1
EXHIBIT 4.2
================================================================================
COMPOSITE CONFORMED COPY
OF THE NOTE AGREEMENTS
Re:
$50,000,000 8.35% SERIES A SENIOR NOTES
DUE NOVEMBER 1, 2002
AND
$20,000,000 7.15% SERIES B SENIOR NOTES
DUE NOVEMBER 1, 2002
OF
SAVANNAH FOODS & INDUSTRIES, INC.
================================================================================
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COMPOSITE CONFORMED COPY OF THE NOTE AGREEMENTS RELATING TO:
$50,000,000 8.35% Series A senior Notes
Due November 1, 2002
and
$20,000,000 7.15% Series B senior Notes
Due November 1, 2002
of
SAVANNAH FOODS & INDUSTRIES, INC.
--------------------------
Separate Note Agreements each dated as of September 1, 1992, in the
form attached hereto into on October 5, 1992 between Savannah Foods &
Industries, Inc. (the "Company"), and respectively, The Great-West Life
Assurance Company, The Variable Annuity Life Insurance Company, The Minnesota
Mutual Life Insurance Company, Mutual Trust Life Insurance Company, National
Travelers Life Company and The Reliable Life Insurance Company (the "Note
Purchasers"). Each of said Agreements was executed on behalf of the Company by
William R. Steinhauer, its Vice President - Finance and W.W. Sprague, its
President. Each of said Agreements was addressed to, and accepted by, the
respective Purchasers as set forth below:
Acceptance by Purchasers
------------------------
THE GREAT-WEST LIFE ASSURANCE
COMPANY
By /s/ Wanye T. Hoffman
------------------------------------
Its Vice President
Private Placement Investments
By /s/ G. Douglas Hurley
------------------------------------
Its Vice President
Private Placement Investments
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
By /s/ Julia S. Tucker
------------------------------------
Its Investment Officer
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3
THE MINNESOTA MUTUAL LIFE INSURANCE
COMPANY
By: MIMLIC ASSET MANAGEMENT COMPANY
By /s/ Guy M. De Lambert
------------------------
Its Vice President
MUTUAL TRUST LIFE INSURANCE COMPANY
By: MIMLIC ASSET MANAGEMENT COMPANY
By /s/ Lynne M. Mills
---------------------
Its Vice President
NATIONAL TRAVELERS LIFE COMPANY
By: MIMLIC ASSET MANAGEMENT COMPANY
By /s/ Lynne M. Mills
---------------------
Its Vice President
THE RELIABLE LIFE INSURANCE COMPANY
BY: MIMLIC ASSET MANAGEMENT COMPANY
By /s/ Lynne M. Mills
--------------------
Its Vice President
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[COMPOSITE CONFORMED COPY]
================================================================================
SAVANNAH FOODS & INDUSTRIES, INC.
NOTE AGREEMENT
Dated as of September 1, 1992
Re: $50,000,000 8.35% Series A Senior Notes
Due November 1, 2002
and
$20,000,000 7.15% Series B Senior Notes
Due November 1, 2002
================================================================================
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5
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Description of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Commitment, Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PREPAYMENT OF NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.1. Required Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2. Optional Prepayment with Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3. Notice of Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4. Application of Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.5. Direct Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1. Representations of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Representations of the Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.2. Waiver of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5. COMPANY COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.1. Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.2. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with Laws; Environmental Compliance . . . . 7
Section 5.4. Maintenance, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.5. Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.6. Current Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.7. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.8. Indebtedness Ratios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.9. Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.10. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.11. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.12. Mergers, Consolidations and Sales of Assets . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.13. Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Section 5.14. Designation of Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.15. Repurchase of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.16. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.17. Termination of Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.18. Reports and Rights of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.2. Notice to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.3. Acceleration of Maturities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.4. Rescission of Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.1. Consent Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.2. Solicitation of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.3. Effect of Amendment or Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.2. Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.3. Directly or Indirectly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.1. Registered Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.2. Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.3. Loss, Theft, Etc. of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.4. Expenses, Stamp Tax Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 30
Section 9.6. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.7. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.8. Survival of Covenants and Representations . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.9. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.11. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ATTACHMENTS TO NOTE AGREEMENT:
Schedule I -- Names and Addresses of Note Purchasers and Amounts of Commitments
Exhibit A-1 -- Form of 8.35% Series A Senior Note due November 1, 2002
Exhibit A-2 -- Form of 7.15% Series B Senior Note due November 1, 2002
Exhibit B -- Representations and Warranties of the Company
Exhibit C -- Description of Special Counsel's Closing Opinion
Exhibit D -- Description of Closing Opinion of Counsel to the Company
Exhibit E -- Form of Letter of Transfer
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SAVANNAH FOODS & INDUSTRIES, INC.
TWO EAST BRYAN
SAVANNAH, GEORGIA 31402
NOTE AGREEMENT
Re: $50,000,000 8.35% Series A Senior Notes
Due November 1, 2002
and
$20,000,000 7.15% Series B Senior Notes
Due November 1, 2002
Dated as of
September 1, 1992
To the Purchaser named in Schedule I
hereto which is a signatory of this
Agreement
Gentlemen:
The undersigned, SAVANNAH FOODS & INDUSTRIES, INC., a Delaware corporation
(the "Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize the issue
and sale of the following series of senior promissory notes:
(a) $50,000,000 aggregate principal amount of its 8.35% Series A
Senior Notes (the "Series A Notes") to be dated the date of issue, to bear
interest from such date at the rate of 8.35% per annum, payable
semiannually on the first day of each November and May in each year
(commencing on the first of such dates after the Closing Date (hereinafter
defined) and at maturity and to bear interest on overdue principal
(including any overdue required or optional prepayment of principal) and
premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest at the rate of 10.35% per annum after the date
due, whether by acceleration or otherwise, until paid, to be expressed to
mature on November 1, 2002, and to be substantially in the form attached
hereto as Exhibit A-1; and
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Savannah Foods & Industries, Inc. Note Agreement
(b) $20,000,000 aggregate principal amount of its 7.15% Series B
Senior Notes (the "Series B Notes" and, collectively with the Series A
Notes, the "Notes") to be dated the date of issue, to bear interest from
such date at the rate of 7.15% per annum, payable semiannually on the
first day of each November and May in each year (commencing on the first
of such dates after the Closing Date (hereinafter defined)) and at
maturity and to bear interest on overdue principal (including any overdue
required or optional prepayment of principal) and premium, if any, and (to
the extent legally enforceable) on any overdue installment of interest at
the rate of 9.15% per annum after the date due, whether by acceleration or
otherwise, until paid, to be expressed to mature on November 1, 2002, and
to be substantially in the form attached hereto as Exhibit A-2.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months. The Notes are not subject to prepayment or redemption at
the option of the Company prior to their expressed maturity dates except on the
terms and conditions and in the amounts and with the premium, if any, set forth
in Section 2 of this Agreement. The term "Notes" as used herein shall include
each Note delivered pursuant to this Agreement and the separate agreements with
the other purchasers named in Schedule I. You and the other purchasers named
in Schedule I are hereinafter sometimes referred to as the "Purchasers."
Section 1.2. Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to you, and you
agree to purchase from the Company, Notes of the series and in the principal
amount set forth opposite your name on Schedule I hereto at a price of 100% of
the principal amount thereof on the Closing Date hereafter mentioned.
Delivery of the Notes will be made at the offices of Chapman and Cutler,
111 West Monroe Street, Chicago, Illinois 60603, against payment therefor in
Federal Reserve or other funds current and immediately available at the
principal office of NationsBank, N.A., ABA No. 06 10 00052, Account No. 002
00000 711 in the amount of the purchase price at 11:00 A.M., Chicago time, on:
(a) in the case of the Series A Notes, November 6, 1992 or such
earlier date as the Company shall specify by not less than five business
days' prior written notice to you (the "First Closing Date"); and
(b) in the case of the Series B Notes, December 15, 1992 or such
earlier date as the Company shall specify by not less than five business
days' prior written notice to you (the "Second Closing Date").
The First Closing Date and the Second Closing Date are hereinafter
collectively referred to as the "Closing Dates" and, individually, as a
"Closing Date." The Notes of each series delivered to you on the respective
Closing Dates will be delivered to you in the form of a single registered Note
of such series in the form attached hereto as Exhibit A-1 or Exhibit A-2, as
the case may be, for the full amount of your purchase (unless different
denominations are
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Savannah Foods & Industries, Inc. Note Agreement
specified by you) on such Closing Date, registered in your name or in the name
of your nominee, all as you may specify at any time prior to the date fixed for
delivery.
Section 1.3. Other Agreements. Simultaneously with the execution and
delivery of this Agreement, the Company is entering into similar agreements
with the other Purchasers under which such other Purchasers agree to purchase
from the Company the principal amount of Notes of each series set opposite such
Purchasers' names in Schedule I, and your obligation and the obligations of the
Company hereunder are subject to the execution and delivery of the similar
agreements by the other Purchasers. This Agreement and said similar agreements
with the other Purchasers are herein collectively referred to as the
"Agreements." The obligations of each Purchaser shall be several and not joint
and no Purchaser shall be liable or responsible for the acts of any other
Purchaser.
SECTION 2. PREPAYMENT OF NOTES.
Section 2.1. Required Prepayments
(a) Series A Notes. The Company agrees that on November 1 in each year,
commencing November 1, 1998 and ending November 1, 2001, both inclusive, it
will prepay and apply and there shall become due and payable on the principal
indebtedness evidenced by the Series A Notes an amount equal to the lesser of
(i) the respective amount set opposite each such date below or (ii) the
principal amount of the Series A Notes then outstanding.
REQUIRED PREPAYMENT DATE: PRINCIPAL AMOUNT:
------------------------- -----------------
November 1, 1998 $ 6,250,000
November 1, 1999 $12,500,000
November 1, 2000 $12,500,000
November 1, 2001 $12,500,000
The entire remaining principal amount of the Series A Notes shall become due
and payable on November 1, 2002.
(b) Series B Notes. The Company agrees that on November 1 in each year,
commencing November 1, 1998 and ending November 1, 2001, both inclusive, it
will prepay and apply and there shall become due and payable on the principal
indebtedness evidenced by the Series B Notes an amount equal to the lesser of
(i) the respective amount set opposite each such date below or (ii) the
principal amount of the Series B Notes then outstanding.
REQUIRED PREPAYMENT DATE: PRINCIPAL AMOUNT:
------------------------- -----------------
November 1, 1998 $ 2,500,000
November 1, 1999 $ 5,000,000
November 1, 2000 $ 5,000,000
November 1, 2001 $ 5,000,000
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Savannah Foods & Industries, Inc. Note Agreement
The entire remaining principal amount of the Series B Notes shall become due
and payable on November 1, 2002.
(c) No premium shall be payable in connection with any required prepayment
made pursuant to this Section 2.1.
(d) For purposes of this Section 2.1, any prepayment of less than all of
the outstanding Notes pursuant to Section 2.2 shall be deemed to be applied
first, to the amount of principal scheduled to remain unpaid on all Notes on
November 1, 2002, and then to the remaining scheduled principal payments in
inverse chronological order.
Section 2.2. Optional Prepayment with Premium. In addition to the
payments required by Section 2.1, upon compliance with Section 2.3 the Company
shall have the privilege, at any time and from time to time, of prepaying the
outstanding Notes, either in whole or in part (but if in part then in a minimum
principal amount of $1,000,000) by payment of the principal amount of the
Notes, or portion thereof to be prepaid, and accrued interest thereon to the
date of such prepayment, together with a premium equal to the Make-Whole
Amount, determined as of two business days prior to the date of such prepayment
pursuant to this Section 2.2.
Section 2.3. Notice of Optional Prepayments. The Company will give
notice of any prepayment of the Notes pursuant to Section 2.2 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment specifying (i) such date, (ii) the principal amount of
the holder's Notes to be prepaid on such date, (iii) that a premium may be
payable, (iv) the date when such premium will be calculated, (v) the estimated
premium that may be payable, including a reasonably detailed computation
thereof, and (vi) the accrued interest applicable to the prepayment. Such
notice of prepayment shall also certify all facts, if any, which are conditions
precedent to any such prepayment. Notice of prepayment having been so given,
the aggregate principal amount of the Notes specified in such notice, together
with accrued interest thereon and the premium, if any, payable with respect
thereto shall become due and payable on the prepayment date specified in said
notice. Not later than two business days prior to the prepayment date
specified in such notice, the Company shall provide each holder of a Note
written notice of the premium, if any, payable in connection with such
prepayment and, whether or not any premium is payable, a reasonably detailed
computation of the Make-Whole Amount.
Section 2.4. Application of Prepayments. All partial payments pursuant
to Section 2.1 in respect of any series of Notes shall be applied on all
outstanding Notes of such series ratably in accordance with the unpaid
principal amounts thereof. All partial prepayments pursuant to Section 2.2
shall be applied on all outstanding Notes (without distinction as to series)
ratably in accordance with the unpaid principal amounts thereof.
