Case No. OG-G-862
TITLE XI FINANCIAL AGREEMENT
THIS TITLE XI FINANCIAL AGREEMENT (hereinafter, the "Financial Agreement")
dated September 27, 1994, is made and entered into by Zapata Protein (USA), Inc.
(hereinafter, the "Borrower"), Zapata Protein, Inc. (hereinafter, the
"Guarantor"), and the UNITED STATES OF AMERICA (hereinafter, the "Government"),
WHEREAS, heretofore the Government, pursuant to the Fisheries Obligation
Guarantee Program, as provided in 46 USC 'SS'1271, et. seq., (hereinafter
"FOG"), made, entered into, and delivered certain agreements and covenants, as
contained in the Commitment to Guarantee Note (hereinafter, the "Commitment"),
dated September 27, 1994, and such Commitment has been accepted by the Borrower.
The Commitment contemplates a loan from Sun Bank of Tampa Bay (hereinafter, the
"Bank")(1) to Borrower, in the amount of $768,108.00, the repayment of which is
guaranteed by the Government. This transaction will be evidenced by the issuance
of a United States Guaranteed Promissory Note in the amount of $768,108.00 by
the Borrower to the Bank (hereinafter, the "Guaranteed Note"). The consideration
for the Guaranteed Note is a loan from the Bank to the Borrower; and the
issuance of a Promissory Note to the United States of America by the Borrower
(hereinafter, the "Promissory Note") secured by the property listed in ARTICLES
II and III, below; and
WHEREAS, the consideration for the Promissory Note, Ship Mortgage, Real
Estate Mortgage, UCC Security Interests, and other related documents executed by
Borrower and the Guarantor is the Government's guarantee contained in the
Guaranteed Note, as may be amended or substituted from time to time, and the
Borrower and the Guarantor understand that the Government is unwilling to enter
into the aforementioned transaction unless this Financial Agreement and related
documents are executed by the Borrower and the Guarantor. For that reason, the
Borrower and Guarantor have agreed to execute and deliver this Financial
Agreement.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Borrower and the Guarantor hereby agree to the following:
ARTICLE I: DEFINITIONS
As used herein, the following terms will be construed to have the meanings set
out below:
1. All of the terms defined in the preceding paragraphs will have the
definitions set out in said paragraphs.
2. "COLLATERAL" includes all of the items set out in ARTICLES II and III of
this Financial Agreement.
3. "DEFAULT" is defined in ARTICLE IX of this Financial Agreement.
4. "FOG DEBT": The outstanding balance of the loan from Bank to Borrower
which is guaranteed by the Government, including original or additional or
supplemental principal and/or interest, and any fees, costs or expenses, of any
nature, which are
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(1) In this agreement, use of the singular includes the plural and vice versa.
owed by Borrower to the Government, and, additionally, any amount owed to a
third party which arose from this loan and/or collateral associated with this
loan.
5. "THE GUARANTOR": Refers to the Principal and is defined as set out in
ARTICLE II, Paragraph 3, below.
6. "AFFILIATE": Includes all wholly owned subsidiaries and stockholders of
Xxxxxx Protein (USA), Inc., and the guarantor of this debt.
ARTICLE II: COLLATERAL
The Collateral which the Borrower is giving to the Government in order to obtain
its guarantee of Borrower's loan from the Bank includes all of the items listed
below:
1. THE EQUIPMENT: The Borrower will provide to the Government Senior
security interests, evidenced by UCC filings, in the full amount of the
Guaranteed Note, on all of the property described below (hereinafter, the
"Equipment");
All fisheries unloading, processing, holding, and distribution equipment
of whatsoever nature, now or at any time in the future, together with
all accessories, improvements, replacements, substitutions, or additions
thereto, used for the Borrower's fisheries operations on the properties
which secure the Promissory Note and any other debt to the Government,
or on any other premises at any other site at which the Borrower now
conducts, or in the future may conduct, its fisheries operations and
regardless of the Equipment's actual location at any given time. The
Equipment shall include, but not be limited to: all forklifts, bobcats,
cranes, pallet trucks, lift trucks, and other product or material
movement equipment; all trailers, tanks, trucks, or other rolling stock;
all fish unloading, transfer, and conveying equipment, all fish
processing and fish weighing equipment; all cooling, refrigerating,
freezing, and other fish holding equipment (blast freezers, plate
freezers, coolers, or other refrigeration equipment); all fish packaging
equipment; all fish baskets, totes, tanks, tubs, and other fish holding
equipment; all ice makers; all hand and power tools; and all office
equipment, all together with all associated equipment, machinery, parts,
tools, purse boats, or other items of whatsoever nature and whether
fixed or unfixed to the aforementioned property securing the Promissory
Note.
