LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement"), dated August 29, 1997, is made
between XXXXXX PROTEIN (USA), INC., a Virginia corporation (the "Borrower"),
XXXXXX PROTEIN, INC., a Delaware corporation (the "Guarantor") and HIBERNIA
NATIONAL BANK ("Lender"), who agree as follows:
ARTICLE 1.
GENERAL TERMS
SECTION 1.1 TERMS DEFINED ABOVE. As used in this Agreement, the terms
"Agreement," "Borrower," "Guarantor" and "Lender" shall have the meanings
indicated above.
SECTION 1.2 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the meanings indicated, unless the context otherwise
requires:
"Business Day" shall mean a day other than a Saturday, Sunday
or legal holiday for commercial banks in New Orleans, Louisiana.
"Closing Date" shall mean the date on which the Note is
executed and delivered by the Borrower to the Lender.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Collateral" shall mean the properties described in the
Collateral Documents as security for the Indebtedness.
"Collateral Documents" shall mean collectively the documents
required by the Lender to obtain the security interest in the Collateral as
described in Article 3 hereof.
"Debt" shall mean any and all amounts and/or liabilities owing
from time to time by the Borrower to any Person, including the Lender, direct or
indirect, liquidated or contingent, now existing or hereafter arising,
including, without limitation, (i) indebtedness for borrowed money; (ii)
unfunded portions of commitments for money to be borrowed; (iii) the amounts of
all standby and commercial letters of credit and bankers acceptances, matured or
unmatured, issued on behalf of the Borrower; (iv) guaranties of the obligations
of any other Person, whether direct or indirect, whether by agreement to
purchase the indebtedness of any other Person or by agreement for the furnishing
of funds to any other Person through the purchase or lease of goods, supplies or
services (or by way of stock purchase, capital contribution, advance or loan)
for the purpose of paying or discharging the indebtedness of any other Person,
or otherwise; (v) the present value of all obligations for
the payment of rent or hire of property of any kind (real or personal) under
leases or lease agreements required to be capitalized under generally accepted
accounting principles; and (vi) trade payables and operating leases incurred in
the ordinary course of business or otherwise.
"Default" shall mean the occurrence of any of the events
specified in Article 8 hereof, whether or not any requirement for notice or
lapse of time or other condition precedent has been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Event of Default" shall mean the occurrence of any of the
events specified in Article 8 hereof, provided that any requirement for notice
or lapse of time or any other condition precedent has been satisfied.
"Lien" shall mean any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on jurisprudence, statute or contract,
and including, but not limited to, the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. The term
"Lien" shall include reservations, exceptions, encroachments, easements,
servitudes, unsufructs, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting property. For the
purposes of this Agreement, the Borrower shall be deemed to be the owner of any
property which it has accrued or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" shall mean the term loan to be made by the Lender to
the Borrower as specified in Section 2.1 hereof.
"Note" shall mean the term note of the Borrower evidencing the
Loan as specified in Section 2.1 hereof, including any amendments,
modifications, supplements, restatements, refinancings, substitutions or
renewals thereto or thereof.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof, or any other form of entity.
"Plan" shall mean any plan subject to Title IV of ERISA and
maintained by the Borrower, or any such plan to which the Borrower is required
to contribute on behalf of its employees.
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"Prohibited Transaction" shall mean any transaction set forth
in Section 406 of ERISA or Section 4979 of the Code.
"Reportable Event" shall have the meaning set forth in Title
IV of ERISA.
"Termination Event" shall mean (i) Reportable Event described
in Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30 day notice to the Pension
Benefit Guaranty Corporation under such regulations) or (ii) the withdrawal of
the Borrower from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or (iii) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA or (iv) the institution of proceedings
to terminate a Plan by the Pension Benefit Guaranty Corporation under Section
4042 of ERISA, and, in each case in clauses (i) through (iv) above, such event
or condition, together with all other events or conditions, is likely to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
SECTION 1.3 ACCOUNTING TERMS. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, on a basis consistent (except for
changes approved by independent public accountants for the Borrower) with the
most recent audited financial statements of the Borrower.
ARTICLE 2.
THE CREDIT
SECTION 2.1 COMMITMENT TO LEND. 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 a term loan to
the Borrower in the principal amount of $2,212,250. The Loan is represented by a
promissory note in the principal amount of $2,212,500 payable to the order of
the Lender. Interest on the Loan shall be payable monthly in arrears on the
first day of each month, beginning October 1, 1997 (except that interest on the
Loan at LIBO Rates having either two month or three month interest periods shall
be payable on the last day of such interest periods). Principal on the Loan
shall be payable in monthly installments of $36,870.83 on the first day of each
month, beginning October 1, 1997. The balance of all outstanding principal and
accrued but unpaid interest shall be due and payable in full at maturity on
August 29, 2002. Unless otherwise agreed or required by applicable law, payments
will be applied first to accrued unpaid interest in arrears, then to principal,
and any remaining amount to pay unpaid collection costs and late charges.
SECTION 2.2 INTEREST RATES. The Loan shall bear interest at either (i)
the Prime Rate or (ii) the LIBO Rate plus 1.75%, at the Borrower's option. For
the purposes hereof, "Prime
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Rate" shall mean the Citibank, N.A. prime or base rate; and "LIBO Rate" shall
mean the rate at which deposits of United States Dollars are offered in the
London inter-bank market (as shown on the Dow Xxxxx Telerate Matrix for British
Bankers Association Interest Settlement Rates as of the date of determination)
for interest periods of one month, two months or three months (at Borrower's
option), in amounts equal (as nearly as may be) to the principal amount of the
Loan outstanding. All advances under the Loan shall bear interest at the same
interest rate; only one interest rate tranche shall be permitted for the Loan.
