LOAN AGREEMENT
This
LOAN
AGREEMENT (“Agreement”), dated this 26th
day of
June, 2007, is made among TALEN’S MARINE AND FUEL, INC., a Louisiana corporation
(“Borrower”), ALLEGRO BIODIESEL CORPORATION (“Lender”), C. XXXXXXX XXXXX
(“Guarantor”) and TALEN LANDING II, INC., a Louisiana corporation (“Owner”) (the
Borrower, Guarantor and Owner are collectively referred to as the “Appearers”
and individually as an “Appearer”) who agree as follows:
A. THE
LOAN. Subject
to and upon the terms and conditions contained in this Agreement, and relying
on
the representations and warranties contained in this Agreement, the Lender
agrees to make available to the Borrower a ninety (90) day term loan (the
“Loan”) in the maximum principal amount equal to $640,000.00 (the “Maximum
Amount”). The Loan is represented by a promissory note in the principal amount
of $640,000.00 payable to the order of the Lender. Principal and all accrued
interest shall be payable at maturity of the Loan as set forth in the Note
evidencing the Loan. Interest on the Loan shall be ten percent (10%) per annum
and shall otherwise accrue as set forth in the Note evidencing the Loan. Such
Note and the Loan shall mature on the earlier of September 24, 2007 or the
consummation of the transaction contemplated by that Stock Purchase Agreement
executed among Lender, the shareholders of Borrower and Owner, dated
contemporaneously herewith (the “Stock Purchase Agreement”).
B. USE
OF PROCEEDS.
(1) The
proceeds from the Loan will be used by the Borrower to fund working capital.
Each of the Appearers certifies, warrants and covenants that each of the uses
described above is of direct benefit to each Appearer.
C. SECURITY.
The
Loan
shall be secured by the following (the “Collateral Documents”):
(a) Multiple
Indebtedness Mortgage executed by the Owner granting a first priority mortgage
and security interest in all of the Owner’s right, title and interest in and to
the property described on Exhibit
A.
(b) Guaranty
Agreement executed by the Guarantor guaranteeing repayment of the Loan and
other
obligations of the Borrower related to the Loan.
D. REPRESENTATIONS
AND WARRANTIES.
Appearers represent and warrant to Lender that:
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(1)
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Organization
and Authorization of Borrower. Borrower is
a Louisiana corporation which is duly organized, validly existing
and in
good standing under Louisiana law. Borrower’s execution, delivery and
performance of this Agreement and all other documents delivered to
Lender
have been duly authorized and do not violate Borrower’s articles of
incorporation, by-laws (or other governing documents), material contracts
or any applicable law or
regulations.
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(2)
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Organization
and Authorization of Owner.
Owner is a Louisiana corporation which is duly organized, validly
existing
and in good standing under Louisiana law. Owner’s execution, delivery and
performance of this Agreement and all other documents delivered to
Lender
have been duly authorized and do not violate Owner’s articles of
incorporation, by-laws (or other governing documents), material contracts
or any applicable law or
regulations.
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(3)
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Litigation.
There is no material pending or threatened litigation, arbitration
or
administrative proceeding, investigation or other action of any nature
against or affecting any Appearer that could adversely affect any
Appearer’s business or assets.
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(4)
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Information.
All information, reports, papers and data given to Lender by any
of the
Appearers in connection with this Agreement are accurate and complete
in
all material respects, and no such information, reports, papers or
data
contains any material misstatement of fact or fails to state a fact
necessary to make the statement contained therein not materially
misleading.
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(5)
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Solvency.
Borrower and each other Appearer is solvent and has the ability to
pay its
debts when and as due.
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(6)
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Taxes.
Borrower and each other Appearer has filed all tax returns and reports
required to be filed and has paid all taxes, assessments, fees and
other
governmental charges levied upon it or upon its property or income
which
are due and payable, including interest and penalties, or has provided
adequate reserves for the payment
thereof.
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(7)
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Regulation.
Borrower is not engaged in the generation, transmission or distribution
and sale of electric power, the provision of telephone service to
others,
or other business activities which would subject Borrower to regulation
as
a utility or common carrier under any federal or state laws or
regulations. Borrower is not an “investment company” within the meaning of
the Investment Company Act of 1940, as amended. None of the Loan
proceeds
will be used for the purpose of purchasing or carrying any margin
stock,
or for the purpose of reducing or retiring any indebtedness which
was
originally incurred to purchase or carry a margin stock. Borrower
is not
engaged principally, or as one of Borrower’s important activities, in the
business of extending credit for the purpose of purchasing or carrying
margin stocks.