Section 2.5. Direct Payment. Notwithstanding anything to the contrary
contained in this Agreement or the Notes, in the case of any Note owned by you
or your nominee or owned by any subsequent Institutional Holder which has given
written notice to the Company requesting that the provisions of this Section
2.5 shall apply, the Company will punctually pay when due the principal
thereof, interest thereon and premium, if any, due with respect to said
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Savannah Foods & Industries, Inc. Note Agreement
principal, without any presentment thereof, directly to you, to your nominee or
to such subsequent Institutional Holder at your address or your nominee's
address set forth in Schedule I hereto or such other address as you, your
nominee or such subsequent Institutional Holder may from time to time designate
in writing to the Company or, if a bank account with a United States bank is
designated for you or your nominee on Schedule I hereto or in any written
notice to the Company from you, from your nominee or from any such subsequent
Institutional Holder, the Company will make such payments in immediately
available funds to such bank account, marked for attention as indicated, or in
such other manner or to such other account in any United States bank as you,
your nominee or any such subsequent Institutional Holder may from time to time
direct in writing.
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company represents and
warrants that all representations and warranties set forth in Exhibit B are
true and correct as of the date hereof and are incorporated herein by reference
with the same force and effect as though herein set forth in full.
Section 3.2. Representations of the Purchaser. You represent, and in
entering into this Agreement the Company understands, that you are acquiring
the Notes for the purpose of investment and not with a view to the distribution
thereof, and that you have no present intention of selling, negotiating or
otherwise disposing of the Notes; it being understood, however, that the
disposition of your property shall at all times be and remain within your
control. You further represent that you are acquiring the Notes for your own
account and with your general corporate assets and not with the assets of any
separate account in which any employee benefit plan has any interest. As used
in this Section, the terms "separate account" and "employee benefit plan" shall
have the respective meanings assigned to them in ERISA.
SECTION 4. CLOSING CONDITIONS.
Section 4.1. Conditions. Your obligation to purchase the Notes on the
related Closing Date shall be subject to the performance by the Company of its
agreements hereunder which by the terms hereof are to be performed at or prior
to the time of delivery of the Notes and to the following further conditions
precedent:
(a) Closing Certificate. You shall have received a certificate dated
the related Closing Date, signed by the President or a Vice President of
the Company, the truth and accuracy of which shall be a condition to your
obligation to purchase the Notes proposed to be sold to you (i) to the
effect that (A) the representations and warranties of the Company set
forth in Exhibit B hereto are true and correct on and with respect to the
related Closing Date, (B) the Company has performed all of its obligations
hereunder which are to be performed on or prior to the related Closing
Date, and (C) no Default or Event of Default has occurred and is
continuing, and (ii) updating Annex B to Exhibit B hereto so as to
describe all Current Debt, Funded Debt, Capitalized Leases and Long-
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Savannah Foods & Industries, Inc. Note Agreement
Term Leases of the Company outstanding on the related Closing Date, after
giving effect to the application of the proceeds of the Notes.
(b) Legal Opinions. You shall have received from Chapman and Cutler,
who are acting as your special counsel in this transaction, and from
Miller, Simpson & Tatum, counsel for the Company, their respective
opinions dated the related Closing Date, in form and substance
satisfactory to you, and covering the matters set forth in Exhibits C and
D, respectively, hereto.
(c) Related Transactions. The Company shall have consummated the
sale of the entire principal amount of the Notes scheduled to be sold on
the related Closing Date pursuant to this Agreement and the other
Agreements referred to in Section 1.3. The consummation of the
transactions contemplated to occur on the First Closing Date shall have so
occurred in accordance with the terms and provisions hereof on or prior to
the Second Closing Date.
(d) Private Placement Number. A Private Placement Number for the
Notes shall have been obtained from Standard & Poor's Corporation.
(e) Satisfactory Proceedings. All proceedings taken in connection
with the transactions contemplated by this Agreement, and all documents
necessary to the consummation thereof, shall be satisfactory in form and
substance to you and your special counsel, and you shall have received a
copy (executed or certified as may be appropriate) of all legal documents
or proceedings taken in connection with the consummation of said
transactions.
Section 4.2. Waiver of Conditions. If on any Closing Date the Company
fails to tender to you the Notes to be issued to you on such date or if the
conditions specified in Section 4.1 have not been fulfilled, you may thereupon
elect to be relieved of all further obligations under this Agreement. Without
limiting the foregoing, if the conditions specified in Section 4.1 have not
been fulfilled, you may waive compliance by the Company with any such condition
to such extent as you may in your sole discretion determine. Nothing in this
Section 4.2 shall operate to relieve the Company of any of its obligations
hereunder or to waive any of your rights against the Company.
SECTION 5. COMPANY COVENANTS.
From and after the First Closing Date and continuing so long as any amount
remains unpaid on any Note:
Section 5.1. Corporate Existence, Etc. The Company will preserve and keep
in full force and effect, and will cause each Restricted Subsidiary to preserve
and keep in full force and effect, its corporate existence and all licenses and
permits necessary to the proper conduct of its business; provided, however,
that the foregoing shall not prevent any transaction permitted by Section 5.12.
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Section 5.2. Insurance. The Company will maintain, and will cause each
Restricted Subsidiary to maintain, insurance coverage by financially sound and
reputable insurers in such forms and amounts and against such risks as are
customary for corporations of established reputation engaged in the same or a
similar business and owning and operating similar properties. Notwithstanding
the foregoing, each policy of insurance maintained by the Company or any
Restricted Subsidiary shall contain a 30 day non-cancellation clause.
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with Laws;
Environmental Compliance. (a) The Company will promptly pay and discharge, and
will cause each Restricted Subsidiary promptly to pay and discharge, all lawful
taxes, assessments and governmental charges or levies imposed upon the Company
or such Restricted Subsidiary, respectively, or upon or in respect of all or
any part of the property or business of the Company or such Restricted
Subsidiary, all trade accounts payable in accordance with usual and customary
business terms, and all claims for work, labor or materials, which if unpaid
might become a Lien upon any property of the Company or such Restricted
Subsidiary; provided, however, that the Company or such Restricted Subsidiary
shall not be required to pay any such tax, assessment, charge, levy, account
payable or claim if (i) the validity, applicability or amount thereof is being
contested in good faith by appropriate actions or proceedings which will
prevent the forfeiture or sale of any property of the Company or such
Restricted Subsidiary or any material interference with the use thereof by the
Company or such Restricted Subsidiary, and (ii) the Company or such Restricted
Subsidiary shall set aside on its books, reserves deemed by it to be adequate
with respect thereto. The Company will promptly comply and will cause each
Subsidiary to comply with all laws, ordinances or governmental rules and
regulations to which it is subject including, without limitation, the
Occupational Safety and Health Act of 1970, as amended and ERISA, the violation
of which could materially and adversely affect the properties, business,
prospects, profits or condition of the Company and its Restricted Subsidiaries
or would result in any Lien not permitted under Section 5.10.
(b) The Company shall comply with all applicable Environmental Laws, now
existing or later enacted, except where the failure to so comply could not have
a material adverse effect on the business, profits, prospects, properties or
condition (financial or otherwise) of the Company or any Restricted Subsidiary.
The Company at its sole expense shall take or cause to be taken all appropriate
action necessary to cure any violation by the Company of any applicable
Environmental Laws, which violation could have a material adverse effect on the
business, profits, prospects, properties or condition (financial or otherwise)
of the Company or any Restricted Subsidiary. The Company shall not
manufacture, possess, use, generate, store, transport, treat, release,
discharge, emit or dispose any Hazardous Material except in de minimus amounts
and in compliance in all material respects with all applicable Environmental
Law. The Company shall promptly take, or cause to be taken, in compliance with
all applicable Environmental Law, all response action required or directed by
any governmental authority to abate, clean up, remove and remediate any
Hazardous Material released at, disposed at, contaminating, polluting or
impairing, any real or personal property owned, occupied or operated by the
Company.
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Section 5.4. Maintenance, Etc. The Company will maintain, preserve and
keep, and will cause each Restricted Subsidiary to maintain, preserve and keep,
its properties which are used or useful in the conduct of its business (whether
owned in fee or a leasehold interest) in good repair and working order and from
time to time will make all necessary repairs, replacements, renewals and
additions so that at all times the efficiency thereof shall be maintained.
Section 5.5. Nature of Business. Neither the Company nor any Restricted
Subsidiary will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Company and its Restricted Subsidiaries would be substantially changed from
the general nature of the business engaged in by the Company and its Restricted
Subsidiaries as described in the Private Placement Offering Memorandum dated
April, 1992, prepared by Canadian Imperial Bank of Commerce.
Section 5.6. Current Ratio. The Company will at all times keep and
maintain the ratio of Consolidated Current Assets to Consolidated Current
Liabilities at not less than 1.25 to 1.00.
Section 5.7. Consolidated Tangible Net Worth. The Company will at all
times during each fiscal quarter keep and maintain Consolidated Tangible Net
Worth at an amount not less than the sum of:
(i) the Base Amount;
plus
(ii) 20% of Consolidated Net Income for each fiscal year of the
Company, beginning with the fiscal year starting December 30, 1991 and
ending with the fiscal year starting January 2, 1996 (it being agreed that
for the purposes of making any calculation under this clause (ii),
Consolidated Net Income which is a deficit figure for any such fiscal year
ending on or before December 30, 1996, shall be deemed to be zero).
Section 5.8. Indebtedness Ratios. (a) The Company will not at any time
permit the ratio of Consolidated Funded Debt to Total Capitalization to exceed
45%.
(b) The Company will not at any time permit the ratio of Basket
Indebtedness to Consolidated Tangible Net Worth to exceed 20%.
(c) Any corporation which becomes a Restricted Subsidiary after the date
hereof shall for all purposes of this Section 5.8 be deemed to have created,
assumed or incurred at the time it becomes a Restricted Subsidiary all Funded
Debt of such corporation existing immediately after it becomes a Restricted
Subsidiary.
Section 5.9. Fixed Charges Coverage Ratio. The Company will keep and
maintain the ratio of Net Income Available for Fixed Charges to Fixed Charges
(determined as of the
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end of each fiscal quarter for the period of four consecutive fiscal quarters
ending on such quarter end date, taken as a single accounting period) at not
less than 2.00 to 1.00.
Section 5.10. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create or incur, or suffer to be incurred
or to exist, any Lien on its or their property or assets, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of obligations
in priority to the payment of its or their general creditors, or acquire or
agree to acquire, or permit any Restricted Subsidiary to acquire, any property
or assets upon conditional sales agreements or other title retention devices,
except:
(a) Liens for property taxes and assessments or governmental charges
or levies and Liens securing claims or demands of mechanics and
materialmen, provided payment thereof is not at the time required by
Section 5.3;
(b) Liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or
in respect of which the Company or a Restricted Subsidiary shall at any
time in good faith be prosecuting an appeal or proceeding for a review and
in respect of which a stay of execution pending such appeal or proceeding
for review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of
properties and assets (including Liens in connection with worker's
compensation, unemployment insurance and other like laws, warehousemen's
and attorneys' liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to secure
statutory obligations, surety or appeal bonds or other Liens of like
general nature incurred in the ordinary course of business and not in
connection with the borrowing of money; provided in each case, the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Company and its Restricted Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Company and its Restricted Subsidiaries;
(e) Liens securing Indebtedness of a Wholly-owned Restricted
Subsidiary to the Company or to another Wholly-owned Restricted Subsidiary
and any extension, renewal or replacement of any such Lien provided, that
(i) the Lien so extended, renewed or replaced shall not encumber any
property of the Company or any Restricted Subsidiary which was not subject
to the Lien so extended, renewed or replaced, and (ii) there shall be no
increase in the principal amount of Indebtedness secured by such Lien;
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(f) Liens on inventories of the Company consisting of sugar
processed from sugar beets and sugarcane securing Current Debt of the
Company or any Restricted Subsidiary to the United States Commodity Credit
Corporation, provided that the sole recourse of the United States
Commodity Credit Corporation for any Current Debt so secured shall be to
the related seasonal sugar inventories of the Company and shall not extend
to any other sugar inventories whether existing at the time such Current
Debt is incurred or arising thereafter or to the general credit of the
Company;
(g) Liens incurred after the Closing Date given to secure the
payment of the purchase price incurred in connection with the acquisition
of fixed assets useful and intended to be used in carrying on the business
of the Company or a Restricted Subsidiary, including Liens existing on
such fixed assets at the time of acquisition thereof or at the time of
acquisition by the Company or a Restricted Subsidiary of any business
entity then owning such fixed assets, whether or not such existing Liens
were given to secure the payment of the purchase price of the fixed assets
to which they attach so long as they were not incurred, extended or
renewed in contemplation of such acquisition, provided that (i) the Lien
shall attach solely to the fixed assets acquired or purchased, (ii) at the
time of acquisition of such fixed assets, the aggregate amount remaining
unpaid on all Indebtedness secured by Liens on such fixed assets whether
or not assumed by the Company or a Restricted Subsidiary shall not exceed
an amount equal to 100% of the lesser of the total purchase price or fair
market value at the time of acquisition of such fixed assets (as
determined in good faith by the Board of Directors of the Company), and
(iii) all Indebtedness secured by such Liens is otherwise permitted by the
provisions of this Agreement, including, without limitation thereof, by
the provisions of Section Section 5.8 and 5.9 (all such Liens incurred
pursuant to and in accordance with this Section 5.10(G) being hereinafter
referred to as "Purchase Money Liens"); and
(h) in addition to those Liens permitted by the foregoing paragraphs
(a) through (g), any Lien (other than any Lien securing Debt of the
Company or any Restricted Subsidiary which is not a Purchase Money Lien)
created after the Closing Date, provided that the Indebtedness secured by
any such Lien is otherwise permitted by the provisions of this Agreement,
including, without limitation thereof, by the provisions of Section
Section 5.8 and 5.9.