THIS EXCLUDES ONLY SUCH FIRST UCC SECURITY INTERESTS TO THIRD PARTIES as may
be necessary and appropriate to secure credit from such parties for the specific
purpose of purchasing specific equipment (hereinafter "Purchase-Money
Equipment"). In such cases, the Borrower agrees to the following:
(a) To give to the Government UCC security interests on the
Purchase-Money Equipment second only to the first interests pledged to the
lenders of the purchase-money (hereinafter the "Purchase-Money UCC security
interests"); and
(b) That the amount secured by the Purchase-Money UCC security
interests shall not exceed the specific purchase cost of said equipment; and
(c) The term of the credit secured to buy the Purchase-Money Equipment
(and likewise, the duration of the Purchase-Money UCC security interests) shall
not exceed an ordinarily prudent commercial term; and
(d) No other Equipment or rights shall be secured by the
Purchase-Money UCC security interests; and
(e) Upon full repayment of the amounts secured by the Purchase-Money
Equipment, as reflected in the Purchase-Money UCC security interests, these
interests shall be satisfied and the Government's second UCC security interest
will ascend to first priority.
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THE EQUIPMENT SHALL BE INVENTORIED (sufficiently to describe with certainty
in the senior security agreement and associated UCC filing) and valued by
appraisers acceptable to the Government, all at the Borrower's cost and before
this loan is closed.
THE UCC SECURITY AGREEMENT SHALL CONTAIN the following provisions:
(a) That the Government may enter upon any premises where the
Equipment may be located and marshal, secure, protect, and do all things
necessary to preserve the Equipment immediately upon the Borrower's default, but
before any judicial action regarding such default; and
(b) Such other provisions as the Government deems necessary to protect
its interest; and
(c) All other parties having a secured interest in the Equipment shall
agree to provisions acceptable to the Government that:
(i) Recognize the Government's senior interest in, and sole rights to,
the Equipment or the proceeds of the Equipment's liquidation; and
(ii) Agree not to interfere in any way with, but instead to cooperate
in all reasonable ways with, our entering upon any property owned or leased by
the Borrower in order to marshal, secure, protect, and do all things necessary
to preserve the Equipment.
2. THE REAL PROPERTY includes:
A Real Estate Mortgage in the full amount of the FOG Debt, on such property as
more fully described in Exhibit 1, attached, owned by Borrower, together with
all improvements thereon which comprise the Borrower's fisheries processing
facilities in Abbeville/Intracoastal City, Louisiana.
3. THE GUARANTEE: An unconditional guarantee of repayment of the FOG Debt
will be given to the Government by Xxxxxx Protein, Inc. the "Guarantor").
ARTICLE III. ADDITIONAL COLLATERAL
1. Individual Transferable Quotas: Should a limited fisheries access system
be initiated at some future date under which the Borrower is granted a
transferable fishery conservation and management allocation (including, but not
limited to, allocations, permits, quotas, licenses, cage tags, or any other
fisheries access restriction or right, however characterized, of whatsoever
nature) affecting, necessary for, or in any other way, however characterized,
associated with any of the property included in the Collateral, the Borrower
agrees to grant to the Government a full senior security interest in such
allocation by whatsoever means deemed by the Government to be appropriate
(including, but not limited to, the Borrower's execution of security agreements
and the filing of financing statements under the UCC). Further, if the Borrower
fails to do so, the Borrower agrees that the Government may use, for the purpose
of executing and otherwise perfecting whatever documents may be required to
effect the grant to the Government of such a full security interest in such
fisheries conservation and management allocation, the attorney-in-fact authority
conferred upon the Government by ARTICLE XI of this agreement.
