TENTH AMENDMENT TO CREDIT AGREEMENT
THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
November 1, 1999, by and between ▇▇▇▇▇▇▇▇▇ FOODS VENTURE,L.P., a Texas limited
partnership (the "Borrower"), and PNC BANK, NATIONAL ASSOCIATION, a national
banking association, successor by merger to PNC Bank, Ohio, National
Association, as Agent (the "Agent"), for the Lenders under the below-defined
Credit Agreement, THE FIFTH THIRD BANK OF WESTERN OHIO, an Ohio state banking
corporation, and PNC BANK, NATIONAL ASSOCIATION, a national banking association,
successor by merger to PNC Bank, Ohio, National Association, (each individually
a " Lender and collectively, the "Lenders").
WITNESSETH:
WHEREAS, the Borrower, the Agent and the lenders entered into a Credit
Agreement dated June 13, 1994, which was subsequently amended by an Amendment to
Credit Agreement dated March 31, 1995, a Second Amendment to Credit Agreement
dated April 20, 1995, a Third Amendment to Credit Agreement dated July 11, 1995,
a Fourth Amendment to Credit Agreement dated November 7, 1995, a Fifth Amendment
and Waiver Agreement dated May 9,1996, a Sixth Amendment to Credit Agreement
dated as of June 30,1997, a Seventh Amendment and Waiver Agreement dated as of
March 26,1998, an Eighth Amendment to Credit Agreement dated July. 1, 1998, and
a Ninth Amendment to Credit Agreement dated as of May 3, 1999 (collectively, the
"Credit Agreement") which evidences the Borrower's Borrower's obligations for
one or more loans or other extensions of credit (the "Obligations"); and
WHEREAS, the Borrower, the Agent and the Lenders desire to amend the
Credit Agreement as provided for below;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
intending to be legally bound hereby, the parties hereto agree as follows: .
1. Amendments. The Credit Agreement is amended as follows:
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1.1 Effective July 2, 1999, Section 2.1(e)is amended to delete "July 1,
1999" from the first sentence thereof and insert "December 31, 1999" in its
place.
1.2 Effective November 1, 1999, the Lenders shall extend the maturity
of the Term Loan A and Term Notes A until January 1, 2002. Section 2.2 of the
Credit Agreement is amended to provide that "Term Loan A" and "Term Notes A"
shall mean the term loans as evidenced by the Amended and Restated Term Notes A
of the Borrower to the Lenders dated November 1, 1999 in the principal sum of
$820,864.15 in total. The terms of the Amended and Restated Term Notes shall
supersede the terms of Section 2.2.
2. Any and all references to the Credit Agreement in any other Loan
Documents shall be deemed to refer to such Credit Agreement as amended hereby.
Any initially capitalized terms used in this Amendment without definition shall
have the meanings assigned to those terms in the Credit Agreement.
3. This Amendment is deemed incorporated into each of the Loan
Documents. TO the extent that any term or provision of this Amendment is or may
be deemed expressly inconsistent with any term or provision in any Loan
Document, the terms and provisions hereof shall control.
4. The Borrower hereby represents and warrants that (a) all of its
representations and warranties in the Loan Documents are true and correct, and
(b)this Amendment has been duly authorized, executed and delivered and
constitutes its legal, valid and binding obligation, enforceable in accordance
with its terms, The Borrower acknowledges that Events of Default exist under
Section 4 of the Credit Agreement due to the Borrower's failure to comply with
certain financial covenants prior to the date of this Amendment. No forbearance,
delay or inaction by the Lenders in the exercise of their rights and remedies,
and no continuing performance by the Lenders or the Borrower under the Credit
Agreement: (a) shall constitute (i) a modification or an alteration of the
terms, conditions or covenants of the Credit Agreement or any other Loan
Documents, all of which remain in full force and effect; or (ii) a waiver,
release or limitation upon the Lenders' exercise of any of their rights and
remedies thereunder, all of which are hereby expressly reserved; or (b)shall
relieve or release the Borrower in any way from any of its respective duties,
obligations, covenants or agreements under the Credit Agreement or the other
Loan Documents or from the consequences of the Event of Default described above
or any other Event of Default thereunder. The Lenders are not obligated to waive
the Events of Default described above or any other Events of Default or
defaults, whether now existing or which may occur after the date of this letter.
