Loan and Security Agreement
THIS LOAN AND SECURITY AGREEMENT entered into as of the of the 30th day of
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October, 1996, by and between MetLife CAPITAL CORPORATION, a Delaware
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corporation, whose addresses 00000 X.X. 0xx Xxxxxx Xxxxx 000, mailing address
C-97550, Xxxxxxxx, XX 00000 ("Lender") and BIG V SUPERMARKETS, INC., a New York
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corporation whose address is 000 Xxxx Xxxxxx, Xxxxxxx XX 00000 ("Borrower").
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WHEREAS, Lender has agreed to make a commercial loan to Borrower; and
WHEREAS, as a condition to making the loan, and in order to secure the
repayment thereof, Lender has required Borrower to execute and deliver to Lender
this Loan and Security Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Borrower and Lender agree as follows:
1. Creation of Security Interest. As security for the due and punctual
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payment of any and all of the present and future obligations of the Borrower to
Lender under the Loan Documents (as hereinafter defined in Section 4), Borrower
hereby conveys, assigns and grants to Lender a continuing security interest in
all of Borrower's rights, title and interests in and to the equipment described
in the Supplemental Security Agreement entered into pursuant to this Loan and
Security Agreement ("Equipment) including all present and future additions,
attachments and accessories thereto, all substitutions therefor and replacements
thereof and all proceeds thereof, including all proceeds of insurance (such
Equipment and property hereinafter called "Collateral").
2. The Loan.
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(a) Subject to the terms and conditions of this Loan and Security
Agreement, Lender agrees to make a loan to Borrower in the original
principal amount of $2,039,886.44 (the "Loan Amount").
(b) The Loan Amount shall be repaid by Borrower as a term loan ("Term
Loan"), evidenced by a promissory note in the form attached hereto as
Exhibit "A" ("Term Note"). The payment provisions of the Term Note
shall be stated therein.
3. Method for Borrowing. Borrower shall give Lender at least five (5)
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business days written notice of its request for disbursement of the proceeds of
the Term Loan ("Request"), specifying the date on which the Loan Amount is to be
disbursed. Such Request shall be in the form attached hereto as Exhibit "C".
Such Request shall be accompanied by an original copy of the invoice or invoices
to be paid from the proceeds of the Term Loan. Such Request shall constitute a
representation and warranty by the Borrower that (i) as of the date of the
Request no Event of Default or event which with the passing of time or the
giving of notice or both would constitute an Event of Default hereunder has
occurred and is continuing and (ii) in the event items of Equipment have been
delivered to Borrower, Borrower has unconditionally accepted the Equipment from
the vendor thereof. Subject to the conditions of this Loan and Security
Agreement, Lender shall disburse the proceeds of the Term Loan to the invoicing
party or parties, or if Borrower shall have paid the amount of such invoice,
Lender shall reimburse Borrower, upon receipt of proof of payment from Borrower.
4. Cross Collateral/Cross Default. All Collateral shall secure the
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payment and performance of all of Borrower's liabilities and obligations to
Lender hereunder and under any of the documents or instruments now or hereafter
executed and delivered by Borrower in connection with or pursuant to this
Agreement or the Term Loan including, but not limited to the Term Note (the Loan
and Security Agreement, the Term Note, the Supplemental Security Agreement(s)
and all such other documents or instruments may be referred to herein
collectively as the "Loan Documents"). Lender's security interest in the
Collateral shall not be terminated until and unless all of Borrower's
obligations to Lender under any of the Loan Documents are fully paid and
performed. The occurrence of an event of default under any other of the Loan
Documents shall be deemed to be an Event of Default hereunder and an Event of
Default hereunder shall be deemed to be an event of default under any other of
the Loan Documents.
5. Representations and Warranties. Borrower hereby represents and
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warrants as follows:
(a) Power and Authorization. Borrower has the full power and
corporate authority to execute deliver and perform Borrower's
obligations under the Loan Documents, The execution and
delivery of the Loan Documents have been authorized by all
requisite corporate action on the part of Borrower. The
execution, delivery and performance of the Loan Documents have
not constituted and will not constitute a breach, default or
violation of or under Borrower's articles of incorporation,
by-laws, or any other agreement, indenture, contract, lease,
law, order, decree, judgment, or injunction to which Borrower
is a party or my be bound and have not resulted and will not
result in the creation of any lien upon the Equipment pursuant
to any agreement, indenture, lease, contract or other
instrument to which Borrower is a party, except the lien
created by this Loan and Security Agreement.
(b) Existence. Borrower (i) is duly incorporated, validly existing
and in good standing under the laws of its state of
incorporation, (ii) has all corporate power and all
governmental licenses, authorizations, consents and approvals
required to carry out its business as now conducted, and (iii)
is duly qualified to transact business as now conducted, and
(iv) is duly qualified to transact business as a foreign
corporation in each jurisdiction where the Equipment will be
located and in the jurisdiction where its principal place of
business is located.
