Exhibit 10.4
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American National Bank Continuing Security Agreement
and Trust Company of Chicago
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A BANK ONE Company
Name of Debtor: Alltech Associates, Inc.
Taxpayer I.D. No.: 00-0000000
State Organization No.: 49686676
Debtor's Address: 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Grant of Security Interest, Alltech Associates, Inc. (the "Debtor") grants to
American National Bank and Trust Company of Chicago, whose address is 000 X.
Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, XX 00000, on behalf of itself and its successors
and assigns (the "Bank"), as secured party, a continuing security interest in
all of the "Collateral" (as hereinafter defined) to secure the payment and
performance of the Liabilities.
Borrower. The term "Borrower" in this agreement means Alltech Associates, Inc.
Liabilities. The term "Liabilities" in this agreement means all obligations,
indebtedness and liabilities of the Borrower to any one or more of the Bank,
BANK ONE CORPORATION, and any of their subsidiaries, affiliates or successors,
now existing or later arising, including, without limitation, all loans,
advances, interest, costs, overdraft indebtedness, credit card indebtedness,
lease obligations, or obligations relating to any Rate Management Transaction,
all monetary obligations incurred or accrued during the pendency of any
bankruptcy, insolvency, receivership or other similar proceedings, regardless of
whether allowed or allowable in such proceeding, and all renewals, extensions,
modifications, consolidations or substitutions of any of the foregoing, whether
the Borrower may be liable jointly with others or individually liable as a
debtor, maker, co-maker, drawer, endorser, guarantor, surety or otherwise, and
whether voluntarily or involuntarily incurred, due or not due, absolute or
contingent, direct or indirect, liquidated or unliquidated. The term "Rate
Management Transaction" in this agreement means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into among the
Borrower, the Bank or BANK ONE CORPORATION, or any of its subsidiaries or
affiliates or their successors, which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
Collateral. Accounts; Chattel Paper; Deposit Accounts; Documents; Equipment;
General Intangibles; Instruments; Inventory; Investment Property; and Letter
of Credit Rights.
Description of Collateral. As used in this agreement, the term "Collateral"
means all of the Debtor's property of the types indicated above and defined
below, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located, including but not limited to any items
listed on any schedule or list attached hereto. In addition, the term
"Collateral" includes all "proceeds", "products" and "supporting obligations"
(as such terms are defined in the "UCC", meaning the Uniform Commercial Code of
Illinois, as in effect from time to time) of the Collateral indicated above,
including but not limited to all stock rights, subscription rights, dividends,
stock dividends, stock splits, or liquidating dividends, and all cash,
accounts, chattel paper, "instrunments," "investment property," and "general
intangibles" (as such terms are defined in the UCC) arising from the sale, rent,
lease, casualty loss or other disposition of the Collateral, and any Collateral
returned to, repossessed by or stopped in transit by the Debtor, and all
insurance claims relating to any of the Collateral defined above). The term
"Collateral" further includes all of the Debtor's right, title and interest in
and to all books, records and data relating to the Collateral identified above,
regardless of the form of media containing such information or data, and all
software necessary or desirable to use any of the Collateral identified above
or to access, retrieve, or process any of such information or data. Where the
Collateral is in the possession of the Bank or the Bank's agent, the Debtor
agrees to deliver to the Bank any property that represents an increase in the
Collateral or profits or proceeds of the Collateral.
1. "Accounts" means all of the Debtor's "accounts" as defined in Article 9 of
the UCC.
2. "Chattel Paper" all of the Debtor's "chattel paper" as defined in Article 9
of the UCC.
3. "Deposit Accounts" means all of the Debtor's "deposit accounts" as defined
in Article 9 of the UCC.
4. "Documents" means all of the Debtor's "documents" as defined in Article 9
of the UCC.
5. "Equipment" means all of the Debtor's "equipment" as defined in Article 9
of the UCC. In addition, "Equipment" includes any "documents" (as defined
in Article 9 of the UCC) issued with respect to any of the Debtor's
"equipment" (as defined in Article 9 of the UCC). Without limiting the
security interest granted, the Debtor represents and warrants that the
Debtor's Equipment is presently located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxx,
XX 00000 with any additional locations to be listed on the lines below:
(1) 0000 Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, XX 00000
(2)
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(3)
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6. "General Intangibles" means all of the Debtor's "general intangibles", as
defined in Article 9 of the UCC. In addition, "General Intangibles" further
includes any right to a refund of taxes paid at any time to any
governmental entity.