5. The Borrower hereby confirms that any collateral for the
Obligations, including but not limited to liens, security interests, mortgages,
and pledges granted by the Borrower or third parties (if applicable), shall
continue unimpaired and in full force and effect.
6. This Amendment will be binding upon and inure to the benefit of the
Borrower, the Agent and the Lenders and their respective successors and assigns.
7. Except as amended hereby, the terms and provisions of the Loan
Documents remain unchanged and in full force and effect. The Borrower expressly
ratifies and confirms the confession of judgment and waiver of jury trial
provisions
Executed as of the date first written above.
▇▇▇▇▇▇▇▇▇ FOODS VENTURE, L. P.,
a Texas limited partnership
By: G/W FOODS, INC., general partner,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
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PNC BANK, NATIONAL ASSOCIATION, as agent
By: _______________________________________
Print Name: ________________________________
Title: _____________________________________
THE FIFTH THIRD BANK OF WESTERN OHIO,
as a Lender
By: ________________________________________
Print Name: ________________________________
Title: ______________________________________
PNC BANK, NATIONAL ASSOCIATION,
As a Lender
By: _______________________________________
Print Name: ______________________________
Title: ___________________________________
STATE OF Ohio )
)ss:
COUNTY OF Darke )
The foregoing instrument was acknowledged before me this 1st day of
November, 1999 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President of G/W Foods, Inc., a Texas
corporation, on behalf of the corporation as general partner of ▇▇▇▇▇▇▇▇▇ Foods
Venture, L. P., a Texas limited partnership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Notary Public
November 1, 1999
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AMENDED AND RESTATED TERM NOTE A
$451,460.46 November 1, 1999
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇▇▇ FOODS VENTURE, L. P. (the "Borrower"), with an
address at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, promises to pay to the
order of PNC BANK, NATIONAL ASSOCIATION (the Lender"), in lawful money of the
United States of America in immediately available funds at its offices located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such other location as
the Lender may designate from time to time, the principal sum of FOUR HUNDRED
FIFTY-ONE THOUSAND FOUR HUNDRED SIXTY and 46/100 DOLLARS ($451,460.46),
together with interest accruing on the outstanding principal balance from the
date hereof, as provided below:
1. Rate of Interest. Amounts outstanding under this Note will bear interest at
the annual rate of interest equal to the sum of the Euro-Rate plus three
hundred (300) basis points (3.0%) per annum (the "Applicable Euro Rate"). The
Applicable Euro Rate shall remain in effect until adjusted by the Lender on the
first Business Day of each month, without notice to the Borrower.
For the purpose hereof, the following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to
be closed for business in Cincinnati, Ohio.
"Euro-Rate" shall mean the interest rate per annum determined by the
Lender by dividing (the resulting quotient rounded upwards, if
necessary, to the nearest l/lOOth of 1%per annum) (i) the rate of
interest determined by the Lender in accordance with its usual
procedures (which determination shall be conclusive absent manifest
error) to be the eurodollar rate two (2) Business Days prior to (a)the
date of this Note and (b) thereafter, the first Business Day of each
month, for an amount comparable to the amounts outstanding under this
Note and having a borrowing date and a maturity comparable to the
Euro-Rate Interest Period by (ii)a number equal to 1.00 minus the
Euro-Rate Reserve Percentage.
"Euro-Rate Interest Period" shall mean one month.
"Euro-Rate Reserve Percentage" shall me-an the maximum effective
percentage in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation,
supplemental, marginal and emergency reserve requirements) with
respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities").
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The Euro-Rate shall be adjusted on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Lender shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.