[LOGO OF METLIFE CAPITAL APPEARS HERE]
(c) Binding Effect This Loan and Security Agreement constitutes
the valid and binding agreement of the Borrower; the Term Note,
when executed and delivered, will constitute the valid and
binding obligation of the Borrower; and the Loan Documents are
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by the bankruptcy laws,
and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability.
(d) Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower, threatened
against or affecting the Borrower, before any court or
arbitrator or any governmental body, agency or official which
has not been previously disclosed to the Lender in writing and
in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business,
financial condition or results of operations of the Borrower or
which would in any manner draw into question the validity of
any of the Loan Documents.
(e) Filing of Tax Returns. The Borrower has filed all tax returns
required to have been filed and has paid all taxes shown to be
due and payable on such returns, including interest and
penalties, and all other taxes which are payable by it, to the
extent the same have become due and payable. The Borrower knows
of no proposed tax assessment against it and all tax
liabilities of the Borrower are adequately provided for.
(f) Title. The Borrower has or shall have at the time it executes
the Term Note good and indefeasible title to the Collateral
free and clear of all liens other than the Lender's lien.
(g) Compliance with Law. The business and operations of the
Borrower have been and are being conducted in accordance with
all applicable laws, rules and regulations, other than
violations which could not (either individually or
collectively) have a material adverse effect on the financial
condition or operations of the Borrower.
(h) Full Disclosure. All documents, records, instruments,
certificates, statements (including, but not by way of
limitation, financial statements of Borrower) and information
provided to Lender by Borrower in connection with this Loan and
Security Agreement are true and accurate in all material
respects and do not contain any untrue statement, or fail to
contain any statement of a material fact necessary to make the
statements contained herein or therein not misleading. There is
no fact known to the Borrower that Borrower has not disclosed
in writing which could materially and adversely affect the
financial condition or operations of Borrower.
(i) Security Interest The security interest granted to Lender
hereunder is a valid, first priority security interest in the
Collateral and has been, or promptly after the execution of the
Supplemental Security Agreement describing the Collateral will
be, perfected in accordance with the requirements of all states
in which any item of the Collateral is located.
(j) Personal Property. Under the laws of the state(s) in which
the Collateral is to be located, the Collateral is deemed to
consist solely of personal property.
(k) Pollution and Environmental Control. To Borrower's knowledge,
Borrower has obtained all permits, licenses and other
authorizations which are required under, and is in material
compliance with, all federal, state, and local laws and
regulations relating to pollution, reclamation, or protection
of the environment, including laws relating to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into
air, water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or hazardous
or toxic materials or wastes. Borrower shall maintain all such
permits, licenses, and authorizations current.
6. Covenants. Borrower hereby agrees and covenants as follows:
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(a) Payment Borrower shall pay the indebtedness secured hereby as
provided herein and in the Term Note.
(b) Location of Collateral. Borrower will keep the Collateral
located at the location or locations stated on the Supplemental
Security Agreement, provided, however, that Borrower may change
the location or locations of the Collateral upon Lender's prior
written consent, which consent shall not be unreasonably
withheld, and upon written notice to Lender after approval of the
change in location or locations is given by Wakefern Food Corp.
(c) No Liens. Except for the security interest granted hereby or
under any other agreement under which Lender is the secured
party, whether as mortgagee, beneficiary or otherwise, Borrower
shall keep the Collateral free and clear of any security
interest, lien or encumbrance of any kind and Borrower shall not
sell, assign (by operation of law or otherwise) exchange or
otherwise dispose of any of the Collateral.
(d) Insurance. Borrower shall procure and continuously maintain and
pay for (a) all risk physical damage and property insurance
covering loss or damage to the Equipment for not less than the
full replacement value thereof naming Lender as loss payee and
(b) bodily injury and property damage combined single limit
liability insurance, all in such amounts and against such risks
and hazards as are reasonably required by Lender, with insurance
companies and pursuant to contracts or policies and with
deductibles satisfactory to Lender. All contracts and policies
shall include provisions for the protection of Lender
notwithstanding any act or neglect of or breach or default by
Borrower, shall provide for payment of insurance proceeds to
Lender, shall provide that they may not be modified, terminated
or canceled unless Lender is given at least thirty (30) days'
advance written notice thereof, and shall provide that the
coverage is "primary coverage" for the protection of Borrower or
Lender notwithstanding any other coverage carried by Lender
protecting against similar risks. Borrower shall promptly notify
any
appropriate insurer and Lender of each and every occurrence,
which may become the basis of a claim or cause of action against
the insured and provide Lender with all data pertinent to such
occurrence. Borrower shall furnish Lender with certificates of
such insurance or copies of policies upon request and shall
furnish Lender with renewal certificates not less than thirty
(30) days prior to the renewal date. Proceeds of all insurance
are payable first to Lender to the extent of its interest.
