EXHIBIT (a)(3)
SECOND AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, made as of
the 1st day of July, 1997 (the "Second Amendment"), by and between DOUGHTIE'S'S
FOODS, INC., a Virginia corporation (the "Borrower), and CRESTAR BANK, a
Virginia Banking corporation (the "Bank"), provides as follows:
1. Recitals. The Borrower and the Bank are parties to that certain Amended
and Restated Credit Agreement dated as of June 14, 1996, as amended by a First
Amendment to Amended and Restated Credit Agreement dated as of September 30,
1996 (as so amended, the "Agreement"). The Borrower and the Bank desire to
further amend the Agreement as hereinafter set forth. Capitalized terms used in
this Second Amendment shall have the meanings specified in the Agreement unless
otherwise defined herein.
2. Amendments.
(a) Annex I to the Agreement is hereby amended as follows:
(i) The following defined term is hereby added to Annex I:
"Contingent Facility" - Section 2.3.
(ii) The following defined terms are hereby deleted from Annex
I: "Debt Service" and "EBITD".
(iii) The definition of "Termination Date" in Annex I is
hereby amended to read, in its entirety, as follows:
"Termination Date" shall mean July 31, 2000,
or such earlier date as the Commitment shall
terminate as provided in the Agreement or such later
date as may hereafter be agreed to by the Bank in
writing.
(b) The first sentence of Section 2.1 of the Agreement is hereby
amended to read as follows:
The Bank has made and, subject to the terms
and conditions herein set forth, shall make revolving credit
loans (the "Revolving Credit Loans") to the Borrower from time
to time during the Commitment Period in amounts not to exceed,
in the aggregate outstanding at any one time, the lesser of
(i) the Borrowing Base, or (ii) 54,000,000, as such amount may
be increased from time to time pursuant to Section 2.3 of the
Agreement (the "Revolving Credit Commitment").
(c) The Agreement is hereby amended by the addition of the following
Section 2.3:
2.3 Contingent Facility. There is hereby
established a revolving credit facility pursuant to which the
Borrower may request and the Bank may make additional
revolving credit loam to the Borrower in amounts, not to
exceed, in the aggregate outstanding at any one time,
$3,300,000, on the terms and conditions set forth herein with
respect to Revolving Credit Loans (the "Contingent Facility").
No amount of the Contingent Facility shall be available for
borrowing except as specified herein. The Borrower may, from
time to time during the Commitment Period, by not less than
ten (10) Business Days' written notice to the Bank, request
that the Contingent Facility (or a portion thereof in minimum
increments of $1,000,000) be converted to and become a part of
the Revolving Credit Commitment. Upon such request and upon
(i) the payment by the Borrower to the Bank of an activation
fee of 1/8% (0.125%) of the amount to be so converted, and
(11) the delivery to the Bank, in form reasonably satisfactory
to the Bank, of (A) an amended Revolving Credit Note
evidencing the increase in the amount of the Revolving Credit
Commitment, (B)such other documentation related thereto as the
Bank shall reasonably require, the Contingent Facility or such
portion thereof specified by the Borrower shall be converted
into and become a part of the Revolving Credit Commitment and
the Revolving Credit Commitment shall be increased by the
amount of the Contingent Facility so converted.
(d) Section 6.1 of the Agreement is hereby amended by the deletion
of paragraph (d) thereof.
(e) Section 6 of the Agreement is hereby amended to add a new
Section 6.17, to read, in its entirety, as follows:
6.17 Pay to the Bank, within ten (10) days'
after receipt of an invoice by the Bank therefor, a quarterly
fee equal to 1/4% (0.25%) of the unused portion of the
Revolving Credit Commitment during the preceding calendar
quarter, computed on a dally basis.
(f) Section 7.9 of the Agreement is hereby amended to read, in its
entirety, as follows:
7.9 Tangible Net Worth. Permit Tangible Net
Worth to be at any time less than $7,500,000.
(g) The Agreement is hereby amended by the deletion of Sections
7.12, 7.13 and 7.15 thereof.