Section 5.11. Investments. The Company will not, and will not permit any
Restricted Subsidiary to, make any Investments, other than:
(a) Investments by the Company and its Restricted Subsidiaries in
and to Restricted Subsidiaries, including any Investment in a corporation
which, after giving effect to such Investment, will become a Restricted
Subsidiary;
(b) Investments in commercial paper of any Person maturing in 360
days or less from the date of issuance thereof which, at the time of
acquisition by the Company or any Restricted Subsidiary, are accorded a
rating of A-1 or better by Standard & Poor's Corporation or P-1 by Moody's
Investors Service, Inc.;
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Savannah Foods & Industries, Inc. Note Agreement
(c) Investments in (i) direct obligations of the United States of
America or any agency or instrumentality of the United States of America,
the payment or guarantee of which constitutes a full faith and credit
obligation of the United States of America, in either case, maturing in
twelve months or less from the date of acquisition thereof, and (ii)
obligations (including, without limitation, notes and bonds) of any Person
which at the time of acquisition by the Company or any Restricted
Subsidiary, are accorded a rating of AA or better by Standard & Poor's
Corporation or Aa2 or better by Moody's Investors Service, Inc., or their
respective successors, and which mature in twelve months or less from the
date of acquisition thereof, it being agreed that the maturity of any
obligation shall include puts, announced calls, auctions or other similar
features which allow redemption by the holder of any such obligation;
(d) Investments in deposits, certificates of deposit or bankers'
acceptances, in each case maturing within one year from the date of
issuance thereof, issued by a bank or trust company approved by the Board
of Directors of the Company, organized under the laws of the United States
or any state thereof, having capital, surplus and undivided profits
aggregating at least $100,000,000 and whose long-term certificates of
deposit at the time of acquisition thereof by the Company or a Restricted
Subsidiary, are accorded a rating of A or better by Standard & Poor's
Corporation or A2 or better by Moody's Investors Service, Inc., or their
respective successors;
(e) Investments in so-called "money market preferred stock", (the
dividends with respect to which are re-set at least four times annually)
issued by a corporation organized under the laws of the United States or
any state thereof and whose common stock is listed on the American or New
York Stock Exchange, which preferred stock at the time of acquisition
thereof by the Company or any Restricted Subsidiary, is accorded a rating
of "A" or better by Standard and Poor's Corporation or "a2" or better by
Moody's Investor Service, Inc., or an equivalent rating by any other
nationally recognized credit rating agency of similar standing;
(f) Investments in repurchase agreements maturing in 30 days or less
with a bank or trust company which is a primary government securities
dealer (as chosen by the United States Federal Reserve Bank) or which
meets the requirements of paragraph (d) of this Section 5.11 and which
repurchase agreements are fully secured by obligations of the type
described in clause (i) of paragraph (c) of this Section 5.11;
(g) Investments in shares of mutual funds operated by Merrill Lynch
& Co., Smith Barney, Harris Upham & Co. and John Nuveen & Co., and other
United States corporations of similar national standing approved by the
Board of Directors of the Company, in any case whose investments are
limited to those permitted by paragraphs (b), (c), (d) and (e) of this
Section 5.11;
(h) loans or advances in the usual and ordinary course of business
to officers, directors and employees for expenses (including moving
expenses related to a transfer) incidental to carrying on the business of
the Company or any Restricted Subsidiary;
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Savannah Foods & Industries, Inc. Note Agreement
(i) receivables arising from the sale of goods and services in the
ordinary course of business of the Company and its Restricted
Subsidiaries, whether evidenced by a note or otherwise;
(j) Related Investments in an amount not exceeding (i) 30% of Total
Capitalization minus (ii) the amount of Unrelated Investments at the time
outstanding;
(k) Unrelated Investments in an amount not exceeding the lesser of
(i) $20,000,000 or (ii) (A) 30% of Total Capitalization minus (B) the
amount of Related Investments at the time outstanding.
In valuing any Investments for the purpose of applying the limitations set
forth in this Section 5.11, such Investments shall be taken at the original
cost thereof, without allowance for any subsequent write-offs or appreciation
or depreciation therein, but less any amount repaid or recovered on account of
capital or principal.
For purposes of this Section 5.11, at any time when a corporation becomes
a Restricted Subsidiary, all Investments of such corporation at such time shall
be deemed to have been made by such corporation, as a Restricted Subsidiary, at
such time.
Section 5.12. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any Restricted Subsidiary to, (i)
consolidate with or be a party to a merger with any other corporation or (ii)
sell, lease or otherwise dispose of (including, without limitation, any
disposition in connection with a sale and leaseback transaction) all or any
substantial part (as defined in paragraph (e) of this Section 5.12) of the
assets of the Company and its Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or into
the Company or any Wholly-owned Restricted Subsidiary so long as in any
merger or consolidation involving the Company, the Company shall be the
surviving or continuing corporation;
(2) the Company may consolidate or merge with any other corporation
if (i) either (A) the Company shall be the surviving or continuing
corporation, or (B) if the Company is not the surviving or continuing
corporation, the corporation (hereinafter called the "Surviving Company")
formed by such consolidation or the corporation into which the Company
shall have been merged (y) shall be a corporation organized under the laws
of the United States, or any state, territory or possession of the United
States or the District of Columbia, (z) shall have expressly and
unconditionally assumed by a written instrument satisfactory in form to
the holders of the Notes the due and punctual payment of the principal of
and interest and premium, if any, on the Notes and the due and punctual
performance of all the covenants and conditions of this Agreement and
shall have furnished the holders of the Notes an opinion of counsel
satisfactory to such holders to the effect that such instrument has been
duly authorized, executed and delivered and constitutes the legal, valid
and binding contract and agreement of the Surviving Corporation
enforceable in accordance with its terms, (ii) at the time of such
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consolidation or merger and after giving effect thereto no Default or
Event of Default shall have occurred and be continuing; and
(3) any Restricted Subsidiary may sell, lease or otherwise dispose
of all or any substantial part of its assets to the Company or any
Wholly-owned Restricted Subsidiary.
(b) The Company will not permit any Restricted Subsidiary to issue or
sell any shares of stock of any class (including as "stock" for the purposes of
this Section 5.12, any warrants, rights or options to purchase or otherwise
acquire stock or other Securities exchangeable for or convertible into stock)
of such Restricted Subsidiary to any Person other than the Company or a
Wholly-owned Restricted Subsidiary, except for the purpose of qualifying
directors, or except in satisfaction of the validly pre-existing preemptive
rights of minority shareholders in connection with the simultaneous issuance of
stock to the Company and/or a Restricted Subsidiary whereby the Company and/or
such Restricted Subsidiary maintain their same proportionate interest in such
Restricted Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any
shares of stock of any Restricted Subsidiary (except to qualify directors) or
any Indebtedness of any Restricted Subsidiary, and will not permit any
Restricted Subsidiary to sell, transfer or otherwise dispose of (except to the
Company or a Wholly-owned Restricted Subsidiary) any shares of stock or any
Indebtedness of any other Restricted Subsidiary, unless:
(1) the Board of Directors of the Company shall have determined, as
evidenced by a resolution thereof (a copy of which, certified as true and
correct by the chief financial officer of the Company, shall be promptly
furnished to the holders of the Notes), that the proposed sale, transfer
or disposition of said shares of stock and Indebtedness is in the best
interests of the Company; and
(2) such sale or other disposition does not involve a substantial
part (as hereinafter defined) of the assets of the Company and its
Restricted Subsidiaries.
(d) In addition to the foregoing restrictions with respect to the sale of
assets contained in this Section 5.12, the Company will not, and will not
permit any Restricted Subsidiary to, discount or sell any of its notes
receivable or accounts receivable other than at face value and without
recourse.
(e) As used in this Section 5.12, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Company
and its Restricted Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by the
Company and its Restricted Subsidiaries (other than in the ordinary course of
business) during the 12-month period ending with the date of such sale, lease
or other disposition, exceeds 20% of Consolidated Assets, determined as of the
end of the immediately preceding fiscal year. Any sale of assets shall not be
included in any computation under this paragraph (e) to the extent that the
proceeds of such sale are applied, within one year after such sale, (i) to the
purchase of other fixed assets useful and to be used in
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the business of the Company and its Restricted Subsidiaries and, pending such
application, are maintained by the Company or any Restricted Subsidiary in a
segregated account or (ii) to prepay the Notes pursuant to the terms of Section
2.2.
Section 5.13. Guaranties. The Company will not, and will not permit any
Restricted Subsidiary to, become or be liable in respect of any Guaranty except
(i) Guaranties of the Company or any Restricted Subsidiary guaranteeing
obligations of any Restricted Subsidiary incurred in the ordinary course of
business, which obligations do not constitute Debt and are not otherwise
prohibited hereunder, or (ii) Guaranties of the Company or any Restricted
Subsidiary which constitute Debt, are limited in amount to a stated maximum
dollar exposure or contribution and are permitted by the provisions of this
Agreement including, without limitation, Section Section 5.8 and 5.9.
Section 5.14. Designation of Restricted Subsidiaries. The Company may at
any time designate any Subsidiary to be a Restricted Subsidiary by resolution
of the Board of Directors of the Company (a copy of which shall be promptly
furnished to the holders of the Notes); provided, however, that no Subsidiary
shall be designated as a Restricted Subsidiary if, at the time thereof or after
giving effect to such designation, any Default or Event of Default shall occur
and then be continuing. The Company may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary by resolution of the Board of Directors of the
Company (a copy of which shall be promptly furnished to the holders of the
Notes); provided, however, that (i) no Restricted Subsidiary shall be
designated an Unrestricted Subsidiary if, at the time thereof or after giving
effect to such designation, any Default or Event of Default shall exist and
(ii) any such designation of a Restricted Subsidiary as an Unrestricted
Subsidiary shall be irrevocable.
Section 5.15. Repurchase of Notes. Neither the Company nor any Restricted
Subsidiary or Affiliate, directly or indirectly, may repurchase or make any
offer to repurchase any Notes unless an offer has been made to repurchase
Notes, pro rata, from all holders of the Notes at the same time and upon the
same terms. In case the Company repurchases or otherwise acquires any Notes,
such Notes shall immediately thereafter be cancelled and no Notes shall be
issued in substitution therefor. Without limiting the foregoing, upon the
repurchase or other acquisition of any Notes by any Restricted Subsidiary or
any Affiliate, such Notes shall no longer be outstanding for purposes of any
section of this Agreement relating to the taking by the holders of the Notes of
any actions with respect hereto, including, without limitation, Section 6.3,
Section 6.4 and Section 7.1.
Section 5.16. Transactions with Affiliates. The Company will not, and
will not permit any Restricted Subsidiary to, enter into or be a party to any
transaction or arrangement with any Affiliate (including, without limitation,
the purchase from, sale to or exchange of property with, or the rendering of
any service by or for, any Affiliate), except in the ordinary course of and
pursuant to the reasonable requirements of the Company's or such Restricted
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Restricted Subsidiary than would obtain in a comparable
arm's-length transaction with a Person other than an Affiliate.
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Section 5.17. Termination of Pension Plans. The Company will not and
will not permit any Subsidiary to withdraw from any Multiemployer Plan or
permit any employee benefit plan maintained by it to be terminated if such
withdrawal or termination could result in withdrawal liability (as described in
Part 1 of Subtitle E of Title IV of ERISA) or the imposition of a Lien on any
property of the Company or any Subsidiary pursuant to Section 4068 of ERISA.