2. OTHER COLLATERAL: Any new, different, substitute or other collateral which
may, from time to time, be provided by Borrower or Guarantor to the Government,
will be subject to all of the covenants and provisions of all of the documents
executed in connection with this transaction, including, but not limited to the
Real Estate
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Mortgage, Ship Mortgage, this Financial Agreement, the Guaranteed Note, the
Promissory Note, and UCC security interests.
ARTICLE IV. GOVERNMENT'S PRIOR WRITTEN CONSENT REQUIRED
Without the prior written consent of the Chief, Financial Services Division,
National Marine Fisheries Service, which consent will not unreasonably be
withheld: (1) The Borrower may not take any of the following actions; and (2)
The Principal may not take any of the actions listed in Paragraphs 5, 7 and 8,
below.
1. PAY TO ANY OFFICER, partner, shareholder, or any other person, any salary,
commission, bonus, management fee, dividend or other consideration, however
characterized, in excess of either reasonable industry standards or ordinary
financial prudence for companies of the Borrower's size and financial condition
at the time that such consideration is paid, and Borrower bears the burden of
proving reasonability. It is understood and agreed that the salaries, as
reflected in Schedule A, attached hereto, are deemed to be reasonable.
2. PURCHASE OR REDEEM ANY SHARES OF ITS OWN STOCK.
3. MAKE ANY ADDITIONAL INVESTMENT (excluding purchases, etc. in connection
with routine/continuing maintenance and preservation of the Borrower's property
and excluding acquisition of capital assets representing the reinvestment of
involuntary conversion proceeds in assets similar to those in respect of which
the Broorower has received such involuntary proceeds providing such proceeds
are, or are committed to be so reinvested within 90 days after receipt thereof)
in, or incur any additional liability for, the purchase, acquisition, lease, or
other use, however characterized, of any real property, machinery, equipment,
fixtures, furniture, or fixed property in connection with the Borrower's present
level of operations in any one fiscal year in excess of an aggregate of five
percent of the Borrower's total assets.
4. START ANY NEW BUSINESS OR ACQUIRE ANY OTHER BUSINESS, or the assets of
any other business, whether by purchase, merger, consolidation, affiliation, or
any other means, however characterized, whatsoever except as may otherwise be
permitted herein, or sell, liquidate, dissolve, spin-off, split-up or in any
other way, however characterized, dispose of its own assets except as may be
required in the normal course of operations reasonably necessary to carry on its
day-to-day business.
5. GUARANTEE OR BECOME CONTINGENTLY LIABLE in any way as surety, endorser,
creditor, co-maker, accommodation maker, or in any other way, however
characterized, for the debt or obligations of any party whatsoever, except as
may be permitted herein or required in the normal course of operations
reasonably necessary to carry on day-to-day business activities.
6. ALLOW ITSELF TO BE ACQUIRED BY, or otherwise reorganized into, however
characterized, any other Company, unless the acquiring Company or reorganized
entity is reasonably acceptable to the Government and agrees to:
(a) provide the Government a 100% unconditional guarantee of all debt
actually or contingently owed the Government; and
(b) be bound by these covenants; and
(c) be bound by such other covenants as the Government shall reasonably
require to protect its interest; and
(d) provide the Government such other assurances and security as the
Government may require.
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7. ESTABLISH ANY TRUST, retirement fund or any other fund, however
characterized, for the benefit of itself or any party, or transfer any monies,
property, or other assets of any kind, however characterized, into any such fund
whether now or hereafter existing (and any such action shall be void and without
effect insofar as the Government's interests are concerned).(2)
8. TRANSFER ANY MONIES, property, or other assets, however characterized, to
any party by way of gift or by any other means, however characterized, for any
consideration less than payment by such party of the full and fair market value
thereof (and any such action shall be void and without effect insofar as the
Government's interests are concerned); provided, however, that reasonable
transfers not significantly affecting the Borrower's net worth, and not
inconsistent with the Borrower's or the Principal's obligation to protect the
Government from loss by preserving its net worth, shall be exempted.