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(8)
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Review
of Documents; Binding Obligations.
The Appearers have reviewed this Agreement, the Note and the Collateral
Documents with counsel for the Appearers and have had the opportunity
to
discuss the provisions hereof and thereof with the Lender prior to
execution. This Agreement, the Note and the Collateral Documents
constitute valid and binding obligations of the Appearers who are
parties
thereto, enforceable in accordance with their terms (except that
enforcement may be subject to any applicable bankruptcy, insolvency
or
similar laws generally affecting the enforcement of creditors’ rights).
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(9)
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No
Consent.
The Appearers’ execution, delivery and performance of this Agreement, the
Note and the Collateral Documents to which each is a party do not
require
the consent or approval of any other person, entity or authority,
including without limitation any regulatory authority or governmental
body
of the United States or any state thereof or any political subdivision
of
the United States or any state thereof, except for such consents
that have
been duly and validly obtained on or prior to the date hereof and
remain
in full force and effect.
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(10)
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Financial
Condition.
All financial statements of the Borrower, the Appearers and any affiliates
delivered to Lender fairly and accurately present the financial condition
of the parties for whom such statements are submitted and the financial
statements of the Borrower, the Appearers and any affiliates have
been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, and there are
no
contingent liabilities not disclosed thereby which would adversely
affect
the financial condition of the Borrower or other Appearers. Since
the
close of the period covered by the latest financial statements delivered
to Lender with respect to the Appearers and any affiliates, there
has been
no material adverse change in the assets, liabilities, or financial
condition of any Appearer or any affiliates. No event has occurred
(including, without limitation, any litigation or administrative
proceedings) and no condition exists or, to the knowledge of the
Borrower,
the Appearers and any affiliates, is threatened, which (i) might
render
any of the Appearers or any affiliates unable to perform its obligations
under this Agreement, the Note or the Collateral Documents to which
each
is a party, or (ii) would constitute a Default hereunder, or (iii)
might
adversely affect the financial condition of any Appearer or any affiliates
or the validity or priority of the lien of the Collateral
Documents.
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(11)
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Environmental
Matters.
(a) Except as disclosed to Lender, no friable asbestos, or any substance
containing asbestos deemed hazardous by federal or state regulations
on
the date of this Agreement, has been installed in the property affected
by
the Collateral Documents (the “Property”). The Property and the Borrower
are not in material violation of or subject to any existing, pending,
or
threatened investigation or inquiry by any governmental authority
or to
any remedial obligations under any applicable laws pertaining to
health or
the environment (hereinafter sometimes collectively called “Applicable
Environmental Laws”), including without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as
amended by the Superfund Amendments and Reauthorization Act of 1986
(as
amended, hereinafter called “CERCLA”), the Resource Conservation and
Recovery Act of 1976, as amended by the Used Oil Recycling Act of
1980,
the Solid Waste Disposal Act Amendments of 1980, and the Hazardous
and
Solid Waste Amendments of 1984 (as amended, hereinafter called “RCRA”),
and this representation and warranty would continue to be true and
correct
following disclosure to the applicable governmental authorities of
all
relevant facts, conditions and circumstances, if any, pertaining
to the
Property and known to any Appearer. The Appearers have not obtained
and
are not required to obtain any permits, licenses or similar authorizations
to construct, occupy, operate or use any buildings, improvements,
fixtures
and equipment forming a part of the Property by reason of any Applicable
Environmental Laws, other than storm water discharge and other permits
that may be ordinarily required in connection with the operation
of office
buildings and shopping centers. The Appearers shall give all such
notices
and maintain such permits as may be required under Applicable
Environmental Laws. No hazardous substances or solid wastes have
been
disposed of or otherwise released on or to the Property, and the
use which
the any Appearer makes and intends to make of the Property will not
result
in the disposal or other release of any hazardous substance or solid
waste
on or to the Property, other than immaterial releases of materials
in the
ordinary course of construction of tenant improvements and the operation
of office and retail facilities on the Property, which in each case
does
not cause a Material Release of materials on or about the Property.
The
terms “hazardous substance” and “release” as used in this Agreement shall
have the meanings specified in CERCLA, and the terms “solid waste” and
“disposal” (or “disposed”) shall have the meanings specified in RCRA;
provided, in the event that the laws of the State of Louisiana establish
a
meaning for “hazardous substance,” “release,” “solid waste,” or “disposal”
which is broader than that specified in either CERCLA or RCRA, such
broader meaning shall apply. The term “Material Release” shall mean a
release (or series of releases) of material which are required to
be
removed, encapsulated or otherwise remediated under Applicable
Environmental Laws, the cost of which compliance, in the aggregate,
exceeds $10,000.