Notwithstanding the foregoing, prior to the occurrence of an
Event of Default hereunder, Borrower shall have the exclusive
right to make, settle, and adjust any and all claims under such
policies of insurance; provided, however, that Borrower shall not
legally conclude the settlement or adjustment of any claim in
excess of $100,000 without the written consent of Lender.
(e) Financing Statements. At the request of Lender, Borrower will
join Lender in executing one or more financing statements
pursuant to the Uniform Commercial Code and other documents
deemed necessary by Lender under applicable law to record or
perfect its security interest in the Collateral, including
continuation statements, in form satisfactory to Lender and will
pay the cost of filing the same in all public offices wherever
filing is deemed by Lender to be necessary or desirable. Borrower
hereby authorizes Lender, in such jurisdictions where such action
is authorized by law, to effect any such recordation or filing of
financing statements or other documents without Borrower's
signature thereto.
(f) Change of Name or Address. Borrower will immediately notify
Lender in writing of any change in its place of business or the
adoption or change of any tradename or fictitious business name,
and will upon request of Lender, execute any additional financing
statements or other similar documents necessary to perfect or
maintain its security interest.
(g) Use of Equipment, Maintenance. Borrower will cause the Equipment
to be used in a careful and proper manner, will comply with and
conform to all governmental laws, rules and regulations relating
thereto, and will cause the Equipment to be operated in
accordance with the manufacturer's or supplier's instructions or
manuals and only by competent and duly qualified personnel.
Borrower will cause the Equipment to be kept and maintained in
good repair, condition and working order and will furnish all
parts, replacements, mechanisms, devices and servicing required
therefor so that the value, condition and operating efficiency
thereof will at all times be maintained and preserved, normal
wear and tear excepted. All such repairs, parts, mechanisms,
devices and replacements shall immediately, without further act,
become part of the Equipment and subject to the security interest
created by this Loan and Security Agreement. Borrower will not
make any improvement, change, addition or alteration to the
Equipment if such improvement, change, addition or alteration
will impair the originally intended function or use of the
Equipment or impair the value of the Equipment as it existed
immediately prior to such improvement, change, addition or
alteration. Any part added to the Equipment in connection with
any improvement, change, addition or alteration shall
immediately, without further act, become part of the Equipment
and subject to the security interest created by this Loan and
Security Agreement.
(h) Inspection. Lender may at any reasonable time or times inspect
the Equipment and may at any reasonable time or times inspect the
books and records of Borrower. So long as no Event of Default
shall have occurred and be continuing, Lender shall conduct such
inspections only upon reasonable advance notice and during normal
business hours.
(i) Taxes. Borrower shall promptly pay, when due, all charges, fees,
assessments and taxes (excluding all taxes measured by Lender's
income) which may now or hereafter be imposed upon the ownership,
leasing, possession, sale or use of the Collateral.
(j) Performance by Lender. If Borrower fails to perform any
agreement or obligation contained herein, Lender may itself
perform, or cause the performance of such agreement or
obligation. Borrower will pay, or reimburse Lender, on demand,
for any and all fees, including attorneys' fees, costs and
expenses of whatever kind or nature incurred by Lender in
connection with (i) the creation, preservation and protection of
Lender's security interest in the Collateral, including, without
limitation, all fees and taxes in connection with the recording
or filing of instruments and documents in public offices, (ii)
payments or discharge of any taxes or liens upon or in respect of
the Collateral, (iii) premiums for insurance with respect to the
Equipment and (iv) this Loan and Security Agreement and with
protecting, maintaining or preserving the Collateral and Lender's
interests therein, whether through judicial proceedings or
otherwise, or in connection with defending or prosecuting any
actions, suits or proceedings arising out of or related to the
Loan and Security Agreement and the Loan Documents or in
connection with any debt restructuring, loan workout negotiations
or bankruptcy or insolvency case or proceedings. All such amounts
shall constitute obligations of Borrower secured by the
Collateral. In the event that Borrower fails to perform any of
its agreements contained herein, Borrower will, on demand,
reimburse Lender for all such expenditures, together with
interest thereon from the date of such expenditure until fully
reimbursed at the rate of fifteen percent (15%) per annum on the
outstanding balance of such expenditures or the highest rate
permitted by law, whichever is less.