9. MAKE ANY DISTRIBUTION OF BORROWER'S ASSETS for compensation (including
salaries, withdrawals, fees, bonuses, commissions, drawing accounts, and other
payments, whether directly or indirectly, in money or otherwise hereinafter
"compensation") for services, or give any preferential treatment, make any
advances, directly or indirectly by way of loans, gifts, notes, or otherwise, to
any employee or Affiliate or increase the compensation of any person above that
set forth in any application or document submitted in connection with the
Guarantee. In the event an Affiliate increases the compensation paid to the
Borrower or any employee of the Borrower, beyond that authorized or consented to
by the Government, the compensation payable to such person by the Borrower will
be forthwith correspondingly reduced and immediate notice thereof given to the
Government by the Borrower.
ARTICLE V. BORROWER'S OBLIGATIONS & COVENANTS
The Borrower shall be bound by and do, perform or discharge all of the following
actions.
1. MAINTAIN FINANCIAL RATIOS AS FOLLOWS:
(a) A current ratio of at least 1.25:1.
(b) Debt to Equity ratio of not more than 2:1.
2. NOTICES TO THE GOVERNMENT: Within ten (10) days of its occurrence,
Borrower and the Guarantor must give the Government written notice of any of the
following:
(a) Any pending litigation, business reverse, casualty, loss, or any other
matter which diminishes:
(i) its ability to service any debt actually or contingently owed the
Government; or
(ii) its ability to perform any other duty or obligation owed the
Government; or
(iii) its ability to fully and faithfully perform any covenant with the
Government; or
(iv) the value of any property or other assets pledged to the
Government;
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(2) This provision excludes contributions, not exceeding $2,000 per year per
person, to any such party's XXX, Xxxxxx, or 401K account. Written approval must
be obtained from the Government in advance, for any contributions in excess of
$2,000 per year per person to any other retirement account, and any
contributions in any amount to any trust or other funds of whatsoever kind.
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or
(v) the net worth of any party against whom the Government has
recourse for this debt.
(b) The institution of any suit, which demands $100,000 or more, against the
Borrower or others deemed by the Government to affect adversely its interest
hereunder, in the Note or otherwise.
ARTICLE VI. FINANCIAL REPORTING TO AND INSPECTIONS BY THE GOVERNMENT
1. BORROWER AGREES TO PROVIDE THE GOVERNMENT AT THE END OF EACH QUARTER of
its tax or accounting years, a certified correct copy of:
(a) a balance sheet; and
(b) an income and expense statement for the preceding twelve months;
and
(c) an aging report of all receivables outstanding; and
(d) an inventory report for all inventory maintained at the end of each
year.
2. CERTIFICATION OF FINANCIAL INFORMATION: Borrower agrees that:
QUARTERLY: At the end of each quarter of Borrower's accounting or tax
years, Borrower's Chief Financial Officer shall certify the
correctness of Items VI 1(a) through (d), listed above.
ANNUALLY: At the end of each fiscal year, said items, [VI, 1(a)
through (d)] will be compiled by independent certified public
accountants who are acceptable to the Government.
ALL QUARTERLY AND ANNUAL financial reports required hereunder shall
include a certification from the Borrower's Chief Financial Officer
that either:
(a) There has been no default, as provided by the security instruments,
during the reporting period; or
(b) There has been a default, as provided by said security instruments,
during the reporting period. In this case the nature, extent, prospective
consequences, and all other relevant details of such default shall be fully set
forth in such certification.
3. INCOME TAX RETURNS: All tax returns shall be timely filed(3) and a copy of
Borrower's Federal Income Tax Return, along with all supporting schedules, must
be delivered to the Government within 15 days of its filing or issuance.
Borrower agrees to execute a consent and waiver, valid so long as Borrower owes
a debt to the Government, which allows the Internal Revenue Service to release
directly to the Government, Borrower's Federal Income Tax Returns, whenever the
Government requests same.(4)
4. BORROWER TO DELIVER ALL REQUIRED FINANCIAL STATEMENTS, notices, returns or
reports to the Government's Southeast Regional Financial Services Branch. All
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(3) Timely filing shall include valid extensions filed with the Internal Revenue
Service.
(4) Borrower agrees to execute IRS Form Nos. 4506 and 8821, thereby implementing
the provision of 26 USC 'SS'6103(c).
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financial statements shall be delivered within 90 days of the close of the
fiscal or accounting year, or such quarter in such year, to which they relate.
5. METHOD OF BOOKKEEPING: Borrower will, at all times, keep proper books of
account in a manner satisfactory to the Government, including financial and
operating statements including schedules showing all compensation paid by the
Borrower.