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(12)
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Governmental
Requirements.
The Property is in compliance with all current governmental requirements
affecting the Property, including, without limitation, all current
coastal
zone protection, zoning and land use regulations, building codes
and all
restrictions and requirements imposed by applicable governmental
authorities with respect to the construction of any improvements
on the
Property and the use and contemplated use of the
Property.
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(13)
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Continuing
Accuracy.
All of the representations and warranties contained in this Article
or
elsewhere in this Agreement shall be true through and until the later
of
the date on which all obligations of Borrower under this Agreement,
the
Note and the Collateral Documents and any other documents executed
in
connection herewith and therewith are fully satisfied, or Borrower
shall
promptly notify Lender of any event which would render any of said
representations and warranties untrue or
misleading.
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E.
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COVENANTS.
From the date of this Agreement and so long as the Loan shall be
outstanding, unless compliance shall have been waived in writing
by
Lender:
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(1)
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Compliance
with Tax and other Laws.
Each Appearer shall comply with all laws that are applicable to the
Appearer’s business activities, including, without limitation, all laws
regarding (i) the collection, payment and deposit of employees’ income,
unemployment, Social Security, sales and excise taxes; (ii) the filing
of
returns and payment of taxes; (iii) pension liabilities including
ERISA
requirements; (iv) environmental protection; (v) occupational safety
and
health; and (vi) all requirements of state, federal and other governmental
regulatory bodies.
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(2)
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Notice
of Default.
Each Appearer shall notify Lender immediately upon becoming aware
of the
occurrence of any event constituting, or which with the passage of
time or
the giving of notice, could constitute, a
Default.
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(3)
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Mergers,
etc.
Without the prior written consent of Lender no Appearer shall (i)
be a
party to a merger or consolidation, (ii) sell or lease all or
substantially all of its assets or (iii) acquire all or substantially
all
of the assets of another entity. No Appearer will permit any material
changes to be made in the character of its business as carried on
at the
original date of this Agreement.
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(4)
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Indebtedness
and Liens.
No
Appearer shall mortgage or encumber any of the Property or suffer
any
liens to exist on any of the Property except those in favor of the
Lender
without the prior written consent of
Lender.
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(5)
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Performance
of Obligations.
The Borrower will repay the Loan according to the reading, tenor
and
effect of the Note and this Agreement. The Appearers will do and
perform
every act required of it by this Agreement, the Note or the Collateral
Documents to which each is a party at the time or times and in the
manner
specified.
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(6)
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Financial
Statements and Reports.
Intentionally left blank.
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(7)
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Reimbursement
of Expenses.
The Borrower will, upon request promptly reimburse the Lender for
all
amounts expended, advanced or incurred by the Lender to satisfy any
obligation of the Borrower under this Agreement or any other agreement,
document or instrument executed and delivered in connection herewith,
or
to protect the Property or business of the Borrower or to collect
the
indebtedness addressed hereby, or to enforce the rights of the Lender
under this Agreement or any other agreement, document or instrument
executed and delivered in connection herewith, which amounts will
include
all court costs, attorneys’ fees, fees of auditors and accountants, and
investigation expenses reasonably incurred by the Lender in connection
with any such matters, together with interest at the then highest
interest
rate set forth in the Note on each such amount from the date that
the same
is expended, advanced or incurred by the Lender until the date of
reimbursement to the Lender.
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(8)
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Insurance.
(a) The Borrower shall procure and maintain for the benefit of the
Lender, or cause to be maintained original paid-up insurance policies
from
companies licensed in the state where the Property is located and
having a
Best’s rating of A or higher, in amounts, in form and substance, and with
expiration dates acceptable to the Lender and containing a
non-contributory standard mortgagee clause or its equivalent in a
form
satisfactory to the Lender, or the statutory mortgagee clause, if
any,
required in the state where the Property is located, or a mortgagee’s loss
payable endorsement, in favor of the Lender, providing the following
types
of insurance on the Property:
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(i) Multi-Peril
Hazard Insurance.