Section 5.18. Reports and Rights of Inspection. The Company will keep,
and will cause each Restricted Subsidiary to keep, proper books of record and
account in which full and correct entries will be made of all dealings or
transactions of, or in relation to, the business and affairs of the Company or
such Restricted Subsidiary, in accordance with GAAP consistently applied
(except for changes disclosed in the financial statements furnished to you
pursuant to this Section 5.18 and concurred in by the independent public
accountants referred to in Section 5.18(B) hereof), and will furnish to you so
long as you are the holder of any Note and to each other Institutional Holder
of the then outstanding Notes (in duplicate if so specified below or otherwise
requested):
(a) Quarterly Statements. As soon as available and in any event
within 60 days after the end of each quarterly fiscal period (except the
last) of each fiscal year, copies of:
(1) consolidated balance sheets of the Company and its
Restricted Subsidiaries as of the close of such quarterly fiscal
period, setting forth in comparative form the consolidated figures
for the fiscal year then most recently ended,
(2) consolidated statements of income of the Company and its
Restricted Subsidiaries for such quarterly fiscal period and for the
portion of the fiscal year ending with such quarterly fiscal period,
in each case setting forth in comparative form the consolidated
figures for the corresponding periods of the preceding fiscal year,
and
(3) consolidated statements of cash flows of the Company and
its Restricted Subsidiaries for the portion of the fiscal year ending
with such quarterly fiscal period, setting forth in comparative form
the consolidated figures for the corresponding period of the
preceding fiscal year,
all in reasonable detail and certified as complete and correct by an
authorized financial officer of the Company;
(b) Annual Statements. As soon as available and in any event within
120 days after the close of each fiscal year of the Company, copies of:
(1) consolidated and consolidating balance sheets of the
Company and its Restricted Subsidiaries as of the close of such
fiscal year, and
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(2) consolidated and consolidating statements of income and
retained earnings and cash flows of the Company and its Restricted
Subsidiaries for such fiscal year,
in each case setting forth in comparative form the consolidated figures
for the preceding fiscal year, all in reasonable detail and accompanied by
a report thereon of a firm of independent public accountants of recognized
national standing selected by the Company to the effect that the
consolidated financial statements present fairly, in all material respects,
the consolidated financial position of the Company and its Restricted
Subsidiaries as of the end of the fiscal year being reported on and the
consolidated results of the operations and cash flows for said year in
conformity with GAAP and that the examination of such accountants in
connection with such financial statements has been conducted in accordance
with generally accepted auditing standards and included such tests of the
accounting records and such other auditing procedures as said accountants
deemed necessary in the circumstances;
(c) Audit Reports. Promptly upon receipt thereof, one copy of each
interim or special audit made by independent accountants of the books of
the Company or any Restricted Subsidiary, the subject matter of which could
have a material adverse effect on the assets, business, operations or
financial condition of the Company or such Restricted Subsidiary, as the
case may be, and any management letter received from such accountants;
(d) SEC and Other Reports. Promptly upon their becoming available,
one copy of each financial statement, report, notice or proxy statement
sent by the Company to stockholders generally and of each regular or
periodic report, and any registration statement or prospectus filed by the
Company or any Subsidiary with any securities exchange or the Securities
and Exchange Commission or any successor agency, and copies of any material
orders in any material proceedings to which the Company or any of its
Subsidiaries is a party, issued by any governmental agency, Federal or
state, having jurisdiction over the Company or any of its Subsidiaries;
(e) ERISA Reports. Promptly upon the occurrence thereof, written
notice of (i) a Reportable Event with respect to any Plan as to which the
PBGC by regulation has not waived the 30 day notification requirement;
provided, however, that the loss of plan qualification and the failure to
meet the minimum funding standards shall be Reportable Events requiring
notice hereunder regardless of the issuance of any waivers of notice to the
PBGC; (ii) the institution of any steps by the Company, any ERISA
Affiliate, the PBGC or any other person to terminate any Plan by means of a
distress termination under Section 4041(c) of ERISA or an involuntary
termination under Section 4042 of ERISA; (iii) the institution of any steps
by the Company or any ERISA Affiliate to withdraw from any Plan which would
result in withdrawal liability in excess of $1,000,000; (iv) a non-exempt
"prohibited transaction" within the meaning of Section 406 of ERISA in
connection with any Plan; (v) any material increase in the contingent
liability of the Company or any Restricted Subsidiary with respect to any
post-retirement welfare liability; or (vi) the taking of any action by, or
the threatening of
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the taking of any action by, the Internal Revenue Service, the
Department of Labor or the PBGC with respect to any of the foregoing;
(f) Officer's Certificates. Within the periods provided in paragraphs
(a) and (b) above, a certificate of an authorized financial officer of the
Company stating that such officer has reviewed the provisions of this
Agreement and setting forth: (i) the information and computations (in
sufficient detail) required in order to establish whether the Company was
in compliance with the requirements of Section 5.6 through Section 5.17 at
the end of the period covered by the financial statements then being
furnished, and (ii) whether there existed as of the date of such financial
statements and whether, to the best of such officer's knowledge, there
exists on the date of the certificate or existed at any time during the
period covered by such financial statements (including, specifically, at
the time of any designation of a Subsidiary as a Restricted Subsidiary or
as an Unrestricted Subsidiary) any Default or Event of Default and, if any
such condition or event exists on the date of the certificate, specifying
the nature and period of existence thereof and the action the Company is
taking and proposes to take with respect thereto;
(g) Accountant's Certificates. Within the period provided in
paragraph (b) above, a certificate of the accountants who render an opinion
with respect to such financial statements, stating that they have reviewed
this Agreement and stating further whether, in making their audit, such
accountants have become aware of any Default or Event of Default under any
of the terms or provisions of this Agreement insofar as any such terms or
provisions pertain to or involve accounting matters or determinations, and
if any such condition or event then exists, specifying the nature and
period of existence thereof;
(h) Unrestricted Subsidiaries. Within the periods provided in
paragraph (b) above, financial statements of the character and for the
dates and periods as in said paragraph (b) provided covering each
Unrestricted Subsidiary (or groups of Unrestricted Subsidiaries on a
consolidated basis); and
(i) Requested Information. With reasonable promptness, such other
data and information as you or any such Institutional Holder may reasonably
request.
Without limiting the foregoing, the Company will permit you, so long as you are
the holder of any Note, and each Institutional Holder of the then outstanding
Notes (or such Persons as either you or such Institutional Holder may
designate), to visit and inspect, under the Company's guidance, any of the
properties of the Company or any Restricted Subsidiary, to examine all of their
books of account, records, reports and other papers, to make copies and
extracts therefrom and to discuss their respective affairs, finances and
accounts with their respective officers, employees, and independent public
accountants (and by this provision the Company authorizes said accountants to
discuss with you the finances and affairs of the Company and its Restricted
Subsidiaries) all at such reasonable times and as often as may be reasonably
requested. The Company shall not be required to pay or reimburse you or any
such holder for expenses which you or any such holder may incur in connection
with any such visitation or inspection; provided, however, that if such
visitation or inspection is made during
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any period when a Default or an Event of Default shall have occurred and be
continuing, the Company agrees to reimburse you or such holder for all such
expenses promptly on demand.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" as such term is used herein:
(a) Default shall occur in the payment of interest on any Note when
the same shall have become due and such default shall continue for more
than five days; or
(b) Default shall occur in the making of any required prepayment on
any of the Notes as provided in Section 2.1; or
(c) Default shall occur in the making of any other payment of the
principal of any Note or premium, if any, thereon at the expressed or any
accelerated maturity date or at any date fixed for prepayment; or
(d) Default shall be made in the payment when due (whether by lapse
of time, by declaration, by call for redemption or otherwise) of the
principal of or interest on any Material Debt (other than the Notes) and
such default shall continue beyond the period of grace, if any, allowed
with respect thereto; or
(e) The acceleration of any Material Debt (other than the Notes); or
(f) Default shall occur in the observance or performance of any
covenant or agreement contained in Section 5.6 through Section 5.13; or
(g) Default shall occur in the observance or performance of any
other provision of this Agreement which is not remedied within 30 days
after the earlier of (i) the day on which the Company first obtains
knowledge of such default, or (ii) the day on which written notice thereof
is given to the Company by the holder of any Note; or
(h) Any representation or warranty made by the Company herein, or
made by the Company in any statement or certificate furnished by the
Company in connection with the consummation of the issuance and delivery
of the Notes or furnished by the Company pursuant hereto, is untrue in any
material respect as of the date of the issuance or making thereof; or
(i) Final judgment or final judgments for the payment of money
aggregating in excess of $10,000,000 is or are outstanding against the
Company or any Restricted Subsidiary or against any property or assets of
either and any one of such judgments has remained unpaid, unvacated,
unbonded or unstayed by appeal or otherwise for a period of 45 days from
the date of its entry; or
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(j) The Company fails to issue the Series B Notes in the amount set
forth in Section 1.1(B) on the Second Closing Date; or
(k) A custodian, liquidator, trustee or receiver is appointed for
the Company or any Restricted Subsidiary or for the major part of the
property of either and is not discharged within 60 days after such
appointment; or
(l) The Company or any Restricted Subsidiary becomes insolvent or
bankrupt, is generally not paying its debts as they become due or makes an
assignment for the benefit of creditors, or the Company or any Restricted
Subsidiary applies for or consents to the appointment of a custodian,
liquidator, trustee or receiver for the Company or such Restricted
Subsidiary or for the major part of the property of either; or
(m) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or
against the Company or any Restricted Subsidiary and, if instituted
against the Company or any Restricted Subsidiary, are consented to or are
not dismissed within 60 days after such institution.
Section 6.2. Notice to Holders. When any Event of Default described in
the foregoing Section 6.1 has occurred, or if the holder of any Note or of any
other evidence of Funded Debt or Current Debt of the Company gives any notice
or takes any other action with respect to a claimed default, the Company agrees
to give notice within three business days of such event to all holders of the
Notes then outstanding.
Section 6.3. Acceleration of Maturities. When any Event of Default
described in paragraph (a), (b) or (c) of Section 6.1 has happened and is
continuing, any holder of any Note may, and when any Event of Default described
in paragraphs (d) through (j), inclusive, of said Section 6.1 has happened and
is continuing, the holder or holders of 25% or more of the principal amount of
Notes at the time outstanding may, by notice to the Company, declare the entire
principal and all interest accrued on all Notes to be, and all Notes shall
thereupon become, forthwith due and payable, without any presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived.
When any Event of Default described in paragraph (k), (l) or (m) of Section 6.1
has occurred, then all outstanding Notes shall immediately become due and
payable without presentment, demand or notice of any kind. Upon the Notes
becoming due and payable as a result of any Event of Default as aforesaid, the
Company will forthwith pay to the holders of the Notes the entire principal
outstanding, together with interest accrued on the Notes and, to the extent not
prohibited by applicable law, an amount as liquidated damages for the loss of
the bargain evidenced hereby (and not as a penalty) equal to the Make-Whole
Amount, determined as of the date on which the Notes shall so become due and
payable. No course of dealing on the part of the holder or holders of any
Notes nor any delay or failure on the part of any holder of Notes to exercise
any right shall operate as a waiver of such right or otherwise prejudice such
holder's rights, powers and remedies. The Company further agrees, to the
extent permitted by law, to pay to the holder or holders of the Notes all costs
and expenses incurred by them in the collection of any Notes upon any default
hereunder or
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thereon, including reasonable compensation to such holder's or holders'
attorneys for all services rendered in connection therewith.
Section 6.4. Rescission of Acceleration. The provisions of Section 6.3
are subject to the condition that if the principal of and accrued interest on
all or any outstanding Notes have been declared immediately due and payable by
reason of the occurrence of any Event of Default described in paragraphs (a)
through (j), inclusive, of Section 6.1, the holders of 66-2/3% in aggregate
principal amount of the Notes then outstanding may, by written instrument filed
with the Company, rescind and annul such declaration and the consequences
thereof, provided that at the time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment of any
monies due pursuant to the Notes or this Agreement;
(b) all arrears of interest upon all the Notes and all other sums
payable under the Notes and under this Agreement (except any principal,
interest or premium on the Notes which has become due and payable solely
by reason of such declaration under Section 6.3) shall have been duly
paid; and
(c) each and every other Default and Event of Default shall have
been made good, cured or waived pursuant to Section 7.1;
and provided further, that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.
Section 7.1. Consent Required. Any term, covenant, agreement or
condition of this Agreement may, with the consent of the Company, be amended or
compliance therewith may be waived (either generally or in a particular
instance and either retroactively or prospectively), if the Company shall have
obtained the consent in writing of the holders of at least 66-2/3% in aggregate
principal amount of outstanding Notes; provided that without the written
consent of the holders of all of the Notes then outstanding, no such amendment
or waiver shall be effective (i) which will change the time of payment
(including any prepayment required by Section 2.1) of the principal of or the
interest on any Note or change the principal amount thereof or change the rate
of interest thereon, or (ii) which will change any of the provisions with
respect to optional prepayments, or (iii) which will change the percentage of
holders of the Notes required to consent to any such amendment or waiver of any
of the provisions of this Section 7 or Section 6, or (iv) which will amend or
modify any other term or provision hereof prior to the Second Closing Date.
Section 7.2. Solicitation of Holders. So long as there are any Notes
outstanding, the Company will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement or the Notes unless each holder of Notes (irrespective of the amount
of Notes then owned by it) shall be informed thereof by the Company and shall
be afforded the opportunity of considering the same and shall be supplied
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by the Company with sufficient information to enable it to make an informed
decision with respect thereto. The Company will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any holder of Notes as consideration
for or as an inducement to entering into by any holder of Notes of any waiver
or amendment of any of the terms and provisions of this Agreement or the Notes
unless such remuneration is concurrently offered, on the same terms, ratably to
the holders of all Notes then outstanding.
Section 7.3. Effect of Amendment or Waiver. Any such amendment or waiver
shall apply equally to all of the holders of the Notes and shall be binding
upon them, upon each future holder of any Note and upon the Company, whether or
not such Note shall have been marked to indicate such amendment or waiver. No
such amendment or waiver shall extend to or affect any obligation not expressly
amended or waived or impair any right consequent thereon.
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS.
Section 8.1. Definitions. Unless the context otherwise requires, the
terms hereinafter set forth when used herein shall have the following meanings
and the following definitions shall be equally applicable to both the singular
and plural forms of any of the terms herein defined:
"Affiliate" shall mean any Person (other than a Restricted Subsidiary) (i)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Company, (ii) which
beneficially owns or holds 5% or more of any class of the Voting Stock of the
Company or (iii) 5% or more of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Base Amount" shall mean, for the purposes of any determination under
Section 5.7, $190,000,000 plus, or minus, as the case may be, any benefit, or
charge, respectively, which is attributable solely to a non-recurring
accounting change.
"Basket Indebtedness" means the sum of (i) all Indebtedness of the Company
or a Restricted Subsidiary secured by Liens other than Liens permitted by
Section Section 5.10(A) through (F) plus (without duplication) (ii) all Funded
Debt of a Restricted Subsidiary incurred subsequent to June 30, 1992.