In the absence of any designation by the Borrower, the Loan shall bear interest
at the Prime Rate.
SECTION 2.3 PREPAYMENTS. The Borrower may, at its option, prepay the
principal amount of the Loan at any time, in whole or in part, upon 30 days
prior written notice. All partial prepayments shall be applied to installments
of principal in inverse order of their maturity.
SECTION 2.4 BUSINESS DAYS. If the date for any payment, prepayment or
commitment fee payment hereunder falls on a day which is not a Business Day,
then for all purposes of this Agreement, the same shall be deemed to have fallen
on the next following Business Day, and such extension of time shall in such
case be included in the computation of payments of interest or commitment fee,
as the case may be. If the date for any interest rate election falls on a day
which is not a Business Day, then the same shall be deemed to have fallen on the
next preceding Business Day.
SECTION 2.5 NATURE OF COMMITMENT. The Lender's obligation to make any
and all advances on the Loan shall be deemed to be a transaction made pursuant
to a contract to make a loan or extend debt financing or financial
accommodations to the Borrower within the meaning of Sections 365(c)(2) and
365(e)(2)(B) of the Bankruptcy Code of the United States.
SECTION 2.6 PAYMENTS. The Borrower shall make each payment hereunder
and under the Note not later than 3:00 p.m. (central time) on the day when due
in lawful money of the United States of America to the Lender at its office at
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 or X.X. Xxx 00000, Xxx
Xxxxxxx, Xxxxxxxxx 00000 in same day funds. The Borrower hereby authorizes the
Lender to charge from time to time against the Borrower's accounts with the
Lender any amount so due.
SECTION 2.7 USE OF PROCEEDS. The Borrower shall use the proceeds of the
Loan to finance equipment and aircraft and to provide for working capital.
ARTICLE 3.
SECURITY FOR THE OBLIGATIONS
SECTION 3.1 SECURITY. The Loan shall be secured by the following:
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(a) Security Agreement granting to the Lender a first priority
security interest in certain aircraft of the Borrower.
(b) Security Agreement granting to the Lender a first priority
security interest in certain equipment of the Borrower.
(c) Guaranty Agreement by the Guarantor.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement, the
Borrower and Guarantor represent and warrant to the Lender (which
representations and warranties will survive the extensions of credit under this
Agreement) that:
SECTION 4.1 EXISTENCE. (a) The Borrower is a corporation duly
organized, legally existing and in good standing under the laws of the State of
Virginia, and is duly qualified as a foreign corporation in all jurisdictions
where the property it owns or the business it transacts make such qualification
necessary. The Borrower is a wholly-owned subsidiary of the Guarantor. The chief
executive office of the Borrower is at 0000 Xxxxxxx 00, Xxxxxxxxxx, Xxxxxxxxx
00000. The federal taxpayer identification number for the Borrower is
00-0000000.
(b) The Guarantor is a corporation duly organized, legally
existing and in good standing under the laws of ____________, and is duly
qualified as a foreign corporation in all jurisdictions where the property it
owns or the business it transacts make such qualification necessary. The
Guarantor is a holding company that is a wholly-owned subsidiary of Xxxxxx
Corporation.
SECTION 4.2 POWER AND AUTHORIZATION. The Borrower is duly authorized
and empowered to execute, deliver and perform this Agreement, the Note and the
Collateral Documents executed by it. All action on the part of the Borrower
requisite for the due creation and execution of this Agreement, the Note and
Collateral Documents has been duly and effectively taken. The Guarantor is duly
authorized and empowered to execute, deliver and perform the Collateral
Documents executed by it. All action on the part of the Guarantor requisite for
the due creation and execution of the Collateral Documents executed by it has
been duly and effectively taken.
SECTION 4.3 BINDING OBLIGATIONS. The Borrower and Guarantor have
reviewed this Agreement, the Note and the Collateral Documents with counsel for
the Borrower and have had the opportunity to discuss the provisions thereof with
the Lender prior to execution. This Agreement, the Note and the Collateral
Documents constitute valid and binding obligations of the Borrower and Guarantor
enforceable in accordance with their terms
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(except that enforcement may be subject to any applicable bankruptcy, insolvency
or similar laws generally affecting the enforcement of creditors' rights).
SECTION 4.4 NO LEGAL BAR OR RESULTANT LIEN. This Agreement, the Note
and the Collateral Documents do not and will not violate any provisions of the
Borrower's or Guarantor's charter and by-laws, will not violate any contract,
agreement, law, regulation, order, injunction, judgment, decree or writ to which
the Borrower or Guarantor is subject, and will not result in the creation or
imposition of any Lien upon any property of the Borrower or Guarantor, other
than as contemplated by this Agreement.
SECTION 4.5 NO CONSENT. The Borrower's and Guarantor's execution,
delivery and performance of this Agreement, the Note and the Collateral
Documents executed by them do not require the consent or approval of any other
Person, 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.
SECTION 4.6 FINANCIAL CONDITION. All financial statements of the
Guarantor delivered to Lender fairly and accurately present the financial
condition of the parties for whom such statements are submitted, and all such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved, and
there are no contingent liabilities required by generally accepted accounting
principles to be disclosed in the balance sheets of such parties not disclosed
thereby (or not otherwise disclosed to the Lender) which would materially
adversely affect the financial condition of such parties. Since the close of the
period covered by the latest financial statements delivered to Lender with
respect to the Guarantor, there has been no material adverse change in the
assets, liabilities or financial condition of the Guarantor. No event has
occurred (including, without limitation, any litigation or administrative
proceedings) and no condition exists or, to the knowledge of the Borrower or
Guarantor is threatened, which (i) might render the Borrower or Guarantor unable
to perform its obligations under this Agreement, the Note or the Collateral
Documents or (ii) would constitute a Default hereunder or (iii) might adversely
affect the financial condition of the Borrower or the Guarantor or the validity
or priority of the lien of the Collateral Documents or (iv) might adversely
affect the business or the property of the Borrower or Guarantor or their
ability to carry on business as now conducted. The Borrower and the Guarantor
are (i) not a defendant in any suits or legal action which are not covered by
insurance or disclosed to the Lender and (ii) do not have any judgments,
garnishments or attachments pending against them. All of the materials which the
Borrower has submitted to the Lender a constitute a complete and accurate
presentation of all facts material to the Lender's agreement to execute this
Agreement.