(k) Power of Attorney. Borrower hereby irrevocably appoints Lender
Borrower's attorney-in-fact, with full authority in the place and
stead of Borrower and in the name of Borrower or otherwise, from
time to time in the Lender's discretion, from and after the
occurrence of an Event of Default, to take any action and to
execute any instrument which Lender may deem necessary or
advisable to accomplish the purposes of this Loan and Security
Agreement, including, without limitation: (i) to obtain,
compromise and adjust insurance required to be paid to Lender;
(ii) to ask, demand, collect, xxx for, recover, receive, and give
acquaintance and receipts for moneys due and to become due under
or in respect of any of the Collateral; (iii) to receive,
endorse, and collect any drafts or other instruments, documents,
and chattel paper in connection with clause (i) or (ii) above;
and (iv) to file any claims or take any action or institute any
proceedings which Lender may deem necessary or desirable for the
collection of any of the Collateral otherwise to enforce the
rights of Lender with respect to any of the Collateral.
(l) No Duties. The powers conferred on Lender hereunder are solely
to protect its interest in the Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting
[LOGO METLIFE CAPITAL APPEARS HERE]
for moneys actually received by it hereunder, Lender shall have
no duty as to any Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other
rights pertaining to any Collateral.
(m) Financial Data. Borrower will furnish to Lender and will cause
any guarantor of Borrower's obligations to furnish to Lender on
request (i) to the extent that Borrower has previously furnished
the following information to Lender, annual balance sheet and
profit and loss statements prepared in accordance with generally
accepted accounting principles and practices consistently applied
and, if Lender so requires, accompanied by the annual audit
report of an independent certified public accountant reasonably
acceptable to Lender, and (ii) all other financial information
and reports that Lender may from time to time reasonably request.
7. Conditions of Borrowing. Lender shall not be obligated to make the
loan hereunder unless:
(a) The Term Note evidencing such loan shall have been duly
executed and delivered to Lender;
(b) Borrower shall have executed and delivered to Lender the
Supplemental Security Agreement describing the Collateral and
stating, except with respect to progress payment fundings, the
location thereof;
(c) Except with respect to progress payment fundings, Lender shall
have received evidence (as described in Section 6d hereof) that
insurance has been obtained in accordance with the provisions
of this Loan and Security Agreement;
(d) Lender shall have received any and all third party consents,
waivers or releases deemed necessary or desirable by it in
connection with the loan and the Collateral being financed,
including, without limitation, Uniform Commercial Code lien
releases and the consent and waiver, in form and substance
satisfactory to Lender, of each and every realty owner,
landlord and mortgagee holding an interest in or encumbrance on
the real property where any of the Collateral is to be located;
(e) All filings, recordings and other actions deemed necessary or
desirable by Lender in order to establish, protect, preserve
and perfect its security interest in the Collateral being
financed by such loan as a valid perfected first priority
security interest shall have been duly effected, including,
without limitation, the filing of financing statements and the
recordation of landlord (owners) and/or mortgagee waivers or
disclaimers, all in form and substance satisfactory to Lender,
and all fees, taxes and other charges relating to such filings
and recordings shall have been paid by Borrower;
(f) The representations and warranties contained in this Loan and
Security Agreement shall be true and correct in all respects on
and as of the date of the making of any loan hereunder with the
same effect as if made on and as of such date;
(g) In the sole judgment of Lender, there shall have been no
material adverse change in the financial condition, business or
operations of Borrower from the earliest date of any financial
statement, credit report, business report or similar document
submitted to Lender for its review;
(h) All Loan Documents shall be satisfactory to Lender's attorneys;
and
(i) Lender shall have received, in form and substance satisfactory
to Lender, such other documents as Lender shall require
including, but not limited to, a Request, proof of payment,
vendor invoices and certificates of authority and incumbency.
8. Default. The occurrence of any of the following events, following
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the giving of any required notice and/or the expiration of any applicable
period of grace, shall constitute an event of default ("Event of Default")
hereunder:
(a) Borrower's default in payment of any installment of the
principal of or interest on the Term Note when and after the
same shall become due and payable, whether at the due date
thereof or by acceleration or otherwise, which default shall
continue unremedied for ten (10) days; or
(b) The failure by Borrower to make payment of any other amount
payable hereunder or under the Term Note, and the continuance
of such failure for more than ten (10) days after written
notice thereof by Lender to Borrower; or
(c) The failure by Borrower to perform or observe any covenant,
condition, obligation or agreement to be performed or observed
by it hereunder, which failure shall continue unremedied for
thirty (30) days after written notice thereof by Lender to
Borrower; or
(d) The occurrence of a default described in Section 4 hereof; or
(e) Any warranty, representation or statement made or furnished
with respect to the Borrower or the Collateral to Lender by or
on behalf of Borrower, in connection with this Loan and
Security Agreement, or the indebtedness secured hereby, shall
prove to have been false in any adverse, material respect when
made or furnished; or
(f) Borrower shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver; or a trustee or a
receiver shall be appointed for Borrower or for a substantial
part of its property without its consent and shall not be
dismissed for a period of sixty (60) days; or bankruptcy,
reorganization, liquidation, insolvency or dissolution
proceedings shall be instituted by or against Borrower and, if
instituted against Borrower, shall be consented to or be
pending and not dismissed for a period of sixty (60) days; or
any execution or writ of process shall be issued under any
action or proceeding against Borrower in such capacity whereby
any of the Collateral may be taken or restrained; Borrower
shall cease doing business as a going concern; or, without the
prior written consent of Lender, which consent shall not be
unreasonably
appropriate insurer and Lender of each and every occurrence,
which may become the basis of a claim or cause of action against
the insured and provide Lender with all data pertinent to such
occurrence. Borrower shall furnish Lender with certificates of
such insurance or copies of policies upon request and shall
furnish Lender with renewal certificates not less than thirty
(30) days prior to the renewal date. Proceeds of all insurance
are payable first to Lender to the extent of its interest.