7. "Instruments" means all of the Debtor's "instruments" as defined in Article
9 of the UCC.
8. "Inventor" means all of the Debtor's "inventory" as defined in Article 9 of
the UCC. In addition, "Inventory" includes any "documents' issued with
respect to any of the Debtor's "inventory" (as defined in Article 9 of the
UCC). Without limiting the security interest granted, the Debtor represents
and warrants that the Debtor's Inventory is presently located at 0000
Xxxxxxxx Xxxx, Xxxx xxxxx, XX 00000 with any additional locations to be
listed on the lines below:
(1) 0000 Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, XX 00000
(2)
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(3)
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9. "Investment Property" means all of the Debtor's "investment property" as
defined in Article 9 of the UCC.
10. "Letter of Credit Rights" means all of the Debtor's "letter of credit
rights" as defined in Article 9 of the UCC.
Representations, Warranties and Covenants. The Debtor represents and warrants
to, and covenants and agrees with the Bank that:
1. Its principal residence or chief executive office is at the address shown
above;
2. The Debtor's name as it appears in this agreement is its exact name as it
appears in the Debtor's organizational documents, as amended, including any
trust documents;
3. It is or will become the owner of the Collateral free from any liens,
encumbrances or security interests, except for this security interest and
existing liens disclosed to and accepted by the Bank in writing, and it
will defend the Collateral against all claims and demands of all persons at
any time claiming any interest in the Collateral;
4. It wil1 keep the Collateral free of liens, encumbrances and other security
interests, except for this security interest, maintain the Collateral in
good repair, not use it illegally and exhibit the Collateral to the Bank on
demand;
5. At its own expense, the Debtor will maintain comprehensive casualty
insurance on the Collateral against such risks, in such amounts, with such
deductibles and with such companies as may be satisfactory to the Bank.
Each insurance policy shall contain a lender's loss payable endorsement
satisfactory to the Bank and a prohibition against cancellation or
amendment of the policy or removal of the Bank as loss payee without at
least thirty (30) days prior written notice to the Bank. In all events, the
amounts of such insurance coverages shall conform to prudent business
practices and shall be in such minimum amounts that the Debtor will not be
deemed a co-insurer. The policies, or certificates evidencing them, shall,
if the Bank so requests, be deposited with the Bank. The Debtor authorizes
the Bank to endorse on the Debtor's behalf and to negotiate drafts
reflecting proceeds of insurance of the Collateral, provided that the Bank
shall remit to the Debtor such surplus, if any, as remains after the
proceeds have been applied, at the Bank's option, to the satisfaction of
all of the Liabilities (in such order of application as the Bank may elect)
or to the establishment of a cash collateral account for the Liabilities;
6. It will not sell, lease, license or offer to sell, lease, license or
otherwise transfer the Collateral or any rights in or to the Collateral,
without the written consent of the Bank, except in the ordinary course of
business;
7. It will not change the location of the Collateral from the locations of the
Collateral described in this agreement, without providing at least ten (10)
days prior written notice to the Bank.