"Capitalized Lease" shall mean any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee and its subsidiaries in accordance with GAAP.
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"Capitalized Rentals" of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean Savannah Foods & Industries, Inc., a Delaware
corporation, and any Person who succeeds to all, or substantially all, of the
assets and business of Savannah Foods & Industries, Inc.
"Consolidated Assets" shall mean, as of the date of any determination
thereof, the aggregate amount of assets of the Company and its Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP after
deducting all Investments in Unrestricted Subsidiaries.
"Consolidated Current Assets" and "Consolidated Current Liabilities" shall
mean as of the date of any determination thereof such assets and liabilities of
the Company and its Restricted Subsidiaries on a consolidated basis as shall be
determined in accordance with GAAP to constitute current assets and current
liabilities, respectively.
"Consolidated Funded Debt" shall mean all Funded Debt of the Company and
its Restricted Subsidiaries, determined on a consolidated basis eliminating
intercompany items.
"Consolidated Net Income" for any period shall mean the net income of the
Company and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP applied on a consistent basis, but excluding in any event:
(a) extraordinary items; and
(b) the effects of non-recurring accounting changes.
"Consolidated Tangible Net Worth" shall mean as of the date of any
determination thereof the aggregate amount of the capital stock (less treasury
stock), surplus and retained earnings of the Company and its Restricted
Subsidiaries after deducting (i) goodwill, patents, trade names, trademarks,
unamortized debt discount and expense, organization expense, deferred and
prepaid expenses included in assets which do not constitute current assets, the
excess of cost of shares acquired over book value of related assets, any
reappraisal, revaluation or write-up of assets and such other assets as are
properly classified as "intangible assets" in accordance with GAAP, (ii)
Investments in Unrestricted Subsidiaries, and (iii) Minority Interests.
"Current Debt" of the Company or any Restricted Subsidiary shall mean, as
of the date of any determination thereof, all Debt of the Company or such
Restricted Subsidiary having a final maturity of less than one year from the
date of origin thereof and which is not renewable
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or extendable at the option of the obligor for a period or periods of one year
or more from the date of origin.
"Debt" of the Company or any Restricted Subsidiary shall mean, as of the
date of any determination thereof:
(i) all Indebtedness of the Company or any Restricted Subsidiary for
borrowed money or evidenced by notes, bonds, debentures or similar
evidences of Indebtedness of the Company or any Restricted Subsidiary;
(ii) obligations secured by any Lien upon property owned by the
Company or any Restricted Subsidiary or created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by the Company or any Restricted Subsidiary,
notwithstanding the fact that the rights and remedies of the seller,
lender or lessor under any such arrangement in the event of default are
limited to repossession or sale of property including, without limitation,
obligations secured by Liens arising from the sale or transfer of notes or
accounts receivable, but, in all events, excluding trade payables and
accrued expenses constituting current liabilities;
(iii) Capitalized Rentals;
(iv) reimbursement obligations in respect of credit enhancement
instruments including letters of credit (excluding, however, letters of
credit and surety bonds issued in commercial transactions in the ordinary
course of business which are not financial guaranties); and
(v) Guaranties of (a) obligations of others of the character
referred to hereinabove in this definition and (b) obligations of
Unrestricted Subsidiaries.
"Default" shall mean any event or condition the occurrence of which would,
with the lapse of time or the giving of notice, or both, constitute an Event of
Default.
"Environmental Law" shall mean any international, foreign, federal, state,
regional, county, local, governmental, public or private statute, law,
regulation, ordinance, order, consent decree, judgment, permit, license, code,
covenant, deed restriction, common law, treaty, convention or other
requirement, pertaining to protection of the environment, health or safety of
persons, natural resources, conservation, wildlife, waste management, any
Hazardous Material Activity and pollution (including, without limitation,
regulation of releases and disposals to air, land, water and groundwater), and
includes, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Section Section 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. Section
Section 6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. Section Section 1251 et seq., Clean Air Act
of 1966, as amended, 42 U.S.C. Section Section 7401 et seq., and any similar
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or implementing state law, and all amendments, rules, regulations, guidance
documents and publications promulgated thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to also refer to any
successor sections.
"ERISA Affiliate" shall mean any corporation, trade or business that is,
along with the Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in section 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
"Event of Default" shall have the meaning set forth in Section 6.1.
"Fixed Charges" for any period shall mean on a consolidated basis the sum
of (i) all Rentals (other than Rentals on Capitalized Leases) payable during
such period by the Company and its Restricted Subsidiaries, and (ii) all
Interest Charges on all Indebtedness (including the interest component of
Rentals on Capitalized Leases) of the Company and its Restricted Subsidiaries.
"Funded Debt" of the Company or any Restricted Subsidiary shall mean, as
of the date of any determination thereof, (i) all Debt (including Guaranties)
of the Company or any Restricted Subsidiary having a final maturity of one or
more than one year from the date of origin thereof (or which is renewable or
extendible at the option of the obligor for a period or periods more than one
year from the date of origin), including all payments in respect thereof that
are required to be made within one year from the date of any determination of
Funded Debt, plus (but without duplication) (ii) Current Debt (other than
Current Debt secured by Liens permitted by Section 5.10(F)) unless there has
been a period of at least 30 consecutive days during the twelve-month period
immediately preceding the date of any determination hereunder during which the
Company has been free of Current Debt plus (but without duplication) (iii) Debt
described in clause (v)(b) of the definition of "Debt".
"GAAP" shall mean generally accepted accounting principles at the time in
the United States.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent
or otherwise, by such Person: (i) to purchase such Indebtedness or obligation
or any property or assets constituting security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or payment of
such Indebtedness or obligation, (iii) to lease property or to purchase
Securities or other
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property or services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor to make
payment of the Indebtedness or obligation, or (iv) otherwise to assure the
owner of the Indebtedness or obligation of the primary obligor against loss in
respect thereof. For the purposes of all computations made under this
Agreement, a Guaranty in respect of any Indebtedness for borrowed money shall
be deemed to be Indebtedness equal to the principal amount of such Indebtedness
for borrowed money which has been guaranteed, and a Guaranty in respect of any
other obligation or liability or any dividend shall be deemed to be
Indebtedness equal to the maximum aggregate amount of such obligation,
liability or dividend.
"Hazardous Material" shall mean any hazardous or toxic chemical, waste,
byproduct, pollutant, contaminant, compound, product or substance, including,
without limitation, asbestos, polychlorinated biphenyls, petroleum (including
crude oil or any fraction thereof), and any material the exposure to, or
manufacture, possession, presence, use, generation, storage, transportation,
treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of which, is prohibited, controlled or regulated by any Environmental
Law.
"Hazardous Material Activity" shall mean any activity, event or occurrence
involving a Hazardous Material, including, without limitation, the manufacture,
possession, presence, use, generation, storage, transportation, treatment,
release, discharge, emission, disposal, abatement, cleanup, removal,
remediation or handling of any Hazardous Material.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all Debt.
"Institutional Holder" shall mean any insurance company, bank, savings and
loan association, trust company, investment company, charitable foundation,
employee benefit plan (as defined in ERISA) or other institutional investor or
financial institution.
"Interest Charges" for any period shall mean all interest (including,
without limitation, imputed or express interest in respect of Capitalized
Leases) and all amortization of debt discount and expense on any particular
Indebtedness for which such calculations are being made.
"Investments" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in any Person, whether by acquisition of
shares of capital stock, indebtedness or other obligations or Securities or by
loan, advance, capital contribution or otherwise; provided, however, that
"Investments" shall not mean or include routine investments in property to be
used or consumed in the ordinary course of business.
"Lien" shall mean any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations,
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exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances (including,
with respect to stock, stockholder agreements, voting trust agreements,
buy-back agreements and all similar arrangements) affecting property. For the
purposes of this Agreement, the Company or a Restricted Subsidiary shall be
deemed to be the owner of any property which it has acquired or holds subject
to a conditional sale agreement, Capitalized Lease or other arrangement
pursuant to which title to the property has been retained by or vested in some
other Person for security purposes and such retention or vesting shall
constitute a Lien.
"Long-Term Lease" shall mean any lease of real or personal property (other
than a Capitalized Lease) having an original term, including any period for
which the lease may be renewed or extended at the option of the lessor, of more
than three years.
"Make-Whole Amount" shall mean in connection with any prepayment or
acceleration of the Notes the excess, if any, of (i) the aggregate present
value as of the date of such prepayment of each dollar of principal being
prepaid (taking into account the application of such prepayment required by
Section 2.1) and the amount of interest (exclusive of interest accrued to the
date of prepayment) that would have been payable in respect of such dollar if
such prepayment had not been made, determined by discounting such amounts at
the Reinvestment Rate from the respective dates on which they would have been
payable, over (ii) 100% of the principal amount of the outstanding Notes being
prepaid. If the Reinvestment Rate is equal to or higher than the interest rate
then borne by a particular series of Notes, the Make-Whole Amount with respect
to the Notes of such series shall be zero. For purposes of any determination
of the Make-Whole Amount:
"Reinvestment Rate" shall mean (a) the sum of .50%, plus the yield
reported at 10:00 A.M. (New York time) by the Telerate Access Service
(page 8033) provided by the Telerate Information System for "On the Run"
United States Treasury securities, or, if such service is not available,
the yield reported by any other nationally recognized trading screen
reporting on-line intraday trading in United States government securities
at 10:00 A.M. (New York time), in either case for United States government
securities having a maturity (rounded to the nearest month) corresponding
to the remaining Weighted Average Life to Maturity of the principal being
prepaid, or (b) in the event that no such nationally recognized trading
screen reporting on-line trading in United States government securities is
available, "Reinvestment Rate" shall mean the sum of .50%, plus the
arithmetic mean of the yields under the respective headings "This Week"
and "Last Week" published in the Statistical Release under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the Weighted Average Life to Maturity of the
principal being prepaid (taking into account the application of such
prepayment required by Section 2.1). If no maturity exactly corresponds
to such Weighted Average Life to Maturity, yields for the published
maturity next longer than the Weighted Average Life to Maturity and for
the published maturity next shorter than the Weighted Average Life to
Maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate,
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the most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not published at
the time of any determination hereunder, then such other reasonably
comparable index which shall be designated by the holders of 66-2/3% in
aggregate principal amount of the outstanding Notes.
"Weighted Average Life to Maturity" of the principal amount of the
Notes being prepaid shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have become due on each scheduled payment date if
such prepayment had not been made, less (2) the amount of principal on the
Notes scheduled to become due on such date after giving effect to such
prepayment and the application thereof in accordance with the provisions
of Section 2.1, by (y) the number of years (calculated to the nearest
one-twelfth) which will elapse between the date of determination and such
scheduled payment date, and (ii) totalling the products obtained in (i).
"Material Debt" shall mean, as of the date of any determination thereof,
one or more obligations of the Company or any Restricted Subsidiary
constituting Debt which, individually or in the aggregate, exceed $3,000,000.
"Minority Interests" shall mean any shares of stock of any class of a
Restricted Subsidiary (other than directors' qualifying shares as required by
law) that are not owned by the Company and/or one or more of its Restricted
Subsidiaries. Minority Interests shall be valued by valuing Minority Interests
constituting preferred stock at the voluntary or involuntary liquidating value
of such preferred stock, whichever is greater, and by valuing Minority
Interests constituting common stock at the book value of capital and surplus
applicable thereto adjusted, if necessary, to reflect any changes from the book
value of such common stock required by the foregoing method of valuing Minority
Interests in preferred stock.
"Multiemployer Plan" shall have the same meaning as in ERISA.
"Net Income Available for Fixed Charges" for any period shall mean the sum
of (i) Consolidated Net Income during such period plus (to the extent deducted
in determining Consolidated Net Income), (ii) all provisions for any Federal,
state or other income taxes made by the Company and its Restricted Subsidiaries
during such period and (iii) Fixed Charges of the Company and its Restricted
Subsidiaries during such period.
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"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political
subdivision thereof.
"Plan" means a "pension plan," as such term is defined in ERISA,
established or maintained by the Company or any ERISA Affiliate or as to which
the Company or any ERISA Affiliate contributed or is a member or otherwise may
have any liability.
"Purchasers" shall have the meaning set forth in Section 1.1.
"Related Investments" shall mean equity Investments by the Company or any
Restricted Subsidiary in businesses related to the ongoing business lines of
the Company as of the Closing Date.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property (whether in connection
with a sale and leaseback transaction or otherwise), but shall be exclusive of
any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Reportable Event" shall have the same meaning as in ERISA.
"Restricted Subsidiary" shall mean any Subsidiary which has been
designated by the Company as a Restricted Subsidiary either in Annex A to
Exhibit B attached hereto or in accordance with Section 5.14.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
The term "subsidiary" shall mean as to any particular parent corporation
any corporation of which more than 50% (by number of votes) of the Voting Stock
shall be beneficially owned, directly or indirectly, by such parent
corporation. The term "Subsidiary" shall mean a subsidiary of the Company.
"Total Capitalization" shall mean, as of any date of determination
thereof, the sum of Consolidated Tangible Net Worth plus Consolidated Funded
Debt.