Notwithstanding the foregoing, prior to the occurrence of an
Event of Default hereunder, Borrower shall have the exclusive
right to make, settle, and adjust any and all claims under such
policies of insurance; provided, however, that Borrower shall not
legally conclude the settlement or adjustment of any claim in
excess of $100,000 without the written consent of Lender.
(e) Financing Statements. At the request of Lender, Borrower will
join Lender in executing one or more financing statements
pursuant to the Uniform Commercial Code and other documents
deemed necessary by Lender under applicable law to record or
perfect its security interest in the Collateral, including
continuation statements, in form satisfactory to Lender and will
pay the cost of filing the same in all public offices wherever
filing is deemed by Lender to be necessary or desirable. Borrower
hereby authorizes Lender, in such jurisdictions where such action
is authorized by law, to effect any such recordation or filing of
financing statements or other documents without Borrower's
signature thereto.
(f) Change of Name or Address. Borrower will immediately notify
Lender in writing of any change in its place of business or the
adoption or change of any tradename or fictitious business name,
and will upon request of Lender, execute any additional financing
statements or other similar documents necessary to perfect or
maintain its security interest.
(g) Use of Equipment, Maintenance. Borrower will cause the Equipment
to be used in a careful and proper manner, will comply with and
conform to all governmental laws, rules and regulations relating
thereto, and will cause the Equipment to be operated in
accordance with the manufacturer's or supplier's instructions or
manuals and only by competent and duly qualified personnel.
Borrower will cause the Equipment to be kept and maintained in
good repair, condition and working order and will furnish all
parts, replacements, mechanisms, devices and servicing required
therefor so that the value, condition and operating efficiency
thereof will at all times be maintained and preserved, normal
wear and tear excepted. All such repairs, parts, mechanisms,
devices and replacements shall immediately, without further act,
become part of the Equipment and subject to the security interest
created by this Loan and Security Agreement. Borrower will not
make any improvement, change, addition or alteration to the
Equipment if such improvement, change, addition or alteration
will impair the originally intended function or use of the
Equipment or impair the value of the Equipment as it existed
immediately prior to such improvement, change, addition or
alteration. Any part added to the Equipment in connection with
any improvement, change, addition or alteration shall
immediately, without further act, become part of the Equipment
and subject to the security interest created by this Loan and
Security Agreement.
(h) Inspection. Lender may at any reasonable time or times inspect
the Equipment and may at any reasonable time or times inspect the
books and records of Borrower. So long as no Event of Default
shall have occurred and be continuing, Lender shall conduct such
inspections only upon reasonable advance notice and during normal
business hours.
(i) Taxes. Borrower shall promptly pay, when due, all charges, fees,
assessments and taxes (excluding all taxes measured by Lender's
income) which may now or hereafter be imposed upon the ownership,
leasing, possession, sale or use of the Collateral.
(j) Performance by Lender. If Borrower fails to perform any
agreement or obligation contained herein, Lender may itself
perform, or cause the performance of such agreement or
obligation. Borrower will pay, or reimburse Lender, on demand,
for any and all fees, including attorneys' fees, costs and
expenses of whatever kind or nature incurred by Lender in
connection with (i) the creation, preservation and protection of
Lender's security interest in the Collateral, including, without
limitation, all fees and taxes in connection with the recording
or filing of instruments and documents in public offices, (ii)
payments or discharge of any taxes or liens upon or in respect of
the Collateral, (iii) premiums for insurance with respect to the
Equipment and (iv) this Loan and Security Agreement and with
protecting, maintaining or preserving the Collateral and Lender's
interests therein, whether through judicial proceedings or
otherwise, or in connection with defending or prosecuting any
actions, suits or proceedings arising out of or related to the
Loan and Security Agreement and the Loan Documents or in
connection with any debt restructuring, loan workout negotiations
or bankruptcy or insolvency case or proceedings. All such amounts
shall constitute obligations of Borrower secured by the
Collateral. In the event that Borrower fails to perform any of
its agreements contained herein, Borrower will, on demand,
reimburse Lender for all such expenditures, together with
interest thereon from the date of such expenditure until fully
reimbursed at the rate of fifteen percent (15%) per annum on the
outstanding balance of such expenditures or the highest rate
permitted by law, whichever is less.