For the
Property (to the extent of any improvements thereof) multi-peril hazard
insurance, in each case affording insurance against loss or damage by fire,
lightning, explosion, earthquake, collapse, theft, sprinkler leakage, vandalism
and malicious mischief and such other perils as are included in so-called
“all-risks” or “extended coverage” and against such other insurable perils as,
under good insurance practices, from time to time are insured against for
properties of similar character and location; such insurance to be not less
than
100% of the full replacement costs of the improvements without deduction for
depreciation; said policy to contain replacement costs and stipulated value
endorsements.
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(ii)
Comprehensive
General Liability Insurance.
Comprehensive public liability insurance with respect to the Property and the
operations related thereto, whether conducted on or off the Property, against
liability for personal injury (including bodily injury and death) and property
damage, of not less than $1,000,000 per occurrence and $3,000,000 in the
aggregate; such comprehensive public liability insurance, if required by the
Lender, to specifically include but not be limited to water damage liability,
products liability, motor vehicle liability for all owned and non-owned
vehicles, including rented and leased vehicles, and contractual
indemnification.
(iii) Worker’s
Compensation and General Liability Insurance.
Worker’s compensation and general liability insurance against loss, damage or
injury to employees, agents, representatives, invitees or guests of the relevant
Appearer (which owns the relevant Property) or of any contractor or
subcontractor or lessee or operator, or insurance against loss, damage or injury
caused by any employees, agents, representatives, invitees or guests of the
Appearer or of any contractor or subcontractor or lessee or operator, in minimum
amounts of $1,000,000 per occurrence and $2,000,000 in the
aggregate.
(iv) Other
Insurance.
Such
other insurance on the Property or any replacements or substitutions therefor
and in any such amounts as may from time to time be reasonably required by
Lender against other insurable casualties which at the time are commonly insured
against in the case of premises similarly situated, due regard given to the
height and type of the improvements on the Property, their construction,
location, use and occupancy, or any replacements or substitutions
therefor.
(b) All
of
the foregoing policies shall contain an agreement by the insurer not to cancel
or amend the policies without giving the Lender at least 30 days’ prior written
notice of its intention to do so.
(c) Borrower
shall deliver original or certified policies (or insurance certificates from
Borrower’s insurance agent) to Lender, and Borrower shall deliver original or
certified renewal policies (or insurance certificates from Borrower’s insurance
agent) with satisfactory evidence of payment not less than 15 days in advance
of
the expiration date of the existing policy or policies. In the event the
Appearers should, for any reason whatsoever, fail to keep the Property or any
part thereof so insured, or to keep said policies so payable, or fail to deliver
to Lender the original or certified policies of insurance and the renewals
thereof upon demand, then Lender, if it so elects, may itself have such
insurance effected in such amounts and in such companies as it may deem proper
and may pay the premiums therefor. The Borrower shall reimburse the Lender
upon
demand for the amount of premium paid, together with interest thereon at 15%
per
annum from date until paid.
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(d) Borrower
agrees to notify Lender immediately in writing of any material fire or other
casualty to or accident involving the Property, whether or not such fire,
casualty or accident is covered by insurance. Borrower further agrees to notify
promptly Borrower’s insurance company and to submit an appropriate claim and
proof of claim to the insurance company if the Property is damaged or destroyed
by fire or other casualty.
(e) The
Borrower shall cause the proceeds from any policy or policies of insurance
to be
delivered to the Lender. If there is a fire or casualty loss which damages
all
or a portion of the improvements, then the insurance proceeds may, in the
Lender’s sole discretion, be either made available to the Borrower to restore
the improvements on such terms and conditions as the Lender shall require,
or be
applied to the payment of the Loan. If such insurance proceeds are not
sufficient to pay the Loan in full, the Lender shall have a right to accelerate
the maturity of the Loan and proceed against the Borrower and/or the remainder
of the collateral securing the Loan; and if the proceeds exceed the amount
necessary to pay the Loan in full, then such excess shall be paid to the
Appearers.
(f) If
requested by Lender, the Borrower shall pay to the Lender, together with, at
the
same time as and in addition to the payment of principal and/or interest due
on
the Note, a pro rata portion of the property taxes, assessments, governmental
charges, levies and insurance premiums relating to the collateral constituting
the Property next to become due, as estimated by the Lender, so that the Lender
will have sufficient funds on hand to pay such taxes, assessments, governmental
charges, levies and premiums not less than 30 days prior to the due date
thereof.
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(9)
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Right
of Inspection.
The Appearers will permit any officer, employee or agent of the Lender
to
visit and inspect any of the Property, examine the books of record
and
accounts pertaining thereto, take copies and extracts therefrom,
and
discuss the affairs, finances and accounts of the Appearers with
the
Appearers’ officers (as applicable), accountants and auditors, all at such
reasonable times and on reasonable notice and as often as the Lender
may
reasonably desire.