8. It will pay promptly when due all taxes and assessments upon the
Collateral, or for the use or operation of the Collateral;
9. No financing statement covering all or any part of the Collateral or any
proceeds is on file in any public office, unless the Bank has approved that
filing; From time to time at the Bank's request, the Debtor will execute
one or more financing statements in form
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satisfactory to the Bank and will pay the cost of filing them in all public
offices where filing is deemed by the Bank to be necessary or desirable. In
addition, the Debtor shall execute and deliver, or cause to be executed and
delivered, such other documents as the Bank may from time to time request
to perfect or to further evidence the security interest created in the
Collateral by this agreement including without limitation: (a) any
certificate or certificates of title to the Collateral with the security
interest of the Bank noted thereon or executed applications for such
certificates of title in form satisfactory to the Bank; (b) any assignments
of claims under government contracts which are included as part of the
Collateral, together with any notices and related documents as the Bank may
from time to time request; (c) any assignment of any specific account
receivable as the Bank may from time to time request; (d) a notice of
security interest and a control agreement with respect to any Collateral,
all in form and substance satisfactory to the Bank; (e) a notice to and
acknowledgment from any person holding possession of any Collateral as a
bailee for the Bank's benefit all in form and substance satisfactory to the
Bank; and (f) any consent to the assignment of proceeds of any letter of
credit, all in form and substance satisfactory to the Bank;
10. It will not, without the Bank's prior written consent, change the Debtor's
name, the Debtor's business organization, the jurisdiction under which the
Debtor's business organization is formed or organized, or the Debtor's
chief executive office, or of any additional places of the Debtor's
business;
11. It will provide any information that the Bank may reasonably request and
will permit the Bank or the Bank's agents to inspect and copy is books,
records, data and the Collateral at any time during normal business hours;
12. The Bank shall have the right now, and at any time in the future in its
sole and absolute discretion, without notice to the Debtor, to (a) prepare,
file and sign the Debtor's name on any proof of claim in bankruptcy or
similar document against any owner of the Collateral and ) prepare, file
and sign the Debtor's name on any financing statement, notice of lien,
assignment or satisfaction of lien or similar document in connection with
the Collateral. The Debtor hereby authorizes the Bank to file financing
statements containing the collateral description "All of the Debtor's
assets whether now owned or hereafter acquired" or such lesser amount of
assets as the Bank may determine, or the Bank may, at its option, file
financing statements containing any collateral description which reasonably
describes the Collateral in which a security interest is granted under this
agreement;
13. Immediately upon the Debtor's receipt of any Collateral evidenced by an
agreement, "instrument," "chattel paper," certificated "security" or
"document" (as such terms are defined in the UCC) (collectively, "Special
Collateral"), the Debtor shall xxxx the Special Collateral to show that it
is subject to the Bank's security interest and shall deliver the original
to the Bank together with appropriate endorsements and other specific
evidence of assignment in form and substance satisfactory to the Bank;
14. The Debtor shall keep all tangible Collateral in good order and repair and
shall not waste or destroy any of the Collateral, nor use any of the
Collateral in violation of any applicable law or any policy of insurance
thereon. To the extent that the Collateral consists of "farm products" (as
defined in the UCC), the Debtor shall attend to and care for the crops and
livestock in accordance with the best practices of good husbandry, and do,
or cause to be done, any and all acts that may at any time be appropriate
or necessary to grow, raise, harvest, care for, preserve and protect the
farm products;
15. Except as may be otherwise disclosed in writing by the Debtor to the Bank,
none of the Collateral is attached to real estate so as to constitute a
"fixture" (as defined in the UCC) and none of the Collateral shall at any
time hereafter be attached to real estate so as to constitute a fixture. If
any of the Collateral is now or at any time hereafter becomes so attached
to real estate so as to constitute a fixture, the Debtor shall, at any time
upon the Bank's request, furnish the Bank with a disclaimer of interest in
the Collateral executed by each person or entity having an interest in such
real estate.
Accounts; Chattel Paper; General Intangibles and Instruments. If the Collateral
includes the Debtor's "Accounts, Chattel Paper, General Intangibles and
Instruments" and until the Bank gives notice to the Debtor to the contrary, the
Debtor will, in the usual course of its business and at its own expense, on the
Bank's behalf but not as the Bank's agent, demand and receive and use its best
efforts to collect all moneys due or to become due with respect to the
Collateral. Until the Bank gives notice to the Debtor to the contrary or until
the Debtor is in default, it may use the funds collected in its business. Upon
notice from the Bank or upon default, the Debtor agrees that all sums of money
it receives on account of or in payment or settlement of the Accounts, Chattel
Paper, General Intangibles and instruments shall be held by it as trustee for
the Bank without commingling with any of the Debtor's other funds, and shall
immediately be delivered to the Bank with endorsement to the Bank's order of any
check or similar instrument. It is agreed that, at any time the Bank so elects,
the Bank shall be entitled, in its own name or in the name of the Debtor or
otherwise, but at the expense and cost of the Debtor, to collect, demand,
receive, xxx for or compromise any and all Accounts, Chattel Paper, General
Intangibles, and Instruments, and to give good and sufficient releases, to
endorse any decks, drafts or other orders for the payment of money payable to
the Debtor and, in the Bank's discretion, to file any claims or take any action
or proceeding which the Bank may deem necessary or advisable. It is expressly
understood and agreed, however, that the Bank shall not be required or obligated
in any manner to make any demand or to make any inquiry as to the nature or
sufficiency of any payment received by it or to present or file any claim or
take any other action to collect or enforce the payment of any amounts which may
have been assigned to the Bank or to which the Bank may be entitled at any time
or times. All notices required in this paragraph will be immediately effective
when sent. Such notices need not be given prior to the Bank's taking action. The
Debtor appoints the Bank or the Bank's designee as the Debtor's attorney-in-fact
to do all things with reference to the Collateral as provided for in this
section including without limitation (1) to notify the post office authorities
to change the Debtor's mailing address to one designated by the Bank, (2) to
receive, open and dispose of mail addressed to the Debtor, (3) to sign the
Debtor's name on any invoice or xxxx of lading relating to any Collateral on
assignments and verifications of account and on notices to the Debtor's
customers, and (4) to do all things necessary to carry out this aggreement. The
Debtor ratifies and approves all acts of the Bank as attorney-in-fact. The Bank
shall not be liable for any act or
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omission, nor any error of judgment or mistake of fact or law, but only for its
gross negligence or willful misconduct. This power being coupled with an
interest is irrevocable until all of the Liabilities have been fully satisfied.