If the Lender determines (which determination shall be final and conclusive)
that, by reason of circumstances affecting the eurodollar market generally,
deposits in dollars (in the applicable amounts)are not being offered to banks
in the eurodollar market for the selected term, or adequate means do not exist
for ascertaining the Euro-Rate, then the Lender shall give notice thereof to
the Borrower. Thereafter, until the Lender notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, (a) the
availability of the Applicable Euro Rate shall be suspended, and (b)the
interest rate for all advances then bearing interest under the Applicable Euro
Rate shall be converted on the first Business Day of the next calendar month to
the Applicable Base Rate. As used herein, the "Applicable Base Rate" shall mean
a rate of interest per annum which is at all times equal to the Prime Rate. For
purposes hereof, the term "Prime Rate" shall mean the rate publicly announced
by the Lender from time to time as its prime rate. The Prime Rate is determined
from time to time by the Lender as a means of pricing some loans to its
borrowers. The Prime Rate is not tied to any external rate of interest or
index, and does not necessarily reflect the lowest rate of interest actually
charged by the Lender to any particular class or category of customers. If and
when the Prime Rate changes, the rate of interest with respect to any advance
to which the Applicable Base Rate applies will change automatically without
notice to the Borrower, effective on the date of any such change.
In addition, if, after the date of this Note, the Lender shall determine (which
determination shall be final and conclusive) that any enactment, promulgation
or adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Lender with any guideline, request
or directive (whether or not having the force of law)of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Lender to make or maintain or fund loans under the Applicable Euro Rate, the
Lender shall notify the Borrower. Upon receipt of such notice, until the Lender
notifies the Borrower that the circumstances giving rise to such determination
no longer apply, (a)the availability of the Applicable Euro Rate shall be
suspended, and (b)the interest rate on all advances then bearing interest under
the Applicable Euro Rate shall be converted to the Applicable Base Bate either
(i) on the first Business Day of the next calendar month, if the Lender may
lawfully continue to maintain advances under the Applicable Euro Rate to such
day, or (ii)immediately if the Lender may not lawfully continue to maintain
advances under the Applicable Euro Rate.
Interest will be calculated on the basis of a year of 360 days for the actual
number of days in each interest period. In no event will the rate of interest
hereunder exceed the maximum rate allowed by law.
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2. Payment Terms. Principal shall be due and payable in equal consecutive
monthly installments in the amount of Fifteen Thousand Forty-Nine and 17/100
Dollars ($15,049.17) each, commencing on December 1, 1999, and continuing on the
first day of each month thereafter. Interest shall be payable at the same times
as the principal payments. Any outstanding and principal accrued interest shall
be due and payable in full on January 1,2002.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Lender to charge the Borrower's
deposit account at the Lender for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Lender may choose, in its
sole discretion.
3. Late Payments; Default Rate. If the Borrower falls to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within fifteen (15) calendar days of the date due and payable, the
Borrower also shall pay to the Lender a late charge equal to the lesser of five
percent (5.0%) of the amount of such payment or Fifty Dollars ($50.00). Such
fifteen (15)day period shall not be construed in any way to extend the due date
of any such payment. The late charge is imposed for the purpose of defraying the
Bank's expenses incident to the handling of delinquent payments and is in
addition to, and not in lieu of, the exercise by the Lender of any rights and
remedies hereunder, under the other Loan Documents or under applicable laws, and
any fees and expenses of any agents or attorneys which the Lender may employ.
Upon maturity, whether by acceleration, demand or otherwise, and at the option
of the Lender upon the occurrence of any Event of Default (as hereinafter
defined)and during the continuance thereof, this Note shall bear interest at the
Default Rate (as defined in the Loan Documents), based on a year of 360 days and
actual days elapsed, but not more than the maximum rate allowed by law (the
"Default Rate"). The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note.
4. Prepayment. If this Note bears interest at the Base Rate, the indebtedness
may be prepaid in whole or in part at any time without penalty. If this Note
bears interest based on the Euro-Rate, notwithstanding anything contained herein
to the contrary, upon any prepayment by or on behalf of the Borrower (whether
voluntary, on default or otherwise), the Lender may require, if it so elects,
the Borrower to pay the Lender as compensation for the cost of being prepared to
advance fixed rate funds hereunder an amount equal to the Cost of Prepayment.