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(10)
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Notice
of Certain Events.
(a) The Borrower shall promptly notify the Lender if the Borrower
learns
of the occurrence of any event which constitutes a Default, together
with
a detailed statement of the steps being taken to cure the effect
of such
Default.
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(b) The
Borrower shall promptly notify the Lender of the arising of any litigation
or
dispute threatened against or affecting the Borrower or the Property which,
if
adversely determined, would have a material adverse effect upon the financial
condition or business of the Borrower or any other Appearer. In the event of
such litigation, the Borrower will cause such proceedings to be vigorously
contested in good faith and, in the event of any adverse ruling or decision,
the
Borrower shall cause to be prosecuted all allowable appeals. Lender may (but
shall not be obligated to), following an Event of Default, commence, appear
in,
or defend any action or proceeding purporting to affect the Loan, or the
respective rights and obligations of Lender and Borrower pursuant to this
Agreement. Lender may (but shall not be obligated to) pay all necessary
expenses, including reasonable attorneys’ fees and expenses incurred in
connection with such proceedings or actions, which Borrower agrees to repay
to
Lender upon demand.
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(11)
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Indemnification.
(a) The Borrower will indemnify the Lender and hold the Lender harmless
from claims of brokers with whom the Borrower has dealt in the execution
hereof or the consummation of the transactions contemplated hereby.
The
Lender will indemnify the Borrower from claims of brokers with whom
the
Lender has contracted in connection with the transactions contemplated
hereby.
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(b) The
Borrower will indemnify the Lender and hold the Lender harmless from any and
all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs and expenses of whatever kind or nature which may be imposed on, incurred
by or asserted at any time against the Lender in any way relating to, or arising
in connection with, the use or occupancy of any of the collateral securing
the
Loan.
(c) The
Borrower agrees to indemnify and fully protect the Lender from any allegation
or
charge whatsoever of negligence, misfeasance, or nonfeasance of the Lender
in
whole or in part, pertaining to any defect in the Property, and particularly,
any failure of the Lender or the Lender’s inspector, or any agent, officer,
employee or representative of the Lender, to note any defect in materials or
workmanship or of physical conditions or failure to comply with any plans,
specifications, drawings, ordinances, statutes or other governmental
requirements, or to call to the attention of any person whatsoever, or take
any
action, or to demand that any action be taken, with regard to any such defect
or
failure or lack of compliance.
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(12)
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Environmental
Indemnity.
(a) The Borrower shall defend, indemnify and hold Lender and its
directors, officers, agents and employees harmless from and against
all
claims, demands, causes of action, liabilities, losses, costs and
expenses
(including, without limitation, costs of suit, reasonable attorneys’ fees
and fees of expert witnesses) arising from or in connection with
(i) the
presence on or under the Property of any hazardous substances or
solid
wastes (as defined elsewhere in this Agreement), or any releases
or
discharges of any hazardous substances or solid wastes on, under
or from
the Property, (ii) any activity carried on or undertaken on or off
the
Property, whether prior to or during the term of this Agreement,
and
whether by an Appearer or any predecessor in title or any officers,
employees, agents, contractors or subcontractors of an Appearer or
any
predecessor in title, or any third persons at any time occupying
or
present on the Property, in connection with the handling, use, generation,
manufacture, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any hazardous substances or solid wastes
at any
time located or present on or under the Property, (iii) any breach
of any
representation, warranty or covenant under the terms of this Agreement,
or
(iv) any loss sustained due to any portion of the Property being
considered “wetlands”, as such term is defined by applicable federal law.
The foregoing indemnity shall further apply to any residual contamination
on or under the Property, or affecting any natural resources, and
to any
contamination of any property or natural resources arising in connection
with the generation, use, handling, storage, transport or disposal
of any
such hazardous substances or solid wastes, and irrespective of whether
any
of such activities were or will be undertaken in accordance with
applicable laws, regulations, codes and ordinances; provided, that
such
indemnity shall not apply to any releases that occur following the
date
that the Property is transferred pursuant to a foreclosure or dation
en
paiement as a result of the actions of Lender or Lender’s transferee and
assigns. Without prejudice to the survival of any other agreements
of the
Borrower hereunder, the provisions of this Section shall survive
the final
payment of the Loan and the termination of this Agreement and shall
continue thereafter in full force and
effect.
