COLLATERAL PLEDGE AGREEMENT
This Collateral Pledge Agreement ("Agreement"), dated September 27, 1994, is
made between Xxxxxx Protein (USA), Inc. ("Borrower") in favor of United States
of America, acting by and through the Secretary of Commerce, National Marine
Fisheries Service ("Lender").
Recitals
A. The Borrower is the owner of the immovable property and leasehold
interests (the "Mortgaged Property") more particularly described in that certain
act of collateral mortgage (The "Collateral Mortgage") executed by the Borrower
of even date herewith in the principal amount of $1,587,636.00, which secures
that certain collateral mortgage note (the "Collateral Note") executed by the
Borrower of even date herewith, payable on demand to bearer in the principal sum
of $1,587,636.00 and paraphed for identification with the Collateral Mortgage.
B. The Lender intends to make a certain loan or loans to Borrower
(Collectively, the "Loan"), which Loan will be secured in part by the Collateral
Mortgage.
C. In order to secure the full and punctual payment and performance of the
Indebtedness (as hereinafter defined), the Borrower has agreed to execute and
deliver this Agreement and to pledge, deliver and grant a continuing security
interest in and to the Collateral Note.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the Borrower and the Lender
agree as follows:
Section 1. Pledge of Collateral Note. The Borrower does hereby pledge,
pawn, grant a continuing security interest in and deliver the Collateral Note
unto the Lender, together with all of the Borrower's right, title and interest
in the Collateral Mortgage, to secure the full and punctual payment and
performance of any and an amounts, liabilities and obligations owing from time
to time by the Borrower to the Lender or any successor or transferee thereof,
whether such amounts, liabilities or obligations be liquidated or unliquidated,
now existing or hereinafter arising (the "Indebtedness"), the Borrower does
hereby pledge, pawn, grant a continuing security interest in and deliver the
Collateral Note unto the Lender, together with all of the Borrower's right,
title and interest in the Collateral Mortgage.
Section 2. Delivery of Collateral Note. The Lender hereby accepts the
delivery of the Collateral Note on behalf of itself and on behalf of any future
transferee of the Indebtedness.
Section 3. Remedies upon Default. If an Event of Default (as defined in any
promissory note or loan agreement relating to the Loan) shall occur, or if
Borrower shall otherwise be in default under the Collateral Note, the Collateral
Mortgage or any other documents executed in connection with the Indebtedness,
the Lender shall have the right to foreclose on the Collateral Note and
Collateral Mortgage and to cause all and singular the Mortgaged Property to be
seized and sold under executory or ordinary process, at the Lender's option,
without appraisement, as an
entirety or in parcels, as the Lender may determine, and otherwise to exercise
the rights, powers and privileges afforded by the Collateral Mortgage and under
applicable Louisiana law. For the purposes of Louisiana executory process
procedures, the Borrower does hereby confess judgment in the full amount of the
Indebtedness. The Lender shall have the right to apply the proceeds of such
foreclosure proceedings to the cost of enforcement (including court costs,
keeper fees and attorneys' fees) and to the Indebtedness (in principal,
interest, late charges or other amounts) in such order as the Lender shall in
its sole discretion determine.
Section 4. Termination. Upon the payment in full of the Indebtedness and
the termination of any obligation of the Lender to make further advances to the
Borrower on the Loan, this Agreement shall terminate. Upon request of the
Borrower, the Lender shall deliver the Collateral Note to the Borrower and, at
the Borrower's expense, the Lender shall execute and deliver such instrument or
instruments, if any, as the Borrower may reasonably request to evidence the
cancellation of the Collateral Mortgage in the public records.