"Cost of Prepayment" means an amount equal to the present value, if positive, of
the product of (a)the difference between (i)the yield, on the beginning date of
the applicable interest period, of a US. Treasury obligation with a maturity
similar to the applicable interest period minus (ii) the yield on the prepayment
date, of a U. S. Treasury obligation with a maturity similar to the remaining
maturity of the applicable interest period, and (b)the principal amount to be
prepaid, and (c)the number of years, including fractional years, from the
prepayment date to the end of the applicable interest period. The yield on any
U. S. Treasury obligation shall be determined by
3
reference to Federal Reserve Statistical Release H. 15(519) "Selected Interest
Rates". For purposes of making present value calculations, the yield to maturity
of a similar maturity U. S. Treasury obligation on the prepayment date shall be
deemed the discount rate. The Cost of Prepayment shall also apply to any
payments made after acceleration of the maturity of this Note while a Euro-Rate
is in effect.
5. Amendments and Restatement. This Note amends and restates, stud is in
substitution for, that certain Term Note-Cognovit in the original principal
amount of $1,210,000.00, payable to the order of the Lender and dated June 13,
1994 (the "Existing Note"). However, without duplication, this Note shall in no
way extinguish, cancel or satisfy the Borrower's unconditional obligation to
repay all indebtedness evidenced by the Existing Note or constitute a novation
of the Existing Note. Nothing herein is intended to extinguish, cancel or impair
the lien priority or effect of any security agreement, pledge agreement or
mortgage with respect to any Obligor's
6. Other Loan Documents. This Note is issued in connection with a Credit
Agreement between the Borrower, the Lender, as Agent and Lender, and The Fifth
Third Bank of Western Ohio, as Lender, dated June 13, 1994, as amended, the
terms of which are incorporated herein by reference (the "Loan Documents"), and
is secured by the property described in the Loan Documents and by such other
collateral as previously may have been or may in the future be granted to the
Lender to secure this Note.
7. Events of Default. Immediately and automatically upon the filing by or
against the Borrower of a petition in bankruptcy, for a reorganization,
arrangement or debt adjustment, or for a receiver, trustee, or similar
creditors' representative for its property or any part thereof, or of any other
proceeding under any federal or state insolvency or similar law (and if such
petition or proceeding is an involuntary petition or proceeding filed against
the Borrower without its acquiescence therein or thereto at any time, the same
is not promptly contested and, within 30 days of the filing of such involuntary
petition or proceeding, dismissed or discharged), or the making of any general
assignment by the Borrower for the benefit of creditors, or the Borrower
dissolves or is the subject of any dissolution, winding up or liquidation or, at
the option of the Lender, immediately upon the occurrence of any other Event of
Default (as defined in the Loan Documents), in any case without demand or notice
of any kind (which are hereby expressly waived): (a)the Lender shall be under no
obligation to make advances hereunder; (b)the outstanding principal balance
hereunder, together with all accrued and unpaid interest thereon, and any
additional amounts secured by the Loan Documents will be accelerated and become
immediately due and payable, (c)the Borrower will pay to the Lender all
reasonable costs and expenses (including but not limited to attorneys'
fees)incurred by the Lender in connection with the Bank's efforts to collect the
indebtedness evidenced hereby, (d)at the Bank's option, this Note will bear
interest at the Default Rate from the date of the occurrence of the Event of
Default; and (e)the Lender may exercise from time to time any of the rights and
remedies available to the Lender under the Loan Documents or applicable law.