6. GOVERNMENT INSPECTIONS: Permit the Government, or any representative
selected by the Government, in such manner and at such times as the Government
may require, to (a) make inspections and audits of any books, records, papers,
or other documents(5) of whatsoever nature in the custody and control of the
Borrower, Guarantor, or any other entity, relating in any way to the financial
or business condition or prospects of the Borrower, or Guarantor, including the
making of copies thereof and extracts therefrom, and (b) make inspections and
appraisals of any of the Borrower's or Guarantor's physical assets.
7. BORROWER TO PAY THE COST OF ALL SUCH INSPECTIONS: The cost of annual
inspections, audits, or appraisals shall be paid by the Borrower.
8. GUARANTOR'S OBLIGATIONS: Paragraphs 3, 4, and 6, above, of this ARTICLE
VI, apply to the Guarantor. Additionally, the Guarantor shall provide to the
Government, at the end of each tax year, a certified correct copy of their
Statement of Financial Condition, and if applicable, their SEC-10K Report.
ARTICLE VII. GUARANTEE FEES
1. THE BORROWER AGREES TO PAY TO THE GOVERNMENT the amount required for the
payment of each Guarantee fee at the rate of 1% per year, first, on the date
hereof and, thereafter, at least sixty (60) days prior to each anniversary date
of the Ship and Real Estate Mortgages. In the event the Government at any time
determines and gives notice to the Borrower that the amount of any fee paid
under the Guarantee is not correct the Borrower shall within thirty (30) days
after receipt of such notice pay the Government the amount of any deficiency
specified in said notice. In the event that the fee paid by the Borrower to the
Government is in excess of the amount required by the Guarantee, such excess
shall be credited to the account of the Borrower. In the event that Borrower
fails to pay a Guarantee fee, said fee shall be deemed to be an indebtedness of
the Borrower and shall be secured by this Ship and Real Estate Mortgages and
until paid shall bear interest at the same rate as that provided in the Note,
and upon acceleration of the amounts owed under the Note shall bear interest at
the accelerated rate.
2. ALL FEES SHALL BE PAID BY THE DELIVERY by the Borrower to the Government
in person or by mail addressed to the Government, as it may from time to time
specify, by check or money order in the required amount payable to the order of
the Government, as it may from time to time specify, together with
identification of the specific Guarantee to which the fee relates and the period
covered by the payment.
3. THE BORROWER AGREES THAT ALL AMOUNTS PAID BY IT IN ACCORDANCE WITH THIS
SECTION SHALL BE AS FOLLOWS:
(a) THE FEE REQUIRED FOR THE GUARANTEE shall be computed on the
average principal amount of the the Ship Mortgage and Note outstanding during
the annual period covered by said fee. Such computation of average principal
amount outstanding shall take into account the fixed payments required under the
Ship Mortgage and Note.
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(5) Including but not limited to off-loading receipts, fish-sale receipts,
business transaction journals, etc.
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(b) FEES SHALL BE SUBJECT TO REDUCTION for erroneous calculations, for
voluntary prepayments made under the Ship Mortgage and Note, and for
extraordinary payments made under the Ship Mortgage and Note, such as proceeds
of insurance upon total loss applied in reduction of principal and additional
payments contingent on earnings. Fees shall be subject to increase for erroneous
calculations and for payments required under the Ship Mortgage and Note, which
are delinquent.
(c) THE PAYMENT OF THE INITIAL FEE is being made to the Government
concurrently with the execution and delivery of the Ship and Real Estate
Mortgages, the receipt whereof by the Government is hereby acknowledged, and
covers a twelve-month period commencing with the date hereof.
(d) EACH FEE SHALL BE DEEMED TO BE FULLY EARNED as of the commencement
of the period to which it is applicable. No refund will be made by the
Government of the initial fee paid or of any subsequent annual fee, or deficient
fee applied in payment in accordance with this SECTION in the event the
Guarantee shall terminate, except as provided in this SECTION.
