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EXHIBIT 4.13
PAYMENT OF THIS NOTE IS SUBORDINATED SUBJECT TO THE TERMS AND CONDITIONS OF AN
INTERCREDITOR AGREEMENT DATED AS OF THE DATE OF NOTE (AS AMENDED) BY AND BETWEEN
THE PAYEE AND FLEET CAPITAL CORPORATION
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
SENIOR SUBORDINATED NOTE
DUE MARCH 31, 2005
MAKERS ATLANTIC PREMIUM BRANDS, LTD.
PREFCO CORP.
CARLTON FOODS CORP.
▇▇▇▇▇▇▇▇ CAJUN FOODS CORP.
▇▇▇▇▇▇'▇ FARM, INC.
POTTER'S ACQUISITION CORP.
PAYEE BANC ONE CAPITAL PARTNERS, LLC
PRINCIPAL AMOUNT $6,500,000
AMORTIZATION COMMENCEMENT DATE JUNE 30, 2003
STATED INTEREST RATE 10% PER ANNUM
DEFAULT INTEREST RATE 15% PER ANNUM
DATE OF NOTE MARCH 20, 1998
MADE AT COLUMBUS, OHIO
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MATURITY DATE MARCH 31, 2005
PAYMENT DATES INTEREST : LAST DAY OF EACH
MONTH
PRINCIPAL: MARCH 31, JUNE 30,
SEPTEMBER 30,
DECEMBER 31
This is the SENIOR SUBORDINATED NOTE DUE MARCH 31, 2005 ("Note")
provided for in the Senior Subordinated Note and Warrant Purchase Agreement
dated as of March 20, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, "Purchase Agreement") by and between Payee, as
purchaser, and Makers, as seller.
THIS NOTE IS ONE OF THE RELATED DOCUMENTS REFERRED TO IN THE PURCHASE
AGREEMENT, AND CANNOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT AS
PROVIDED IN SECTION 11.14 OF THE PURCHASE AGREEMENT.
FOR VALUE RECEIVED, THE MAKERS HEREBY PROMISE TO PAY TO THE ORDER OF
THE PAYEE (OR ITS SUCCESSORS AND PERMITTED ASSIGNS) THE PRINCIPAL AMOUNT OF SIX
MILLION FIVE HUNDRED THOUSAND DOLLARS ($6,500,000), TOGETHER WITH INTEREST,
PREPAYMENT PREMIUMS AND ASSESSMENTS (EACH AS DEFINED HEREIN), UPON THE TERMS AND
SUBJECT TO THE CONDITIONS SET FORTH
IN THIS NOTE.
SECTION 1. DEFINITIONS AND MISCELLANEOUS PROVISIONS.
The terms "Makers", "Payee", "Principal Amount", "Amortization
Commencement Date", "Stated Interest Rate", "Default Interest Rate", "Date of
Note", "Made At", "Maturity Date", and "Payment Dates", have the definitions set
forth above. All other capitalized terms not otherwise defined in this Note
shall have the definitions set forth in the Purchase Agreement, which
definitions are, to the extent applicable, incorporated herein by reference. The
provisions of Section 11 of the Purchase Agreement are applicable to this Note
and are incorporated herein by reference.
SECTION 2. MATURITY AND PAY OFF.
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The unpaid Principal Amount of this Note, together with all accrued but
unpaid Interest and Assessments, shall be due and payable in full on the
Maturity Date. Payment of the Principal Amount and all accrued but unpaid
Interest and Assessments may be Accelerated upon the occurrence of an Event of
Default as provided for in this Note.
Upon request of the Makers, the Payee will furnish a letter setting
forth the amount of the payment of Principal Amount, Interest and Assessments
required to pay this Note in full as of a specified Pay Off Date.
SECTION 3. INTEREST.
Interest shall accrue on the unpaid Principal Amount from the date of
this Note through and including the Pay Off Date at the applicable interest rate
("Interest"). All accrued but unpaid Interest shall be paid monthly in arrears
on each Payment Date specified above, commencing April 30, 1998.
At all times that the Default Interest Rate is not in effect, the
interest rate on this Note shall be a fixed rate per annum equal to the Stated
Interest Rate. Upon the occurrence of an Event of Default, the Payee may elect,
in the sole exercise of its discretion, to impose the Default Interest Rate by
giving written Notice of such election to Atlantic ("Default Rate Election"). In
the event of a Default Rate Election, the interest rate on this Note shall be a
fixed rate per annum equal to the Default Interest Rate. In the case of a
Default Rate Election based upon a Payment Default, the Default Interest Rate
shall be given retroactive effect back to the date of such Payment Default (or
such later date specified in such Notice); provided, however, that if such
Notice is given more than 30 days after such Payment Default, the Default
Interest Rate shall take effect on the date of such Notice. Otherwise, the
Default Interest Rate becomes effective as of the date of such Notice. In either
case, the Default Interest Rate shall continue to be the interest rate on this
Note until the date on which such Event of Default has been remedied or waived
and no other Default or Event of Default is continuing unremedied or unwaived
with respect to which a Default Rate Election has been given, provided that the
Note has not been Accelerated.