Pledge. If the Debtor is not liable for all or any part of the Liabilities, then
the Debtor agrees that:
1. If any moneys become available from any source other than the Collateral
that the Bank can apply to the Liabilities, the Bank may apply them in any
manner it chooses, including but not limited to applying them against
obligations, indebtedness or liabilities which are not secured by this
agreement.
2. The Bank may take any action against the Borrower, the Collateral or any
other collateral for the Liabilities, or any other person liable for any
of the Liabilities.
3. The Bank may release the Borrower or anyone else from the Liabilities,
either in whole or in part, or release the Collateral in whole or in part
or any other collateral for the Liabilities, and need not perfect a
security interest in the Collateral or any other collateral for the
Liabilities.
4. The Bank does not have to exercise any rights that it has against the
Borrower or anyone else, or make any effort to realize on the Collateral or
any other collateral for the Liabilities, or exercise any right of setoff.
5. Without notice or demand and without affecting the Debtor's obligations
hereunder, from time to time, the Bank is authorized to: (a) renew, modify,
compromise, extend, accelerate or otherwise change the time for payment of,
or otherwise change the terms of the Liabilities or any part thereof,
including increasing or decreasing the rate of interest thereon; (b)
release, substitute or add any one or more sureties, endorsers, or
guarantors; (c) take and hold other collateral for the payment of the
Liabilities, and enforce, exchange, substitute, subordinate, waive or
release any such collateral; (d) proceed against the Collateral or any
other collateral for the Liabilities and direct the order or manner of sale
as the Bank in its discretion may determine; and (e) apply any and all
payments received by the Bank in connection with the Liabilities, or
recoveries from the Collateral or any other collateral for the Liabilities,
in such order or manner as the Bank in its discretion may determine.
6. The Debtor's obligations hereunder shall not be released, diminished or
affected by (a) any act or omission of the Bank, (b) the voluntary or
involuntary liquidation, sale or other disposition of all or substantially
all of the assets of the Borrower, or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings affecting the
Borrower or any of its assets, (c) any change in the composition or
structure of the Borrower, including a merger or consolidation with any
other person or entity, or (d) any payments made upon the Liabilities.
7. The Debtor expressly consents to any impairment of any other collateral for
the Liabilities, including, but not limited to, failure to perfect a
security interest and release of any other collateral for the Liabilities
and any such impairment or release shall not affect the Debtor's
obligations hereunder.
8. The Debtor waives and agrees not to enforce any rights of subrogation,
contribution or indemnification that it may have against the Borrower, any
person liable on the Liabilities, or the Collateral, until the Borrower and
the Debtor have fully performed all their obligations to the Bank, even if
those obligations are not covered by this agreement.