"Unrelated Investments" shall mean equity Investments by the Company or
any Restricted Subsidiary in any Person, which Investments are not Related
Investments.
-28-
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Savannah Foods & Industries, Inc. Note Agreement
"Unrestricted Subsidiary" shall mean any Subsidiary which is not a
Restricted Subsidiary.
"Voting Stock" shall mean Securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
"Wholly-owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) and all Debt shall be owned by
the Company and/or one or more of its Wholly- owned Subsidiaries.
Section 8.2. Accounting Principles. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for
the purposes of this Agreement, the same shall be done in accordance with GAAP,
to the extent applicable, except where such principles are inconsistent with
the requirements of this Agreement.
Section 8.3. Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether the action
in question is taken directly or indirectly by such Person.
SECTION 9.1. MISCELLANEOUS.
Section 9.1. Registered Notes. The Company shall cause to be kept at its
principal office a register for the registration and transfer of the Notes
(hereinafter called the "Note Register") and the Company will register or
transfer or cause to be registered or transferred as hereinafter provided any
Note issued pursuant to this Agreement.
At any time and from time to time the registered holder of any Note which
has been duly registered as hereinabove provided may transfer such Note upon
(i) surrender thereof at the principal office of the Company accompanied by a
Letter of Transfer in substantially the form of Exhibit E hereto, with all
required information completed. Upon receipt of the Note and Letter of
Transfer, Company shall transfer or cause to be transferred such Note in
accordance with the Letter of Transfer, without requiring any further action or
delivery of any additional items on the part of such registered holder or the
transferee.
The Person in whose name any registered Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes of this
Agreement. Payment of or on account of the principal, premium, if any, and
interest on any registered Note shall be made to or upon the written order of
such registered holder.
Section 9.2. Exchange of Notes. At any time and from time to time, upon
not less than ten days' notice to that effect given by the holder of any Note
initially delivered or of any Note substituted therefor pursuant to Section
9.1, this Section 9.2 or Section 9.3, and, upon surrender of such Note
-29-
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37
Savannah Foods & Industries, Inc. Note Agreement
at its office, the Company will deliver in exchange therefor, without expense
to such holder, except as set forth below, a Note for the same aggregate
principal amount as the then unpaid principal amount of the Note so
surrendered, or Notes in the denomination of $100,000 or any amount in excess
thereof as such holder shall specify, dated as of the date to which interest
has been paid on the Note so surrendered or, if such surrender is prior to the
payment of any interest thereon, then dated as of the date of issue, registered
in the name of such Person or Persons as may be designated by such holder, and
otherwise of the same form and tenor as the Notes so surrendered for exchange.
The Company may require the payment of a sum sufficient to cover any stamp tax
or governmental charge imposed upon such exchange or transfer.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction of
any Note, and in the case of any such loss, theft or destruction upon delivery
of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company, or in the event of such mutilation upon surrender
and cancellation of the Note, the Company will make and deliver without expense
to the holder thereof, a new Note, of like tenor, in lieu of such lost, stolen,
destroyed or mutilated Note. If the Purchaser or any subsequent Institutional
Holder is the owner of any such lost, stolen or destroyed Note, then the
affidavit of an authorized officer of such owner, setting forth the fact of
loss, theft or destruction and of its ownership of such Note at the time of
such loss, theft or destruction shall be accepted as satisfactory evidence
thereof and no further indemnity shall be required as a condition to the
execution and delivery of a new Note other than the written agreement of such
owner to indemnify the Company.
Section 9.4. Expenses, Stamp Tax Indemnity. Whether or not the
transactions herein contemplated shall be consummated, the Company agrees to
pay directly all of your out-of-pocket expenses in connection with the
preparation, execution and delivery of this Agreement and the transactions
contemplated hereby, including but not limited to the reasonable charges and
disbursements of Chapman and Cutler, your special counsel, duplicating and
printing costs and charges for shipping the Notes, adequately insured to you at
your home office or at such other place as you may designate, and all such
expenses relating to any amendment, waivers or consents pursuant to the
provisions hereof, including, without limitation, any amendments, waivers, or
consents resulting from any work-out, renegotiation or restructuring relating
to the performance by the Company of its obligations under this Agreement and
the Notes. The Company also agrees that it will pay and save you harmless
against any and all liability with respect to stamp and other taxes, if any,
which may be payable or which may be determined to be payable in connection
with the execution and delivery of this Agreement or the Notes, whether or not
any Notes are then outstanding. The Company agrees to protect and indemnify
you against any liability for any and all brokerage fees and commissions
payable or claimed to be payable to any Person in connection with the
transactions contemplated by this Agreement.
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative. No delay
or failure on the part of the holder of any Note in the exercise of any power
or right shall operate as a waiver thereof; nor shall any single or partial
exercise of the same preclude any other or further exercise thereof, or the
exercise of any other power or right, and the rights and
-30-
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38
Savannah Foods & Industries, Inc. Note Agreement
remedies of the holder of any Note are cumulative to, and are not exclusive of,
any rights or remedies any such holder would otherwise have.
Section 9.6. Notices. All communications provided for hereunder shall be
in writing and, if to you, delivered or mailed prepaid by registered or
certified mail or overnight air courier, or by facsimile communication, in each
case addressed to you at your address appearing on Schedule I to this Agreement
or such other address as you or the subsequent holder of any Note initially
issued to you may designate to the Company in writing, and if to the Company,
delivered or mailed by registered or certified mail or overnight air courier,
or by facsimile communication, to the Company at Two East Bryan, Savannah,
Georgia 31402, Attention: Chief Financial Officer or to such other address as
the Company may in writing designate to you or to a subsequent holder of the
Note initially issued to you; provided, however, that a notice to you by
overnight air courier shall only be effective if delivered to you at a street
address designated for such purpose in Schedule I, and a notice to you by
facsimile communication shall only be effective if made by confirmed
transmission to you at a telephone number designated for such purpose in
Schedule I and thereafter confirmed by registered or certified mail or by
overnight air courier as aforesaid, or, in any case, as you or a subsequent
holder of any Note initially issued to you may designate to the Company in
writing.
Section 9.7. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to your benefit
and to the benefit of your successors and assigns, including each successive
holder or holders of any Notes.
Section 9.8. Survival of Covenants and Representations. All covenants,
representations and warranties made by the Company herein and in any
certificates delivered pursuant hereto, whether or not in connection with the
Closing Date, shall survive the closing and the delivery of this Agreement and
the Notes.
Section 9.9. Severability. Should any part of this Agreement for any
reason be declared invalid or unenforceable, such decision shall not affect the
validity or enforceability of any remaining portion, which remaining portion
shall remain in force and effect as if this Agreement had been executed with
the invalid or unenforceable portion thereof eliminated and it is hereby
declared the intention of the parties hereto that they would have executed the
remaining portion of this Agreement without including therein any such part,
parts or portion which may, for any reason, be hereafter declared invalid or
unenforceable.
Section 9.10. Governing Law. This Agreement and the Notes issued and
sold hereunder shall be governed by and construed in accordance with Illinois
law.
Section 9.11. Captions. The descriptive headings of the various Sections
or parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
-31-
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39
Savannah Foods & Industries, Inc. Note Agreement
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement may be executed in
any number of counterparts, each executed counterpart constituting an original
but all together only one agreement.
SAVANNAH FOODS & INDUSTRIES, INC.
By
-------------------------------
Its
By
-------------------------------
Its
Accepted as of September 1, 1992.
[VARIATION]
By
-------------------------------
Its
[By
-------------------------------
Its ]
-32-
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40
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
THE GREAT-WEST LIFE ASSURANCE COMPANY $25,000,000 $7,000,000
8515 East Orchard Road
3rd Floor, Tower 2
Englewood, Colorado 80111
Attention: U.S. Private Placement Investments
Telefacsimile No.: (303) 689-6193
Confirmation No.: (303) 889-3000
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002 or 7.15% Series B Senior Notes due 2002, principal or
interest" and further identifying the allocation of each payment
between principal and interest and confirming the principal balance)
to:
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0065
ABA No. 091000019
for credit to the
Trust Clearing Account 08-40-245
Re: The Great-West
Life for Account No. 7-06277-00-1
Notices
All notices of payments, on or in respect of the Notes and written
confirmation of each such payment to:
SCHEDULE I
(to Note Agreement)
201
41
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0065
Telefacsimile No.: (612) 667-4187
Attention: Craig Johnson, Financial
Institution's Services; Telephone
No.: (612) 667-7566
All notices and communications other than those in respect to payments
to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. No. 98-0000673
I-2
202
42
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
THE VARIABLE ANNUITY LIFE $10,000,000 $13,000,000
INSURANCE COMPANY
c/o American General Corporation
2929 Allen Parkway
Houston, Texas 77019
Attention: Private Placements, A37-01
Telefacsimile No.: (713) 831-1366
Confirmation No.: (713) 831-1140
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002 or 7.15% Series B Senior Notes due 2002, principal or
interest") to:
State Street Bank and Trust Company
Boston, Massachusetts 02101
ABA No. 011000028
Re The Variable Annuity Life
Insurance Company
Account No. 0125-821-9
Fund Number: PA 54
Notices
All notices of payment, on or in respect of the Notes and written
confirmation of each such payment to:
The Variable Annuity Life
Insurance Company and PA 54
c/o State Street Bank and Trust Company
1776 Heritage Drive A4E
North Quincy, Massachusetts 02110
I-3
203
43
All notices and communications, including a duplicate copy of all
notices in respect to payments to be addressed as first provided above
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. No. 74-1625348
I-4
204
44
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
THE MINNESOTA MUTUAL LIFE INSURANCE $12,000,000 $ 0
COMPANY
400 North Robert Street
St. Paul, Minnesota 55101
Attention: MIMLIC Asset Management Company
Telefacsimile No.: (612) 223-5959
Confirmation No.: (612) 298-3826
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002, principal or interest") to:
The Federal Reserve Bank of Minneapolis
for the account of
The First Bank National Association
Minneapolis, Minnesota
ABA #091000022,
BNF The Minnesota Mutual
Life Insurance Company
Account No. 801-10-00600
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. No. 41-0417830
I-5
205
45
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
MUTUAL TRUST LIFE INSURANCE COMPANY $1,000,000 $ 0
c/o MIMLIC Asset Management Company
400 North Robert Street
St. Paul, Minnesota 55101
Attention: Client Administrator
Telefacsimile No.: (612) 223-5959
Confirmation No.: (612) 298-3826
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002, principal or interest") to:
The Northern Trust Company
50 South LaSalle Street
Chicago, IL 60675
ABA No. 07-1000-152
for credit wire account No. 5186041000, for further credit to
Mutual Trust Life Insurance Company, Account No. 26-00621
Attention: M.B.S. Department
for credit to Mutual Trust Life Insurance Company Account No. 26-
00621
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: ELL & Co.
Taxpayer I.D. No. 36-1516780
I-6
206
46
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
NATIONAL TRAVELERS LIFE COMPANY $1,000,000 $ 0
c/o MIMLIC Asset Management Company
400 North Robert Street
St. Paul, Minnesota 55101
Attention: Client Administrator
Telefacsimile No.: (612) 223-5959
Confirmation No.: (612) 298-3826
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002, principal or interest") to:
Norwest Bank Minneapolis
Minneapolis, Minnesota
Attention:Bridgette Melberg,
Income Collections Department
ABA #091-0000-19
for credit to the account of
Trust Clearing Account No. 840245
for further credit to
National Travelers Life Company's
Account No. 6C0318004
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: EMSEG & Co.
Taxpayer I.D. No. 42-0432940
I-7
207
47
PRINCIPAL AMOUNT
NAME AND ADDRESS OF NOTES TO BE
OF PURCHASERS PURCHASED
Series A Series B
THE RELIABLE LIFE INSURANCE COMPANY $1,000,000 $ 0
c/o MIMLIC Asset Management Company
400 North Robert Street
St. Paul, Minnesota 55101
Attention: Client Administrator
Telefacsimile No.: (612) 223-5959
Confirmation No.: (612) 298-3826
Payments
All payments on or in respect of the Notes to be by bank wire transfer
of Federal or other immediately available funds (identifying each
payment as "Savannah Foods & Industries, Inc., 8.35% Series A Senior
Notes due 2002, principal or interest") to:
Federal Reserve Bank of Cleveland, Pittsburgh
Branch, MELLON/PITT/TRUST
ABA No. 043000261
for credit to
The Reliable Life Insurance Company
Account No. 198-6676-50027010
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. No. 43-0476110
I-8
208
48
SAVANNAH FOODS & INDUSTRIES, INC.
8.35% Series A Senior Note
Due November 1, 2002
PPN: ______________
No.
____________, 19__
$_______________
SAVANNAH FOODS & INDUSTRIES, INC., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to
or registered assigns
on the first day of November, 2002
the principal amount of
DOLLARS ($____________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at
the rate of 8.35% per annum from the date hereof until maturity, payable
semiannually on the first day of each November and May in each year (commencing
on the first of such dates after the date hereof) and at maturity. The Company
agrees to pay interest on overdue principal (including any overdue required or
optional prepayment of principal) and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest, at the rate of
10.35% per annum after the due date, whether by acceleration or otherwise,
until paid. Both the principal hereof and interest hereon are payable at the
principal office of the Company in Savannah, Georgia in coin or currency of the
United States of America which at the time of payment shall be legal tender for
the payment of public and private debts.