Notwithstanding any provision of this Note to the contrary: (i) in no
event shall the interest rate on this Note be a rate per annum in excess of the
maximum interest rate permissible under Applicable Law, and (ii) to the extent
that Interest (or other amounts paid with respect to this Note that are deemed
to be interest under
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Applicable Law) result in interest payments in excess of those permitted
under Applicable Law, such excess payments shall be applied to the payment of
the unpaid Principal Amount (without payment of any Prepayment Premium and
without regard to any required minimum amount for partial prepayments) or, if
the Principal Amount has been paid in full, shall be refunded to the Makers.
Interest shall be calculated based upon: (i) the actual number of days
elapsed over each Month, including any additional days elapsed because the
scheduled Payment Date fell on a non - Business Day; (ii) Months consisting of
30 days each; (iii) Quarters consisting of three 30 day Months, and (iv) Monthly
compounding of any Interest or Assessment accrued but unpaid as of each Payment
Date.
SECTION 4. PRINCIPAL AMOUNT.
The Principal Amount shall be paid in installments as set forth below,
payable Quarterly on each Payment Date, commencing on the Amortization
Commencement Date and continuing until the earlier of the Pay Off Date or the
Maturity Date. In the event of any partial prepayment of Principal Amount, each
such partial prepayment shall be applied to pay the scheduled installments of
Principal Amount in inverse order of the Payment Dates on which such
installments are due and payable.
PAYMENT DATE INSTALLMENT PAYMENT
June 30, 2003 $812,500
September 30, 2003 $812,500
December 31, 2003 $812,500
March 31, 2004 $812,500
June 30, 2004 $812,500
September 30, 2004 $812,500
December 31, 2004 $812,500
March 31, 2005 $812,500
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SECTION 5. PREPAYMENTS.
The Makers may prepay the Principal Amount in whole at any time or in
part from time to time; provided that (i) each partial prepayment of Principal
Amount shall be in an amount equal to or greater than $500,000, and (ii) the
Makers pay any Prepayment Premiums as provided for below.
The Makers shall pay as a Prepayment Premium the percent shown below of
the Principal Amount of such prepayment ("Prepayment Premium").
IF PREPAYMENT IS MADE
ON OR AFTER BUT BEFORE PREPAYMENT PREMIUM
--------------------------------------------------------------------------------------
Date of Note January 1, 2001 3%
January 1, 2001 January 1, 2002 2%
January 1, 2002 January 1, 2003 1%
January 1, 2003 Maturity Date None
--------------------------------------------------------------------------------------
All prepayments of Principal Amount shall be accompanied by the payment
of (i) all Interest accrued but unpaid through the date of prepayment with
respect to the Principal Amount prepaid, and (ii) all unpaid Assessments.
SECTION 6. LATE PAYMENTS.
A payment of Principal Amount, Interest[, Prepayment Premium] or
Assessment shall be deemed to be in default if such payment is not made in the
manner provided for in this Note prior to 2:00 p.m., Columbus, Ohio, time on the
fifth day after such payment is due. The Payee may, in the sole exercise of its
discretion, by Notice to the Makers, assess a fee of $1,000 per Payment Date
with respect to which there is a late payment to reimburse the Payee for the
cost of processing such late payment. Such late fee shall be deemed to be an
Assessment for purposes of this Note. The Payee may not assess a late fee with
respect to any Payment Date after payment of this Note is Accelerated.
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SECTION 7. PAYMENTS.
Unless otherwise agreed by the Payee, all payments of Principal Amount
and Interest due and payable shall be made by wire transfer of immediately
available funds to the account of the Payee at or before 2:00 p.m., Columbus,
Ohio, time on each Payment Date. Any wire transfer received by the Payee after
2:00 p.m., Columbus, Ohio, time shall be deemed to have been received by the
Payee prior to such time on the next Business Day.
Unless otherwise specified in writing by the Payee to the Makers, all
such payments shall be wired as follows:
Bank ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
ABA #▇▇▇-▇▇▇-▇▇▇
FAO Banc One Capital Corporation
Account #981039134
In the event that any scheduled Payment Date falls on a non - Business
Day, such Payment Date shall be deemed to be the next Business Day following
such scheduled Payment Date, and such additional days shall be deemed to have
elapsed for purposes of computing accrued Interest payable on such Payment Date.
SECTION 8. EVENTS OF DEFAULT.