4
8. Power to Confess Judgment. The Borrower hereby irrevocably authorizes
any attorney-at-law, including an attorney employed by or retained and paid by
the Lender, to appear in any court of record in or of the State of Ohio, or in
any other state or territory of the United States, at any time after the
indebtedness evidenced by this Note becomes due, whether by acceleration or
otherwise, to waive the issuing and service of process and to confess a judgment
against the Borrower in favor of the Lender, and/or any assignee or holder
hereof for the amount of principal and interest and expenses then appearing due
from the Borrower under this Note, together with costs of suit and thereupon to
release all errors .and waive all right of appeal or stays of execution in any
court of record. The Borrower hereby expressly (i) waives any conflict of
interest of the attorney(s)retained by the Lender to confess judgment against
the Borrower upon this Note, and (ii) consents to the receipt by such
attorney(s)of a reasonable legal fee from the Lender for legal services rendered
for confessing judgment against the Borrower upon this Note. A copy of this
Note, certified by the Lender, may be filed in each such proceeding in place of
filing the
9. Right of Setoff. In addition to all liens upon and rights of setoff against
the money, securities or other property of the Borrower given to the Lender by
law, the Lender shall have, with respect to the Borrower's obligations to the
Lender under this Note and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against, and
the Borrower hereby assigns, conveys, delivers, pledges and transfers to the
Lender all of the Borrower's right, title and interest in and to, all deposits,
moneys, securities and other property of the Borrower now or hereafter in the
possession of or on deposit with, or in transit to, the Lender whether held in a
general or special account or deposit, whether held jointly with someone else,
or whether held for safekeeping or otherwise, excluding, however, all ▇▇▇,
▇▇▇▇▇, and trust accounts. Every such security interest and right of setoff may
be exercised without demand upon or notice to the Borrower. Every such right of
setoff shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default hereunder without any action of the Lender, although the
Lender may enter such setoff on its books and records at a later time.
10. Miscellaneous. No delay or omission of the Lender to exercise any right or
power arising hereunder shall impair any such right or power or be considered to
be a waiver of any such right or power, nor shall the Bank's action or inaction
impair any such right or power. The Borrower agrees to pay on demand, to the
extent permitted by law, all costs and expenses incurred by the Lender in the
enforcement of its rights in this Note and in any security therefore, including
without limitation reasonable fees and expenses of the Bank's counsel. If any
provision of this Note is found to be invalid by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and endorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or entities
hereunder will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Lender and its successors and assigns.
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This Note has been delivered to and accepted by the Lender and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE LENDER AND THE
BORROWER DETERMINEID IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED , EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court for the county or judicial district where the Bank's office
indicated above is located; provided that nothing contained in this Note will
prevent the Lender from bringing any action, enforcing any award or judgment or
exercising any rights against the Borrower individually, against any security or
against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Lender and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.
11. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the confession of judgment and waiver of jury trial, and
has been advised by counsel as necessary or appropriate
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Executed as of the date first written above, with the intent to be legally
bound hereby.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNRD GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
▇▇▇▇▇▇▇▇▇ FOODS VENTURE, L. P.
By: G/W FOODS, INC., general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
November 01, 1999
AMENDED AND RESTATED TERM NOTE A
$369,403.69 November 1, 1999
FOR VALUE RECEIVED, WFIITEFORD FOODS VENTURE, L. P. (the "Borrower"), with an
address at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, promises to pay to the
order of THE THIRD BANK OF WESTERN OHIO, N. A. (the "Lender"), in lawful money
of the United States of America in immediately available funds at its offices
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such other location as
the Lender may designate from time to time, the principal sum of THREE HUNDRED
SIXTY-NINE THOUSAND FOUR HUNDRED THREE and 69/100 DOLLARS ($369,403.69),
together with interest accruing on the outstanding principal balance from the
date hereof, as provided below:
1. Rate of Interest. Amounts outstanding under this Note will bear interest at
the annual rate of interest equal to the sum of the Euro-Rate plus three hundred
(300)basis points (3.0%) per annum (the Applicable Euro Rate"), The Applicable
Euro Rate shall remain in effect until adjusted by the Lender on the first
Business Day of each month without notice to the Borrower.
For the purpose hereof, the following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to
be closed for business in Cincinnati, Ohio.