9. The Debtor waives (a) to the extent permitted by law, all rights and
benefits under any laws or statutes regarding sureties, as may be amended,
(b) any right the Debtor may have to receive notice of the following
matters before the Bank enforces any of its rights: (i) the Bank's
acceptance of this agreement, (ii) any credit that the Bank extends to the
Borrower, (iii) the Borrower's default, (iv) any demand, diligence,
presentment, dishonor and protest, or (v) any action that the Bank takes
regarding the Borrower, anyone else, any other collateral for the
Liabilities, or any of the Liabilities, which it might be entitled to by
law or under any other agreement, (c) any right it may have to require the
Bank to proceed against the Borrower, any other obligor or guarantor of the
Liabilities, the Collateral or any other collateral for the Liabilities, or
pursue any remedy in the Bank's power to pursue, (d) any defense based on
any claim that the Debtor's obligations exceed or are more burdensome than
those of the Borrower, (e) the benefit of any statute of limitations
affecting the Debtor's obligations hereunder or the enforcement hereof, (f)
any defense arising by reason of any disability or other defense of the
Borrower or by reason of the cessation from any cause whatsoever (other
than payment in full) of the obligation of the Borrower for the
Liabilities, and (g) any defense based on or arising out of any defense
that the Borrower may have to the payment or performance of the Liabilities
or any portion thereof. The Bank may waive or delay enforcing any of its
rights without losing them. Any waiver affects only the specific terms and
time period stated in the waiver.
10. The Debtor agrees that to the extent any payment is received by the Bank in
connection with the Liabilities, and all or any part of such payment is
subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid by the Bank or paid over to a trustee,
receiver or any other entity, whether under any bankruptcy act or otherwise
(any such payment is hereinafter referred to as a "Preferential Payment"),
then this agreement shall continue to be effective or shall be reinstated,
as the case may be, and whether or not the Bank is in possession of this
agreement, and, to the extent of such payment or repayment by the Bank, the
Liabilities or part thereof intended to be satisfied by such Preferential
Payment shall be revived and continued in full force and effect as if said
Preferential Payment had not been made. If this agreement must be
reinstated, the Debtor agrees to execute and deliver to the Bank any new
security agreements and financing statements, if necessary or if requested
by the Bank, in form and substance acceptable to the Bank, covering the
Collateral.
11. Any rights of the Debtor, whether now existing or hereafter arising, to
receive payment on account of any indebtedness (including interest) owed to
the Debtor by the Borrower, or to withdraw capital invested by the Debtor
in the Borrower, or to receive
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distributions from the Borrower, should at all times be subordinate to the
full and prior repayment to the Bank of the Liabilities. The Debtor shall
not be entitled to enforce or receive payment of any sums hereby
subordinated until the Liabilities have been paid in full and any such sums
received in violation of this agreement shall be received by the Debtor in
trust for the Bank. The Debtor agrees to fully cooperate with the Bank and
not to delay, impede or otherwise interfere with the efforts of the Bank to
secure payment from the assets which secure the Liabilities including
actions, proceedings, motions, orders, agreements or other matters relating
to relief from automatic stay, abandonment of property, use of cash
collateral and sale of the Bank's collateral free and clear of all liens.
The foregoing notwithstanding, until the occurrence of any default, the
Debtor is not prohibited from receiving distributions from the Borrower in
an amount equal to any income tax liability imposed on the Debtor
attributable to the Debtor's ownership interest in the Borrower, if any.
Default: Remedies. If any of the Liabilities are not paid at maturity, whether
by acceleration or otherwise, or if a default by anyone occurs under the terms
of any agreement related to any of the Liabilities, then the Bank shall have the
rights and remedies provided by law or this agreement, including but not limited
to the right to require the Debtor to assemble the Collateral and make it
available to the Bank at a place to be designated by the Bank which is
reasonably convenient to both parties, the right to take possession of the
Collateral with or without demand and with or without process of law, and the
right to sell and dispose of it and distribute the proceeds according to law.
Should a default occur the Debtor will pay to the Bank all costs reasonably
incurred by the Bank for the purpose of enforcing its rights hereunder, to the
extent not prohibited by law, including, without limitation; costs of
foreclosure; costs of obtaining money damages; and a reasonable fee for the
services of internal and outside attorneys employed or engaged by the Bank for
any purpose related to this agreement including, without limitation,
consultation, drafting documents, sending notices or instituting, prosecuting or
defending litigation or any proceeding. The Debtor agrees that upon default the
Bank may dispose of any of the Collateral in its then present condition, that
the Bank has no duty to repair or clean the Collateral prior to sale, and that
the disposal of the Collateral in its present condition or without repair or
clean-up shall not affect the commercial reasonableness of such sale or
disposition. The Bank's compliance with any applicable state or federal law
requirements in connection with the disposition of the Collateral will not
adversely affect the commercial reasonableness of any sale of the Collateral.