(h) Exhibit A to the Agreement is hereby amended to read, in its
entirety, as set forth on Exhibit A attached hereto.
(i) Exhibit B to the Agreement is hereby amended to read, in its
entirety, as set forth on Exhibit B attached hereto.
3. Representations and Warranties. The Borrower hereby represents and
warrants as follows:
(a) The representations and warranties of the Borrower and
Dutterer's set forth in the Loan Documents are true and correct on and as of the
date hereof as though made on and as of such date except insofar as such
representations and warranties relate expressly to an earlier date;
(b) After giving effect to the Second Amendment, there exists no
Event of Default and no condition, act or event which, with the giving of notice
or lapse of time or both, would constitute an Event of Default.
4. Conditions Precedent to the Second Amendment. The Second Amendment
shall not become effective unless and until the Bank shall have received the
Second Amendment and the Notes, in the form specified in Exhibits A and B
hereto, duly executed by the Borrower.
5. Miscellaneous. Except as expressly amended hereby, the Agreement is
hereby ratified and confirmed as in full force and effect.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Second
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
XXXXXXXX'X FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
Senior Vice President
CRESTAR BANK
By: /s/ Xxxxx X. Xxxx
----------------------------
Xxxxx X. Xxxx
Vice President
EXHIBIT A
Commercial Note CRESTAR
Borrower: Xxxxxxxx'x Foods, Inc.
Loan Amount: Four Million Dollars and no cents ($4,000,000.00)
Borrower's Address: Attn: Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Officer: Xxxxx X. Xxxx (initials) /s/ BWN Date: July 1,1997
----------
Account No: 04300033425154 Note No: 2001 Note Type: Renewal Loan
For Value Received, the undersigned (whether one or more) jointly and severally
promise to pay to the order of Crestar Bank (the "Bank") at any of its offices,
or at such place as the Bank may designate in writing, without offset and in
immediately available funds, the Loan Amount shown above, including or plus
interest, and any other amounts due, upon the terms specified below.
Loan Type And Repayment Terms
Loan Type: Revolving Master Borrowing Line
This is an open end revolving line of credit. You
may borrow an aggregate principal amount up to the Loan Amount shown above
outstanding at any one time.
Repayment Terms: Principal on demand, plus interest, but the undersigned shall
be liable for only so much of the Loan Amount as shall be equal to the total
advanced to or for the undersigned, or any of them, by the Bank from time to
time, less all payments made by or for the undersigned and applied by the Bank
to principal, plus interest on each such advance, and any other amounts due all
as shown on the Bank's books and records, which shall be prima facie evidence of
the amount owed.
Principal shall be payable on the Termination Date, as defined in
the "Agreement,' as hereinafter defined.
Additional Terms And Conditions:
This Note is governed by additional terms and conditions contained in a(n)
Amended and Restated Revolving Credit Agreement between the undersigned and the
Bank dated June 14,1995, and any modifications, renewals, extensions or
replacements thereof (the "Agreement"), which is incorporated in this Note by
reference. In the event of a conflict between any term or condition contained in
this Note and in the Agreement, such term or condition of the Agreement shall
control.
Interest
Accrued interest will be payable on the last day of each month beginning on July
31,1997.
Interest will accrue daily on an actual 360 basis (that is, on the actual number
of days elapsed over a year of 360 days).
Each scheduled payment made on this Note will be applied to accrued interest
before it is applied to principal. Interest will accrue from the date of this
Note on the unpaid balance and will continue to accrue after maturity, whether
by acceleration or otherwise, until this Note is paid in full.
Subject to the above, interest per annum payable on this Note (the "Rate") will
be 1.500% plus the 30-day British Bankers Association LIBOR Rate, as determined
by the Bank, for an amount equal to the Loan Amount. The Rate is a reference
rate only and does not necessarily represent the lowest rate of interest charged
for such borrowings. Adjustments to the Rate shall be effective as of the first
business day of each calendar month.
This Note represents a renewal and refinance of the balance owed on note number
3425154- 2001 dated June 14, 1995, in the original principal amount of
$7,500,000.00.