(k) Power of Attorney. Borrower hereby irrevocably appoints Lender
Borrower's attorney-in-fact, with full authority in the place and
stead of Borrower and in the name of Borrower or otherwise, from
time to time in the Lender's discretion, from and after the
occurrence of an Event of Default, to take any action and to
execute any instrument which Lender may deem necessary or
advisable to accomplish the purposes of this Loan and Security
Agreement, including, without limitation: (i) to obtain,
compromise and adjust insurance required to be paid to Lender;
(ii) to ask, demand, collect, xxx for, recover, receive, and give
acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral; (iii) to receive,
endorse, and collect any drafts or other instruments, documents,
and chattel paper in connection with clause (i) or (ii) above;
and (iv) to file any claims or take any action or institute any
proceedings which Lender may deem necessary or desirable for the
collection of any of the Collateral otherwise to enforce the
rights of Lender with respect to any of the Collateral.
(l) No Duties. The powers conferred on Lender hereunder are solely
to protect its interest in the Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting
[LOGO METLIFE CAPITAL APPEARS HERE]
for moneys actually received by it hereunder, Lender shall have
no duty as to any Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other
rights pertaining to any Collateral.
(m) Financial Data. Borrower will furnish to Lender and will cause
any guarantor of Borrower's obligations to furnish to Lender on
request (i) to the extent that Borrower has previously furnished
the following information to Lender, annual balance sheet and
profit and loss statements prepared in accordance with generally
accepted accounting principles and practices consistently applied
and, if Lender so requires, accompanied by the annual audit
report of an independent certified public accountant reasonably
acceptable to Lender, and (ii) all other financial information
and reports that Lender may from time to time reasonably request.
7. Conditions of Borrowing. Lender shall not be obligated to make the
loan hereunder unless:
(a) The Term Note evidencing such loan shall have been duly
executed and delivered to Lender;
(b) Borrower shall have executed and delivered to Lender the
Supplemental Security Agreement describing the Collateral and
stating, except with respect to progress payment fundings, the
location thereof;
(c) Except with respect to progress payment fundings, Lender shall
have received evidence (as described in Section 6d hereof) that
insurance has been obtained in accordance with the provisions
of this Loan and Security Agreement;
(d) Lender shall have received any and all third party consents,
waivers or releases deemed necessary or desirable by it in
connection with the loan and the Collateral being financed,
including, without limitation, Uniform Commercial Code lien
releases and the consent and waiver, in form and substance
satisfactory to Lender, of each and every realty owner,
landlord and mortgagee holding an interest in or encumbrance on
the real property where any of the Collateral is to be located;
(e) All filings, recordings and other actions deemed necessary or
desirable by Lender in order to establish, protect, preserve
and perfect its security interest in the Collateral being
financed by such loan as a valid perfected first priority
security interest shall have been duly effected, including,
without limitation, the filing of financing statements and the
recordation of landlord (owners) and/or mortgagee waivers or
disclaimers, all in form and substance satisfactory to Lender,
and all fees, taxes and other charges relating to such filings
and recordings shall have been paid by Borrower;
(f) The representations and warranties contained in this Loan and
Security Agreement shall be true and correct in all respects on
and as of the date of the making of any loan hereunder with the
same effect as if made on and as of such date;
(g) In the sole judgment of Lender, there shall have been no
material adverse change in the financial condition, business or
operations of Borrower from the earliest date of any financial
statement, credit report, business report or similar document
submitted to Lender for its review;
(h) All Loan Documents shall be satisfactory to Lender's attorneys;
and
(i) Lender shall have received, in form and substance satisfactory
to Lender, such other documents as Lender shall require
including, but not limited to, a Request, proof of payment,
vendor invoices and certificates of authority and incumbency.