(a) Enumeration of Defaults. Each of the following events shall be an
"Event of Default" for the purposes of this Note. An Event of Default shall be
deemed to continue until waived by Notice by the Payee to the Makers or remedied
by action of the Makers.
(b) Payment Default. The Makers default in the payment when due of any
installment of Principal Amount, Interest[, Prepayment Premium] or Assessment,
and such default is not remedied in the manner (including the payment of any
Assessment) and within the grace period provided for in Section 6 of this Note
("Payment Default"). A Payment Default shall be deemed to have occurred
notwithstanding the fact that the default in payment resulted from compliance
with or enforcement of the Intercreditor Agreements subject to the terms
thereof.
(c) Covenant Default. The Makers fail to observe or perform any
affirmative covenant, negative covenant, reporting requirement or any other
agreement set forth in the Purchase Agreement or the Related Documents and such
default is not
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remedied within 30 days after Notice of such default, regardless of whether
Notice is given by the Payee or the Makers.
(d) Warranty Default. Any representation or warranty given by the
Makers in the Purchase Agreement or the Related Documents proves to have been
untrue, incomplete or misleading in any material respect when made or when
deemed to have been made and such breach is not remedied (if it is capable of
being remedied) within 30 days after Notice of such default by the Payee or the
Maker.
(e) Financial Test Default. As of any applicable date of determination,
the Makers fail to satisfy any of the Financial Tests.
(f) Acceleration Default. The holder of the Senior Indebtedness
accelerates the payment of such Indebtedness for any reason, or the Maker
defaults in the payment of any other Indebtedness with an unpaid principal
amount in excess of $250,000, and such default remains unremedied beyond the
applicable grace period therefor, unless waived by the obligee thereof.
(g) Subordination Default. Any document with respect to the Senior
Indebtedness is amended or modified in violation of the Intercreditor Agreement,
or any amounts previously paid with respect to this Note must be repaid or held
in trust by the Payee due to compliance with or enforcement of the Intercreditor
Agreement.
(h) Insolvency Default. Any Maker: (i) discontinues the conduct of its
business; (ii) applies for or consents to the imposition of any Insolvency
Relief; (iii) voluntarily commences or consents to the commencement of an
Insolvency Proceeding; (iv) files an answer admitting the material allegations
of any involuntary commencement of an Insolvency Proceeding; (v) makes a general
assignment for the benefit of its creditors; (vi) is unable or admits in writing
its inability to pay its debts as they become due; or (vii) any Insolvency Order
is entered against such Maker and such Insolvency Order is not dismissed within
60 days of its entry ("Insolvency Default").
(i) Fraudulent Conveyance Default. The Maker: (i) conceals, removes or
permits to be concealed or removed all or any part of its property with the
intent to hinder, delay or defraud any of its creditors; (ii) makes or permits
any conveyance of its material properties that would be deemed fraudulent to
creditors under any Insolvency Law or other Applicable Law; or (iii) has, while
it is insolvent, caused or permitted any of its creditors to obtain a Lien on
any of its property by legal proceedings or otherwise which is not vacated
within 30 days.
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(j) Judgments. A final, nonappealable judgment or judgments is or are
entered against the Maker in the aggregate amount of $100,000 or more on a claim
or claims not covered by insurance and such judgment or judgments shall remain
unsatisfied for a period of 60 days.
SECTION 9. REMEDIES AND ACCELERATION.
(a) Remedies. Upon the occurrence of an Event of Default, the Payee
shall have (i) all rights and remedies granted to it under this Note, the
Purchase Agreement and the Related Documents, and (ii) all rights of a creditor
under Applicable Law (including the UCC). All such rights and remedies and the
exercise thereof shall be cumulative. No exercise of any such rights and
remedies shall be deemed to be exclusive or constitute an election of remedies.
(b) Acceleration of Payment. Upon the occurrence of an Insolvency
Default, payment of this Note shall be Accelerated automatically and without
Notice. Upon the occurrence and during the continuation of any other Event of
Default, the Payee may, in the sole exercise of its discretion, elect to cause
payment of this Note to be Accelerated by giving Notice of such election to the
Makers. Once payment of this Note has been Accelerated, such Acceleration may be
revoked only by the Payee, in the sole exercise of its discretion, by giving
Notice of revocation to the Makers.
(c) Waiver of Default. No Default or Event of Default may be waived or
shall be deemed to have been waived except by an express Notice by the Payee to
the Makers, and any such waiver shall be applicable only to the specific
Defaults or Events of Default expressly identified in such Notice and shall not
be deemed to apply to any other or subsequent Default or Event of Default. The
Payee may grant or withhold any such waiver in the sole exercise of its
discretion, and may condition such waiver upon the payment by the Maker of a
premium, the grant of additional security interests or the acceptance of other
terms and conditions under this Note or the Purchase Agreement. No course of
dealing by the Payee, or the failure, forbearance or delay by the Payee in
exercising any of its rights or remedies under this Note, the Purchase Agreement
or any Related Document shall operate as a waiver of any Default or Event of
Default or of any right of the Payee under this Note.