The Bank may disclaim warranties of title, possession, quiet enjoyment, and the
like, and the Debtor agrees that any such action shall not affect the commercial
reasonableness of the sale. In connection with the right of the Bank to take
possession of the Collateral, the Bank may take possession of any other items of
property in or on the Collateral at the time of taking possession, and hold them
for the Debtor without liability on the part of the Bank. The Debtor expressly
agrees that the Bank may enter upon the premises where the Collateral is
believed to be located without any obligation of payment to the Debtor, and that
the Bank may, without cost, use any and all of the Debtor's "equipment" (as
defined in the UCC) in the manufacturing or processing of any "inventory" (as
defined in the UCC) or in growing, raising, cultivating, caring for, harvesting,
loading and transporting of any of the Collateral that constitutes "farm
products" (as defined in the UCC). If there is any statutory requirement for
notice, that requirement shall be met if the Bank sends notice to the Debtor at
least ten (10) days prior to the date of sale, disposition or other event giving
rise to the required notice, and such notice shall be deemed commercially
reasonable. The Debtor is liable for any deficiency remaining after disposition
of the Collateral.
Miscellaneous.
1. Where the Collateral is located at, used in or attached to a facility
leased by the Debtor, the Debtor will obtain from the lessor a consent to
the granting of this security interest and a release or subordination of
the lessor's interest in any of the Collateral, in form acceptable to the
Bank.
2. At its option the Bank may, but shall be under no duty or obligation to,
discharge taxes, liens, security interests or other encumbrances at any
time levied or placed on the Collateral, pay for insurance on the
Collateral, and pay for the maintenance and preservation of the Collateral,
and the Debtor agrees to reimburse the Bank on demand for any payment made
or expense incurred by the Bank, with interest at the highest rate at which
interest may accrue under any of the instruments evidencing the
Liabilities.
3. No delay on the part of the Bank in the exercise of any right or remedy
waives that right or remedy, no single or partial exercise by the Bank: of
any right or remedy precludes any other exercise of it or the exercise of
any other right or remedy, and no waiver or indulgence by the Bank of any
default is effective unless it is in writing and signed by the Bank nor
does a waiver on one occasion waive that right on any future occasion.
4. If any provision of this agreement is invalid, it shall be ineffective only
to the extent of its invalidity, and the remaining provisions shall be
valid and effective.
5. Except as provided in the Accounts; Chattel Paper; General Intangibles; and
Instruments paragraph above, any notices and demands under or related to
this document shall be in writing and delivered to the intended party at
its address stated herein, and if to the Bank, at its main office if no
other address of the Bank is specified herein, by one of the following
means: (a) by hand, (b) by a nationally recognized overnight courier
service, or (c) by certified mail, postage prepaid, with return receipt
requested. Notice shall be deemed given: (a) upon receipt if delivered by
hand, (b) on the Delivery Day after the day of deposit with a nationally
recognized courier service, or (c) on the third Delivery Day after the
notice is deposited in the mail. "Delivery Day" means a day other than a
Saturday, a Sunday, or any other day on which national banking associations
are authorized to be closed. Any party may change its address for purposes
of the receipt of notices and demands by giving notice of such change in
the manner provided in this provision.
6. All rights of the Bank benefit the Bank's successors and assigns; and all
obligations of the Debtor bind the Debtor's heirs, executors,
administrators, successors and assigns. If there is more than one Debtor,
their obligations are joint and several.
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A carbon photographic or other reproduction of this agreement is
sufficient as, and can be filed as, a financing statement. The Bank is
irrevocably appointed the Debtor's attorney-in-fact to execute any
financing statement on the Debtor's behalf covering the Collateral.
Additionally, if permitted by applicable law, the Debtor authorizes the
Bank to file one or more financing statements related to the security
interests created by this agreement, and further authorizes the Bank, as
secured party herein, instead of the Debtor, to sign such financing
statements.
Restatement of Prior Security Agreement. This Security Agreement constitutes an
amendment and a restatement of that certain Loan and Security Agreement dated
July 31, 2000 (the "Prior Security Agreement") executed by the Debtor in favor
of the Bank in its entirety. The lien and security interest granted under the
Prior Security Agreement continues and subsists under this Security Agreement.