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(b) The
Appearers shall observe and materially comply with all laws, ordinances, orders,
decrees, rules and regulations of all federal and state governments relating
to
environmental matters, including without limitation the removal from or under
all Property constituting immovable property of any material amount of hazardous
substances or solid wastes (as defined elsewhere in this Agreement). The
Borrower shall give notice to the Lender as soon as reasonably possible and
in
no event more than five days after it receives any compliance orders,
environmental citations, or other notices from any governmental entity relating
to any environmental condition relating to its properties or elsewhere for
which
it may have legal responsibility, with a full description thereof; the Borrower
agrees to take any and all reasonable steps and to perform any and all
reasonable actions necessary or appropriate to promptly comply with any such
citations, compliance orders or environmental laws requiring it to remove,
treat
or dispose of such hazardous materials, wastes or conditions at the sole expense
of the Appearers and to provide the Lender with satisfactory evidence of such
compliance; provided,
that
nothing contained herein shall preclude the Appearers from contesting any such
compliance orders or citations if such contest is made in good faith,
appropriate reserves are established for the payment for the cost of compliance
therewith, and the Lender’s security interest in any such property affected
thereby (or the priority thereof) is not jeopardized.
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(13)
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Additional
Documentation.
Upon the written request of Lender each Appearer shall promptly and
duly
execute and deliver all such further instruments and documents and
take
such further action as Lender may deem necessary to obtain the full
benefits of this Agreement and of the rights and powers granted in
this
Agreement.
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(14)
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ERISA
Information and Compliance.
The Borrower will promptly furnish to the Lender (i) promptly after
the
filing thereof with the United States Secretary of Labor or the Pension
Benefit Guaranty Corporation, copies of each annual and other report
with
respect to each Plan or any trust created by the Borrower, and (ii)
immediately upon becoming aware of the occurrence of any “reportable
event,” as such term is defined in Section 4043 of ERISA, or of any
“prohibited transaction,” as such term is defined in Section 4975 of the
Internal Revenue Code of 1954, as amended, in connection with any
Plan or
any trust created by the Borrower, a written notice signed by the
president, the chairman, the managing member or the chief financial
officer of the Borrower specifying the nature thereof, what action
the
Borrower is taking or proposes to take with respect thereto, and,
when
known, any action taken by the Internal Revenue Service with respect
thereto. The Borrower will comply with all of the applicable funding
and
other requirements of ERISA as such requirements relate to the Plans
of
the Borrower.
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F. CONDITIONS
PRECEDENT TO LOANS.
Lender
shall have no obligation to advance funds under this Agreement until and unless
the following conditions have been and remain satisfied:
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(1)
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Lender
shall have received the Loan and Collateral Documents contemplated
by this
Agreement in form and substance satisfactory to
Lender;
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(2)
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All
representations and warranties made by each Appearer to Lender shall
be
true and correct as of the date of the Loan’s funding;
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(3)
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Each
Appearer’s business must be in a condition satisfactory to Lender, the
management and ownership of any Appearer must not have changed and
no
material adverse change (from that reflected in the last financial
statements delivered to, and accepted by, Lender prior to execution
of
this Agreement) has occurred in the financial condition of the Borrower
or
any Appearer; and
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(4)
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There
exists no Default (or event which with notice or lapse of time or
both
could constitute a Default) under this Agreement or any other agreement
between Borrower and Lender.
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G. DEFAULT.
Any of
the following events shall be considered a “Default” or an “Event of Default” as
that term is used herein:
(a) Principal
and Interest Payments.
The
Borrower fails to make payment when due of any principal or interest on the
Note
or any other indebtedness to the Lender.
(b) Representations
and Warranties.
Any
representation or warranty contained in this Agreement, the Note or any of
the
Collateral Documents proves to have been incorrect in any material respect
as of
the date thereof; or any representation, statement (including financial
statements), certificate or data furnished or made to the Lender by any Appearer
under this Agreement, the Note or any of the Collateral Documents proves to
have
been untrue in any material adverse respect as of the date as of which the
facts
therein set forth were stated or certified.
10
(c) Insurance.
The
Appearers fail to maintain or cause to be maintained at any time the insurance
required by this Agreement and the Collateral Documents.
(d) Other
Debt to Lender.
The
Borrower defaults in the payment of any amounts due to the Lender or in the
observance or performance of any of the covenants or agreements contained in
any
credit agreements, notes, leases, collateral or other documents relating to
any
debt of the Borrower to the Lender other than the indebtedness incurred pursuant
to this Agreement.