SECTION 4.7 SOLVENCY. The Borrower and Guarantor will receive a
reasonably equivalent value in exchange for the obligations of the Borrower
under this Agreement, the Note and the Collateral Documents. The execution and
performance of this Agreement, the Note and the Collateral Documents by the
Borrower and Guarantor (i) are not being made
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with any intent to hinder, delay or defraud any entity to which the Borrower or
Guarantor is indebted; (ii) will not result in the Borrower or Guarantor
becoming insolvent or having an unreasonably small capital for the business in
which it is engaged; and (iii) will not cause the Borrower or Guarantor to incur
debts that would be beyond the ability of the Borrower and Guarantor to pay as
such debts mature. For the purposes of this Section, "insolvent" shall mean the
following: the sum of the Borrower's and Guarantor's debts, respectively, is
greater than all of the Borrower's and Guarantor's property at a fair valuation.
Any property transferred, concealed or removed with intent to hinder, delay or
defraud the Borrower's or Guarantor's creditors and property which may be
exempted from the debtor's estate under the Federal Bankruptcy Code shall be
excluded from the assets of the Borrower for purposes of determining insolvency.
The Borrower and Guarantor have never been adjudicated a bankrupt or filed a
case under the Federal Bankruptcy Code or had an order for relief entered
against them under the Federal Bankruptcy Code.
SECTION 4.8 TAXES AND GOVERNMENTAL CHARGES. The Borrower and Guarantor
have filed all tax returns and reports required to be filed and has paid all
taxes, assessments, fees and other governmental charges levied upon them or upon
their property or income which are due and payable, including interest and
penalties, or has provided adequate reserves for the payment thereof.
SECTION 4.9 DEFAULTS. The Borrower and Guarantor are not in default
under any indenture, mortgage, deed of trust, agreement or other instrument to
which the Borrower or Guarantor is a party or by which they are bound.
SECTION 4.10 CASUALTIES AND CONDEMNATION. Since the date of the most
recent financial statements furnished to the Lender prior to the Closing Date,
neither the business nor the property of the Borrower or Guarantor has been
materially and adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of property or cancellation of
contracts, permits or concessions by any domestic or foreign government or any
agency thereof, riot, activities of armed forces or acts of God or of any public
enemy, except as disclosed in writing to the Lender on or prior to the Closing
Date.
SECTION 4.11 USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Loan
hereunder will be used by the Borrower for the purposes listed in Article 2
hereof. None of such proceeds will be used for the purpose of, and the Borrower
is not engaged in the business of extending credit for the purpose of,
purchasing or carrying any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 221), or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry a margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of said
Regulation U. The Borrower is not engaged principally, or as one of the
Borrower's important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stocks. Neither the Borrower nor any
Person acting on behalf of the Borrower has taken or will take any action
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which might cause this Agreement to violate Regulation U or any other regulation
of the Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934 or any rule or regulation thereunder, in each
case as now in effect or as the same may hereinafter be in effect.
SECTION 4.12 COMPLIANCE WITH THE LAW. The Borrower and Guarantor (a)
are not in violation of any law, judgement, decree, order, ordinance or
governmental rule or regulation to which the Borrower or any of its property is
subject; and (b) have not failed to obtain any license, permit, franchise or
other governmental authorization necessary to the ownership of any of its
property or the conduct of its business; in each case, which violation or
failure could reasonably be anticipated to materially and adversely affect the
business, prospects, profits, property or condition (financial or otherwise) of
the Borrower or Guarantor.
SECTION 4.13 ERISA. The Borrower and Guarantor are in compliance in all
material respects with the applicable provisions of ERISA, and no Reportable
Event has occurred with respect to any Plan of the Borrower or Guarantor. This
provision shall be applicable only if Borrower and Guarantor have adopted or
shall adopt a defined benefit Plan.
SECTION 4.14 OTHER INFORMATION. All information, reports, papers and
data given to the Lender by the Borrower and Guarantor pursuant to this
Agreement and in connection with the Borrower's application for the Loan are
accurate and correct in all material respects. All financial projections given
to the Lender were prepared in good faith based on facts and circumstances
existing at the time of preparation and were believed by the Borrower and
Guarantor to be accurate in all material respects. No information, exhibit or
report furnished by the Borrower and Guarantor to the Lender in connection with
this Agreement or in the negotiation of this Agreement contained any material
misstatement or fact or omitted to state a material fact necessary to make the
statement contained therein not misleading.
SECTION 4.15 UTILITY OR INVESTMENT COMPANY. The Borrower is not engaged
in the State of Louisiana in the generation, transmission or distribution and
sale of electric power, transportation, distribution and sale through a local
distribution system of natural or other gas for domestic, commercial, industrial
or other use; ownership or operation of a pipeline for the transmission or sale
of natural or other gas, crude oil or petroleum products to other pipeline
companies, refineries, local distribution systems, municipalities or industrial
consumers; provision of telephone or telegraph service to others; production,
transmission or distribution and sale of steam or water; operation of a
railroad; or provision of sewer service to others. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.16 TITLE TO COLLATERAL. The Borrower has good and
merchantable title to the Collateral, free of all liens and encumbrances except
those created in favor of the Lender. Furthermore, the Borrower has not
heretofore conveyed or agreed to convey or
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encumber any Collateral in any way, except in favor of the Lender or as
permitted by this Agreement.