"Euro-Rate" shall mean the interest rate per annum determined by the
Lender by dividing (the resulting quotient rounded upwards, if
necessary, to the nearest 1/100th of 1% per annum) (i) the rate of
interest determined by the Lender in accordance with its usual
procedures (which determination shall be conclusive absent manifest
error) to be the eurodollar rate two (2) Business Days prior to (a)
the date of this Note and (b) thereafter, the first Business Day of
each month, for an amount comparable to the amounts outstanding under
this Note and having a borrowing date and a maturity comparable to the
Euro-Rate Interest Period by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage.
"Euro-Rate Interest Period" shall mean one month.
"Euro-Rate Reserve Percentage" shall mean the maximum effective
percentage in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor)for
determining the reserve requirements (including, without limitation,
supplemental, marginal and emergency reserve requirements)with respect
to eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
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The Euro-Rate shall be adjusted on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Lender shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith which determination shall be conclusive absent manifest
error.
If the Lender determines (which determination shall be final and
conclusive)that, by reason of circumstances affecting the eurodollar market
generally, deposits in dollars (in the applicable amounts)are not being offered
to banks in the eurodollar market for the selected term, or adequate means do
not exist for ascertaining the Euro-Rate, then the Lender shall give notice
thereof to the Borrower. Thereafter, until the Lender notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, (a)the
availability of the Applicable Euro Rate shall be suspended, and (b)the
interest rate for all advances then bearing interest under the Applicable Euro
Rate shall be converted on the first Business Day of the next calendar month to
the Applicable Base Rate. As used herein, the "Applicable Base Rate" shall mean
a rate of interest per annum which is at all times equal to the Prime Rate. For
purposes hereof, the term "Prime Rate" shall mean the rate publicly announced
by the Lender from time to time as its prime rate. The Prime Rate is determined
from time to time by the Lender as a means of pricing some loans to its
borrowers. The Prime Rate is not tied to any external rate of interest or
index, and does not necessarily reflect the lowest rate of interest actually
charged by the Lender to any particular class or category of customers. If and
when the Prime Rate changes, the rate of interest with respect to any advance
to which the Applicable Base Rate applies will change automatically without
notice to the Borrower, effective on the date of any such change.
In addition, if, after the date of this Note, the Lender shall determine (which
determination shall be final and conclusive)that any enactment, promulgation or
adoption of or any change in any applicable law, rule or regulation or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Lender with any guideline, request
or directive (whether or not having the force of law)of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Lender to make or maintain or fund loans under the Applicable Euro Rate, the
Lender shall notify the Borrower. Upon receipt of such notice, until the Lender
notifies the Borrower that the circumstances giving rise to such determination
no longer apply, (a)the availability of the Applicable Euro Rate shall be
suspended, and (b)the interest rate on all advances then bearing interest under
the Applicable Euro Rate shall be converted to the Applicable Base Rate either
(i)on the first Business Day of the next calendar month, if the Lender may
lawfully continue to maintain advances under the Applicable Euro Rate to such
day, or (ii)immediately if the Lender may not lawfully continue to maintain
advances under the Applicable Euro Rate.
Interest will be calculated on the basis of a year of 360 days for the actual
number of days in each interest period. In no event will the rate of interest
hereunder exceed the maximum rate allowed by law.
2
2. Payment Terms. Principal shall be due and payable in equal consecutive
monthly installments in the amount of Twelve Thousand Three Hundred Twelve and
97/100 Dollars ($12,312.97)each, commencing on December 1, 1999, and continuing
on the first day of each month thereafter. Interest shall be payable at the same
times as the principal payments. Any outstanding principal and accrued interest
shall be due and payable in full on January 1,2002.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Lender to charge the Borrower's
deposit account at the Lender for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Lender may choose, in its
sole discretion.
3. Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within fifteen (15) calendar days of the date due and payable, the
Borrower also shall pay to the Lender a late charge equal to the lesser of five
percent (5.0%)of the amount of such payment or Fifty Dollars ($50.00). Such
fifteen (15)day period shall not be construed in any way to extend the due date
of any such payment. The late charge is imposed for the purpose of defraying the
Bank's expenses incident to the handling of delinquent payments and is in
addition to, and not in lieu of, the exercise by the Lender of any rights and
remedies hereunder, under the other Loan Documents or under applicable laws, and
any fees and expenses of any agents or attorneys which the Lender may employ.
