SUPPORT AGREEMENT
Exhibit
10.9
This
Support Agreement ("Agreement") is made as of the 8th day of
November, 2007, among Xxxxxxx X. Xxxxxx, President and Chief Executive Officer
of Borrower (the “undersigned"), Nature Vision, Inc., a Minnesota corporation
and Nature Vision Operating, Inc., a Minnesota corporation, (each called
“Borrower" and collectively called “Borrowers”), and M&I Business Credit,
LLC, a Minnesota limited liability company ("Lender").
WITNESSETH:
WHEREAS,
Lender and Borrowers have entered into that certain Credit and Security
Agreement (as amended from time to time, the "Credit Agreement") dated of
even
date herewith, pursuant to which Lender may, from time to time, at its
discretion, make advances to or for the benefit of Borrowers; and
WHEREAS,
the undersigned is the President and Chief Executive Officer of the Borrowers
and is fully familiar with all of the Borrowers’ business and financial
affairs;
NOW,
THEREFORE, to induce Lender to make advances to or for the account of Borrowers
under the Credit Agreement and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the undersigned,
the
Borrowers and Lender agree as follows:
1. The
undersigned agrees that in the event (i) Lender comes into possession of
any or
all of the tangible Collateral (as such term is defined in the Credit
Agreement), or is collecting any Borrowers’ accounts receivable or otherwise
disposing of Collateral by reason of the occurrence of an Event of Default
under
the Credit Agreement, and (ii) Lender has given notice of an acceleration
of all
of the Obligations under and as defined in the Credit Agreement, the undersigned
will, at Lender’s option and upon Lender’s request, and until this Agreement
shall have terminated as provided herein, be engaged by Lender as an independent
contractor for a period not to exceed six (6) months, for the sole purpose
of
disposing of such Collateral and collecting such accounts, or assisting Lender
in disposing of such Collateral and collecting such accounts. During
the period of such engagement as an independent contractor the undersigned
shall
exert his best efforts and devote all of his regular working hours to obtain
sales of such Collateral at the best obtainable prices and terms and to collect
such accounts at their full face value. If the events described in
clauses (i) and (ii) occur at a time when the undersigned is employed by
any
Borrower, then, if requested by Lender, Borrowers shall cause the undersigned,
so long as he is in any of their employ, to exert his best efforts and devote
all of his regular working hours to obtain sales of such Collateral at the
best
obtainable prices and terms and to collect such accounts at their full face
value.
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2. Intentionally
deleted.
3. Lender
shall have the right to terminate the undersigned’s engagement or other
assistance described in Paragraph 1 above at any time on three (3) business
days' notice, for any cause or without cause. Subject to the
undersigned’s payment of any then outstanding obligations under Paragraph 6
of this Agreement, the undersigned’s obligations under Paragraph 1 of this
Agreement shall further terminate upon (i) the Borrowers’ payment of all then
outstanding Obligations as defined in the Credit Agreement; (ii) the death
of
the undersigned; (iii) the mental or physical incapacity of the undersigned
as
reasonably substantiated by a doctor acceptable to Lender; or (iv) the
undersigned’s employment with both Borrowers is terminated for any
reason.
4. The
sole compensation and remuneration of the undersigned for any engagement
or
assistance rendered pursuant to Paragraph 1 above shall be a weekly amount
paid
at the same rate as the average salary (on a weekly basis) paid to such person
by Borrowers in the twelve (12) months immediately preceding the commencement
of
such employment or activities. Such compensation shall be prorated
for partial weeks of service.
5. In
connection with such engagement, the undersigned shall not have any authority
to
bind Lender, except such specific authority as Lender may grant in
writing.
6. The
prevailing party shall be entitled to costs and expenses (including reasonable
attorneys' fees and legal expenses) incurred in enforcing this
Agreement.
7. In
the event of the death, mental or physical incapacity of the undersigned,
the
undersigned’s termination or resignation of employment with Borrowers, or
termination by Lender of the contractual relationship with the undersigned,
Borrowers shall be responsible for immediately obtaining a replacement for
such
person and Borrowers shall use their best efforts to cause such replacement
to
execute a support agreement substantially in the form of this
Agreement.
8. This
Agreement shall be governed by and construed in accordance with Minnesota
substantive and procedural law and shall remain in full force and effect
so long
as the Credit Agreement is outstanding or until otherwise agreed by an amendment
hereto signed by Lender and the undersigned.
9. The
provisions of this Agreement are declared to be severable. If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not
affect
any other provisions of this Agreement.
10. The
undersigned and the Borrowers waive notice of Lender’s acceptance
hereof.
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11. THE PARTIES
HERETO HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT SITUATED IN HENNEPIN COUNTY, MINNESOTA AND WAIVE ANY OBJECTION BASED
ON
FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATED TO THIS AGREEMENT, OR ANY TRANSACTIONS ARISING THEREFROM,
OR
ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
12. THE
PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT.
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/S/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx, President and Chief Executive Officer of Nature Vision,
Inc.
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NATURE
VISION, INC.
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By
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/S/ Xxxxxxx X. Xxxxxx | ||
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Its Chief
Executive Officer
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NATURE
VISION OPERATING, INC.
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By
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/S/ Xxxxxxx X. Xxxxxx | ||
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Its Chief
Executive Officer
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Accepted:
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M&I
BUSINESS CREDIT, LLC
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By
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/S/ Xxxxxx X. Xxxxxxx | ||
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Its Vice
President
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|||
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