(e) Other
Debt to Other Lenders.
The
Borrower defaults in the payment of any amounts due to anyone other than the
Lender or in the observance or performance of any of the covenants or agreements
contained in any credit agreements, notes, leases, collateral or other documents
relating to any debt of the Borrower to anyone other than the Lender in excess
of $50,000.00, and any grace period applicable to such default has
elapsed.
(f) Involuntary
Bankruptcy or Receivership Proceedings.
A
receiver, conservator, liquidator or trustee of the Borrower or any other
Appearer or of any of its or his property (including the Property) is appointed
by order or decree of any court or agency or supervisory authority having
jurisdiction; or an order for relief is entered against the Borrower or any
other Appearer under the Federal Bankruptcy Code; or the Borrower or any other
Appearer is adjudicated bankrupt or insolvent; or any material portion of any
property of the Borrower or any other Appearer (including the Property) is
sequestered by court order and such order remains in effect for more than 30
days after such party obtains knowledge thereof; or a petition is filed against
the Borrower or any other Appearer under any state, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, liquidation or receivership
law
of any jurisdiction, whether now or hereafter in effect, and such petition
is
not dismissed within 60 days.
(g) Voluntary
Petitions.
The
Borrower or any other Appearer files a case under the Federal Bankruptcy Code
or
seeks relief under any provision of any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, or consents to the filing
of
any case or petition against it or him under any such law.
(h) Assignments
for Benefit of Creditors.
The
Borrower or any other Appearer makes an assignment for the benefit of its or
his
creditors, or admits in writing its or his inability to pay its or his debts
generally as they become due, or consents to the appointment of a receiver,
trustee or liquidator of the Borrower or any other Appearer or of all or any
part of its or his property.
(i) Undischarged
Judgments.
Judgment
for the payment of money in excess of $20,000 (which is not covered by
insurance) is rendered by any court or other governmental body against the
Borrower or any other Appearer, and the Appearer does not discharge the same
or
provide for its discharge in accordance with its terms, or procure a stay of
execution thereof within 30 days from the date of entry thereof, and within
said
30-day period or such longer period during which execution of such judgment
shall have been stayed, appeal therefrom and cause the execution thereof to
be
stayed during such appeal while providing such reserves therefor as may be
required under generally accepted accounting principles.
11
(j) Attachment.
A writ
or warrant of attachment or any similar process shall be issued by any court
against all or any material portion of the Property of the Borrower or any
other
Appearer, and such writ or warrant of attachment or any similar process is
not
released or bonded within 30 days after its entry.
(k) Condemnation.
The
Property, or any portion thereof, is condemned or expropriated under power
of
eminent domain by any legally constituted governmental authority.
(l) Other
Covenants.
The
Borrower or other Appearer defaults in the observance or performance of any
of
the covenants or agreements contained in this Agreement, the Note or any of
the
Collateral Documents, to be kept or performed by the Borrower or such Appearer
(other than a default under Subsections (a) through (k) hereof), and such
default continues unremedied for a period of 30 days after notice thereof being
given by the Lender to the Borrower.
H. REMEDIES.
(a)
Upon the happening of any Event of Default specified in the preceding Section
(other than subsections (f) or (g) thereof), the Lender may by written notice
to
the Borrower declare the entire principal amount of the Loan then outstanding
and interest accrued thereon to be immediately due and payable without
presentment, demand, protest, notice of protest or dishonor or other notice
of
default of any kind, all of which are hereby expressly waived by the Borrower
and each of the Appearers.
(b) Upon
the
happening of any Event of Default specified in subsections (f) or (g) of the
preceding Section, the entire principal amount of all obligations then
outstanding including interest accrued thereon shall, without notice or action
by the Lender, be immediately due and payable without presentment, demand,
protest, notice of protest or dishonor or other notice of default of any kind,
all of which are hereby expressly waived by the Borrower.
(c) Upon
the
occurrence of any Event of Default, the Lender shall have the right to set-off
any funds of the Borrower in the possession of the Lender against any amounts
then due by the Borrower to the Lender pursuant to this Agreement, and to
enforce all rights of Lender pursuant to the collateral documents and to enforce
all other remedies available to Lender by contract or law.
I. MISCELLANEOUS
PROVISIONS.
