanced hereunder or otherwise, or for the performance or payment
of any covenant or obligation contained in any document executed in
connection herewith (all such documents being hereinafter collectively
referred to as the "CREDIT DOCUMENTS"), exceed the highest lawful rate
permissible under applicable law (the "HIGHEST LAWFUL RATE"), it being
the intent of the Company, the Agent and each of the Banks in the
execution hereof and of the Credit Documents to contract in strict
accordance with applicable usury laws. If, as a result of any
circumstances whatsoever, fulfillment by the Company of any provision
hereof or of any of such documents, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by applicable usury law or result in the Agent or any Bank
having or being deemed to have contracted for, charged, reserved or
received interest (or amounts deemed to be interest) in excess of the
maximum, lawful rate or amount of interest allowed by applicable law to
be so contracted for, charged, reserved or received by the Agent or such
Bank, then, IPSO FACTO, the obligation to be fulfilled by the Company
shall be reduced to the limit of such validity, and if, from any such
circumstance, the Agent or such Bank shall ever receive interest or
anything which might be deemed interest under applicable law which would
exceed the Highest Lawful Rate, such amount which would be excessive
interest shall be refunded to the Company or, to the extent (i) permitted
by applicable law and (ii) such excessive interest does not exceed the
unpaid principal balance of the Notes (as defined in the Credit
Agreement) and the amounts owing on other obligations of the Company to
the Agent or any Bank under any Loan Document (as defined in the Credit
Agreement) applied to the reduction of the principal amount owing on
account of the Notes or the amounts owing on other obligations of the
Company to the Agent or any Bank under any Loan Document and not to the
payment of interest. All interest paid or agreed to be paid to the Agent
or any Bank shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full period of
the indebtedness hereunder until payment in full of the principal of the
indebtedness hereunder (including the period of any renewal or extension
thereof) so that the interest on account of the indebtedness hereunder
for such full period shall not exceed the highest amount permitted by
applicable law. This paragraph shall control all agreements between the
Company, the Agent and the Banks.
The undersigned hereby expressly waives diligence, presentment,
demand, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, and notice of any other kind.
IT IS AGREED THAT THIS NOTE AND THE RIGHTS AND REMEDIES OF THE
HOLDER HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS, PROVIDED, HOWEVER, THAT NOTHING
IN THIS NOTE SHALL BE DEEMED TO CONSTITUTE A WAIVER OF ANY RIGHTS WHICH
THE COMPANY, THE AGENT OR ANY OF THE BANKS MAY HAVE UNDER THE NATIONAL
BANK ACT OR OTHER APPLICABLE FEDERAL LAW.
PILGRIM'S PRIDE CORPORATION
By \s\ Xxxxxxxx X. Xxxxxx
____________Its Executive
President