Upon maturity, whether by acceleration, demand or otherwise, and at the option
of the Lender upon the occurrence of any Event of Default (as hereinafter
defined)and during the continuance thereof, this Note shall bear interest at a
rate per annum (based on a year of 360 days and actual days elapsed)which shall
be four percentage points (4.0%) in excess of the interest rate in effect from
time to time under this Note but not more than the maximum rate allowed by law
(the "Default Rate"). The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note.
4. Prepayment. If this Note bears interest at the Base Rate, the indebtedness
may be prepaid in whole or in part at any time without penalty. If this Note
bears interest based on the Euro-Rate, notwithstanding anything contained herein
to the contrary, upon any prepayment by or on behalf of the Borrower (whether
voluntary, on default or otherwise), the Lender may require, if it so elects,
the Borrower to pay the Lender as compensation for the cost of being prepared to
advance fixed rate funds hereunder an amount equal to the Cost of Prepayment.
"Cost of Prepayment" means an amount equal to the present value, if positive, of
the product of (a)the difference between (i)the yield, on the beginning date of
the applicable interest period, of a U. S. Treasury obligation with a maturity
similar to the applicable interest period minus (ii) the yield on the prepayment
date, of a U. S. Treasury obligation with a maturity similar to the remaining
maturity of the applicable interest period, and (b) the principal amount to be
prepaid, and (c) the number of years, including fractional years, from the
prepayment date to the end of
3
the applicable interest period. The yield on any U.S. Treasury obligation shall
be determined by reference to Federal Reserve Statistical Release H.15(519)
"Selected Interest Rates". For purposes of making present value calculations,
the yield to maturity of a similar maturity U. S. Treasury obligation on the
prepayment date shall be deemed the discount rate. The Cost of Prepayment shall
also apply to any payments made after acceleration of the maturity of this Note
while a Euro-Rate is in effect.
5. Amendment and Restatement. This Note amends and restates, and is in
substitution for, that certain Term Note-Cognovit in the original principal
amount of $990,000.00 payable to the order of the Lender and dated June 13, 1994
(the "Existing Note"). However, without duplication, this Note shall in no way
extinguish, cancel or satisfy the Borrower's unconditional obligation to repay
all indebtedness evidenced by the Existing Note or constitute a novation of the
Existing Note. Nothing herein is intended to extinguish, cancel or impair the
lien priority or effect of any security agreement, pledge agreement or mortgage
with respect to any Obligor's obligations hereunder and under any other document
relating hereto.
6. Other Loan Documents. This Note is issued in connection with a Credit
Agreement between the Borrower, the Lender, as Lender, and PNC Bank, National
Association, as Agent and Lender, dated June 13, 1994, as amended, the terms of
which are incorporated herein by reference (the "Loan Documents"), and is
secured by the property described in the Loan Documents (if any)and by such
other collateral as previously may have been or may in the future be granted to
the Lender to secure this Note.
7. Events of Default. Immediately and automatically upon the filing by or
against the Borrower of a petition in bankruptcy, for a reorganization,
arrangement or debt adjustment, or for a receiver, trustee, or similar
creditors' representative for its property or any part thereof, or of any other
proceeding under any federal or state insolvency or similar law (and if such
petition or proceeding is an involuntary petition or proceeding filed against
the Borrower without its acquiescence therein or thereto at any time, the same
is not promptly contested and, within 30 days of the filing of such involuntary
petition or proceeding, dismissed or discharged), or the making of any general
assignment by the Borrower for the benefit of creditors, or the Borrower
dissolves or is the subject of any dissolution, winding up or liquidation or, at
the option of the Lender, immediately upon the occurrence of any other Event of
Default (as defined in the Loan Documents), in any case without demand or notice
of any kind (which are hereby expressly waived): (a)the Lender shall be under no
obligation to make advances hereunder; (b)the outstanding principal balance
hereunder, together with all accrued and unpaid interest thereon, and any
additional amounts secured by the Loan Documents will be accelerated and become
immediately due and payable, (c)the Borrower will pay to the Lender all
reasonable costs and expenses (including but not limited to attorneys'
fees)incurred by the Lender in connection with the Bank's efforts to collect the
indebtedness evidenced hereby, (d)at the Bank's option, this Note will bear
interest at the Default Rate from the date of the occurrence of the Event of
Default; and (e)the Lender may exercise from time to time any of the rights and
remedies available to the Lender under the Loan Documents or applicable law.