SECTION 4.17 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 the
Borrower under this Agreement, the Note and the Collateral Documents and any
other documents executed in connection therewith are fully satisfied or the
Borrower shall promptly notify the Lender of any event which would render any of
said representations and warranties untrue or misleading.
ARTICLE 5.
AFFIRMATIVE COVENANTS
Unless the Lender's prior written consent to the contrary is obtained,
the Borrower and Guarantor will at all times comply with the covenants in this
Article 5, from the date hereof and for so long as any part of the Obligations
is outstanding.
SECTION 5.1 PERFORMANCE OF OBLIGATIONS. The Borrower will repay the
Loan according to the reading, tenor and effect of the Note and this Agreement.
The Borrower and Guarantor will do and perform every act required of it by this
Agreement, the Note, or the Collateral Documents at the time or times and in the
manner specified.
SECTION 5.2 FINANCIAL STATEMENTS AND REPORTS. The Borrower and
Guarantor will promptly furnish to the Lender such information regarding the
business and affairs and financial condition of the Borrower and Guarantor as
the Lender may reasonably request, and, specifically, the Borrower and Guarantor
will furnish or cause to be furnished to the Lender:
(a) Annual Financial Statements of the Guarantor - as soon as
available and, in any event, within 120 days after the close of each fiscal year
of the Guarantor, the audited balance sheet of the Guarantor as at the end of
such year, the audited statement of income of the Guarantor for such year and
the audited statement of cash flow of the Guarantor for such year, in each case
on a consolidated and consolidating basis and setting forth in comparative form
the corresponding figures for the preceding fiscal year certified correct by an
independent certified public accounting firm acceptable to the Lender.
(b) Monthly Financial Statements of the Guarantor - as soon as
available but in any event within 30 days after the end of each month, the
unaudited financial statements of the Guarantor for such month, certified
correct by the chief financial officer of the Guarantor.
(c) Quarterly Compliance Certificates - within 30 days after
the end of each fiscal quarter of the Borrower and Guarantor, the Borrower and
Guarantor will provide the Lender with a certificate signed by the chief
financial officers of the Borrower and
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Guarantor, in form and substance satisfactory to the Lender, to the effect that
no Defaults exist (or if a Default exists the nature, period of existence and
status thereof) and showing a calculation of the financial covenants set forth
in this Agreement.
(d) Other Information - promptly upon the request of the
Lender, all regular budgets and such other information regarding the business
and affairs and financial condition of the Borrower and Guarantor as the Lender
may reasonably request.
All such financial statements and reports referred to above shall be in such
detail as the Lender may reasonably request and shall conform to generally
accepted accounting principles applied on a consistent basis, except only for
such changes in accounting principles or practice with which the independent
certified public accountants concur.
SECTION 5.3 TAXES AND OTHER LIENS. The Borrower and Guarantor will file
all tax returns required by law before the due date thereof (as validly
extended) and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon them or upon their income or upon
any of their property as well as all claims of any kind (including claims for
labor, materials, supplies and rent) which, if unpaid, might become a Lien upon
any of the Collateral; provided, however, the Borrower and Guarantor shall not
be required to pay any such tax, assessment, charge, levy or claim if the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings diligently conducted and if the contesting
party shall have set up reserves therefor adequate under generally accepted
accounting principles.
SECTION 5.4 MAINTENANCE OF EXISTENCE. The Borrower and Guarantor will
(i) maintain their existence; (ii) observe and comply (to the extent necessary
so that any failure will not materially and adversely affect the business of the
Borrower or Guarantor) with all valid laws, statutes, codes, acts, ordinances,
orders, judgements, decrees, injunctions, rules, regulations, certificates,
franchises, permits, licenses, authorizations, directions and requirements
(including, without limitation, applicable statutes, regulations, orders and
restrictions relating to environmental standards or controls or to energy
regulations) of all federal, state, county, municipal and other governments,
departments, commissions, boards, courts, authorities, officials and officers,
domestic or foreign; (iii) maintain their properties (and any property leased by
or consigned to it or held under title retention or conditional sales contracts)
in generally good and workable condition at all times and make all repairs,
replacements, additions, betterments and improvements to its properties to the
extent necessary so that any failure will not materially and adversely affect
the business of the Borrower and Guarantor; (iv) maintain or obtain all
franchises, permits, licenses, authorizations, directions of all federal, state,
county, municipal and other governments, departments, commissions, boards,
courts, authorities, officials and officers, domestic or foreign necessary to
allow the Borrower and Guarantor to maintain its business as currently
conducted; and (v) continue to conduct its business in the manner currently
conducted. The Borrower shall remain a wholly-owned subsidiary of the Guarantor.
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SECTION 5.5 FURTHER ASSURANCES. The Borrower and Guarantor will
promptly (and in no event later than 30 days after written notice from the
Lender is received) cure any defects in the creation, execution and delivery of
this Agreement, the Note or the Collateral Documents. The Borrower and Guarantor
at their expense will promptly execute and deliver to the Lender upon request
all such other and further documents, agreements and instruments in compliance
with or accomplishment of the covenants and agreements of the Borrower and
Guarantor in this Agreement, the Note or the Collateral Documents or to further
evidence and more fully describe the Collateral, or to correct any omissions in
the Collateral Documents, or more fully state the security obligations set out
herein or in any of the Collateral Documents, or to perfect, protect or preserve
any Liens created pursuant to any of the Collateral Documents, or to make any
recordings, to file any notices, or obtain any consents, as may be necessary or
appropriate in connection with the transactions contemplated by this Agreement.