Collateral
Any collateral pledged to the Bank to secure any of the undersigned's existing
or future liabilities to the Bank shall secure this Note. To the extent
permitted by law, each of the undersigned grants to the Bank a security interest
in and a lien upon all deposits or investments maintained by the undersigned
with, and all indebtedness owed to the undersigned by the Bank or any of its
affiliates.
This Note is also secured by the following collateral and proceeds thereof:
Collateral as described on Schedule A attached hereto and incorporated herein.
All of this security is referred to collectively as the "Collateral." The
Collateral is security for the payment of this Note and any other liability
(including overdrafts and future advances) of the undersigned to the Bank,
however evidenced, now existing or hereafter incurred, matured or unmatured,
direct or indirect, absolute or contingent, several, joint, or joint and
several, including any extensions, modifications or renewals. The proceeds of
any Collateral may be applied against the liabilities of the undersigned to the
Bank in any order at the option of the Bank.
Loan Purpose And Updated Financial Information Required
The undersigned warrant and represent that the loan evidenced by this Note is
being made solely for the purpose of acquiring or carrying on a business,
professional or commercial activity or acquiring real or personal property as an
investment (other than a personal investment) or for carrying on an investment
activity (other than a personal investment activity). The undersigned agree to
provide to the Bank updated financial information, including, but not limited
to, tax returns, current financial statements in form satisfactory to the Bank,
as well as additional information, reports or schedules (financial or
otherwise), all as the Bank may from time to time request.
Default, Acceleration And Setoff
Upon the occurrence of an Event of Default, as defined in the Agreement, or in
the event of non-payment of this Note in full at maturity, the entire unpaid
balance of this Note will, at the option of the Bank, become immediately due and
payable, without notice or demand. Upon the occurrence of an event of default,
the Bank will be entitled to interest on the unpaid balance at the stated Rate
plus 2.00% (the "Default Rate"), unless otherwise required by law, until paid in
full. To the extent permitted by law, upon default, the Bank will have the right
in addition to all other remedies permitted by law, to set off the amount due
under this Note or due under any other obligation to the Bank against any and
all accounts, whether checking or savings or otherwise, credits, money, stocks,
bonds or other security or property of any nature on deposit with, held by, owed
by, or in the possession of, the Bank or any of its affiliates to the credit of
or for the account of any Party, without notice to or consent by any Party. The
remedies provided in this Note and any other agreement between the Bank and any
Party are cumulative and not exclusive of any remedies provided by law.
Capital Adequacy
Should the Bank, after the date of this Note, determine that the adoption of any
law or regulation regarding capital adequacy, or any change in its
interpretation or administration, has or would have the effect of reducing the
Bank's rate of return under this Note to a level below that which the Bank could
have achieved but for the adoption or change, by an amount which the Bank
considers to be material, then, from time to time, 30 days after written demand
by the Bank, the undersigned shall pay to the Bank such additional amounts as
will compensate the Bank for the reduction. Each demand by the Bank will be made
in good faith and accompanied by a certificate claiming compensation under this
paragraph and stating the amounts to be paid to it and the basis for the
payment.
Late Charges And Other Authorized Charges
If any portion of a payment is at least ten (10) days past due, the undersigned
agree to pay a late charge of 5.00% of the amount which is past due. Unless
prohibited by applicable law, the undersigned agree to pay the fee established
by the Bank from time to time for returned checks if a payment is made on this
Note with a check and the check is dishonored for any reason after the second
presentment. In addition, as permitted by applicable law, the undersigned agree
to pay the following: (1) all expenses, including, without limitation, all court
or collection costs, and reasonable attorneys' fees and expenses, whether suit
be brought or not, incurred in collecting this Note; (2) all costs incurred in
evaluating, preserving or disposing of any Collateral granted as security for
the payment of this Note, including the cost of any audits, appraisals,
appraisal updates, reappraisals or environmental inspections which the Bank from
time to time in its sole discretion may deem necessary: (3) any premiums for
property insurance purchased on behalf of the undersigned or on behalf of the
owner(s) of the Collateral pursuant to any security instrument relating to the
Collateral; (4) any expenses or costs incurred in defending any claim arising
out of the execution of this Note or the obligation which it evidences, or
otherwise involving the employment by the Bank of attorneys with respect to this
Note and the obligations it evidences; and (5) any other charges permitted by
applicable law. The undersigned agree to pay these authorized charges on demand
or, at the Banks option, the charges may be added to the unpaid balance of the
Note and will accrue interest at the stated Rate. Upon the occurrence of an
event of default, interest will accrue at the Default Rate.