4
8. Power to Confess Judgment. The Borrower hereby irrevocably authorizes any
attorney-at-law, including an attorney employed by or retained and paid by the
Lender, to appear in any court of record in or of the State of Ohio, or in any
other state or territory of the United States, at any time after the
indebtedness evidenced by this Note becomes due, whether by acceleration or
otherwise, to waive the issuing and service of process and to confess a judgment
against the Borrower in favor of the Lender, and/or any assignee or holder
hereof for the amount of principal and interest and expenses then appearing due
from the Borrower under this Note, together with costs of suit and thereupon to
release all errors and waive all right of appeal or stays of execution in any
court of record. The Borrower hereby expressly (i) waiver any conflict of
interest of the attorney(s)retained by the Lender to confess judgment against
the Borrower upon this Note, and (ii)consents to the receipt by such
attorney(s)of a reasonable legal fee from the Lender for legal services rendered
for confessing judgment against the Borrower upon this Note. A copy of this
Note, certified by the Lender, may be filed in each such proceeding in place of
filing the original as a warrant of attorney.
9. Right of Setoff. In addition to all liens upon and rights of setoff against
the money, securities or other property of the Borrower given to the Lender by
law, the Lender shall have, with respect to the Borrower's obligations to the
Lender under this Note and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against, and
the Borrower hereby assigns, conveys, delivers, pledges and transfers to the
Lender all of the Borrower's right, title and interest in and to, all deposits,
moneys, securities and other property of the Borrower now or hereafter in the
possession of or on deposit with, or in transit to, the Lender whether held in a
general or special account or deposit, whether held jointly with someone else,
or whether held for safekeeping or otherwise, excluding, however, all ▇▇▇,
▇▇▇▇▇, and trust accounts. Every such security interest and right of setoff may
be exercised without demand upon or notice to the Borrower. Every such right of
setoff shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default hereunder without any action of the Lender, although the
Lender may enter such setoff on its books and records at a later time.
10.Miscellaneous. No delay or omission of the Lender to exercise any right or
power arising hereunder shall impair any such right or power or be considered to
be a waiver of any such right or power, nor shall the Bank's action or inaction
impair any such right. The Borrower agrees to pay on demand, to the extent
permitted by law, all costs and expenses incurred by the Lender in the
enforcement of its rights in this Note and in any security therefore, including
without limitation reasonable fees and expenses of the Bank's counsel. If any
provision of this Note is found to be invalid by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and endorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or entities
hereunder will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Lender and its successors and assigns.
This Note has been delivered to and accepted by the Lender and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED
5
AND THE RIGHTS AND LIABILITIES OF THE LENDER AND BORROWER DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS
LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court for the
county or judicial district where the Bank's office indicated above is located;
provided that nothing contained in this Note will prevent the Lender from
bringing any action, enforcing any award or judgment or exercising any rights
against the Borrower individually, against any security or against any property
of the Borrower within any other county, state or other foreign or domestic
jurisdiction. The Borrower acknowledges and agrees that the venue provided above
is the most convenient forum for both the Lender and the Borrower. The Borrower
waives any objection to venue and any objection based on a more convenient forum
in any action instituted under this Note.
11. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE. BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the confession of judgment and waiver of jury trial, and
has been advised by counsel as necessary or appropriate.
6
Executed as of the date first written above, with the intent to be
legally bound hereby.
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL, IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
▇▇▇▇▇▇▇▇▇ FOODS VENTURE, L. P.,
By: G/W FOODS, INC., general partner,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President