Appearers collectively agree to pay all of the costs, expenses and fees incurred
in connection with the Loan or a default thereunder or the enforcement thereof,
including attorneys fees and appraisal fees. The rights and obligations of
Lender under this Agreement and the Collateral Documents may be assigned. This
Agreement is not assignable by any Appearer and no party other than an Appearer
is entitled to rely on this Agreement. In no event shall any Appearer or Lender
be liable to the other for indirect, special or consequential damages, including
the loss of anticipated profits that may arise out of or are in any way
connected with the issuance of this Agreement. No
course
of dealing nor any failure or delay by Lender with respect to exercising any
of
its rights, powers or privileges under this Agreement shall operate as a waiver
thereof. No condition or other term of this Agreement may be waived or modified
except by a writing signed by the Borrower and Lender. THIS
AGREEMENT AND THE PROMISSORY NOTE EVIDENCING THE LOAN UNDER THIS AGREEMENT
SHALL
BE GOVERNED BY LOUISIANA LAW. In
the
event that any one or more of the provisions contained in this Agreement, the
Note or the Collateral Documents shall, for any reason, be held invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, the Note or the
Collateral Documents. The rights and remedies of the Lender under this
Agreement, the Note and the Collateral Documents shall be cumulative, and the
exercise or partial exercise of any such right or remedy shall not preclude
the
exercise of any other right or remedy. Time shall be deemed of the essence
with
respect to the performance of all of the terms, provisions and conditions on
the
part of the Appearers to be performed hereunder.
12
J. RELATIONSHIP.
The
relationship between Appearers and Lender shall be solely that of borrower
and
lender, and such relationship shall not under any circumstances whatsoever
be
construed to be a joint venture or partnership.
K. STOCK
PURCHASE AGREEMENT.
Upon
consummation of the transaction contemplated by the Stock Purchase Agreement:
i)
the indemnity provisions contained in Sections 11(b), 11(c) and 12 of this
Agreement shall be superseded by the indemnity provisions contained in the
Stock
Purchase Agreement; and ii) the Guaranty Agreement shall be
terminated.
-signatures
on following page-
13
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the date first above written.
| BORROWER: | TALEN’S MARINE AND FUEL, INC. | |
| |
|
|
| By: | /s/ C. Xxxxxxx Xxxxx | |
|
|
||
| Name: | C. Xxxxxxx Xxxxx | |
|
|
||
| Title: | President | |
|
|
||
| GUARANTOR: | /s/ C. Xxxxxxx Xxxxx | |
|
C. XXXXXXX XXXXX |
||
| OWNER: | TALEN LANDING II, INC. | |
| By: | /s/ C. Xxxxxxx Xxxxx | |
|
|
||
| Name: | C. Xxxxxxx Xxxxx | |
|
|
||
| Title: | President | |
|
|
||
| LENDER: | ALLEGRO BIODIESEL CORPORATION | |
| By: | /s/ W. Xxxxx Xxxxx | |
|
|
||
| Name: | W. Xxxxx Xxxxx, III | |
|
|
||
| Title: | Chief Executive Officer | |
|
|
||
14
Exhibit
A
The
property described more fully below, together with all buildings or improvements
thereon or to be placed thereon, and all rights, ways, privileges, servitudes
and appurtenances thereunto belonging, and together with all cooling, heating,
plumbing and lighting fixtures and equipment now or hereafter attached to or
used in connection with the real estate so described:
A
8.691
acre tract of land commencing at a point 494.80 feet South of the Corner of
Sections 2, 3, 10, 11 of Section 10, Township 13 South, Range 3 West, Cameron
Parish, thence South 00 degrees 56’ 57” West, a distance of 286.90 feet; thence
North 89 degrees 13’ 57” West, a distance of 140.64 feet; thence North 00
degrees 48’ 51” East, a distance of 61.94 feet; thence South 63 degrees 28’ 22”
West, a distance of 158.14 feet; thence South 76 degrees 51’ 55” West, a
distance of 221.03 feet; thence South 23 degrees 35’ 57” West, a distance of
545.70 feet; thence North 70 degrees 09’ 28” West, a distance of 232.29 feet;
thence North 00 degrees 58’ 15” East 591.11 feet; thence South 89 degrees 15’
44” East, a distance of 396.26 feet; thence North 00 degrees 58’ 13” East, a
distance of 187.40 feet; thence South 89 degrees 06’ 48” East, a distance of
528.84 feet, to the point of commencement, records of Cameron Parish, Louisiana,
and as per the plat by Xxxxxxx X. Xxxxxx dated May 13, 1997 attached to that
certain Cash Deed recorded in the records of the Clerk of Court’s office of the
Parish of Cameron, State of Louisiana, under Entry Number
____________.
15