8. Default. The occurrence of any of the following events, following
-------
the giving of any required notice and/or the expiration of any applicable
period of grace, shall constitute an event of default ("Event of Default")
hereunder:
(a) Borrower's default in payment of any installment of the
principal of or interest on the Term Note when and after the
same shall become due and payable, whether at the due date
thereof or by acceleration or otherwise, which default shall
continue unremedied for ten (10) days; or
(b) The failure by Borrower to make payment of any other amount
payable hereunder or under the Term Note, and the continuance
of such failure for more than ten (10) days after written
notice thereof by Lender to Borrower; or
(c) The failure by Borrower to perform or observe any covenant,
condition, obligation or agreement to be performed or observed
by it hereunder, which failure shall continue unremedied for
thirty (30) days after written notice thereof by Lender to
Borrower; or
(d) The occurrence of a default described in Section 4 hereof; or
(e) Any warranty, representation or statement made or furnished
with respect to the Borrower or the Collateral to Lender by or
on behalf of Borrower, in connection with this Loan and
Security Agreement, or the indebtedness secured hereby, shall
prove to have been false in any adverse, material respect when
made or furnished; or
(f) Borrower shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver; or a trustee or a
receiver shall be appointed for Borrower or for a substantial
part of its property without its consent and shall not be
dismissed for a period of sixty (60) days; or bankruptcy,
reorganization, liquidation, insolvency or dissolution
proceedings shall be instituted by or against Borrower and, if
instituted against Borrower, shall be consented to or be
pending and not dismissed for a period of sixty (60) days; or
any execution or writ of process shall be issued under any
action or proceeding against Borrower in such capacity whereby
any of the Collateral may be taken or restrained; Borrower
shall cease doing business as a going concern; or, without the
prior written consent of Lender, which consent shall not be
unreasonably
withheld, or the prior written consent of Wakefem Food Corp.
and written notice to Lender, Borrower shall sell, transfer or
dispose of all or substantially all of its assets or property;
or
(g) The liquidation, merger, consolidation, reorganization,
conversion to an "S" status or dissolution, if Borrower is a
corporation or partnership, of Borrower, if in Lender's
reasonable opinion, such act shall materially and adversely
affect Borrower's ability to perform under any of the Loan
Documents; or
(h) Any item of Collateral is seized or levied on under legal or
governmental process.
The occurrence of an Event of Default shall terminate any commitment or
obligation by Lender to make any of the loans contemplated by this Loan and
Security Agreement.
9. Remedies Upon Default. Upon the occurrence of an Event of Default
---------------------
hereunder, Lender may, at its option, do any one or more of the following:
(a) Declare all obligations of Borrower to Lender under the Loan
Documents to be immediately due and payable, whereupon all
unpaid principal of and interest on said indebtedness and other
amounts declared due and payable shall be and become
immediately due and payable;
(b) Take possession of all or any of the Collateral and exclude
therefrom Borrower and all others claiming under Borrower, and
thereafter hold, store, use, operate, manage, maintain and
control, make repairs, replacements, alterations, additions and
improvements to and exercise all rights and powers of Borrower
in respect to the Collateral or any part thereof. In the event
Lender demands, or attempts to take possession of the
Collateral in the exercise of any rights under this Loan and
Security Agreement, Borrower promises and agrees to promptly
turn over and deliver complete possession thereof to Lender;
(c) Require Borrower to assemble the Collateral, or any portion
thereof, at a place designated by Lender and reasonably
convenient to both parties, and promptly to deliver such
Collateral to Lender, or an agent or representative designated
by it;
(d) Sell, lease or otherwise dispose of the Collateral at public or
private sale, without having the Collateral at the place of
sale, and upon terms and in such manner as Lender may determine
(and Lender may be a purchaser at any sale); and
(e) Exercise any remedies of a secured party under the Uniform
Commercial Code as adopted in the state where the Collateral is
located or any other applicable law.
Except as to portions of the Collateral which are perishable or threaten
to decline speedily in value or are of a type customarily sold on a recognized
market, Lender shall give Borrower at least ten (10) days' prior written notice
of the time and place of any public or private sale of the Collateral or other
intended disposition thereof to be made. Such notice may be mailed to Borrower
at the address set forth in the first paragraph of this Loan and Security
Agreement. Borrower hereby specifically agrees (to the extent that applicable
law and public policy allows it to effectively do so) that any public or private
sale held in accordance with the terms of this Loan and Security Agreement
shall, for the purpose of the Uniform Commercial Code as adopted in the state
where the Collateral is located and for all other purposes, be deemed to have
been conducted in a commercially reasonable manner and in good faith.
The proceeds of any sale under Section 9(d) shall be applied as follows:
(i) To the repayment of the costs and expenses of retaking,
holding and preparing for the sale and the selling of the
Collateral (including legal expenses and attorneys' fees) and
the discharge of all assessments, encumbrances, charges or
liens, if any, on the Collateral prior to the lien hereof
(except any taxes, assessments, encumbrances, charges or liens
subject to which such sale shall have been made);
(ii) To the payment of the whole amount then due and unpaid
of the indebtedness of Borrower to Lender under the Loan
Documents,
(iii) To the payment of other amounts then secured hereunder;
and
(iv) The surplus, if any, shall be paid to the Borrower or to
whomsoever may be lawfully entitled to receive the same.
Lender shall have the right to enforce one or more remedies hereunder,
successively or concurrently, and such action shall not operate to stop or
prevent Lender from pursuing any further remedy which it may have, and any
repossession or retaking or sale of the Collateral pursuant to the terms hereof
shall not operate to release Borrower until full payment of any deficiency has
been made in cash.