SECTION 10. WAIVERS BY MAKER.
To the full extent permitted by Applicable Law, Makers waive with
respect to this Note: presentment; protest and demand; notice of protest, demand
and dishonor;
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and diligence in collection. Makers agree that the Payee may release all or any
part of the collateral securing the payment of this Note; any guarantor or
surety with respect to this Note; or any other Maker from its obligation with
respect to this Note, all without Notice to Makers and without affecting in any
way the obligation of Makers under this Note.
SECTION 11. SECURITY FOR PAYMENT.
Payment of this Note is secured under the terms and subject to the
conditions of certain of the Related Documents. Nothing in this Note shall be
deemed to preclude the Payee from obtaining other or additional security for the
payment of this Note, to require the Payee to elect remedies or proceed against
any collateral or guarantee before Accelerating payment of this Note or to take
any legal or other action to collect payment of this Note.
SECTION 12. INTERCREDITOR AGREEMENT.
The Payee and the Senior Lender are parties to an Intercreditor
Agreement dated as of the date hereof, pursuant to which certain of the Payee's
rights under this Note and the Related Documents are subordinated to the Senior
Lender. Nothing in this Note, the Purchase Agreement or such Intercreditor
Agreement shall grant to Maker any rights as a beneficiary under such
Intercreditor Agreement nor any right to enforce against the Payee any provision
of such Intercreditor Agreement.
SECTION 13. COLLECTION AND ASSESSMENT FOR COSTS.
The Makers shall reimburse the Payee for all reasonable costs and
expenses (including legal fees and disbursements) incurred by the Payee in
connection with the collection or attempted collection of the payment of this
Note through legal proceedings or otherwise after the occurrence of an Event of
Default. All such amounts shall be deemed to be Assessments for purposes of this
Note.
SECTION 14. AMENDMENT.
This Note may not be amended, restated, supplemented or otherwise
modified except by an express written agreement executed and delivered by the
Makers and the Payee. Compliance with the covenants and other provisions of this
Note may not be waived except by an express written waiver signed and delivered
by the Party against whom enforcement is sought.
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SECTION 15. GOVERNING LAW.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PAYEE AND MAKERS UNDER
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
OHIO, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
SECTION 16. WAIVER OF JURY TRIAL.
THE PAYEE AND THE MAKER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY
TO CONSULT WITH LEGAL COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION. NEITHER THE
PAYEE NOR THE MAKERS SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION
IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL
NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY EITHER THE
PAYEE OR THE MAKERS EXCEPT BY WRITTEN INSTRUMENT EXECUTED BY PARTY AGAINST WHOM
ENFORCEMENT IS SOUGHT.
SECTION 17. CONSENT TO JURISDICTION, VENUE AND SERVICE OF
PROCESS.
THE PAYEE AND THE MAKERS, EACH AFTER HAVING CONSULTED OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND IRREVOCABLY: (I) CONSENT TO THE JURISDICTION OF THE COMMON
PLEAS COURT OF FRANKLIN COUNTY, OHIO AND THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION WITH RESPECT TO ANY LITIGATION;
(II) WAIVE ANY OBJECTIONS TO THE VENUE OF ANY LITIGATION IN EITHER SUCH COURT;
(III) AGREE NOT TO COMMENCE ANY LITIGATION EXCEPT IN ONE OR THE OTHER OF SUCH
COURTS AND AGREE NOT TO CONTEST THE REMOVAL OF ANY LITIGATION COMMENCED IN ANY
OTHER COURT TO ONE OR THE OTHER OF SUCH COURTS; (IV) AGREE NOT TO SEEK TO
REMOVE, BY CONSOLIDATION OR OTHERWISE, ANY LITIGATION COMMENCED IN EITHER OF
SUCH COURTS TO ANY OTHER COURT; AND (V) WAIVES PERSONAL SERVICE OF PROCESS IN
CONNECTION WITH ANY LITIGATION AND CONSENTS TO SERVICE OF PROCESS BY REGISTERED
OR CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED AS PROVIDED IN THE PURCHASE
AGREEMENT. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY EITHER THE PAYEE OR THE MAKER EXCEPT BY WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
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IN WITNESS WHEREOF, this Note has been executed and delivered by and on
behalf of the Makers, effective as of the Date of Note set forth above.
MAKERS:
ATLANTIC PREMIUM BRANDS, LED.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
PREFCO CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
CARLTON FOODS CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
▇▇▇▇▇▇▇▇ CAJUN FOODS
CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
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▇▇▇▇▇▇'▇ FARM, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
POTTER'S ACQUISITION
CORP.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: CHAIRMAN
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