This Series A Note is one of the 8.35% Series A Senior Notes due November
1, 2002 (the "Series A Notes") of the Company in the aggregate principal amount
of $50,000,000 issued or to be issued, together with the 7.15% Series B Senior
Notes due November 1, 2002 (collectively with the Series A Notes, the "Notes")
of the Company in the aggregate principal amount of $20,000,000, under and
pursuant to the terms and provisions of the separate Note Agreements, each
dated as of September 1, 1992 (the "Note Agreements"), entered into by the
Company with the original Purchasers therein referred to and this Series A Note
and the holder hereof are entitled equally and ratably with the holders of all
other Notes outstanding under the Note Agreements to all the benefits provided
for thereby or referred to therein. Reference is hereby made to the Note
Agreements for a statement of such rights and benefits.
EXHIBIT A-1
(to Note Agreement)
209
49
This Series A Note and the other Notes outstanding under the Note
Agreements may be declared due prior to their expressed maturity dates and
certain prepayments are required to be made thereon, all in the events, on the
terms and in the manner and amounts as provided in the Note Agreements.
The Series A Notes are not subject to prepayment or redemption at the
option of the Company prior to their expressed maturity dates except on the
terms and conditions and in the amounts and with the premium, if any, set forth
in the Note Agreements.
This Series A Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
accompanied by a completed Letter of Transfer in substantially the form
attached to the Note Agreements. Payment of or on account of principal,
premium, if any, and interest on this Series A Note shall be made only to or
upon the order in writing of the registered holder.
SAVANNAH FOODS & INDUSTRIES, INC.
By
-------------------------------
Its
A-1-2
210
50
SAVANNAH FOODS & INDUSTRIES, INC.
7.15% Series B Senior Note
Due November 1, 2002
PPN: ______________
No.
____________, 19__
$_______________
SAVANNAH FOODS & INDUSTRIES, INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
or registered assigns
on the first day of November, 2002
the principal amount of
DOLLARS ($____________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at
the rate of 7.15% per annum from the date hereof until maturity, payable
semiannually on the first day of each November and May in each year (commencing
on the first of such dates after the date hereof) and at maturity. The Company
agrees to pay interest on overdue principal (including any overdue required or
optional prepayment of principal) and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest, at the rate of
9.15% per annum after the due date, whether by acceleration or otherwise, until
paid. Both the principal hereof and interest hereon are payable at the
principal office of the Company in Savannah, Georgia in coin or currency of the
United States of America which at the time of payment shall be legal tender for
the payment of public and private debts.
This Series B Note is one of the 7.15% Series B Senior Notes due November
1, 2002 (the "Series B Notes") of the Company in the aggregate principal amount
of $20,000,000 issued or to be issued, together with the 8.35% Series A Senior
Notes due November 1, 2002 (collectively with the Series B Notes, the "Notes")
of the Company in the aggregate principal amount of $50,000,000, under and
pursuant to the terms and provisions of the separate Note Agreements, each
dated as of September 1, 1992 (the "Note Agreements"), entered into by the
Company with the original Purchasers therein referred to and this Series B Note
and the holder hereof are entitled equally and ratably with the holders of all
other Notes outstanding under the Note Agreements to all the benefits provided
for thereby or referred to therein. Reference is hereby made to the Note
Agreements for a statement of such rights and benefits.
EXHIBIT A-1
(to Note Agreement)
211
51
This Series B Note and the other Notes outstanding under the Note
Agreements may be declared due prior to their expressed maturity dates and
certain prepayments are required to be made thereon, all in the events, on the
terms and in the manner and amounts as provided in the Note Agreements.
The Series B Notes are not subject to prepayment or redemption at the
option of the Company prior to their expressed maturity dates except on the
terms and conditions and in the amounts and with the premium, if any, set forth
in the Note Agreements.
This Series B Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
accompanied by a completed Letter of Transfer in substantially the form
attached to the Note Agreements. Payment of or on account of principal,
premium, if any, and interest on this Series B Note shall be made only to or
upon the order in writing of the registered holder.
SAVANNAH FOODS & INDUSTRIES, INC.
By
------------------------------
Its
A-2-2
212
52
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to you as follows:
1. Subsidiaries. Annex A attached hereto states the name of
each of the Company's Subsidiaries, its jurisdiction of incorporation and the
percentage of its Voting Stock owned by the Company and/or its Subsidiaries.
Those Subsidiaries listed in Section 1 of said Annex 1 constitute Restricted
Subsidiaries. The Company and each Subsidiary has good and marketable title to
all of the shares it purports to own of the stock of each Subsidiary, free and
clear in each case of any Lien. All such shares have been duly issued and are
fully paid and non-assessable.
2. Corporate Organization and Authority. The Company, and
each Restricted Subsidiary,
(a) is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation;
(b) has all requisite power and authority and all
necessary licenses and permits to own and operate its properties
and to carry on its business as now conducted and as presently
proposed to be conducted; and
(c) is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction wherein the
nature of the business transacted by it or the nature of the
property owned or leased by it makes such licensing or
qualification necessary.
3. Business and Property. You have heretofore been furnished
with a copy of the Private Placement Offering Memorandum dated April, 1992 (the
"Memorandum") prepared by Canadian Imperial Bank of Commerce which generally
sets forth the business conducted and proposed to be conducted by the Company
and its Subsidiaries and the principal properties of the Company and its
Subsidiaries.
4. Financial Statements. (a) The consolidated balance sheets
of the Company and its consolidated Subsidiaries as of December 28, 1986,
January 3, 1988, January 1, 1989, December 31, 1989, December 30, 1990 and
December 29, 1991, inclusive, and the statements of income and retained
earnings and changes in financial position or cash flows for the fiscal years
ended on said dates, each accompanied by a report thereon containing an opinion
unqualified as to scope limitations imposed by the Company and otherwise
without qualification except as therein noted, by , have been prepared in
accordance with GAAP consistently applied except as therein noted, are correct
and complete and present fairly the financial position of the Company and its
Subsidiaries as of such dates and the results of their operations and changes
in their financial position or cash flows for such periods. The unaudited
consolidated balance sheets of the Company and its consolidated Subsidiaries as
of March 31, 1992, and the unaudited statements of income and retained earnings
and cash flows
EXHIBIT B
(to Note Agreement)
213
53
for the three-month period ended on said date prepared by the Company have been
prepared in accordance with GAAP consistently applied, are correct and complete
and present fairly the financial position operations and changes in their
financial position or cash flows for such period.
(b) Since December 29, 1991, there has been no change in the
condition, financial or otherwise, of the Company and its consolidated
Subsidiaries as shown on the consolidated balance sheet as of such date except
changes in the ordinary course of business, none of which individually or in
the aggregate has been materially adverse. Without limiting the foregoing,
since December 29, 1991, neither the business, operation, properties and assets
of the Company and its consolidated Subsidiaries nor any of the existing sugar
beet or sugarcane crops to be purchased by the Company have been materially and
adversely affected in any way as the result of any fire, explosion, earthquake,
storm, sabotage, disaster, accident, labor disturbance, requisition or taking
of property by governmental authority, flood, drought, embargo, riot, activity
of armed forces, or act of God or the public enemy, or other casualty.
5. Indebtedness. Annex B attached hereto correctly describes
all Current Debt, Funded Debt, Capitalized Leases and Long-Term Leases of the
Company and its Restricted Subsidiaries outstanding on June 30, 1992. On the
Closing Date and after giving effect to the application of the proceeds of the
Notes, the total amount of Funded Debt outstanding under the revolving credit
agreements described in part 2 of Annex B and all other revolving credit
agreements of the Company will be $10,000,000, all of which will be unsecured.
6. Full Disclosure. Neither the financial statements
referred to in paragraph 4 hereof nor the Agreements, the Memorandum or any
other written statement furnished by the Company to you in connection with the
negotiation of the sale of the Notes, contains any untrue statement of a
material fact or omits a material fact necessary to make the statements
contained therein or herein not misleading. There is no fact peculiar to the
Company or its Subsidiaries which the Company has not disclosed to you in
writing which materially affects adversely nor, so far as the Company can now
foresee, will materially affect adversely the properties, business, prospects,
profits or condition (financial or otherwise) of the Company and its Restricted
Subsidiaries, taken as a whole.
7. Pending Litigation. There are no proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any Restricted Subsidiary in any court or before any governmental authority or
arbitration board or tribunal which are expected to materially and adversely
affect the properties, business, prospects, profits or condition (financial or
otherwise) of the Company and its Restricted Subsidiaries.
8. Title to Properties. The Company and each Restricted
Subsidiary has good and marketable title in fee simple (or its equivalent under
applicable law) to all material parcels of real property and has good title to
all the other material items of property it purports to own, including that
reflected in the most recent balance sheet referred to in paragraph 4 hereof,
except as sold or otherwise disposed of in the ordinary course of business and
except for Liens permitted by the Agreements.
B-2
214
54
9. Patents and Trademarks. The Company and each Restricted
Subsidiary owns or possesses all the patents, trademarks, trade names, service
marks, copyright, licenses and rights with respect to the foregoing necessary
for the present and planned future conduct of its business, without any known
conflict with the rights of others.
10. Sale is Legal and Authorized. The sale of the Notes and
compliance by the Company with all of the provisions of the Agreements and the
Notes --
(a) are within the corporate powers of the Company;
(b) will not violate any provisions of any law or any
order of any court or governmental authority or agency and will
not conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under the
Articles of Incorporation or By-laws of the Company or any
indenture or other agreement or instrument to which the Company is
a party or by which it may be bound or result in the imposition of
any Liens or encumbrances on any property of the Company; and
(c) have been duly authorized by proper corporate
action on the part of the Company (no action by the stockholders
of the Company being required by law, by the Articles of
Incorporation or By-laws of the Company or otherwise), executed
and delivered by the Company and the Agreements and the Notes
constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable in accordance with their
respective terms.
11. No Defaults. No Default or Event of Default has occurred
and is continuing. The Company is not in default in the payment of principal
or interest on any Funded Debt or Current Debt and is not in default under any
instrument or instruments or agreements under and subject to which any Funded
Debt or Current Debt has been issued and no event has occurred and is
continuing under the provisions of any such instrument or agreement which with
the lapse of time or the giving of notice, or both, would constitute an event
of default thereunder.
12. Governmental Consent. No approval, consent or withholding
of objection on the part of any regulatory body, state, Federal or local, is
necessary in connection with the execution and delivery by the Company of the
Agreements or the Notes or compliance by the Company with any of the provisions
of the Agreements or the Notes.
13. Taxes. All tax returns required to be filed by the
Company or any Restricted Subsidiary in any jurisdiction have, in fact, been
filed, and all taxes, assessments, fees and other governmental charges upon the
Company or any Restricted Subsidiary or upon any of their respective
properties, income or franchises, which are shown to be due and payable in such
returns have been paid. For all taxable years ending on or before December 28,
1986, the Federal income tax liability of the Company and its Restricted
Subsidiaries has been satisfied and either the period of limitations on
assessment of additional Federal income tax has expired or the Company and its
Restricted Subsidiaries have entered into an agreement with the Internal
Revenue Service closing conclusively the total tax liability for the taxable
year. The
B-3
215
55
Company does not know of any proposed additional tax assessment against it for
which adequate provision has not been made on its accounts, and no material
controversy in respect of additional Federal or state income taxes due since
said date is pending or to the knowledge of the Company threatened. The
provisions for taxes on the books of the Company and each Restricted Subsidiary
are adequate for all open years, and for its current fiscal period.
14. Use of Proceeds. The net proceeds from the sale of the
Notes will be used to repay bank debt and for general corporate purposes. None
of the transactions contemplated in the Agreements (including, without
limitation thereof, the use of proceeds from the issuance of the Notes) will
violate or result in a violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulation issued pursuant thereto, including, without
limitation, Regulations G, T and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R., Chapter II. Neither the Company nor any Subsidiary
owns or intends to carry or purchase any "margin stock" within the meaning of
said Regulation G. None of the proceeds from the sale of the Notes will be
used to purchase, or refinance any borrowing the proceeds of which were used to
purchase, any "security" within the meaning of the Securities Exchange Act of
1934, as amended.
15. Private Offering. Neither the Company, directly or
indirectly, nor any agent on its behalf has offered or will offer the Notes or
any similar Security or has solicited or will solicit an offer to acquire the
Notes or any similar Security from or has otherwise approached or negotiated or
will approach or negotiate in respect of the Notes or any similar Security with
any Person other than the Purchasers and not more than ten other institutional
investors, each of whom was offered a portion of the Notes at private sale for
investment. Neither the Company, directly or indirectly, nor any agent on its
behalf has offered or will offer the Notes or any similar Security or has
solicited or will solicit an offer to acquire the Notes or any similar Security
from any Person so as to bring the issuance and sale of the Notes within the
provisions of Section 5 of the Securities Act of 1933, as amended.