SECTION 5.6 REIMBURSEMENT OF EXPENSES. The Borrower and Guarantor will
pay all reasonable legal fees and fees of Lender's counsel, title insurance
premiums, brokerage fees, appraisal fees, environmental survey fees, inspection
fees, survey costs, travel and other expenses incurred by the Lender in
connection with the preparation of this Agreement, the Note and the Collateral
Documents (including any amendments) and the maintenance of the Loan. The
Borrower and Guarantor will, upon request, promptly reimburse the Lender for all
payments expended, advanced or incurred by the Lender to satisfy any obligation
of the Borrower and Guarantor under this Agreement, or to protect the property
or business of the Borrower and Guarantor or to collect the Obligations, or to
enforce the rights of the Lender under this Agreement, the Note and/or the
Collateral Documents, 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 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.
SECTION 5.7 INSURANCE. (a) The Borrower shall procure and maintain for
the benefit of the Lender original paid up insurance policies from companies
licensed in the state where the Collateral is located and having a Best's rating
of A/IX, 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 Collateral is located, or a
mortgagee's loss payable endorsement, in favor of the Lender, providing the
following types of insurance on the Collateral:
(i) Multi-Peril Hazard Insurance. Multi-peril hazard
insurance, in each case affording insurance against loss or damage by
fire, lightning, explosion, 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
insurance perils, as, under good insurance practices, from time to time
are
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insured against for properties of similar character and location; such
insurance to be not less than the lesser of (i) 100% of the full
replacement cost of the Collateral without deduction for depreciation
or (ii) the principal amount of the Loan.
(ii) Comprehensive General Liability Insurance.
Comprehensive public liability insurance with respect to the Collateral
and the operations related thereto, whether conducted on or off the
Collateral, against liability for personal injury (including bodily
injury and death) and property damage, of not less than $5,000,000
combined single limit bodily injury and property damage; such
comprehensive public liability insurance to be on a per occurrence
basis and, if required by the Lender, to specifically include, but not
be limited to, water damage liability, products liability, aircraft and
motor vehicle liability for all owned and non-owned aircraft and
vehicles, including rented and leased vehicles, and contractual
indemnification.
(iii) Other Insurance. Such other insurance to the
Borrower in 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 companies similarly
situated.
(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 a copy of a certified renewal
binder or evidence of new coverage in the form of a binding certificate(s) of
insurance reasonably acceptable to Lender prior to expiration of the existing
policy. Borrower shall have 60 days thereafter to deliver the original policy to
the Lender. In the event Borrower should, for any reason whatsoever, fail to
keep the Collateral or any part thereof so insured, or to keep said policies so
payable, or fail to deliver to Lender the original, in its sole discretion, 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 12% per annum from date until paid.
(d) Borrower agrees to notify Lender immediately in writing of
any material fire or other casualty to or accident involving the Collateral,
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 Collateral
is damaged or destroyed by fire or other casualty.
(e) The Lender is hereby authorized and empowered, at its
option, to collect and receive the proceeds from any policy or policies of
insurance, and each insurance company is hereby authorized and directed to make
payment of all such losses
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to the Borrower and the Lender jointly. The Lender shall apply the net proceeds
thereof, at Lender's sole option, either to the repayment or prepayment of the
Loan or to permit the Borrower to repair or replace the damaged or destroyed
Collateral.
SECTION 5.8 ACCOUNTS AND RECORDS. The Borrower and Guarantor will keep
books of record and accounts in which true and correct entries will be made as
to all material matters of all dealings or transactions in relation to its
business and activities, in accordance with generally accepted accounting
principles consistently applied, except for changes in accounting principles or
practices with which the independent public accountants for the Borrower and
Guarantor concur.
SECTION 5.9 RIGHT OF INSPECTION. The Borrower and Guarantor will permit
any officer, employee or agent of the Lender to examine the books of record and
accounts of the Borrower and Guarantor, take copies and extracts therefrom, and
discuss the affairs, finances and accounts of the Borrower and Guarantor with
the Borrower and Guarantor's officers, accountants and auditors, all at such
reasonable times and on reasonable notice and as often as the Lender may
reasonably desire.
SECTION 5.10 NOTICE OF CERTAIN EVENTS. (a) The Borrower and Guarantor
shall promptly notify the Lender if the Borrower and Guarantor learns of the
occurrence of any event which constitutes a Default under this Agreement,
together with a detailed statement by a responsible officer of the Borrower and
Guarantor of the steps being taken to cure the effect of such Default.
(b) The Borrower and Guarantor shall promptly notify the
Lender of any change in location of the Borrower's and Guarantor's principal
place of business or the office where it keeps its records concerning accounts
and contract rights.
(c) The Borrower and Guarantor shall promptly notify the
Lender of the arising of any litigation or dispute threatened against or
affecting the Borrower and Guarantor which, if adversely determined, would have
a material adverse effect upon the financial condition or business of the
Borrower and Guarantor. In the event of such litigation involving the Borrower
and Guarantor, the Borrower and Guarantor will cause such proceedings to be
vigorously contested in good faith and, in the event of any adverse ruling or
decision, the Borrower and Guarantor shall prosecute all allowable appeals. The
Lender may (but shall not be obligated to), without prior notice to the Borrower
and Guarantor, commence, appear in, or defend any action or proceeding
purporting to affect the Loan, or the respective rights and obligations of the
Lender and the Borrower and Guarantor pursuant to this Agreement. The 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 the Borrower and Guarantor agrees to repay to Lender upon demand.