Waivers
The undersigned and each other Party waive presentment, demand, protest, notice
of protest and notice of dishonor and waive all exemptions, whether homestead or
otherwise, as to the obligations evidenced by this Note. The undersigned and
each other Party waive any rights to require the Bank to proceed against any
other Party or person or any Collateral before proceeding against the
undersigned or any of them, or any other Party, and agree that without notice to
any Party and without affecting any Party's liability, the Bank, at any time or
times, may grant extensions of the time for payment or other indulgences to any
Party or permit the renewal or modification of this Note, or permit the
substitution, exchange or release of any Collateral for this Note and may add or
release any Party primarily or secondarily liable. The undersigned and each
other Party agree that the Bank may apply all monies made available to it from
any part of the proceeds of the disposition of any Collateral or by exercise of
the right of setoff either to the obligations under this Note or to any other
obligations of any Party to the Bank, as the Bank may elect from time to time.
The undersigned also waive any rights afforded to them by Sections 49-25 and
49-25 of the Code of Virginia of 1950 as amended.
TO THE EXTENT LEGALLY PERMISSIBLE, THE UNDERSIGNED WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY LITIGATION RELATING TO TRANSACTIONS UNDER THIS NOTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Severability, Amendments And No Waiver By Bank
Any provision of this Note which is prohibited or unenforceable will be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Note. No amendment, modification,
termination or waiver of any provision of this Note, nor consent to any
departure by the undersigned from any term of this Note, will in any event be
effective unless it is in writing and signed by an authorized employee of the
Bank, and then the waiver or consent will be effective only in the specific
instance and for the specific purpose for which given. If the interest Rate is
tied to an external index and the index becomes unavailable during the term of
this loan, the Bank may designate a substitute index with notice to the
Borrower. No failure or delay on the part of the Bank to exercise any right,
power or remedy under this Note may be construed as a waiver of the right to
exercise the same or any other right at any time.
Liability, Successors And Assigns And Choice of Law
Each of the undersigned shall be jointly and severally obligated and liable on
this Note. This Note shall apply to and bind each of the undersigned's heirs,
personal representatives, successors and assigns and shall inure to the benefit
of the Bank, its successors and assigns. The undersigned agree that certain
material events and occurrences relating to this Note bear a reasonable
relationship to the Commonwealth of Virginia. The validity, terms, performance
and enforcement of this Note shall be governed by applicable federal law and the
internal laws of the Commonwealth of Virginia which are applicable to agreements
which are negotiated, executed, delivered and performed solely in the
Commonwealth of Virginia.
By signing below, the undersigned agree to the terms of this Note and
acknowledge receipt of a loan in the Loan Amount shown above.
Xxxxxxxx'x Foods, Inc.
By: ------------------------------------------(Seal)
Xxxxxx X. Xxxxxxxxx, Senior Vice President
SCHEDULE A
TO
COMMERCIAL NOTE DATED JULY 1, 1997 MADE
BY
XXXXXXXX'X FOODS, INC.
1. Credit line deed of trust dated June 14,1995, from Xxxxxxxx'x Foods, Inc.
("Borrower') to Xxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx, trustees ("Trustees"), on
real estate and improvements located in Portsmouth, Virginia.
2. Guaranty dated June 14,1996, from Dutterer's of Manchester Corp.
("Xxxxxxxx").