Section 5. Notices. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served by the Lender to or on
the Borrower shall be deemed to have been sufficiently given and served for all
purposes (if mailed) three calendar days after being deposited, postage prepaid,
in the United States mail, registered or certified mail, or (if delivered by
express courier) one business day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses is given in writing by Borrower or Lender) as
follows:
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Any notice or demand which, by any provision of this Agreement, is required
or permitted to be given or served by Borrower to or on Lender shall be deemed
to have been sufficiently given and served for all purposes (if mailed) three
calendar days after being deposited, postage prepaid, in the United States mail,
registered or certified mail, or (if delivered by express courier) one business
day after being delivered to such courier, or (if delivered in person) the same
day as delivery, in each case addressed (until another address or addresses are
given in writing by Lender to Borrower) as follows:
0000 Xxxx-Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx
Section 6. Amendment. Neither this Agreement nor any provision thereof may
be changed, waived, discharged or terminated orally or in any manner other than
by an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
Section 7. Waivers. No course of dealing on the part of the Lender, its
officers, employees, consultants or agents, nor any failure or delay by the
Lender with respect to exercising any of its rights, powers or privileges under
this Agreement, the Collateral Mortgage or the Collateral Note shall operate as
a waiver thereof.
Section 8. Cumulative Rights. The rights and remedies of the Lender under
this Agreement 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.
Section 9. Titles of Sections. All titles or headings to sections of this
Agreement are only for the convenience of the parties and shall not be construed
to have any effect or meaning with respect to the other content of such
sections, such other content being controlling as to the agreement between the
parties hereto.
Section 10. Governing Law. This Agreement is the contract made under and
shall be construed in accordance with and governed by the laws of the United
States of America and the State of Louisiana.
Section 11. Successors and Assigns' Participants. (a) All covenants and
agreements contained by or on behalf of the Borrower in this Agreement, the
Collateral Note and the Collateral Mortgage shall bind its successors and
assigns and shall inure to the benefit of the Lender and its successors and
assigns.
(b) This Agreement is for the benefit of the Lender and for such other
person or persons as may from time to time become or be the holders of any of
the Indebtedness, and this Agreement shall be transferable and negotiable, with
the same force and effect and to the same extent as the Indebtedness may be
transferable, it being understood that, upon the transfer or assignment by the
Lender of any of the Indebtedness, the legal holder of such Indebtedness shall
have all of the rights granted to the Lender under this Agreement.
(c) Borrower hereby recognizes and agrees that the Lender may, from time to
time, one or more times, transfer all or any portion of the Indebtedness to one
or more third parties. Such transfers may include, but are not limited to, sales
of participation interests in such Indebtedness in favor of one or more third
party lenders. Borrower specifically (i) consents to all such transfers and
assignments, waives any subsequent notice of and right to consent to any such
transfers and assignments as may be provided under applicable Louisiana law;
(ii) agrees that the purchaser of a participation interest in the Indebtedness
will be considered as the absolute owner of a percentage interest of such
Indebtedness and that such a purchaser will have all of the rights granted to
the purchaser under any participation agreement governing the sale of such a
participation interest; (iii) waives any right of offset that Borrower may have
against the Lender and/or any purchaser of such a participation interest in the
Indebtedness unconditionally agrees that either the Lender or such a purchaser
may enforce Borrower's Indebtedness under this Agreement, irrespective of the
failure or insolvency of the Lender or any such purchaser; (iv) agrees that any
purchaser of a participation interest in the Indebtedness may exercise any and
all rights of counterclaim, set-off, banker's lien and other liens with respect
to any and all monies owing to the Borrower; and (v) agrees that, upon any
transfer of all or any portion of the Indebtedness, the Lender may transfer and
deliver the Collateral Note to the transferee of such Indebtedness and such
Collateral Note and the Collateral Mortgage shall secure any and all of the
Indebtedness in favor of such a transferee, that such transfer of the Collateral
Note and the Collateral Mortgage shall not affect the priority and ranking
thereof, and that the Collateral Note and the Collateral Mortgage shall secure
with retroactivity the then existing Indebtedness of the
Borrower to the transferee and any and all Indebtedness thereafter arising.
After any such transfer has taken place, the Lender shall be fully discharged
from any and all future liability and responsibility to Borrower with respect to
the Collateral Note and the Collateral Mortgage, and the transferee thereafter
shall be vested with all the powers, rights and duties with respect to the
Collateral Note and the Collateral Mortgage.
Section 12. Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which when taken together shall constitute one
and the same instrument.
BORROWER: Xxxxxx Protein (USA), Inc.
By:
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LENDER: United States of America acting by and through
the Secretary of Commerce, National Marine
Fisheries Service
By:
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