Indemnification. The Debtor agrees to indemnify, defend and hold the Bank and
BANK ONE CORPORATION, and any of its subsidiaries or affiliates or their
successors, and each of their respective shareholders, directors, officers,
employees and agents (collectively the "Indemnified Persons") harmless from any
and all obligations, claims, liabilities, losses, damages, penalties, fines,
forfeitures, actions, judgments suits, costs, expenses and disbursements of any
kind or nature (including, without limitation, any Indemnified Person's
attorneys' fees) (collectively the "Claims") which may be imposed upon, incurred
by or assessed against any Indemnified Person (whether or not caused by any
Indemnified Person's sole, concurrent, or contributory negligence) arising out
of or relating to this agreement; the Debtor's use of the property covered by
this agreement; the exercise of the rights and remedies granted under this
agreement (including, without limitation, the enforcement of this agreement and
the defense of any Indemnified Person's action. or inaction in connection with
this agreement); and in connection with the Debtor's failure to perform all of
the Debtor's obligations under this agreement, except to the limited extent that
the Claims against any such Indemnified Person are proximately caused by such
Indemnified Person's gross negligence or willful misconduct. The indemnification
provided for in this section shall survive the termination of this agreement and
shall extend to and continue to benefit each individual or entity who is or has
at any time been an Indemnified Person.
The Debtor's indemnity obligations under this section shall not in any way be
affected by the presence or absence of covering insurance, or by the amount of
such insurance or by the failure or refusal of any insurance carrier to perform
any obligation on its part under any insurance policy or policies affecting the
Debtor's assets or the Debtor's business activities. Should any Claim be made or
brought against any Indemnified Person by reason of any event as to which the
Debtor's indemnification obligations apply, then, upon any Indemnified Person's
demand, the Debtor, at its sole cost and expense, shall defend such Claim in the
Debtor's name, if necessary, by the attorneys for the Debtor's insurance carrier
(if such Claim is covered by insurance), or otherwise by such attorneys as any
Indemnified Person shall approve. Any Indemnified Person may also engage its own
attorneys at its reasonable discretion to defend the Debtor and to assist in its
defense and the Debtor agrees to pay the fees and disbursements of such
attorneys.
Governing Law and Venue. This agreement is delivered in the State of Illinois
and governed by Illinois law (without giving effect to its laws of conflicts),
except to the extent that the laws regarding the perfection and priority of
property of the state in which any property securing the Liabilities is located
are applicable. The Debtor agrees that any legal action or proceeding with
respect to any of its obligations under this agreement may be brought by the
Bank in any state or federal court located in the State of Illinois, as the Bank
in its sole discretion may elect. By the execution and delivery of this
agreement, the Debtor submits to and accepts, for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of those
courts. The Debtor waives any claim that the State of Illinois is not a
convenient forum or the proper venue for any such suit, action or proceeding.
Representations. Each Debtor represents that: (a) the execution and delivery of
this agreement and the performance of the obligations it imposes do not violate
any law, do not conflict with any agreement by which it is bound, and do not
require the consent or approval of any governmental authority or any third
party; (b) this agreement is a valid and binding agreement, enforceable
according to its terms; and (c) all balance sheets, profit and loss statements,
and other financial statements furnished to the Bank in connection with the
Liabilities are accurate and fairly reflect the financial condition of the
organizations and persons to which they apply on their effective dates,
including contingent liabilities of every type, which financial condition has
not changed materially and adversely since those dates. Each Debtor, other than
a natural person, further represents that: (a) it is duly organized, existing
and in good standing under the laws where it is organized; and (b) the execution
and delivery of this agreement and the performance of the obligations it imposes
(i) are within its powers and have been duly authorized by all necessary action
of its governing body; and (ii) do not contravene the terms of its articles of
corporation or organization, its by-laws, or any agreement governing its
affairs.
WAIVER OF SPECIAL DAMAGES, THE DEBTOR WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM
THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
JURY WAIVER. THE DEBTOR AND THE BANK (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY. IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN
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RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN OR
AMONG THE DEBTOR AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO THIS
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE
FINANCING DESCRIBED HEREIN.
Dated: MAY 30, 2002 Debtor:
Alltech Associates Inc.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx CFO
--------------------------------
Printed Name Title
Xxxxx Xxxxxx Ill3869
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