3. Credit line deed of trust dated June 14,1996, from Dutterer's to Trustees, on
real estate and improvements located in Manchester, Maryland.
4. Security Agreement from Borrower dated June 14, 1996, on Accounts, Inventory,
Equipment and General Intangibles.
5. Security Agreement from Dutterer's dated June 14,1996, on a promissory note
dated September 3,1995, made by Value Added Food Services, Inc., and payable to
Dutterer's in the original principal amount of $1,038,755.
5. Borrower's Assignment dated June 14,1996, pursuant to Assignment of Claims
Act, of its right to receive monies due and to become due to Borrower pursuant
to its contract with the United States of America (Defense Logistics Agency) for
the supply of foods to military facilities in southern Virginia.
XXXXXXXX'X FOODS, INC., a Virginia corporation
By:-------------------------------------------
Its:------------------------------------------
EXHIBIT B
Commercial Note CRESTAR
Borrower: Xxxxxxxx'x Foods, Inc.
Loan Amount: One Million Three Hundred Fifty Thousand Dollars and no
cents ($1,350,000.00)
Borrower's Address: Attn: Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000 022
Officer: Xxxxx X. Xxxx (initials) Date: July 1,1997
Account No: 04300033425154 Note No: 2001 Note Type: Renewal Loan
For Value Received, the undersigned (whether one or more) jointly and severally
promise to pay to the order of Crestar Bank (the "Bank") at any of its offices,
or at such place as the Bank may designate in writing, without offset and in
immediately available funds, the Loan Amount shown above, including or plus
interest, and any other amounts due, upon the terms specified below.
Loan Type And Repayment Terms
Loan Type: Term-Variable Payment
Repayment Terms: The Loan Amount shall be payable in 13 consecutive quarterly
installments of principal of $100,000.00 each, plus interest, payable on the
first day of each calendar quarter, beginning October 1, 1997, and a final
payment of $50,000.00 plus interest and other amounts owed, due on January 1,
2001.
Additional Terms And Conditions:
This Note is governed by additional terms and conditions contained in a(n)
Amended and Restated Revolving Credit Agreement between the undersigned and the
Bank dated June 14,1996, and any modifications, renewals, extensions or
replacements thereof (the "Agreement"), which is incorporated in this Note by
reference. In the event of a conflict between any term or condition contained in
this Note and in the Agreement, such term or condition of the Agreement shall
control.
Interest
Accrued interest will be payable on the first day of each quarter beginning on
October 1,1997.
Interest will accrue daily on an actual 36O basis (that is, on the actual number
of days elapsed over a year of 360 days).
Each scheduled payment made on this Note will be applied to accrued interest
before it is applied to principal. Interest will accrue from the date of this
Note on the unpaid balance and will continue to accrue after maturity, whether
by acceleration or otherwise, until this Note is paid in full.
Subject to the above, interest per annum payable on this Note (the "Rate") will
be 1.500% plus the 30-day British Bankers Association LIBOR Rate, as determined
by the Bank, for an amount equal to the Loan Amount. The Rate is a reference
rate only and does not necessarily represent the lowest rate of interest charged
for such borrowings. Adjustments to the Rate shall be effective as of the first
business day of each calendar month.
This Note represents a renewal and refinance of the balance owed on note number
3426154- 9012 dated June 14, 1996, in the original principal amount of
$1,750,000.00.
Collateral
Any collateral pledged to the Bank to secure any of the undersigned's existing
or future liabilities to the Bank shall secure this Note. To the extent
permitted by law, each of the undersigned grants to the Bank a security interest
in and a lien upon all deposits or investments maintained by the undersigned
with, and all indebtedness owed to the undersigned by, the Bank or any of its
affiliates.
This Note is also secured by the following collateral and proceeds thereof
Collateral as described on Schedule A attached hereto and incorporated herein.
All of this security is referred to collectively as the 'Collateral." The
Collateral is security for the payment of this Note and any other liability
(including overdrafts and future advances) of the undersigned to the Bank,
however evidenced, now existing or hereafter incurred, matured or unmatured,
direct or indirect, absolute or contingent, several, joint, or joint and
several, including any extensions, modifications or renewals. The proceeds of
any Collateral may be applied against the liabilities of the undersigned to the
Bank in any order at the option of the Bank.