16. ERISA. The consummation of the transactions provided for
in the Agreements and compliance by the Company with the provisions thereof and
the Notes issued thereunder will not involve any prohibited transaction within
the meaning of ERISA or Section 4975 of the Code. Each Plan complies in all
material respects with all applicable statutes and governmental rules and
regulations, and (a) no Reportable Event has occurred and is continuing with
respect to any Plan, (b) neither the Company nor any ERISA Affiliate has
withdrawn from any Plan or Multiemployer Plan or instituted steps to do so, and
(c) no steps have been instituted to terminate any Plan. No condition exists
or event or transaction has occurred in connection with any Plan which could
result in the incurrence by the Company or any ERISA Affiliate of any material
liability, fine or penalty. No Plan maintained by the Company or any ERISA
Affiliate, nor any trust created thereunder, has incurred any "accumulated
funding deficiency" as defined in Section 302 of ERISA nor does the present
value of all benefits vested under all Plans exceed, as of the last annual
valuation date, the value of the assets of the Plans allocable to such vested
benefits. Neither the Company nor any ERISA Affiliate has any contingent
liability with respect to any post-retirement "welfare benefit plan" (as such
term is defined in ERISA) except as has been disclosed to the Purchasers.
B-4
216
56
17. Compliance with Law. Neither the Company nor any
Restricted Subsidiary (a) is in violation of any law, ordinance, franchise,
governmental rule or regulation to which it is subject; or (b) has failed to
obtain any license, permit, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its business,
which violation or failure to obtain would materially adversely affect the
business, prospects, profits, properties or condition (financial or otherwise)
of the Company and its Restricted Subsidiaries, taken as a whole, or impair the
ability of the Company to perform its obligations contained in the Agreements
or the Notes. Neither the Company nor any Restricted Subsidiary is in default
with respect to any order of any court or governmental authority or arbitration
board or tribunal.
18. Compliance with Environmental Laws. The Company is not in
violation of any applicable Federal, state, or local laws, statutes, rules,
regulations or ordinances relating to public health, safety or the environment,
including, without limitation, relating to releases, discharges, emissions or
disposals to air, water, land or ground water, to the withdrawal or use of
ground water, to the use, handling or disposal of polychlorinated biphenyls
(PCBs), asbestos or urea formaldehyde, to the treatment, storage, disposal or
management of hazardous substances (including, without limitation, petroleum,
crude oil or any fraction thereof, or other hydrocarbons), pollutants or
contaminants, to exposure to toxic, hazardous or other controlled, prohibited
or regulated substances which violation could have a material adverse effect on
the business, prospects, profits, properties or condition (financial or
otherwise) of the Company and its Restricted Subsidiaries, taken as a whole.
The Company does not know of any liability or class of liability of the Company
or any Restricted Subsidiary under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901 et seq.).
19. Investment Company Act. Neither the Company nor any
Subsidiary is an "investment company" or an "affiliated person" of any
"investment company" or a company "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
20. Foreign Trade. Neither the Sale of the Notes nor the use
of the proceeds thereof will violate any regulation of the United States
Treasury Department contained in 31 CFR Subtitle 3, Chapter V, as amended.
B-5
217
57
SUBSIDIARIES OF THE COMPANY
1. RESTRICTED SUBSIDIARIES:
PERCENTAGE OF VOTING STOCK
NAME OF JURISDICTION OF OWNED BY COMPANY AND
SUBSIDIARY INCORPORATION EACH OTHER SUBSIDIARY
Colonial Sugars, Inc. Delaware 100
Everglades Sugar Refining, Inc. Florida 100
Michigan Sugar Co. Michigan 100
Phoenix Packaging Delaware 100
Raceland Sugars, Inc. Delaware 100
Savannah Foodservice, Inc. Delaware 100
Food Carrier, Inc. Georgia 100
Savannah Investment Co. Delaware 100
Savannah Sugar Ref. Co. Georgia 100
2. Unrestricted Subsidiaries:
PERCENTAGE OF VOTING STOCK
NAME OF JURISDICTION OF OWNED BY COMPANY AND
SUBSIDIARY INCORPORATION EACH OTHER SUBSIDIARY
Biomass Corporation Delaware 100
Chatham Sugar Corp. Delaware 100
South Coast Sugars, Inc. Delaware 100
Sunaid of Florida, Inc. Delaware 100
ANNEX A
(to Closing Certificate)
218
58
DESCRIPTION OF DEBT AND LEASES
1. Current Debt of the Company and its Restricted Subsidiaries
outstanding on June 30, 1992 is as follows:
NONE
2. Funded Debt (other than Capitalized Rentals) of the Company and
its Restricted Subsidiaries outstanding on June 30, 1992 is as
follows:
OUTSTANDING
DESCRIPTION PRINCIPAL
Savannah Foods & Industries, Inc.
$5,000,000 aggregate principal amount 8-3/4% Senior Notes due 12/1/92 $ 500,000
$2,350,000 Savannah Port Authority Pollution Control Revenue Bonds 1,380,000
(Savannah Foods & Industries, Inc. Project), Series 1983 (final
maturity 11/1/2001)
$1,000,000 Savannah Port Authority Revenue Bonds (Savannah Foods & 765,000
Industries, Inc. Project), Series 1974 (final maturity 8/1/98)
Revolving Credit Facility with Chase Manhattan Bank, N.A., providing for 15,000,000
up to $15,000,000 principal amount of loans at variable rates of
interest, terminating 12/21/95
Revolving Credit Facility with Wachovia Bank of Georgia, providing for 15,000,000
up to $20,000,000 principal amount of loans at variable rates of
interest, terminating 5/1/98
Revolving Credit Facility with Second National Bank of Saginaw, 10,000,000
providing for up to $10,000,000 principal amount of loans at
variable rates of interest, terminating 10/31/97
ANNEX B
(to Closing Certificate)
219
59
Revolving Credit Facility with Trust Company Bank of Georgia, providing 10,000,000
for up to $20,000,000 principal amount of loans at variable
rates of interest, terminating 6/1/97
Revolving Credit Facility with National Bank of Detroit, providing for 10,000,000
up to $10,000,000 principal amount of loans at variable rates of
interest, terminating 6/30/98
ESOP Loan with NationsBank, providing for up to $10,000,000 principal 5,500,000
amount of ESOP loans at variable rates of interest, maturing
10/24/99
ESOP Loan with National Bank of Detroit, variable rate of interest, 10,000,000
maturing 10/9/97
Industrial Revenue Bonds (International Automated Machines Project), 535,000
maturing 1995
Industrial Development Authority of the City of Visalia Georgia 2,500,000
$2,500,000 Industrial Development Revenue Bonds (Savannah Foods &
Industries Project), Series 1990, variable interest rate, maturing
2005
Non-Compete Agreement providing for total payments of $2,560,000, 1,666,953
maturing 1994
$7,000,000 Hendry County Industrial Development Authority Industrial 7,000,000
Development Revenue Bonds (Savannah Foods & Industries Project),
variable interest rate, maturing 2017
Michigan Sugar Company (Industrial Development Revenue Bonds Guaranteed by
Company)
Michigan Job Development Authority Industrial Development Revenue Bonds
(Michigan Sugar Company (Sebewaing Project), Series 1985, 4,500,000
variable interest rate, maturing 2000
Annex B-2
220
60
Michigan Industrial Development Revenue Bonds (Michigan Sugar Company 4,500,000
(Croswell Project), variable interest rate, maturing 2000
Michigan Industrial Development Revenue Bonds (Michigan Sugar Company 3,500,000
(Caro Project), variable interest rate, maturing 2003
Michigan Strategic Fund Industrial Development Revenue Bonds (Michigan 6,000,000
Sugar Company (Carrollton Project), Series 1992, variable interest
rate, maturing 2007
Land Mortgage, maturing 1995 22,500
TOTAL: $108,369,453
3. Long-Term Leases of the Company and its Restricted Subsidiaries
outstanding on June 30, 1992 are as follows:
Savannah Foods & Industries, Inc., lessee
Savannah Airport Commission - hangar lease on
1.04 acres Expiration: 11-21-2010
Savannah Airport Commission - Lease by builders
transport and assumption by SFI on airport hangar Expiration: 7-31-99
Raceland Sugars, Inc., lessee
Agricultural Lease - Clovelly Farms Expiration: 12-31-95
Property Lease in Terrebonne Parish Expiration: 12-31-96
Sugar Cane Lease at Ashton Plantation Expiration: 12-31-97
4. Capitalized Leases of the Company and its Restricted Subsidiaries
outstanding on June 30, 1992 are as follows:
NONE
Annex B-3
221
61
DESCRIPTION OF SPECIAL COUNSEL'S CLOSING OPINION
The closing opinion of Chapman and Cutler, special counsel to the
Purchasers, called for by Section Section 4.1 of the Note Agreements, shall be
dated the related Closing Date and addressed to the Purchasers, shall be
satisfactory in form and substance to the Purchasers and shall be to the effect
that:
1. The Company is a corporation, validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power and the corporate authority to execute and deliver the Note
Agreements and to issue the Notes.
2. The Note Agreements have been duly authorized by all
necessary corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed and
delivered by the Company and constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreements do not, under existing
law, require the registration of the Notes under the Securities Act of
1933, as amended, or the qualification of an indenture under the Trust
Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of
Miller, Simpson & Tatum is satisfactory in scope and form to Chapman and Cutler
and that, in their opinion, the Purchasers are justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler may rely solely upon an examination of the Certificate of Incorporation
certified by, and a certificate of good standing of the Company from, the
Secretary of State of the State of Delaware and the By-laws of the Company.
With respect to matters of fact upon which such opinion is based, Chapman
and Cutler may rely on appropriate certificates of public officials and
officers of the Company.
EXHIBIT C
(to Note Agreement)
222
62
DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of Miller Simpson & Tatum, counsel for the Company,
which is called for by Section 4.1 of the Note Agreements, shall be dated the
related Closing Date and addressed to the Purchasers, shall be satisfactory in
scope and form to the Purchasers and shall be to the effect that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
has the corporate power and the corporate authority to execute and
perform the Note Agreements and to issue the Notes and has the full
corporate power and the corporate authority to conduct the activities in
which it is now engaged and is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it or the nature of the
business transacted by it makes such licensing or qualification
necessary.
2. Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good standing
in each jurisdiction in which the character of the properties owned or
leased by it or the nature of the business transacted by it makes such
licensing or qualification necessary and all of the issued and
outstanding shares of capital stock of each such Subsidiary have been
duly issued, are fully paid and non-assessable and are owned by the
Company, by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
3. Each Note Agreement has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
4. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly executed and
delivered by the Company and constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the part
of, or filing, registration or qualification with, any governmental body,
Federal or state, is necessary in connection with the execution and
delivery of the Note Agreements or the Notes.
EXHIBIT D
(to Note Agreement)
223
63
6. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Note Agreements do not
conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation or imposition of any
Lien upon any of the property of the Company pursuant to the pro visions
of the Articles of Incorporation or By-laws of the Company or any
agreement or other instrument known to such counsel to which the Company
is a party or by which the Company may be bound.
7. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreements do not, under existing
law, require the registration of the Notes under the Securities Act of
1933, as amended, or the qualification of an indenture under the Trust
Indenture Act of 1939, as amended.
The opinion of Miller Simpson & Tatum shall cover such other matters
relating to the sale of the Notes as the Purchasers may reasonably request.
With respect to matters of fact on which such opinion is based, such counsel
shall be entitled to rely on appropriate certificates of public officials and
officers of the Company.
D-2
224
64
FORM OF LETTER OF TRANSFER
[Date]
Savannah Foods & Industries, Inc.
Two East Bryan
Savannah, Georgia 31402
Re: Transfer of $_______ Principal Amount of [8.35% Series A
Senior Note][7.15% Series B Senior Note] Due November 1, 2002 (the
"Note") From [Seller] to [Secondary Purchaser]
Dear Sirs:
Pursuant to Section Section 9.1 of the Note Agreement dated as of
September 1, 1992 (the "Note Agreement") between Savannah Foods & Industries,
Inc. (the "Company") and [Name of Seller] (the "Seller"), this letter is to
advise you that the Seller has transferred the Note or a portion thereof in the
above-referenced principal amount to [Secondary Purchaser] (the "Secondary
Purchaser"). In connection with such transfer the Secondary Purchaser and the
Seller hereby request that the Company deliver to the Secondary Purchaser a new
[8.35% Series A Senior Note][7.15% Series B Senior Note] Due November 1, 2002
in the above-referenced principal amount in the form of Exhibit A to the Note
Agreement and otherwise in the form contemplated by Section Section 9.1 of the
Note Agreement (the "New Note").
1. For the purposes of making any payment to the Secondary Purchaser of
principal of and interest or premiums, if any, on the New Note, or any other
amount payable thereunder, such payment shall be made to the following account:
[Bank]
[Address]
[ABA No: ]
[Account No: ]
[Reference: ]
2. For the purpose of giving any notice or providing information to the
Secondary Purchaser required under the New Note or the Note Agreement, any such
notice or information shall be delivered to the Secondary Purchaser at the
following address:
[Address]
[Attention: ]
[Telephone: ]
[Telecopy: ]
EXHIBIT E
(to Note Agreement)
225
65
3. Please deliver the registered New Note to the Purchaser via
overnight courier at the following address:
4. [TO BE COMPLETED IF LESS THAN 100% OF THE NOTES OF THE SELLER ARE
BEING SOLD.] Please deliver to the Seller a Note in the remaining principal
amount of $______________ substantially in the form of Exhibit A to the Note
Agreement via overnight courier at the following address:
[SELLER]
By
-------------------------------
Name:
Title:
[SECONDARY PURCHASER]
By
-------------------------------
Name:
Title:
E-2
226