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SECTION 5.11 ERISA INFORMATION AND COMPLIANCE. The Borrower and
Guarantor will promptly furnish to the Lender (i) upon request of the Lender
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 Guarantor and
(ii) immediately upon becoming aware of the occurrence of any Reportable Event,
or of any Prohibited Transaction in connection with any Plan or any trust
created by the Borrower or Guarantor, a written notice signed by the president
or the chief financial officer of the Borrower or Guarantor specifying the
nature thereof, what action the Borrower or Guarantor 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 and Guarantor will comply
with all of the applicable funding and other requirements of ERISA as such
requirements relate to the Plans of the Borrower and Guarantor. This provision
shall be applicable only if Borrower and Guarantor has adopted or shall adopt a
defined benefit Plan.
SECTION 5.12 INDEMNIFICATION. (a) The Borrower and Guarantor will
indemnify the Lender and hold the Lender harmless from claims of brokers with
whom the Borrower and Guarantor has dealt in the execution hereof or the
consummation of the transactions contemplated hereby. The Lender will indemnify
the Borrower and Guarantor from claims of brokers with whom the Lender has
contracted in connection with the transactions contemplated hereby.
(b) The Borrower and Guarantor 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.
(c) The Borrower and Guarantor will 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 Collateral, and particularly any failure of the Lender 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.
SECTION 5.13 COMPLIANCE WITH LAWS AND COVENANTS. The Borrower and
Guarantor shall observe and comply with all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
certificates, franchises, permits, licenses, authorizations, directions and
requirements of all federal, state, county, municipal and other governments,
departments, commissions, boards, courts, authorities, officials and officers,
domestic or foreign, applicable to the Borrower and Guarantor or the Vehicles.
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SECTION 5.14 ENVIRONMENTAL INDEMNITY. (a) The Borrower and Guarantor
shall defend, indemnify and hold the 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 the Borrower or
Guarantor 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 of the Borrower or Guarantor or (ii)
any activity carried on or undertaken on or off the property of the Borrower or
Guarantor, whether prior to or during the term of this Agreement, and whether by
the Borrower and Guarantor or any predecessor in title or any officers,
employees, agents, contractors or subcontractors of the Borrower and Guarantor
or any predecessor in title, or any third persons at any time occupying or
present on the property of the Borrower or Guarantor 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 of the
Borrower or Guarantor. Without prejudice to the survival of any other agreements
of the Borrower and Guarantor hereunder, the provisions of this Section shall
survive the final payment of all Obligations and the termination of this
Agreement and shall continue thereafter in full force and effect.
(b) The Borrower and Guarantor shall observe and comply with
all laws, ordinances, orders, decrees, rules and regulations of all federal and
state governments relating to environmental matters.
SECTION 5.15 FINANCIAL COVENANTS. (a) Total Liabilities to Tangible Net
Worth Ratio. The Guarantor shall maintain on a consolidated basis as of the end
of each month, a ratio of (i) Debt (including the Loan) to (ii) tangible net
worth (defined as total assets less total liabilities and less items commonly
referred to an intangible items) of not more than 1.00 to 1.00.
(b) Minimum EBIT to Interest Expense Ratio. The Guarantor
shall maintain on a consolidated basis during each 12 month period ending on the
last day of each fiscal quarter of the Guarantor, a ratio of (i) net income
before interest expense and income taxes to (ii) total interest expense on the
Loan and on any other Debt, of not less than 3.00 to 1.00.
(c) Maximum Dividends and Other Distributions. The Guarantor
and Borrower shall not pay any dividends, redeem any stock, make any loans or
lease payments to affiliates or make any other distributions or payments to
affiliates (collectively, the "Restricted Payments"), if (i) a Default exists or
is continuing or would be caused by the Restricted Payments, or (ii) if the
total cash or cash equivalents of the Borrower and Guarantor are less than
$3,000,000 or would be less than $3,000,000 if any such Restricted Payment were
made. For the purposes hereof, "affiliate" shall mean the Borrower, the
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Guarantor, Xxxxxx Corporation or any Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with the Borrower,
Guarantor or Xxxxxx Corporation; a Person shall be deemed "controlled by"
another person if the other Person possesses, directly or indirectly, power
either to vote 10% or more of the securities having ordinary voting power for
the election of directors of such Person, or direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
ARTICLE 6.
NEGATIVE COVENANTS
Unless the Lender's prior written consent to the contrary is obtained,
the Borrower and Guarantor will at all times comply with the covenants contained
in this Article 6, from the date hereof and for so long as any part of the
Obligations is outstanding.
SECTION 6.1 NATURE OF BUSINESS. The Borrower and Guarantor will not
permit any material change to be made in the character of its business as
carried on at the date hereof.
SECTION 6.2 MERGERS AND CONSOLIDATIONS; SALE OF ASSETS. Without the
Lender's prior written consent, the Borrower and Guarantor will not acquire,
merge with or consolidate with any Person (whether or not such acquisition,
merger or consolidation requires any capital expenditures on the part of the
Borrower and Guarantor), nor will it sell, assign, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its property (whether now owned or hereafter acquired) to any Person.
SECTION 6.3 ERISA COMPLIANCE. If the Borrower and Guarantor ever adopts
an employee benefit plan covered by ERISA, the Borrower and Guarantor will not
at any time permit any Plan maintained by it to engage in any "prohibited
transaction" as such term is defined in Section 4975 of the Code; incur any
"accumulated funding deficiency" as such term is defined in Section 302 of
ERISA; or terminate any such Plan in a manner which could result in the
imposition of a Lien on the property of the Borrower and Guarantor pursuant to
Section 4068 of ERISA.