10. Limitation on Interest. It is the intent of the parties to this Loan
----------------------
and Security Agreement to contract in strict compliance with applicable usury
laws from time to time in effect. In furtherance thereof, the parties stipulate
and agree that none of the terms and provisions contained in the Loan Documents
shall ever be construed to create a contract to pay for the use, forbearance or
detention of money at a rate in excess of the maximum interest rate permitted to
be charged by applicable law from time to time in effect.
11. Personal Property/Tags. No item of Equipment will be attached or
----------------------
affixed to realty or any building without Lender's prior knowledge and written
consent and waiver of the landlord and the mortgagee, if any, of the real
property. If so requested by Lender, Borrower will affix tags supplied by
Lender, reflecting Lender's security interest in the Equipment.
[LOGO OF METLIFE CAPITAL APPEARS HERE]
12. Loss and Damage. Borrower shall bear the risk of damage, loss, theft,
---------------
or destruction, partial or complete of the Equipment, whether or not such loss
or damage is covered by insurance. Unless an Event of Default shall have
occurred and be continuing, Lender agrees to apply toward payment of the
obligations of Borrower under this Section 12, Insurance proceeds payable to
Lender by reason of such damage, loss, theft, or destruction. In the event of
any damage, loss, theft, or destruction, partial or complete, of any item of
Equipment, Borrower shall promptly notify Lender in writing and at the option of
Borrower (a) repair or restore the Equipment to good condition and working
order, or (b) replace the Equipment with similar equipment in good repair,
condition and working order, or (c) pay Lender, in cash, an amount equal to the
unamortized equipment cost for the item or if the Equipment was not purchased
with the loan proceeds, the pro rata portion of the outstanding principal
balance due under the Term Note, as the case may be, and all other amounts
relating to that item of Equipment then due and owing hereunder, and upon
payment of that amount, Lender's lien shall be terminated with respect to that
item of Equipment only, and Lender will release its interest in that item of
Equipment.
13. Assignment. Borrower may not assign or transfer any rights under this
----------
Loan and Security Agreement or to the Collateral without Lender's prior written
consent, which consent shall not be unreasonably withheld.
14. Indemnification. Borrower shall indemnify and hold harmless Lender
---------------
from and against any and all claims, losses, liabilities, causes of action,
costs and expenses (including the fees of Lender's attorneys) ("Claims") in any
way relating to or arising out of this Loan and Security Agreement, the other
Loan Documents or the Collateral, except for any Claims resulting solely and
directly from Lender's gross negligence or willful misconduct.
15. Notices. Whenever Borrower or Lender shall desire to give or serve
-------
any notice, demand, request or other communication with respect to this Loan and
Security Agreement, each such notice, demand, request or communication shall be
in writing and shall be effective only if the same is physically delivered or is
by certified mail, postage prepaid, return receipt requested, or by overnight
courier, postage prepaid, mailed to the parties at the addresses set forth in
the first paragraph of this Loan and Security Agreement, with a copy to Lender's
Vice President of Credit. Any party hereto may change its address for such
notices by delivering or mailing to the other parties hereto, as aforesaid, a
notice of such change.
16. No Waiver by Lender. By exercising or failing to exercise any of its
-------------------
rights, options or elections hereunder, Lender shall not be deemed to have
waived any breach or default on the part of Borrower or to have released
Borrower from any of the obligations secured hereby, unless such waiver or
release is in writing and is signed by Lender. In addition, the waiver by Lender
of any breach hereof for default in payment of an indebtedness secured hereby
shall not be deemed to constitute a waiver of any succeeding breach or default.
17. Further Agreements. From time to time, Borrower will execute such
-------------------
further instruments as Lender may reasonably require, in order to protect,
preserve, and maintain the security interest granted hereby.
18. Binding Upon Successors. All agreements, covenants, conditions and
-----------------------
provisions of this Loan and Security Agreement shall apply to and bind the
successors and assigns of all parties hereto.
19. Governing Laws. This Loan and Security Agreement shall be governed
--------------
by the laws of the State of Washington.
20. Amendment. This Loan and Security Agreement can be modified or
---------
rescinded only by a writing expressly referring to this Loan and Security
Agreement, signed by both of the parties hereto.
21. Invalidity of Provisions. Every provision of this Loan and Security
------------------------
Agreement is intended to be severable. In the event that any term or provision
hereof is declared by a court to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and
enforceable, then to the extent possible all of the other provisions shall
nonetheless remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Lender have duly executed this Loan and
Security Agreement the day and year first above written.
Lender: MetLife Capital Corporation Borrower: Big V Supermarkets, Inc.
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By: /s/Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
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Print Name: Xxxx Xxxxxxxx (Print Name): Xxxxx X. Xxxxxx, Xx.
--------------------------- ------------------------
Title: Vice President Title: Exec. Vice President
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Federal Tax Identification Number 00-0000000
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