(e) IN THE EVENT THE GUARANTEE SHALL TERMINATE, the obligation to pay
further fees hereunder (other than deficient fees) shall cease as of the time of
such termination. If payment under the Guarantee shall have been properly
demanded and shall not have been made, for any reason (other than under the
conditions under which the Government is not required to make payment under the
Guarantee) within the thirty-day period from proper demand the obligation to pay
further premium charges hereunder (other than deficient premium charges) shall
cease as of the last time the Government shall have been obligated to make
payment under the Guarantee.
(f) IF AT THE TIME OF TERMINATION of the Guarantee the Government
holds any excess fee or any annual fee which has not been applied in payment in
accordance with this SECTION (or the time for application of which has not
arrived), such excess fee shall be (i) refunded to the Borrower if the Guarantee
shall terminate pursuant to payment in full of the Ship Mortgage and Note and
(ii) retained by the Government as collateral security for the payment of the
Ship and Real Estate Mortgages and Notes, and any sum due to the Government if
the Guarantee shall terminate pursuant to payment of the Guarantee by the
Government or if there is a failure of the holder of the Guaranteed Note to
properly demand payment of the Guarantee from the Government within 60 days of
notification of a default under the Ship Mortgage by the Government and the
Guarantee is terminated. If payment of the Guarantee shall have been demanded
and shall not have been made, for any reason (other than under the conditions
under which the Government is not required to make payment of the Guarantee)
within the thirty-day period therefor, any excess fee or any annual fee which
has not been applied in payment in accordance with this SECTION (or the time for
application of which has not arrived), as of the time the Government shall have
been obligated to make payment under the Guarantee, shall be retained by the
Government as indemnity.
ARTICLE VIII. LOUISIANA LAW TO GOVERN
To the extent not governed by the laws of the United States, all provisions
of this Financial Agreement shall be construed, given effect, and enforced
according to the laws of the State of Louisiana. With respect to any claim or
proceeding relating to this Financial Agreement, the Borrower and Guarantor
hereby consent to and subject themselves to the jurisdiction of the state and
federal courts located in the State of Louisiana, and agree that the venue of
any action or proceeding relating to this Financial Agreement shall lie
exclusively in said state.
ARTICLE IX: DEFAULT
1. THE OCCURRENCE OF ANY OF THE FOLLOWING CONSTITUTES AN EVENT OF DEFAULT:
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(a) ANY FAILURE TO OBSERVE, PERFORM, COMPLY WITH AND DISCHARGE ALL OF
THE COVENANTS, CONDITIONS, AND OBLIGATIONS WHICH ARE IMPOSED ON:
(i) BORROWER by this Title XI Financial Agreement, the Promissory
Note, dated September 27, 1994, the Ship and Real Estate Mortgages, dated
September 27, 1994, and any other agreement or document executed in connection
with this Financial Agreement and the Note, concurrently or otherwise, inclusive
of amendments thereto, in connection with this Financial Agreement, or
subsequent amendment or agreement, regardless of whether or not the Borrower
shall be a party to said agreement or document, and such default shall continue
for fifteen (15) days; or
(ii) ANY GUARANTOR by any Guaranty Agreement, whether or not the
Borrower is party to said agreement and such default shall continue for fifteen
(15) days; or
(b) ANY FAILURE TO PAY OR MAKE PAYMENTS ON:
(i) INTEREST ON THE NOTE OR THE GUARANTEED NOTE when and as the same
shall become due and payable as therein provided and such default shall continue
for fifteen (15) days; or
(ii) PRINCIPAL OF THE NOTE OR THE GUARANTEED NOTE when and as the
same shall become due and payable, whether at maturity, by notice of
acceleration, or otherwise and such default shall continue for fifteen (15)
days; or
(iii) GUARANTEE FEES as required by ARTICLE VII of this document and
such default shall continue after ten (10) days written notice; or
(c) FINANCIAL EVENTS:
(i) Borrower makes a general assignment for the benefit of the
Borrower's creditors; or
(ii) Borrower loses the right to do business, by forfeiture or
otherwise; or
(iii) A receiver or receivers of any kind whatsoever, whether
appointed or not, in admiralty, bankruptcy, common law, or equity proceedings,
and whether temporary or permanent, shall be appointed for all property of the
Borrower; or
(iv) A PETITION OR OTHER PROCEEDING OR ACTION IN BANKRUPTCY,
regarding the Borrower, is filed by the Borrower or by creditors of the
Borrower; or
(d) FAILURE TO MAINTAIN ANY OF THE INSURANCE COVERAGE as outlined in
Article II, Section 2, INSURANCE REQUIREMENTS, found on pages 4 and 5 of the
First Preferred Ship Mortgage.