Loan Purpose And Updated Financial Information Required
The undersigned warrant and represent that the loan evidenced by this Note is
being made solely for the purpose of acquiring or carrying on a business,
professional or commercial activity or acquiring real or personal property as an
investment (other than a personal investment) or for carrying on an investment
activity (other than a personal investment activity). The undersigned agree to
provide to the Bank updated financial information, including, but not limited
to, tax returns, current financial statements in form satisfactory to the Bank,
as well as additional information, reports or schedules (financial or
otherwise), all as the Bank may from time to time request.
Default, Acceleration And Setoff
Upon the occurrence of an Event of Default, as defined in the Agreement, or in
the event of non-payment of this Note in full at maturity, the entire unpaid
balance of this Note will, at the option of the Bank, become immediately due and
payable, without notice or demand. Upon the occurrence of an event of default,
the Bank will be entitled to interest on the unpaid balance at the stated Rate
plus 2.00% (the "Default Rate"), unless otherwise required by law, until paid in
full. To the extent permitted by law, upon default, the Bank will have the right
in addition to all other remedies permitted by law, to set off the amount due
under this Note or due under any other obligation to the Bank against any and
all accounts, whether checking or savings or otherwise, credits, money, stocks,
bonds or other security or property of any nature on deposit with, held by, owed
by, or in the possession of, the Bank or any of its affiliates to the credit of
or for the account of any Party, without notice to or consent by any Party. The
remedies provided in this Note and any other agreement between the Bank and any
Party are cumulative and not exclusive of any remedies provided by law.
Capital Adequacy
Should the Bank, after the date of this Note, determine that the adoption of any
law or regulation regarding capital adequacy, or any change in its
interpretation or administration, has or would have the effect of reducing the
Bank's rate of return under this Note to a level below that which the Bank could
have achieved but for the adoption or change, by an amount which the Bank
considers to be material, then, from time to time, 30 days after written demand
by the Bank, the undersigned shall pay to the Bank such additional amounts as
will compensate the Bank for the reduction. Each demand by the Bank will be made
in good faith and accompanied by a certificate claiming compensation under this
paragraph and stating the amounts to be paid to it and the basis for the
payment.
Late Charges And Other Authorized Charges
If any portion of a payment is at least ten (10) days past due, the undersigned
agree to pay a late charge of 5.00% of the amount which is past due. Unless
prohibited by applicable law, the undersigned agree to pay the fee established
by the Bank from time to time for returned checks if a payment is made on this
Note with a check and the check is dishonored for any reason after the second
presentment. In addition, as permitted by applicable law, the undersigned agree
to pay the following: (1) all expenses, including, without limitation, all court
or collection costs, and reasonable attorneys' fees and expenses, whether suit
be brought or not, incurred in collecting this Note; (2) all costs incurred in
evaluating, preserving or disposing of any Collateral granted as security for
the payment of this Note, including the cost of any audits, appraisals,
appraisal updates, reappraisals or environmental inspections which the Bank from
time to time in its sole discretion may deem necessary; (3) any premiums for
property insurance purchased on behalf of the undersigned or on behalf of the
owner(s) of the Collateral pursuant to any security instrument relating to the
Collateral; (4) any expenses or costs incurred in defending any
claim arising out of the execution of this Note or the obligation which it
evidences, or otherwise involving the employment by the Bank of attorneys with
respect to this Note and the obligations it evidences; and (5) any other charges
permitted by applicable law. The undersigned agree to pay these authorized
charges on demand or, at the Bank's option, the charges may be added to the
unpaid balance of the Note and will accrue interest at the stated Rate. Upon the
occurrence of an event of default, interest will accrue at the Default Rate.