ARTICLE 7.
CONDITIONS OF LENDING
SECTION 7.1 CONDITIONS OF LENDING. The obligation of Lender to make
extensions of credit under this Agreement is subject to the accuracy of each and
every representation and warranty of the Borrower and Guarantor made or referred
to in this Agreement, or in any certificate delivered to the Lender pursuant to
or in connection with this Agreement, to the performance by the Borrower and
Guarantor of their obligations to be performed hereunder and under the Note and
the Collateral Documents on or before the date of such extensions of credit, and
to receipt of the following on or before the Closing Date:
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(a) Agreement. Duly executed counterpart of this Agreement
signed by all the parties hereto.
(b) Note. The duly executed Note signed by the Borrower.
(c) Collateral Documents. Duly executed counterparts of the
Collateral Documents and receipt of the Collateral.
(d) Organization Documents. Certificates of the secretary of
the Borrower and Guarantor, setting forth evidence in form and substance
satisfactory to the Lender with respect to the authorization of this Agreement,
the Note and the Collateral Documents to be signed by each Person.
(e) Closing Statement. A closing statement showing all closing
costs and other initial advances under the Loan.
(f) Options. Favorable opinion of counsel for the Borrower and
Guarantor, in form and substance satisfactory to the Lender.
(g) No Adverse Change. There shall have occurred no material
adverse changes, either individually or in the aggregate, in the assets,
liabilities, financial condition, business operations, affairs or circumstances
of the Borrower or Guarantor from those reflected in the most recent financial
statements furnished to the Lender prior to the Closing Date, except to the
extent that such changes are permitted by this Agreement; furthermore, no
Default shall have occurred and be continuing.
(h) Capital Conversion. Verification that the intercompany
Debt owed by the Borrower to Xxxxxx Corporation has been converted into paid in
capital.
ARTICLE 8.
DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. Any of the following events shall be
considered 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 installment on the Loan or
any other Obligation to Lender;
(b) Representations and Warranties. Any representation or
warranty made by the Borrower and Guarantor in this Agreement 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 by the Borrower and Guarantor (or any officer, accountant or
attorney of the Borrower) under this Agreement, proves to have been
- 17 -
untrue in any material respect as of the date as of which the facts therein set
forth were stated or certified;
(c) Covenants. The Borrower and Guarantor 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 and Guarantor (other than a default under Section
8.1(a) and 8.1(b) hereof), and such default continues unremedied for a period of
30 days after the earlier of (i) written notice thereof being given by the
Lender to the Borrower or (ii) such default otherwise becoming known to the
chief financial officer of the Borrower;
(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,
collateral or other documents relating to any Debt of the Borrower and Guarantor
to the Lender other than the Obligations incurred pursuant to this Agreement and
any grace period applicable to such default has elapsed;
(e) Other Debt to Other Lenders. The Borrower and Guarantor
defaults in the payment of any amounts due to any Person (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 and Guarantor any Person (other than the
Lender), in excess of $50,000 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 and Guarantor or of
any of its 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 and Guarantor under the Federal Bankruptcy Code; or the
Borrower and Guarantor is adjudicated bankrupt or insolvent; or any material
portion of the properties of the Borrower and Guarantor is sequestered by court
order and such order remains in effect for more than thirty (30) days after the
Borrower and Guarantor obtains knowledge thereof; or a petition is filed against
the Borrower and Guarantor 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 and Guarantor 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 under any
such law;
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(h) Assignments for Benefit of Creditors. The Borrower and
Guarantor makes an assignment for the benefit of its creditors, or admits in
writing its inability to pay its debts generally as they become due, or consents
to the appointment of a receiver, trustee or liquidator of the Borrower and
Guarantor or of all or any part of its property;
(i) Undischarged Judgments. Judgment for the payment of money
in excess of $50,000 (which is not covered by insurance) is rendered by any
court or other governmental body against the Borrower and Guarantor, and the
Borrower and Guarantor 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 period of 30 days from the
date of entry thereof, or such longer period during which execution of such
judgement 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;
SECTION 8.2 REMEDIES. (a) Upon the happening of any Event of Default
specified in Section 8.1 (other than Sections 8.1(f) or 8.1(g) hereof), the
Lender may by written notice to the Borrower declare the entire principal amount
of all Obligations then outstanding, including interest accrued thereon, to be
immediately due and payable without presentment, demand, protest, notice of
protest or dishonor or other notice of default or any kind, all of which are
hereby expressly waived by the Borrower and Guarantor.
(b) Upon the happening of any Event of Default specified in
Sections 8.1(f) or 8.1(g), 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 and Guarantor.
(c) In addition to the foregoing, the Lender may exercise any
of the rights or remedies provided in the Collateral Documents or avail itself
of any other rights and remedies provided by applicable law.
SECTION 8.3 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, the Lender is hereby authorized at any time
and from time to time, without notice to the Borrower and Guarantor (any such
notice being expressly waived by the Borrower and Guarantor), to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Lender
to or for the credit or the account of the Borrower and Guarantor against any
and all of the Obligations of the Borrower and Guarantor, liquidated or
unliquidated, irrespective of whether or not the Lender shall have made any
demand under this Agreement, or the Note, and although such Obligations may be
unmatured. The Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
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The rights of the Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Lender may have under the Collateral Documents or otherwise.
ARTICLE 9.
MISCELLANEOUS
SECTION 9.1 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 or the Guarantor 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 or by facsimile
transmission) the same day as delivery, in each case addressed (until another
address or addresses is given in writing by Borrower to Lender) as follows:
Xxxxxx Protein (USA), Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
or
0000 Xxxxxxx 00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Vice President and Controller
Xxxxxx Protein, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
or
0000 Xxxxxxx 00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Vice President and Controller
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
or by facsimile transmission) the same day as delivery, in each case addressed
(until another address or addresses are given in writing by Lender to Borrower)
as follows:
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Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
or
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Manager, Commercial Banking Department
SECTION 9.2 INVALIDITY. 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.