(e) A MATERIAL MISREPRESENTATION OR UNDISCLOSED FACT, made or omitted in
any application, agreement, affidavit, or other document, submitted in
connection with the Guarantee, on behalf of, or for the benefit of, or by the
Borrower; or
(f) INSTITUTION OF ANY SUIT AGAINST THE BORROWER or others deemed by the
Government to affect adversely its interest hereunder, in the Note or otherwise;
(g) IMPAIRMENT OF ANY OTHER COLLATERAL.
2. GOVERNMENT ACTIONS UPON OCCURRENCE OF AN EVENT OF DEFAULT, whether or not
the Guaranteed Note has been paid to the Bank by the Government, the Government
may, in
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the Government's discretion, so long as such event of default shall be
continuing, do any or all of the following:
(a) DECLARE THE NOTE TO BE DUE AND PAYABLE IMMEDIATELY and upon such
declaration the entire principal of and interest on the Note shall become and be
immediately due and payable, and thereafter shall bear interest at 18 percent
per year unless such would violate the usury laws of the state where the Note
and the Guaranteed Note are executed, in which case the maximum legal rate of
that state shall prevail; and/or
(b) BRING SUIT AT LAW, IN EQUITY, OR IN ADMIRALTY, as it may be advised,
to receive judgment for any and all amounts due under the Note, or otherwise
hereunder, and collect the same out of any and all property of the Borrower;
and/or
(c) FORECLOSE THE SHIP AND REAL ESTATE MORTGAGES AND SELL any real
property which secures the FOG Debt; and/or
(d) TAKE POSSESSION OF ALL OF THE LEASEHOLD PROPERTY and improvements,
including, but not limited to the buildings, fixtures and Equipment, purse
boats, seines, thereon, and/or
(e) SELL OR OTHERWISE DISPOSE OF THE LEASEHOLD PROPERTY and improvements
thereon, described in sub-paragraph (d), above; and/or
(f) RETAKE AND/OR SELL THE EQUIPMENT WITHOUT LEGAL PROCESS as provided
by the Ship and Real Estate Mortgages, or any other document which has been
executed by or on behalf of the Borrower; and/or
(g) OVERDUE GUARANTEE FEES shall, beginning with the first day such
guarantee fees are due but unpaid, be added to the principal of the Promissory
Note, earn interest at the same rate as specified in the Promissory Note for
overdue principal, and be secured by all of the collateral and security
instruments. This provision will not be deemed a waiver of any of the
Government's rights or other remedies, as set out above, and elsewhere, and such
overdue guarantee fees shall remain due and payable as originally scheduled.
ARTICLE X. TITLE XI FINANCIAL AGREEMENT GOVERNS
To the extent that any of the terms and conditions of this Financial
Agreement are inconsistent or in contradiction with the terms and conditions of
any other agreement between the Government and the Borrower, including but not
limited to previously executed Title XI financial agreements, then the terms of
this Financial Agreement shall govern, otherwise, all such terms and conditions
of such other agreements will continue with full force and effect.
ARTICLE XI. POWER OF ATTORNEY
Borrower hereby irrevocably appoints the Government the true and lawful
attorney of the Borrower, in its name and stead to execute any other document
necessary to perfect the Government's security interests regarding this
transaction and/or all aspects of the FOG Debt.
IN WITNESS WHEREOF, the Borrower has executed this Title XI Financial
Agreement the day and year first above written.
GOVERNMENT:
UNITED STATES OF AMERICA
Secretary of Commerce
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National Oceanic and Atmospheric Administration
_________________________________________________
Chief, Financial Services Branch
Southeast Region
National Marine Fisheries Service
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ATTEST: BORROWER: Xxxxxx Protein (USA), Inc.
By: _____________________ By: _____________________________________
Title: Secretary Title: Vice President and Controller
Date: September 27, 1994
ATTEST: GUARANTOR: Xxxxxx Protein, Incorporated
By: _____________________ By: _____________________________________
Title: Secretary Title: Executive Vice President-
Finance and Administration
Date: September 27, 1994
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