Waivers
The undersigned and each other Party waive presentment, demand, protest, notice
of protest and notice of dishonor and waive all exemptions, whether homestead or
otherwise, as to the obligations evidenced by this Note. The undersigned and
each other Party waive any rights to require the Bank to proceed against any
other Party or person or any Collateral before proceeding against the
undersigned or any of them, or any other Party, and agree that without notice to
any Party and without affecting any Party's liability, the Bank, at any time or
times, may grant extensions of the time for payment or other indulgences to any
Party or permit the renewal or modification of this Note, or permit the
substitution, exchange or release of any Collateral for this Note and may add or
release any Party primarily or secondarily liable. The undersigned and each
other Party agree that the Bank may apply all monies made available to it from
any part of the proceeds of the disposition of any Collateral or by exercise of
the right of setoff either to the obligations under this Note or to any other
obligations of any Party to the Bank, as the Bank may elect from time to time.
The undersigned also waive any rights afforded to them by Sections 49-25 and
49-26 of the Code of Virginia of 1950 as amended.
TO THE EXTENT LEGALLY PERMISSIBLE, THE UNDERSIGNED WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY LITIGATION RELATING TO TRANSACTIONS UNDER THIS NOTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Severability, Amendments And No Waiver By Bank
Any provision of this Note which is prohibited or unenforceable will be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Note. No amendment, modification,
termination or waiver of any provision of this Note, nor consent to any
departure by the undersigned from any term of this Note, will in any event be
effective unless it is in writing and signed by an authorized employee of the
Bank, and then the waiver or consent will be effective only in the specific
instance and for the specific purpose for which given. If the interest Rate is
tied to an external index and the index becomes unavailable during the term of
this loan, the Bank may designate a substitute index with notice to the
Borrower. No failure or delay on the part of the Bank to exercise any right,
power or remedy under this Note may be construed as a waiver of the right to
exercise the same or any other right at any time.
Liability, Successors And Assigns And Choice of Law
Each of the undersigned shall be jointly and severally obligated and liable on
this Note. This Note shall apply to and bind each of the undersigned's heirs,
personal representatives, successors and assigns and shall inure to the benefit
of the Bank, its successors and assigns. The undersigned agree that certain
material events and occurrences relating to this Note bear a reasonable
relationship to the Commonwealth of Virginia. The validity, terms, performance
and enforcement of this Note shall be governed by applicable federal law and the
internal laws of the Commonwealth of Virginia which are applicable to agreements
which are negotiated, executed, delivered and performed solely in the
Commonwealth of Virginia.
By signing below, the undersigned agree to the terms of this Note and
acknowledge receipt of a loan in the Loan Amount shown above.
Xxxxxxxx'x Foods, Inc.
By:
-----------------------------------------(Seal)
Xxxxxx X. Xxxxxxxxx, Senior Vice President
SCHEDULE A
TO
COMMERCIAL NOTE DATED JULY 1,1997 MADE
BY
XXXXXXXX'X FOODS, INC.
1. Credit line deed of trust dated June 14,1996, from Xxxxxxxx'x Foods, Inc.
("Borrower') to Xxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx, trustees ("Trustees'), on
real estate and improvements located in Portsmouth, Virginia.
2. Guaranty dated June 14,1996, from Dutterer's of Manchester Corp.
("Xxxxxxxx').
3. Credit line deed of trust dated June 14,1996, from Dutterer's to Trustees, on
real estate and improvements located in Manchester, Maryland.
4. Security Agreement from Borrower dated June 14, 1996, on Accounts, Inventory,
Equipment and General Intangibles.
5. Security Agreement from Dutterer's dated June 14,1996, on a promissory note
dated September 3,1995, made by Value Added Food Services, Inc., and payable to
Dutterer's in the original principal amount of $1,038,756.
6. Borrower's Assignment dated June 14,1996, pursuant to Assignment of Claims
Act, of its right to receive monies due and to become due to Borrower pursuant
to its contract with the United States of America (Defense Logistics Agency) for
the supply of foods to military facilities in southern Virginia.
XXXXXXXX'X FOODS, INC., a Virginia corporation
By:---------------------------------------
Its:--------------------------------------