SECTION 9.3 SURVIVAL OF AGREEMENTS. All representations and warranties
of the Borrower or the Guarantor herein, and all covenants and agreements herein
not fully performed before the effective date of this Agreement, shall survive
such date.
SECTION 9.4 SUCCESSORS AND ASSIGNS. (a) All covenants and agreements
contained by or on behalf of the Borrower and Guarantor in this Agreement, the
Note and the Collateral Documents shall bind its successors and aligns 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 transferrable and
negotiable, with the same force and effect and to the same extent as the
Indebtedness may be transferrable, 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 and Guarantor hereby recognize and agree 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 Obligations in
favor of one or more third party lenders. The Borrower and Guarantor
specifically agree and consent to all such transfers and assignments and the
Borrower and Guarantor further waive any subsequent notice of and right to
consent to any such transfers and assignments as may be provided under
applicable Louisiana law. The Borrower and Guarantor further agree that the
purchaser of a participation interest in the Obligations will be considered as
the absolute owner of a percentage interest of such Obligations 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.
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SECTION 9.5 RENEWAL, EXTENSION OR REARRANGEMENT. All provisions of this
Agreement relating to the Note shall apply with equal force and effect to each
and all promissory notes or security instruments hereinafter executed which in
whole or in part represent a renewal, extension for any period, increase or
rearrangement of any part of the Note.
SECTION 9.6 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 Note or the Collateral Documents shall operate as a waiver
thereof.
SECTION 9.7 CUMULATIVE RIGHTS. The rights and remedies of the Lender
under this Agreement, the Note and the Collateral Documents shall be cumulative,
and the exercise
SECTION 9.8 SINGULAR AND PLURAL. Words used herein in the singular,
where the context so permits, shall be deemed to include the plural and vice
versa. The definitions of words in the singular herein shall apply to such words
when used in the plural where the context so permits and vice versa.
SECTION 9.9 GOVERNING LAW. This Agreement is, and the Note will be,
contracts 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 9.10 TITLES OF ARTICLES, SECTIONS, SUBSECTIONS. All titles or
headings to articles, sections, subsections or other divisions of this Agreement
or the exhibits hereto 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 articles, sections, subsections or other divisions, such other content
being controlling as to the agreement between the parties hereto.
SECTION 9.11 LIMITATION OF LIABILITY. This Agreement, the Note and the
Collateral Documents, are executed by an officer of the lender, and by
acceptance of the Loan, the Borrower and Guarantor agree that for the payment of
any claim or the performance of any obligations hereunder resulting from any
default by the Lender, resort shall be had solely to the assets and property of
the Lender, and no shareholder, officer, employee or agent of the Lender shall
be personally liable therefor.
SECTION 9.12 RELATIONSHIP BETWEEN THE PARTIES. The relationship between
the Lender and the Borrower and Guarantor shall be solely that of lender and
borrower, and such relationship shall not, under any circumstances whatsoever,
be construed to be joint venture or partnership.
SECTION 9.13 AMENDMENT. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally or in any manner
other than by an
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instrument in writing signed by the party against whom enforcement of the
charge, waiver, discharge or termination is sought.
SECTION 9.14 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the Lender and the Borrower and Guarantor and supersedes all prior
written or oral understandings with respect thereto; provided, that all written
and oral representations, warranties and certifications made by the Borrower and
Guarantor to the Lender with respect to the Loan and the security therefor shall
survive the execution of this Agreement.
SECTION 9.15 TIME OF THE ESSENCE. 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 Borrower and Guarantor and the Lender to be performed
hereunder.
SECTION 9.16 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 together shall constitute one and
the same instrument.
SECTION 9.17 WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. (a) THE
BORROWER AND GUARANTOR AND THE LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO WHICH THE BORROWER AND GUARANTOR AND THE LENDER MAY BE PARTIES,
ARISING OUT OF OR IN ANY WAY PERTAINING TO (i) THE NOTE, (ii) THIS AGREEMENT,
(iii) THE COLLATERAL DOCUMENTS OR (iv) THE PROPERTY. IT IS AGREED AND UNDERSTOOD
THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY THE BORROWER AND GUARANTOR AND THE LENDER, AND THE BORROWER
AND GUARANTOR AND THE LENDER HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR
OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY
OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE BORROWER AND GUARANTOR AND
THE LENDER FURTHER REPRESENT THAT EACH HAS BEEN REPRESENTED IN THE SIGNING OF
THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT EACH HAS HAD THE OPPORTUNITY TO DISCUSS
THIS WAIVER WITH COUNSEL.
(b) THE BORROWER AND GUARANTOR HEREBY IRREVOCABLY CONSENT TO
THE JURISDICTION OF THE STATE COURTS OF LOUISIANA AND THE FEDERAL COURTS IN
LOUISIANA, AND AGREE THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR BROUGHT TO
ENFORCE THE PROVISIONS OF THE NOTE, THIS AGREEMENT AND/OR THE COLLATERAL
DOCUMENTS MAY BE BROUGHT IN ANY COURT HAVING SUBJECT MATTER JURISDICTION.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first above written.
BORROWER: XXXXXX PROTEIN (USA), INC.
By: ______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Controller
GUARANTOR: XXXXXX PROTEIN, INC.
By: _______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Controller
LENDER: HIBERNIA NATIONAL BANK
By: _______________________________
Name: Xxxxx Xxxxxxxxx
Title: Vice President
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